OPINION ON STATE’S MOTION FOR REHEARING
TOM G. DAVIS, Judge.Appeal is taken from a conviction for capital murder. After finding appellant guilty, the jury answered “yes” to the three special issues submitted under Art. 37-071(b), V.A.C.C.P. Punishment was assessed at death.
On original submission, appellant’s conviction was reversed due to the improper exclusion of a prospective juror under V.T. C.A., Penal Code, Sec. 12.31(b) and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In its motion for rehearing, the State “requests this Court to grant it the option of accepting a life sentence in this case.” Such requests have previously been denied by this Court. See Fearance v. State, 620 S.W.2d 577 (Tex.Cr.App.1980); Grijalva v. State, 614 S.W.2d 420 (Tex.Cr.App.1980); Loudres v. State, 614 S.W.2d 407 (Tex.Cr.App.1980). However, the record in the present cause reflects that on January 7, 1982, the Honorable William P. Clements, Jr., Governor of the State of Texas, signed a proclamation commuting appellant’s punishment to life. In view of appellant’s life sentence following the commutation, errors, if any, in the punishment phase of this prosecution are harmless. See Sanne v. State, 609 S.W.2d 762 (Tex.Cr.App.1980). However, as hereinafter noted, we still have the responsibility of reviewing alleged errors at the guilt stage of the trial.
In Whan v. State, 485 S.W.2d 275 (Tex.Cr.App.1972) we held under Art. 4, Sec. 11, of the Texas Constitution providing “the Governor shall have power, after conviction ... to grant reprieves and commutation” (emphasis supplied) that the Governor may commute a death sentence to life imprisonment before the final disposition by this Court. See also Rodriguez v. State, 626 S.W.2d 35 (Tex.Cr.App.1981); Wilder v. State, 623 S.W.2d 650 (Tex.Cr.App.1981); Simmons v. State, 623 S.W.2d 416 (Tex.Cr.App.1981); Adams v. State, 624 S.W.2d 568 (Tex.Cr.App.1981); Clark v. State, 627 S.W.2d 693 (Tex.Cr.App.1981).
In each of the foregoing capital murder cases, at the time the commutation proclamation was issued, the alleged error before the Court affected only the punishment stage of the cases. Since the Governor’s commutation “rendered the death penalty *926portion of the trial court’s judgment and subsequent sentence a nullity,” Whan, supra at 277, and mitigated the punishment in the cases to the only other possible punishment which could have been entered upon a guilty verdict in a capital case, V.T.C.A. Penal Code, Sec. 12.31, we affirmed the judgment of conviction in each of those cases.
However, we noted in Whan, that “a commutation does not affect the judgment, but merely mitigates the punishment which can be given.” 485 S.W.2d at 277. When, as in the instant case, there is error in the guilt stage which affects the judgment, the commutation by the Governor, which relates to punishment only, is of no effect.
In his ninth ground of error, appellant contends the court erred in admitting hearsay evidence.1 Such evidence consists of the victim’s out-of-court declaration to a police officer that appellant was the individual who shot her.
The instant offense occurred at the Fisca Service Station in Greenville on April 9, 1979. Peggy Woodard testified that she was at the station on the day of the offense visiting with her sister, the victim. Woodard left the station at approximately 8:55 p.m. and related that no one was there other than her sister. Officer Raymond Webb, of the Greenville Police Department, arrived at the service station at 9:18 p.m. Upon entering the station, he found the victim lying on the floor. Rogers was conscious and told Webb that she had been shot six times in the back. Rogers was then taken by ambulance to Citizen’s General Hospital in Greenville.
Dr. Harris Hollingsworth testified that he performed surgery on Rogers on the night of April 9. Hollingsworth removed two slugs from Rogers and she was then placed in the intensive care unit. Hollingsworth related that on April 23, Rogers “was stable” in her condition. She was then transferred to a “regular room.” She suffered “brain death” on April 25.
The evidence of which appellant complains in this ground of error was admitted through the testimony of police officer Ivan Gustin, of the Greenville Police Department. Gustin testified that at 8:50 a.m. on April 10, he went to the hospital in order to see Rogers. The officer took six photographs with him. Gustin testified that Rogers was unable to speak, however she was able to move her lips and make gestures with her hands.
