(dissenting).
Article 1162, Vernon’s Ann.P.C., provides that:
“If any person shall assault a woman with intent to commit the offense of rape, he shall be confined in the penitentiary for any term of years not less than two.” (emphasis supplied)
To constitute an assault with intent to commit rape, the State has the burden of *163proving1 a specific intent to rape,2 and said burden is not satisfied by evidence showing only a mere possibility of such specific intent.3 Moreover, the rule has been that there must be a present intent to commit rape accompanying the assault,4 with a few cases stating that there must be a showing that the assailant intended rape “at the very time” 5 or “at once” 6 or “then and there.” 7
Consistent with these authorities the indictment in the instant case charged the appellant with assaulting the prosecutrix “with the intent then and there to commit the offense of rape.” (emphasis supplied).
The court also instructed the jury in its charge as follows:
“To warrant a conviction of the defendant of an assault with intent to commit the crime of rape, it must appear from the evidence beyond a reasonable doubt, first, that the defendant at the time and place alleged in the indictment, made an assault in and upon S- E-, and second, that the defendant then and there had the intent by such assault and by threats, as above defined, to obtain carnal knowledge of the said SE-without her consent and against her will.” (emphasis supplied)
In the instant case, the prosecutrix entered the appellant’s car at his request after he had identified himself as Sergeant Reed under the circumstances described in the opinion on original submission.
After they had driven a while the appellant stopped the car, placed a gun to the prosecutrix’s neck, told her he had needed a hostage as he had killed a policeman and would kill her if necessary. He tied her hands and ankles. This assault took place in Travis County, and it was this assault which is made the basis of this prosecution.
The appellant asked the prosecutrix to suggest a place where he might hide his car, and she suggested Wimberley where she had once lived. They drove the thirty miles from Austin to San Marcos and then toward Wimberley. After a while appellant stopped, smoked a cigarette, drank a beer and took some pills. Later he drove on “out by Devil’s Backbone” and stopped in a field. Here he drank some more beer, smoked and consumed more pills and talked to the prosecutrix. Later he asked her to rub his shoulder and then told her to take off her clothing and he undressed. It was at this point that the act of oral sodomy was committed, and this was followed by the act of sexual intercourse and other acts described in the earlier opinion. These sexual acts all took place in Hays County.
The prosecutrix testified that they were in the field approximately one hour before the first sexual relations were had.
*164As stated in the opinion on original submission,
. .As noted above, a present intent to rape must accompany the assaul-tive action. If there was no intent in Travis County but it arose later in another county, he could not properly be convicted for assault with intent to rape in Travis County.”
In order to find the requisite intent in Travis County the majority opinion calls attention to the prosecutrix’s testimony that as she was told to undress and just prior to the act of oral sodomy, appellant asked her if she “had any idea that this was going to happen.” She replied, “[TJhat I presumed that it was, that I couldn’t think of any other reason why he would have stopped me.”
The majority has seized upon this conversation in Hays County as evidence of appellant’s intent at the time of the assault in Travis County. The prosecutrix’s presumption certainly cannot be utilized for such purpose. This leaves only appellant’s inquiry directed to the prosecutrix while in Hays County, and the testimony never did clarify what “this” in the question had reference to — whether it was to the act of undressing which was then occurring, the act of sodomy which followed or the subsequent sexual intercourse or all of these.
In this regard the prosecutrix’s testimony on cross examination is highly significant.
“Q Mrs. E-, tell me every sexual overture Ken Douthit made to you in Travis County, Texas.
“A None in Travis County.
“Q Did he put a hand on you ?
“A Yes, sir, he did.
“Q And tie you up? Is that correct?
“A Yes, sir.
“Q But sexually, he did not—
“A No, sir.
“Q At all?
“A No, sir.
“Q At the time you left Travis County, had you had any indication that you were —that he was going to have sexual relations with you, any indication by word or sign?
“A I didn’t know.
“Q Had he said anything?
“A No, sir.
“Q Had he done anything that indicated to you he was about to have sexual relations with you?
“A Not that I can recall.”
I cannot agree that the evidence, considered in the light most favorable to the jury’s verdict, shows any more than a mere possibility of the existence of the requisite intent, and this mere possibility is not sufficient to sustain the conviction. Because the evidence relied on to show the requisite intent in Travis County is circumstantial, proof amounting to only a strong suspicion or mere probability is not sufficient. The proof in this case does not exclude every reasonable hypothesis except the guilt of the accused for the offense charged. Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969).
