concurring.
I agree that the remarkably similar as-saultive transaction offered by the State in this cause was admissible to rebut appellant’s defensive testimony; I write only to point out what I perceive as the vulnerabili*503ty of attempting to resolve an evidentiary question, such as the one before us, through application of the mechanics of a “general rule" and its “exceptions.” Citing an “exception” “to the rule against extraneous offenses,” the majority concludes that the similar transaction here was admissible on the issue of appellant’s “intent,” characterizing such issue as having been “necessarily” raised by his defensive theory of “consent.”
It is true that his intent was necessarily raised, but as a secondary issue only, when appellant denied the use of force and threats against the complainant. Contrary to the opinion of the majority, I believe that from the assaultive conduct of the accused-the force and threats employed to compel sexual intercourse1 his intent to rape may indeed be inferred, given there is proof of the intercourse.
In the instant case, an assaultive attack similar to the one made upon complainant-literally, minutes before-was admissible, in my opinion, to rebut appellant’s claims that he had neither pulled a pistol on complainant, nor threatened to kill her, nor assaulted her in any way.
Indeed, appellant neither admitted nor denied having sexual intercourse with complainant when he took the stand in his own defense.2 What he did deny was the use of force and threats against her; excerpts from his testimony follow:
“[I first saw the complaining witness] after the actual curbing of the automobile, and the person got out and I learned it was a female then. * * * I believe I almost ran into her ...; I was swerving on and off the road ..., and I thought possibly some car damage had been done so I pulled her over. * * *
I was not [intentionally trying to run her off the road]. * * *
I was walking up toward the car and saying something about a flat tire and we had a conversation for four or five minutes at the car and then the person got out with a flashlight to look at it. * *
At first [our conversation] was basically about the tire itself, and then I started flirting with the young lady, noticing she was very attractive, and I started talking to her in that manner of speech. * * *
... [W]e were going to my truck.... She opened the door [to my truck]. * * I proceeded to flirt with her and so forth driving down the freeway, and as we passed by a Holiday Inn... I had said something about how I would like to go there with somebody, and I believe her question was, ‘what a pity that you don’t have anybody to go with to that motel,’ and I said, ‘Not as of now, I don’t,’ and she smiled. * * *
Well, after I made this statement about the Holiday Inn and talked about it for a while she said she had to get home because her husband would be home, ... and she suggested a place where we could go park at_ * * *
I remember getting on the freeway and going through this small street and then I was in this field. [But, it was at her directions that [we] got there.]”
Appellant concluded his account of his encounter with complainant by describing how “one thing led to another” [see n. 2 ante]. He then specifically denied upon interrogation that he “ever hit” complainant, that he threatened her, or brandished a pistol.
*504Thus, appellant squarely contested the issue of whether he had employed acts constituting force and threats against the complainant, before the jury. The question before us, therefore, is whether a strikingly similar assault made minutes before the primary offense, and at a place just down the road, was admissible to rebut the contested issue of appellant’s culpable use of force and threats against complainant.
Complainant testified that at about 12:30 a. m. on February 22, 1975, a Saturday morning, as she was driving down the Gulf Freeway in Houston, she noticed a truck honking at her; she saw the driver start over into her lane and, attempting to avoid a collision, she hit the curb and went up onto the shoulder of the highway. Thinking she had flattened a tire as she hit the drainage diích, complainant pulled to a stop. Appellant walked up to her car and came to the window, saying she had a flat tire and he would fix it for her.
Complainant testified that the first thing she noticed about appellant was that “he had a spot of blood on his forehead;” he told her he had hit his forehead when he “hit the curb.” She testified that she was “petrified,” but eventually exited her car, grabbing a flashlight, to check her tires.
At this moment, appellant grabbed her arm and pulled a pistol, pointing it at her. Complainant testified:
“He said, ‘You are going to do what I want or I will shoot you,’ and I said, ‘Okay,’ and then he fired the gun at the road [behind me], and ... said, ‘Come with me?,’ and he still had ahold of my arm.”
Appellant forced complainant into his truck and took off down the freeway. After ten or fifteen minutes, he told her he was going to take her back' to her ear “because he decided [she] wasn’t the girl he was looking for.”3 But on approaching her car appellant failed to stop and drove to the end of a dead end street, then about 100 yards further, and stopped.
Continuing to point the pistol, and threatening to shoot her if she disobeyed his commands, appellant forced complainant to take off her blouse and halter top. Appellant “fondled [her] chest, and then he undid his pants and took them off half way. * * he [told her] ... to perform oral sex on him,” which she did. Appellant then instructed her to remove her pants, and attempted sexual intercourse. Failing that, he instructed her to exit the truck and “take ahold of his penis,” and walked her into the woods along a bayou.
