dissenting.
The Court of Appeals found the hearsay testified to by Louise Posey concerning her conversation with the desk clerk was without probative value in determining the sufficiency of the evidence. See Gutierrez v. State, 628 S.W.2d 57 (Tex.Cr.App.1980); Alvarado v. State, 632 S.W.2d 608 (Tex.Cr.App.1982). Disregarding the hearsay, the Court of Appeals concluded the case was an obviously weak circumstantial evidence case, and noted the State had failed to call the desk clerk who could have supplied direct evidence that the appellant had unlawfully used the credit card. The court then cited the rule discussed in Cruz v. State, 482 S.W.2d 264 (Tex.Cr.App.1972), and reversed upon the basis of insufficient evidence to support the jury verdict.
The majority now reverses the Court of Appeals and affirms the conviction. In doing so the majority finds it necessary to slip into the graveyard and exhume the rule discussed in Cruz,1 and then, with a flourish, rebury the rule with a funeral oratory that the black-hatted villain (meaning rule), so “inherently illogical,” is now dead and is being “deep sixed” by an intelligent and enlightened majority far superi- or to those who applied the rule for over 30 years. All that is missing is the request “Please applaud.”
Not being satisfied with that action, the majority, in an anticipatory mood, rushes forward to beat any adoption of the proposed criminal rules of evidence, see Tex.Bar Journal, Vol. 48, number 8, Sept. 1985; H.B. 13 (Acts 1985, 69th Leg., ch. 685, p. 5136), and declares that unobjected to hearsay testimony does have probative *249value. So much for attempts to gain early credit.2
Strangely enough, having established a new rule, the majority fails to demonstrate how the rule was necessary to the conclusion reached. The evidence is summarized without any reference to the so-called hearsay.
It is well to examine the hearsay testimony that apparently has caused so much controversy in determining the sufficiency of the evidence. Louise Posey testified that on December 15, 1981, she was the full-time manager, on a 24 hour basis, of the Lexington Apartments and Motor Inn in Dallas County. She lived on the premises. The record then reflects the following on direct examination:
“Q. Without ... what happened at 6:20 a.m. on the morning of December 15th, 1981?
“A. I came into the office and the desk clerk on duty at the time told me that he had just checked in a couple and there are not many people who check in at that hour, and he showed me the registration card and also, the American Express ... imprint made from the American Express card, and told me that he had checked a couple into Room 111.
“Q. And he had those documents ... he still had those out and he showed those to you at that time?
“A. Yes, he did. They had just finished checking in.
“Q. What was the name shown on the registration of the ... that appeared to be the name of the person registered?
“A. Jerome Fiske, F-i-s-k-e.
“Q. And what name was on the imprint of the American Express credit card?
“A. The same name.”
Thereafter the State offered the registration card and imprint of the credit card into evidence as State’s exhibits # 1 and 2. After determining on voir dire that the handwriting on the exhibits reflecting the number “# 111” was in the handwriting of the clerk known to the witness Posey, the appellant offered “No objections” to the offer of the exhibits which were admitted into evidence.
Thereafter on further direct examination of Posey the State established the procedure in which registration cards are filled out and how the room number (in this case # 111) is written on the card, etc. Thereafter the record reflects:
“Q. Now, did you have a conversation with the clerk about the appearance of the two people that he had rented this room to?
“A. Very definitely.
“Q. And what did you tell the clerk at the end of that conversation.
“A. That I would keep my eye out on the room.”
After examining the registration card showing that a Jerome Fiske had checked into Room 111 at 6:15 a.m., five minutes before she arrived in the office, and also showing a license plate number of a car and “Drivers license No. 57262249 Tennessee” as well as the imprint of the American Express card, etc., Posey, shortly thereafter, saw a black male, whom she identified as appellant, and a tall white woman come into the office. They talked about waiting for a taxi and the woman said they were in Room 111.
Posey related appellant and the woman left by taxi, that later she had a call from a car rental company concerning the American Express card and called the police; and still later the woman telephoned and said they were returning to check out of Room 111. On cross-examination it was established that Posey was not present at the time the registration card was filled out.
What was the hearsay involved in Po-sey’s testimony which should have been *250excluded upon a proper objection, if one had been made. Posey testified that upon entering the office at 6:20 a.m. the desk clerk told her “he had just checked in a couple ... checked a couple in Room 111.” Later, when asked if she had a conversation with the desk clerk about the appearance of the couple, she simply responded “Very definitely” but did not reveal the contents of that conversation. Posey then stated she told the clerk she would keep “my eyes out on the room.” This is all the hearsay involved in Posey’s testimony, and not all of this was hearsay.