Gustin related that upon entering Rogers’ hospital room he “asked her if she would look at some pictures and try to identify someone who had robbed her.” One of the photographs depicted appellant. Gustin testified that he asked Rogers “who shot you?” In describing Rogers’ actions when she was shown appellant’s picture, Gustin testified that “she made a shooting motion with her hands.” Specifically, Gustin stated:
“A. (By the witness) She made a shooting motion, cocking her thumb with her finger pointed out.
“Q. (By Mr. Davis) Was this a very definite gesture?
“A. Yes, sir, it was.”
The court overruled appellant’s numerous and timely objections in which it was urged that Gustin’s testimony describing Rogers’ actions constituted inadmissible hearsay.
In Salas v. State, 403 S.W.2d 440 (Tex.Cr.App.1966), it was stated that hearsay evidence is that which a given witness offers in court which is not based on his own knowledge but is merely a repetition of what he has been told and which is offered as proof of truth of matter contained therein. This Court has recognized that an assertion by conduct can be hearsay. In Byrd v. State, 89 Tex.Cr.R. 371, 231 S.W. 399 (1921), it was noted that evidence from a witness to the effect that he was present when a third party pointed out the defendant as the man who sold him liquor, would be objectionable as hearsay. In this regard, in 1A R. Ray, Texas Evidence, 3rd ed., Sec. *927784, pp. 7-8, it is recognized that an assertion by conduct which indicates a belief of some alleged fact is hearsay. Specifically, it is written:
“A sharp contrast is drawn between evidence of statements or assertions made by one out of court which is a characteristic feature of hearsay evidence, and evidence of acts or conduct of persons out of court which of course is generally objectionable on this score. But suppose the evidence of the act is only significant as indicating a belief on the actor’s part of some alleged fact. Suppose the issue to be whether A was the man who committed a theft from B, and to show B’s belief evidence is offered that B assaulted A immediately after the theft. If the evidence has any relevance, it is only as the equivalent of a statement by B that A was the thief. Of course, B’s conduct would not be understood as being a manner of communicating his belief; an assault is not normally ‘a substitute for words in expressing the matter stated.’ If he were asked, Who is the thief?, and pointed to A, his action would be ‘assertive,’ and subject to the hearsay objection as fully as the statement, ‘A is the thief.’ Sign-language, and an expressive gesture, are the substantial equivalent of verbal statements.” (Emphasis in original).
In Wells v. State, 43 Tex.Cr.R. 451, 67 S.W. 1020 (1902), the defendant’s conviction for rape was reversed due to the improper admission of hearsay. There, two witnesses were permitted to testify that the husband of the prosecutrix assaulted the defendant shortly after the rape. Such evidence was inadmissible, as hearsay, as tending to show that the husband beleived that the defendant was the man who had committed the offense.
In D.L.N. v. State, 590 S.W.2d 820 (Tex.Civ.App.—Dallas 1979, no writ), the defendant’s conviction for sexual abuse of a child was reversed due to the improper admission of hearsay testimony. In describing such testimony, the court stated as follows:
“The girl’s father also testified concerning the meeting. He said that the child was present and that he and others asked her questions. At this point appellant’s hearsay objection was overruled. The father then testified that he asked the child to demonstrate what had happened, and she responded by pulling up her dress and saying ‘He kissed me right there.’ When asked what he made her do, she went over to appellant, put her head in his lap and tried to undo his pants. After this testimony was given, appellant’s counsel objected that the scene ‘took place somewhere else,’ that the child was forced to do something by her father, that nobody was under oath, and took place outside the courtroom, and asked the court to instruct the jury to disregard the evidence. These objections were overruled.” Id. at 822.
The court concluded that none of the foregoing evidence was competent to prove the delinquent conduct alleged, since all of it depended on assertions by the child and conduct by her that was interpreted by her parents and others as indicating what had occurred between her and the defendant. It was thus concluded that such evidence was hearsay and not admissible within any exception to the hearsay rule.
In the present cause, Gustin testified that he showed several photographs to the victim after asking her to identify the individual who had shot and robbed her. When shown appellant’s photograph, Rogers made a shooting motion with her hand. Gustin’s testimony concerning Rogers’ actions and conduct was only significant as indicating her belief that appellant was the individual who had shot her. Such conduct was assertive in nature and testimony concerning that conduct was hearsay.
The State concedes that Gustin’s testimony concerning Rogers’ conduct constituted hearsay. However, the State maintains that such testimony was admissible “as part of the victim’s res gestae.”
