dissenting.
Where the corpus delicti is proved by direct evidence, but the appellant’s agency as the guilty party is proved only by circumstantial evidence, a circumstantial evidence charge must be given.1 Casey v. State, 523 S.W.2d 658 (Tex.Cr.App.1975); Self v. State, 513 S.W.2d 832 (Tex.Cr.App.1974).
Yet the majority now holds that where only the corpus delicti — but not the appellant’s agency — is proved by direct evidence, a circumstantial evidence charge need not be given. This has never been the law in Texas, and I cannot agree that it should become so now.
In this case the evidence tending to show that appellant was the person who shot the complainant was circumstantial, not direct. The appellant filed a timely requested charge on circumstantial evidence. I would hold that the court’s failure to respond to this request was reversible error.
In Gamboa v. State, 528 S.W.2d 247 (Tex.Cr.App.1975), a witness testified that she was in the room next to the room where the murder occurred. She heard gunshots and quickly went into the adjoining room, where she saw the defendant putting a gun in his pocket. She watched as the defendant ripped the telephone off the wall and left the house. The two victims were found shot to death in the room in which the witness saw the defendant.
In Gamboa, a majority of this Court held:
“The evidence against appellant was strongly circumstantial. While the circumstances strongly suggested his guilt, there was no direct evidence of the fac-tum probandum. No one saw appellant fire the fatal shots. Nor was there direct evidence that the bullet which killed the deceased came from the weapon later taken from appellant. Under such circumstances, Texas law requires that a charge on circumstantial evidence be given.” Gamboa v. State, supra, at 248.
In Casey v. State, supra, there was direct evidence that the deceased was shot in the head and killed during a robbery of a Dallas service station. The robbery and murder took place at a Gulf service station just south of L.B.J. Freeway in Dallas during the night of May 22, 1973, or during the early morning of May 23, 1973.
There was direct evidence that one night in May, 1973, appellant went to a store or service station and shot a man in the head. In its unanimous reversal this Court stated that this latter evidence “was direct evidence that appellant had committed an offense, [but] it was not direct evidence that appellant was guilty of the murder of Richard Allen O’Neill, the deceased in the instant case.” Casey v. State, supra, at 660.
There was also direct evidence in Casey, in the form of Casey’s confession, that he and a companion robbed a Gulf or Exxon service station one night in late May, 1973, and that he shot the attendant in the head. *398This Court held that a charge on circumstantial evidence was required.
What these eases hold is that even where there is direct evidence of the corpus delicti, a charge on circumstantial evidence is still required unless there is also direct proof that the accused hims°lf committed the very crime charged in the indictment.
That is exactly the situation in the case before us now — there is strong evidence that the appellant committed the crime charged, but it is clear that the evidence is only circumstantial. Compare Hielscher v. State, 511 S.W.2d 305 (Tex.Cr.App.1974); Crawford v. State, 502 S.W.2d 768 (Tex.Cr.App.1973). And see Parker v. State, 492 S.W.2d 590 (Tex.Cr.App.1973).
The court’s failure to charge on the law of circumstantial evidence was clearly error. Gamboa v. State, supra; Casey v. State, supra.
The judgment should be reversed.
PHILLIPS, J., joins in this dissent.. Thus: “In murder the main fact to be proved — the factum probandum — is that the accused inflicted the fatal wound, that he killed the deceased or acted together with the party who did, and if the main fact is proved as a matter of inference from other facts in evidence the case rest wholly, in a legal sense, upon circumstantial evidence, and a jury called upon to pass upon a case of that character should be informed by the charge of the court as to the nature of such evidence and as to the test provided by law to determine the sufficiency of circumstantial evidence, [citations omitted]” 4 Branch’s Ann. P.C., 2d Ed., Sec. 2049, p. 357.