dissenting on motion for rehearing.
Leave to file and the State’s motion for rehearing should be granted and the conviction affirmed.
The gist of the majority opinion appears to be that the court erred in permitting testimony of the forcible assault by the appellant upon another woman, because the consent or lack of consent by the other woman had no bearing on the consent of the woman with whom the appellant had intercourse in the present case.
The indictment in the present case charged rape by force. The appellant’s defense was that no force was used. The attempt to prove consent was an attempt to disprove force as a defense. The evidence of the forcible attack on the other woman was admissible to rebut the defense of appellant, pellant.
The quoted part of the federal court opinion in Lovely v. United States, 4th Cir., 169 F.2d 386, to which this Court is not bound, if applicable, is not sound and should not be followed.
In fine, when a defendant introduces testimony that he did not forcibly rape a complainant, proof that he forcibly raped another should be admissible to rebut his defense. Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97, should be followed or it should be overruled.