¶1dissenting.
¶2I do not think the jury, under the indictment and instructions of the law it was given, could have found Appellant guilty with the evidence it was presented. Accordingly, I dissent and would reverse and order an acquittal.
¶3The charge was that appellant intentionally penetrated the vagina of the victim without her consent. There is no dispute that he intentionally penetrated her vagina; similarly there is no question that she consented to a pelvic examination and the penetration of a patient’s vagina is how such an examination is done. All agree that the complainant consented to appellant’s penetration of her vagina.
¶4The evidence relied on to support the conviction are the actions of the appellant while conducting the examination; largely while his hand was inside the patient that he touched her unnecessarily while in her vagina and that the examination took longer than it should have. As repugnant and unprofessional as those activities are, I do not find they constitute evidence of the particular crime charged. In particular, the patient consented to appellant’s penetration of her vagina.
¶5The majority argues that although the patient consented to a vaginal examination, and thus consented to appellant’s penetration of her, her consent was limited to that which was necessary for the examination. When he went beyond that which was necessary, he committed sexual assault because he exceeded that to which she consented. However, that is not the crime with which he was charged.
¶6At the time he placed his hand in her, he had her consent to do so. There is no evidence that she withdrew her consent and the penetration continued.
¶7Given this evidence and charged offense, I must hold the conviction is not supported by the evidence. I would reverse and order an acquittal.
¶8dissenting.
¶9I respectfully dissent. I disagree with the majority that no error occurred in admitting the extraneous offense testimony of Mary Isabel Rios.
¶10The majority correctly states the standard of review in determining the admissibility of extraneous offense evidence, as enunciated in Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (opinion on reh’g), and Garcia v. State, 827 S.W.2d 27, 30 (Tex.App. — Corpus Christi 1992, no pet.). However, I believe that the majority incorrectly concludes that the trial court did not abuse its discretion by admitting the evidence because it is relevant to the issue of “intent.”
¶11Rios’ testimony is summarized in the majority’s opinion. During a hearing outside the presence of the jury on appellant’s motion in limine, the State argued that because the extraneous offense showed identical and not merely similar acts committed by the defendant, the evidence was admissible to prove his intent to commit the offense, citing Valenciano v. State, 705 S.W.2d 339 (Tex.App. — San Antonio 1986, pet. ref'd), cert. denied, 484 U.S. 861, 108 S.Ct. 177, 98 L.Ed.2d 130 (1987). During its final argument, the State focused strongly on the extraneous conduct, imploring the jury to consider both *723instances of conduct and to find appellant guilty of the offense charged.
¶12The majority discusses the relevancy of the extraneous conduct and concludes that appellant’s intent cannot readily be inferred from the evidence by simply considering Garcia’s testimony and appellant’s act. The majority determines that, since the allowed evidence demonstrated appellant’s intent to go beyond what a prenatal patient consents to in a pelvic examination and indicated appellant’s knowledge of Garcia’s inability to resist, the evidence is relevant under Tex.R.Crim.Evid. 401 and 404(b). The majority then determines that because 1) the extraneous conduct was significantly similar to the charged offense in nature, 2) it occurred immediately prior to the charged offense, and 3) the only source for evidence of intent and appellant’s knowledge must come through the testimony of other patients, the probative value of Rios’ testimony outweighs the prejudicial effect. Finding the trial court’s ruling “within the zone of reasonable disagreement,” the majority concludes that the trial court did not abuse its discretion by allowing the extraneous offense testimony. I disagree with the majority’s evaluation of the evidence.
¶13When we determine the admissibility of extraneous offense evidence on appeal, we review not only the relevance of that evidence, but the State’s need for it as well. Montgomery, 810 S.W.2d at 392; Garcia, 827 S.W.2d at 30. Evidence of extraneous acts has been held admissible to prove intent where it is an essential element of the State’s case and cannot be inferred from the act itself. Garcia, 827 S.W.2d at 30; Valenciano, 705 S.W.2d at 342 (citing Morgan v. State, 692 S.W.2d 877, 880 (Tex.Crim.App.1985)).
¶14Because appellant’s intent to penetrate Garcia’s sexual organ without her consent and knowing she was physically unable to resist can readily be inferred from Garcia’s own testimony, there was no compelling need to admit the extraneous act witness’ testimony to show intent. Compare with Valenciano, 705 S.W.2d at 342 (extraneous evidence necessary to prove intent, where defendant’s conduct alone can be considered consistent with accident as with a specific lascivious intent). Appellant’s conduct in engaging in acts of a sexual nature during Garcia’s physical examination can only be considered consistent with a specific lascivious intent to exceed the scope of her consent to a proper, medical examination. See also Lazcano v. State, 836 S.W.2d 654, 659-60 (Tex.App. — El Paso 1992, pet. ref'd).
¶15According to the majority, Garcia’s testimony, together with Sister Patricia’s testimony concerning the accepted nature of a proper physical examination, suffices to establish appellant’s guilt on the issue of consent. It seems inconsistent for the majority to later determine that evidence of the extraneous conduct is additionally necessary to establish the requisite companion element of intent. I would hold that the trial court abused its discretion in admitting the extraneous offense evidence to show intent.
¶16Even if relevant, the negative attributes of the extraneous offense evidence substantially outweighed any probative value. Tex. R.CRIM.Evid. 403 assumes that a piece of evidence may be both relevant and prejudicial. Castillo v. State, 865 S.W.2d 89, 96 (Tex.App. — Corpus Christi 1993, no pet.) (en banc denial of motion for rehearing). Being relevant, the evidence is admissible, subject to the rules of evidence. Tex.R.CRIM.Evid. 402; Castillo, 865 S.W.2d at 96. Nevertheless, Rule 403 envisions occasionally excluding relevant evidence on the grounds that its probative value is too slight to justify the risk that a jury may emotionally respond to the evidence. Castillo, 865 S.W.2d at 96. “As the rules contemplate ... extraneous offense evidence is inherently prejudicial.” Id. at 97.
¶17After a thorough review of the record, I conclude that the probative value of the extraneous offense evidence is marginal and outweighed by its prejudicial effect. During the State’s examination of Rios and at final argument, the prosecution focused on the following two facts: 1) that Suarez palpitated Rios’ breasts after having already performed a breast examination, and 2) that Suarez smelled the rubber glove he used to perform the pelvic examination before he threw it away. The record is clear that the prosecution wanted to show character conformity, rather than intent. There was no concen*724trated discussion of the material elements of consent or inability to resist. The extraneous offense evidence was not kept brief. Instead, much attention was paid to the extraneous offense conduct during the rest of the trial.
¶18Persons are not tried as criminals generally; they are tried for individual offenses. Castillo, 865 S.W.2d at 97. From the presentation of the State’s case, it appears appellant was tried for a collateral crime as well as this crime, and the State’s intent to inflame the jury with the extraneous evidence is more than apparent. Under these facts, I would hold that the trial court erred by admitting the extraneous offense evidence. I cannot conclude beyond a reasonable doubt that the erroneous introduction of the extraneous offense did not contribute to the appellant’s conviction. I cannot hold that the error was harmless beyond a reasonable doubt.
¶19Accordingly, I would sustain appellant’s second point of error. I would reverse the trial court’s judgment and would remand the case for a new trial.
¶20For the reasons stated above, I respectfully dissent.