It was perfectly permissible for Posey to testify that she went to the office and as a result of a conversation with the clerk examined the registration card, the imprint of the credit card, etc., which showed registration at 6:15 a.m. It was also permissible for her to relate that her conversation concerned the appearance of the couple. She stated only she had such a conversation, not what the conversation was. She did not even later testify the appearance of appellant and the woman matched the description given her.
The Court of Appeals in its opinion stated “Posey had been told by the clerk on duty before her that a black man and white woman had very recently checked into Room 111.” This is not supported by Po-sey’s testimony, although it might have been inferred.
The supposed “hearsay” has been blown all out of proportion. It is not the pivotal turning point in this case. The hearsay is immaterial as matters mentioned therein are supported by other evidence. The evidence is or is not sufficient without regard to the hearsay.
The indictment drafted under V.T.C.A., Penal Code, § 32.31, alleged in pertinent part that appellant “with intent to fraudulently obtain property and services, namely, the rent of a room, from Louise Dyringe Posey, knowingly and intentionally use and present an American Express credit card Number 3782 916 388 2202 with knowledge that the card had not been issued to the said defendant, and that the said card was not used with the effective consent of the cardholder, Jerome Thomas Fiske.”
The elements of the offense as charged in the indictment were (1) a person (2) with intent to fraudulently obtain (3) property or service (4) presents or uses (5) credit card (6) with knowledge that it is not used with effective consent of cardholder. See and cf. Branch’s Texas Anno.Penal Statutes, 3rd Ed., Vol. Two, p. 562.
The evidence reflects the credit card in question and other items were taken from Fiske by a party or parties unknown after 1 a.m. on December 15th at the Eight Days’ Inn. At 6:15 a.m., according to State’s exhibits, someone used the credit card to rent Room #111 at the Lexington Motor Hotel just across the way from the Eight Days’ Inn. There were two in the party according to the exhibits. Shortly after 6:20 a.m. appellant and a woman appeared at the office of the Lexington and stated they were in Room 111. Later on December 15th appellant in company with a white woman attempted to rent a car, presenting a Tennessee driver’s license in the name of Fiske, and presenting a credit card in question. After some difficulty in securing the approval of American Express, appellant left the car rental office, leaving the credit card, but taking the driver’s license with him. When he returned to the Lexington, he attempted to flee when he saw the police. A check found in Room 111 made out to Fiske and signed by a Harold Vogt bore appellant’s fingerprints. Other items taken from Fiske were also found in the room.
The evidence does not show who took the credit card and other items from Fiske. He did not know. The evidence reflects the credit card was used to secure Room 111 at the Lexington. There is no direct evidence who used or presented that card to the desk clerk or signed the registration card. No handwriting exemplars were utilized. Two people checked into the room, and later appellant’s female companion told Po-sey, manager of the Lexington, they were in Room 111. Later in the day, the exact time not being revealed, appellant was in *251possession of the credit card while attempting to rent a car. He attempted to flee when he saw the police upon returning to the Lexington. Appellant’s fingerprints were on a check found in Room 111. There was no evidence as to the time the prints had been placed on the check.
Was there sufficient evidence to show that appellant used and presented the credit card as charged in the indictment? This Court, of course, must view the evidence in the light most favorable to the jury verdict. Houston v. State, 663 S.W.2d 455 (Tex.Cr.App.1984), and in this light the standard is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 97 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 563 (1979). This standard for review of the sufficiency of the evidence to sustain a conviction is now the same in both direct and circumstantial evidence cases. Houston v. State, supra.
Applying this standard, it is clear that a rational trier of the facts could not have found from the evidence beyond a reasonable doubt the essential element that appellant used and presented the credit card as that element was charged in the indictment. This is so despite the highly suspicious circumstances presented by the evidence. A conviction cannot be sustained if the evidence leaves a reasonable doubt as to the guilt of the accused. Jackson v. Virginia, supra. A conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the defendant. Johnson v. State, 673 S.W.2d 190 (Tex.Cr.App.1984).
Just why this case was chosen as a vehicle to again bury one rule and announce the birth of another dealing with hearsay when the hearsay here was totally immaterial, is not made clear unless it was something that just appealed to the majority’s fancy, and it decided it had the muscle to do it.
I dissent for all reasons stated. The Court of Appeals reached the right result.
. The rule discussed in Cruz was interred by footnotes in Denby v. State, 654 S.W.2d 457 (Tex.Cr.App.1983) (Opinion on State’s Motion for Rehearing), at p. 464, and in Wilson v. State, 654 S.W.2d 465 (Tex.Cr.App.1983) (Opinion on State’s Motion for Rehearing), at p. 472.
. Under said H.B. 13 the rules of criminal evidence should be promulgated by January 1, 1986. Those rules when promulgated will have an effective date so that they will be applicable only to trials commencing after that date.