dissenting.
In his only ground of error appellant contests the admissibility of evidence of an extraneous aggravated rape. After a hearing outside the presence of the jury, the trial court ruled there were sufficient common distinguishing characteristics to support admission of the extraneous offense on the issue of identity.
*237The rules relating to this matter are expressed in Wintters v. State, 616 S.W.2d 197, 200 (Tex.Cr.App.):
“It is well established that an accused may not be tried for some collateral crime or for being a criminal generally. Hines v. State, 571 S.W.2d 322 [(Tex.Cr.App.)]; Cameron v. State, 530 S.W.2d 841 [(Tex. Cr.App.)]; Halliburton v. State, 528 S.W.2d 216 [(Tex.Cr.App.)]. One of the exceptions we have recognized to this general prohibition against the use of extraneous offenses, is that such evidence is admissible to refute a defensive theory raised by the accused. Buckner v. State, 571 S.W.2d 519 [(Tex.Cr.App.)]; Al-brecht v. State, 486 S.W.2d 97 [(Tex.Cr. App.)]. When the appellant raises the defensive theory of alibi, he places his identity in issue. Jones v. State, 587 S.W.2d 115 [(Tex.Cr.App.)]. Once the issue of identity has been raised, evidence of an extraneous offense is admissible to prove identity only if there is some distinguishing characteristic common to both the extraneous offense and the offense for which the accused is on trial. Todd v. State, 598 S.W.2d 286 [(Tex.Cr.App.)]; Jones v. State, supra; Ransom v. State, 503 S.W.2d 810 [(Tex.Cr.App.)].”
In Ford v. State, 484 S.W.2d 727, 729-732 (Tex.Cr.App.), the Court discussed the requirement of common distinguishing characteristics:
“... if it is established that the accused committed an extraneous offense, and that there is some distinguishing characteristic common both to it and the offense for which the accused is on trial, then an inference may be drawn that the accused was the person who committed the primary offense. On the other hand, if there is no common distinguishing characteristic, then the evidence is offered only to show that the accused has once committed a crime, and is therefore likely to have committed the principal offense. This is not permitted.
“The common distinguishing characteristic may be the proximity in time and place of the extraneous offense to the offense for which the accused is being tried. Or, the common element may be the mode of commission of the crimes, or the mode of dress of the perpetrator, or any other element which marks both crimes as having been committed by the same person.”
In this case appellant presented an alibi defense. Thus, an extraneous offense would be admissible if common distinguishing characteristics were shown. In overruling appellant’s objection the trial court found common distinguishing characteristics: “Committed approximately the same time of day, by a black man-white woman; alone in her apartment; in the same neighborhood; within a week of the offense on trial.” The record, however, reflects the attempted rape was in broad daylight, at about 5 p.m., while the extraneous offense was after dark at about 9 p.m. In one case the victim was working in her yard when approached by appellant who asked to use her phone and then assaulted her after they entered her house. In the other the rapist approached the victim in the laundry room of her apartment complex and the first thing he did was put a broken beer bottle to her neck and threaten her. She then was forced to an outside location where the rape was committed. There is no evidence that the two offenses were committed in the same neighborhood. The only similarities among those relied on by the trial court that are supported by the record are that the offender was black and the victim white, and that the offenses were within a one week period. DeVonish v. State, 500 S.W.2d 800 (Tex.Cr.App.), upon which the trial court expressly relied, is clearly distinguishable.
The State in its brief relies on additional similarities: both victims were Texas A & M coeds, the assailant in each offense wore sunglasses, and both assaults involved placing a sharp object to the victim’s neck, one a knife, the other a broken beer bottle. In Ford v. State, supra, it was found that the use of a pistol in each case does not constitute a common distinguishing characteristic. Here the weapons were less similar than two pistols. There also was no testimony about the kind of sunglasses worn. *238Although both victims happened to be Texas A & M coeds, this is not given any weight by a showing that they lived in the same neighborhood or both lived in a student housing area. The additional similarities urged by the State are no stronger an indication of the two acts being committed by a single offender than are those recited by the trial court.
The purpose of allowing an exception to the rule excluding extraneous offenses in cases where identity is placed in issue, is for use of the inference that the accused identified as the perpetrator of the extraneous offense is also the guilty party in the case on trial, because he is identified by witnesses to the extraneous offense and the similarities between the two offenses support a conclusion they were committed by the same person. If there are not sufficient similarities to support the conclusion that both offenses were committed by the same individual, the inference may not be made, and the reason for an exception to the exclusion of extraneous offenses does not arise. In this case there were not sufficient similarities to support a conclusion that both offenses were committed by the same person. The extraneous’offense should not have been admitted.
The majority relies on the plurality opinion in Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.), in which it was stated that the requirement of distinguishing similarities “apparently overlooks the well-established requirement that before any extraneous offense is admissible the offense must be clearly proven and the accused shown to have been its perpetrator.” To the contrary, what today’s majority and the Ransom plurality obviously overlook is that the relevance of an extraneous offense to the issue of identity depends on two independent propositions, both of which must be shown. Distinguishing characteristics common to the extraneous offense and the primary offense must be sufficient to support a reasonable inference that both crimes were committed by the same person. Without such an inference, the extraneous offense does not contribute to resolving the identity issue. The majority’s position ignores logic when it ignores the common distinguishing characteristics prong of the two-prong test for admission of extraneous offenses to prove identity.
To the majority’s flawed logic I must dissent.
MILLER, J., joins this opinion.