Appellant then sat down on complainant’s chest, forcing her to again take his penis in her mouth and, eventually, after getting complainant on top of him, penetrated her vagina with his penis. It was at this point that the police arrived, having been called by a man who observed the truck pass the barricade at the dead end street. Officer W. K. Allup testified that after complainant had been taken to the hospital, when he looked in the truck, “there was a considerable amount of blood stains on the seat, the steering wheel and the floorboard ... and a lot of clothing on the floorboard and the seat.”4 He further testified that, “earlier we had heard over the radio a general description of a pickup fitting this pickup, a pickup truck, a Chevrolet ...,” and related that “I heard earlier about the shooting and I thought the actor would have a pistol.... ” Allsup did indeed find a pistol in appellant’s pickup, on the driver’s seat, and discovered five spent rounds and one live round in the chamber.
The testimony of Allsup and some of the facts related by complainant were illuminated by D_ H_, the victim of the extraneous transaction. In the last minutes of February 21, 1975, D_ H— had left Deer Park, and was travelling near the Gulf *505Freeway toward Loop 610 in Houston. Shortly after midnight she noticed a truck trying to push her car off the road as she approached an overpass. On the overpass appellant hit her car with his truck and she stopped. He got out of his truck and according to D_ H_ was “yelling something about my tires going flat and I rolled down my window to look and he was standing there with a gun at my head. * * * He then said, ‘You are coming with me’ and he grabbed my hair and started pulling me out of the car through the open window and started to beat me over the head with the pistol.”
D— H got out of the car and appellant dragged her toward his truck as she struggled; she got away, but he grabbed her again and hit her head repeatedly with the pistol. She sustained several lacerations with considerable bleeding. According to D_H_,
“[H]e demanded money, and my purse was still in my car..., and he dragged me back to my car and took the money I had ... and then he said, ‘Okay, I am going to leave and kill you’.”
Also while back at her car appellant instructed her to remove her pants and panties, which she did. Appellant said “You are not going to run away like that,” and again struggled with and hit D_H_with the pistol until he forced her into the back of his truck. Appellant then got into his truck, and was pulling away, when D_ H— jumped out, ran to her car, got in and started the engine.
Appellant at this point started shooting at D— H-She sustained three gun shot wounds, and a fourth slug was later recovered by the police from a bullet hole found inside the back seat of her car.5
It was only on cross examination by defense counsel that a possible attempted rape of D_H_was mentioned. While D_ H_ answered affirmatively when asked, “Did he attempt to rape you?,” on being asked to explain “what exactly did he do as far as the attempted rape goes?,” she replied, “He removed my jeans and panties, and I don’t remember exactly what he did; he stuck something up me, but I don't know what.”6 Thus, whether D_H_⅛ testimony demonstrated an attempted rape upon her is questionable.
It is an established proposition of evidence that proof of similar happenings, extraneous transactions or prior specific acts of misconduct committed by a party is irrelevant to the contested material issues in the case on trial and therefore inadmissible.7
In a criminal proceeding, when the extraneous or similar transaction committed by an accused, sought to be admitted by the State, constitutes a criminal offense, introduction of that “extraneous offense” transaction is inherently prejudicial because the accused is entitled to be tried on the accusation made in the State’s charging instrument and therefore cannot be tried for some collateral crime of which he has no notice. Murphy, supra; Jones v. State, 568 S.W.2d 847 (Tex.Cr.App.1978); Walls v. State, 548 S.W.2d 38 (Tex.Cr.App.1977); Young v. State, 261 S.W.2d 836 (Tex.Cr.App.1953); Couch v. State, 238 S.W.2d 198 *506(Tex.Cr.App.1951). Additionally, such introduction is inherently prejudicial because an accused’s “propensity to commit crimes” is not an issue which is material to whether he is guilty of the specified conduct charged by the State;8 it follows therefore, that introduction of evidence establishing such a propensity constitutes a trial of the accused as a “criminal generally” which is prohibited. E. g., Murphy, supra; Young, supra; Couch, supra; Clements v. State, 182 S.W.2d 915 (Tex.Cr.App.1944); see Spivey v. State, 171 S.W.2d 140 (Tex.Cr.App.1943). See also Jones, supra; Etchiesen v. State, 574 S.W.2d 753 (Tex.Cr.App.1978); Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App.1975); Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972).
But, these evidentiary principles, as most, must in some circumstances give way. For extraneous transactions constituting offenses shown to have been committed by the accused9 may become admissible upon a showing by the prosecution both that the transaction is relevant to a material issue in the case;10 and, the relevancy value of the evidence outweighs its inflammatory or prejudicial potential. Holley v. State, 582 S.W.2d 115 (Tex.Cr.App.1979); Ruiz v. State, 579 S.W.2d 206 (Tex.Cr.App.1979); Jones, supra.
In determining this evidentiary balance in a case established by direct evidence,11 the court must consider whether the material issue to which the extraneous conduct is relevant is contested, and, if so, in looking to the attributes of the extraneous offense as shown by the State, determine whether its admission would be of assistance to the jury in resolving the contested issue12 before it.