In Watson v. State, 532 S.W.2d 619 (Tex.Cr.App.1976), this Court noted that we have previously held that a description of the offender given by the victim of the crime to police officers immediately after a crime is *928admissible as a res gestae statement. In Ricondo v. State, 475 S.W.2d 793 (Tex.Cr.App.1971), it was found that a statement made shortly after the victim was beaten was admissible as a res gestae statement.
In Martinez v. State, 533 S.W.2d 20 (Tex.Cr.App.1976), the defendant sought to introduce certain statements made by the victim before his death. The statements allegedly identified someone other than the defendant as the person who had committed the offense. The trial court refused to admit the statements. This Court concluded that the statements were properly excluded. It was noted that the statements were made 18 hours after the victim had been stabbed and had an opportunity to talk with other persons. It was held that under the circumstances presented, the spontaneity of the statement and the absence of time to contrive, misrepresent and fabricate were not sufficiently shown to justify overruling the trial court’s decision to exclude the testimony.
In the present cause, Rogers was shown appellant’s picture some 12 hours after the offense. The victim had been through surgery and was confined in the intensive care unit. The State did not present evidence of Rogers’ physical condition or state of mind at the time she spoke with Gustin. Under the circumstances presented, we are unable to conclude that Rogers’s conduct was shown to be spontaneous and unreflective in nature. Therefore, Gustin’s testimony concerning Rogers’ conduct was not admissible as a res gestae statement or action of the victim.
Further, Gustin’s testimony concerning Rogers’ conduct was not admissible as a dying declaration. Art. 38.20, V.A.C. C.P., provides for the admissibility of a dying declaration in the following manner:
“The dying declaration of a deceased person may be offered in evidence, either for or against a defendant charged with the homicide of such deceased person, under the restrictions hereafter provided. To render the declarations of the deceased competent evidence, it must be satisfactorily proved:
“1. That at the time of making such declaration he was conscious of approaching death, and believed there was no hope of recovery;
“2. That such declaration was voluntarily made, and not through the persuasion of any person;
“3. That such declaration was not made in answer to interrogatories calculated to lead the deceased to make any particular statement; and “4. That he was of sane mind at the time of making the declaration.”
Rogers’ conduct does not qualify as a dying declaration under the provisions of the above quoted statute because the evidence does not show that she was conscious of approaching death and believed there was no hope for recovery at the time she identified appellant’s picture as the person who had robbed and shot her. See Martinez v. State, supra.
We find the court erred in overruling appellant’s objection to Gustin’s testimony concerning Rogers’ conduct at the photo spread. Whether the improper admission of hearsay evidence requires the reversal of a conviction is determined on a case by case basis. Torres v. State, 552 S.W.2d 821 (Tex.Cr.App.1977). The duty of this Court is to determine from the record the probable impact of the erroneously admitted evidence upon “the minds of the average jury.” Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). Unless there is a reasonable possibility that the improperly admitted evidence contributed to the defendant’s conviction, reversal is not required. Wilder v. State, 583 S.W.2d 349 (Tex.Cr.App.1979).
The only direct evidence of appellant’s participation in the instant offense, other than Gustin’s testimony concerning Rogers’ conduct, came from the testimony of appellant’s codefendant and brother, Jeffrey Graham. He related that in return for his testimony in the instant cause, a plea bargain agreement had been reached in which capital murder charges would be dismissed and he would plead guilty for a five *929year sentence to a charge of conspiracy to commit capital murder. Graham related that he and his brother, appellant, went to the scene of the offense. While Graham stayed in his automobile, appellant entered the service station and “started shooting.” Graham did not see his brother shoot the attendant. However, when appellant returned to the car, he told Graham that he had “shot the woman.” Finally, Graham related that he had driven his car, a brown Firebird, both to and from the scene of the offense.
Officer Raymond Webb testified that he arrived at the scene of the offense at approximately 9:18 p.m. He found the victim on the floor lying on her back. She told Webb that the person who shot her “was driving a brown Firebird.” The victim’s sister, Woodard, was at the service station at approximately 8:55 p.m. While leaving the station, she observed Jeffrey Graham driving a Firebird automobile toward the station. Woodard testified that appellant was a passenger in Graham’s automobile.
We find that there is a reasonable possibility that the improperly admitted evidence from Gustin contributed to appellant’s conviction. For the improper admission of such evidence, the conviction must be reversed.
The State’s motion for rehearing is denied.
. In light of our disposition on original submission it was not necessary to consider this ground of error.