As pointed out in the appellant’s brief the facts of this case present a brutal criminal transaction, but these facts do not deprive the appellant of his right to have the State prove the crime alleged in the indictment beyond a reasonable doubt. I agree. As this court said in Robat v. State, 91 Tex.Cr.R. 468, 239 S.W. 966 (1922), “[t]he fact that the conduct attributed to the appellant was atrocious and merited punishment cannot take the place of proof establishing the elements of an assault with intent to rape.”
*165There is direct evidence in the record tending to show that the following crimes were committed by appellant in Travis County: (1) assault with a prohibited weapon (Article 1151, Vernon’s Ann.P.C.) ; (2) aggravated assault (Article 1148, Vernon’s Ann.P.C.) ; and (3) false imprisonment (Article 1169, Vernon’s Ann.P.C.). Further, there is direct evidence that the following offenses occurred in Hays County: (1) false imprisonment (Article 1169, Vernon’s Ann.P.C.); (2) aggravated assault (Article 1148, Vernon’s Ann.P.C.); (3) assault with a prohibited weapon (Article 1151, Vernon’s Ann.P.C.) ; (4) sodomy (Article 524, Vernon’s Ann.P.C.), and (5) rape (Article 1189, Vernon’s Ann.P.C.). The record also reflects evidence of a rape in Williamson County for which appellant was tried and acquitted.
The State chose to prosecute appellant in Travis County for the offense charged in the indictment and was bound by the requirements of the laws regarding such offense. For these reasons I cannot agree to overrule appellant’s motion for rehearing and to affirm the conviction.
Further, I have grave doubts as to the new rule established by the majority in overruling Griffin v. State, supra, and Cromeans v. State, supra. The law as announced by the majority now returns to the “ulterior purpose” principle first stated as dictum in McAvoy v. State, 41 Tex.Cr.R. 56, 51 S,W. 928 (1899). As I read the majority opinion, it is sufficient for there to be an assault coupled with a “present intent” to rape the victim at some future occasion, i. e., a present intention to do a future act. The law has been well-settled since Griffin, and I see no reason to change it now.
Still further, Ledesma v. State, 147 Tex.Cr.R. 37, 181 S.W.2d 705 (1944), seems to have been misapplied in answering the appellant’s contention regarding the State’s right to carve but one time. Ledesma dealt with the question of whether the trial court should have required the State to elect upon which of several acts the State relied for conviction. It does not stand for the proposition that appellant could be tried and separately convicted for each act of sexual intercourse.
I dissent.
MORRISON, J., joins in this dissent.
. House v. State, 9 Tex.Cr.R. 567 (Tex.Ct.App.1880); Robertson v. State, 30 Tex.App. 498, 17 S.W. 1068, 1070 (1892).
. Adams v. State, 215 S.W.2d 327 (Tex.Cr.App.1949); Selby v. State, 103 Tex.Cr.R. 499, 281 S.W. 561 (1928); Robat v. State, 91 Tex.Cr.R. 468, 239 S.W. 966 (1922); Cotton v. State, 52 Tex.Cr.R. 55, 105 S.W. 185 (1907).
. Adams v. State, supra note 2; Winans v. State, 114 Tex.Cr.R. 182, 24 S.W.2d 421 (1929); Selby v. State, supra note 2; Robat v. State, supra note 2; Cotton v. State, supra note 2.
. Willis v. State, 473 S.W.2d 200, 202 (Tex.Cr.App.1971); Maynard v. State, 154 Tex.Cr.R. 594, 228 S.W.2d 185, 187 (1950); Bell v. State, 135 Tex.Cr.R. 651, 122 S.W.2d 630 (1938); Munoz v. State, 132 Tex.Cr.R. 218, 104 S.W.2d 25 (1937); Bartlett v. State, 117 Tex.Cr.R. 468, 38 S.W.2d 103, 108 (1931); Williams v. State, 106 Tex.Cr.R. 183, 291 S.W. 893 (1927); Grant v. State, 105 Tex.Cr.R. 193, 287 S.W. 254 (1926); Vinsen v. State, 102 Tex.Cr.R. 235, 277 S.W. 644 (1925); Stoker v. State, 93 Tex.Cr.R. 24, 245 S.W. 444 (1922).
. Cromeans v. State, 59 Tex.Cr.R. 611, 129 S.W. 1129 (1910); Griffin v. State, 151 Tex.Cr.R. 185, 206 S.W.2d 259 (1947).
. Huebsch v. State, 94 Tex.Cr.R. 461, 251 S.W. 1079, 1081 (1923).
. Bell v. State, supra note 4.