So, the issue we confront on appeal is whether the conduct of appellant constituting force and threats against D H — , tended to rebut appellant’s contesting claim on the material issue before the jury: that he had employed no threats or force against the primary complainant. Clearly, the facts of the extraneous offense were highly probative of the issue. While I believe the trial court erred by admitting evidence of the extraneous offense in the State’s case in chief, since at that point the issue was uncontested, it is clear that the evidence was ultimately rendered admissible in rebuttal when appellant contested the complainant’s direct testimony regarding his use of force and threats against her. See, e. g., Lee v. State, 496 S.W.2d 616 (Tex.Cr.App.1973); Johnson v. State, 494 S.W.2d 870 (Tex.Cr.App.1973); Gilmore v. State, 493 S.W.2d 163 (Tex.Cr.App.1973).
For the reasons expressed, I respectfully concur in the result reached by the majority, as well as the demise, as an unyielding and inviolate proposition, of the rule in Jackel.
. Only because the acts of “force” and “threats” constitute, by statute, the “circumstances” under which “the intercourse is without the female’s consent,” V.T.C.A. Penal Code, § 21.02(b), is the issue before the jury, in a peripheral sense, one of “consent.” (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)
. The closest appellant got in his testimony to the issue was the following:
“Well, first of all I pulled in there and 1 next turned around and parked the truck in the middle of the field and I started hugging on her and one thing led to another, and we were naked by a tree of some sort. * * * I was laying down and she was on top of me and all of a sudden she jumped up and I turned around and she said ‘There are some flashlights,’ and I followed her out as she proceeded to get into the truck.”
. Complainant had testified that appellant told her a story about his brother being stabbed by a girl in California, who appellant claimed, looked like complainant and drove a car like hers.
. A more specific accounting by Detective Carolyn Stephenson found bloodstains on a “man’s ‘large’ blue jean jacket” and on “one pair of men’s levis.” They and other clothing found in the cab were admitted in evidence.
. This testimony, together with that of the primary complainant regarding appellant’s firing a single shot in the road behind her, explained Officer Allsup’s testimony that he had found five spent rounds in appellant’s pistol, and surely rebutted appellant’s claim that he had not used a pistol during the transaction.
. Apparently in an effort to impeach her, defense counsel brought out that in prior testimony D— H— had not related that appellant “sexually molested” her. D_H_explained that she had thought the question had meant “sexual intercourse,” which she confirmed had not occurred.
.Murphy v. State, 587 S.W.2d 718 (Tex.Cr.App.1979); Finley v. State, 573 S.W.2d 238 (Tex.Cr.App.1978); Grayson v. State, 481 S.W.2d 859 (Tex.Cr.App.1972); Johnson v. State, 418 S.W.2d 522 (Tex.Cr.App.1967); Flores v. State, 209 S.W.2d 68 (Tex.Cr.App.1948); Stone v. State, 182 S.W.2d 400 (Tex.Cr.App.1944); Locke v. State, 88 S.W.2d 110 (Tex.Cr.App.1936); Dallas Ry. and Terminal Co. v. Farnsworth, 227 S.W.2d 1017 (Tex.1950); Swinney v. Winters, 532 S.W.2d 396 (Tex.Cr.App.-San Antonio, 1975, writ ref'd n. r. e.); Davis v. Zapata Petroleum Co., 351 S.W.2d 916 (Tex.Civ.App.-El Paso, 1961, writ ref'd n. r. e.).
. Or restated in a manner familiar to law students: “A bad man may have a righteous cause;” or apropos in the instant case: “The fact that one woman was raped has no tendency to prove that another one did not consent.”
. It is always required that the commission of the extraneous offense is clearly proved and the accused is shown to have been its perpetrator. Carrillo v. State, 591 S.W.2d 876 (Tex.Cr.App.1979); Ranson v. State, 503 S.W.2d 810 (Tex.Cr.App.1974); see also 23 T.J.2d Evidence § 195 (1961).
. Coleman v. State, 577 S.W.2d 695 (Tex.Cr.App.1978); Buckner v. State, 571 S.W.2d 519 (Tex.Cr.App.1978); Finley, supra; Walls, supra; Halliburton v. State, 528 S.W.2d 216 (Tex.Cr.App.1975).
. For assistance on the question in circumstantial evidence cases, see Etchiesen, supra; Mulchey v. State, 574 S.W.2d 112 (Tex.Cr.App.1978); and Jones, supra.
. For example, when the contested jury issue is the “identity” of the perpetrator, generally, only a showing of distinguishing characteristics, common to both the primary and extraneous offenses, will render the latter of any probative value to the jury on the issue of identity. See, e. g., Collins v. State, 577 S.W.2d 236 (Tex.Cr.App.1979); Buckner, supra; Ransom, supra; Ford v. State, 484 S.W.2d 727 (Tex.Cr.App.1972).