(dissenting).
In his sole ground of error appellant challenges the sufficiency of the evidence to sustain the conviction. The indictment, omitting the formal parts, alleged that the appellant in Dallas County, Texas “on or about the 12th day of January in the year of our Lord One Thousand Nine Hundred and 78 in the County and State aforesaid, did then and there unlawfully take and offer to take and accept and place for a person known only to the Grand Jurors as !Z,’ bets and wagers of money on a football game to wit: ‘Z’ Miami + 2⅜ 220.”1
It is appellant’s contention that the evidence failed to establish venue, failed to establish when the alleged offense occurred and generally failed to sustain the allegations of the indictment.
Detective W. D. Glenn of the Greater Dallas Organised Crime Task Force testified that on January 12,1973, pursuant to a, search warrant he and other officers conducted a search of apartment # 204 in Dallas at 9922 Miller Road. Glenn related the appellant Herndon admitted them after they knocked on the apartment door. Glenn observed that in the apartment there was a living-dining room arrangement and on top of the dining room table were two telephones. A Deborah Cross was found in the kitchen and arrested. In her purse was forty-four hundred dollars. Glenn, who was qualified as an expert on bookmaking operations, also testified he observed State’s Exhibits #3 and #4, which he described as line sheet documents on basketball games. Glenn identified State’s Exhibit #5 as a note pad of nine pages listing names of teams, the odds on the teams and the amount bet, with the individual names depicting which individual bet how much on each game. He, however, never stated that *122State’s Exhibit # 5 was found in the apartment. He also identified State’s Exhibit # 6 as a note pad containing initials, a team with the odds and the amount bet on the team.
Detective Don Hamon of the Irving Police Department assisted in the search and testified he found a “settle up” sheet in the bedroom described as disclosing the names of various bettors, their winnings and losses and the amount collected or paid by the bookmaker. This sheet was admitted as State’s Exhibit #7.
Detective Pfeifer of the Grand Prairie Police Department also assisted in the search and disclosed he had found a “settle up” sheet in appellant’s front pants’ pocket. Contrary to Glenn’s description of the location of the telephones, Pfeifer testified one was on the kitchen table and another in the bedroom. He related the phones rang often, and, over objection, testified that at 6:50 p. m. an individual identifying himself as “Sammy” called and when Pfeifer answered, asked “Gene?” to which Pfeifer stated, “Yeah.” Pfeifer then testified, “The caller stated, ‘This is Sam; what’s the line?’ I gave the line to the caller. Sammy then said, ‘I’ll take two dollars on Miami plus two and a half.’ I said, ‘You’re on,’ and asked if two dollars meant two hundred dollars and he said, ‘Sure,’ and hung up.”
Pfeifer related that after 6:50 p. m. a “Jack W” called to place a bet on a basketball game.
Ray Vaughn, Dallas City Police Department sergeant, was qualified as an expert on bookmaking operations. He testified that State’s Exhibits #3 and #4 were basketball schedules transformed into line sheets for professional bookmaking. Vaughn testified that State’s Exhibit # 5, a spiral notebook, and the “particular entries on this (page 1 of exhibit) are actually going to be bet slips or what you would commonly refer to as tickets. It would be where a bookmaker would place the particular bet that an individual made more for record keeping purposes, the amount of money wagered in the particular bet that he made, at what point he made it at.” He testified that a “juice” meant the fee a person would pay a bookmaker on a losing wager, normally ten percent, so that the juice on a $200 bet would be $20. His attention was then directed “to a notebook sheet stapled to the back of that page (three of Exhibit #5),” and he stated, “In my opinion that’s probably going to be some football bets, probably on the Super Bowl” between Miami and Washington on January 14, 1973. His attention was then directed to the entry on that sheet, “ ‘Z’ Miami + 2½ 220” and he stated, “In my opinion that would be a bettor identified or coded by the name of ‘Z’ had placed a bet on Miami plus two and half for two hundred and twenty dollars.” Under the court’s questioning he admitted State’s Exhibit #5 had no date on it. He was shown State’s Exhibit #6 and the entry “C M Washington — 2 110,” and he stated it was a wager of some sort. When asked if it was the Washington football game, he answered, “Well, that’s . actually be hard to say whether it was a football game or not.”
Fred Green, an accountant and cryptographer of the Dallas Police Department, testified he had examined the exhibits in evidence and had made computations therefrom. He testified it was his opinion that the first three pages of Exhibit #5 reflected the bookmaker as winning $1,825 for the “Monday”2 reflected thereon. He testified State’s Exhibit #8 revealed that $4,400 had been netted on various bets and that was the amount found in Deborah Cross’ purse. Green also related that a bettor whose code name or initials were “ELT” appeared throughout the exhibits.
Elton Schackman testified he had known the appellant for 10 years and for a couple of years had placed wagers with the appellant on games he watched on television. He explained he did not know appellant was a bookmaker, but that appellant placed *123bets for him and he received money from the appellant when he won and he paid appellant when he lost. Schackman, after his memory was refreshed, testified he placed a bet with the appellant on the Miami Dolphins in the 1973 Super Bowl on January 12, 1973.
The foreman of the grand jury, Harry Crutcher, Jr., which returned the indictment in question, stated that an indepth investigation had been conducted by a special investigator assigned to the grand jury by the Dallas Police Department and efforts to determine the identity of an individual known as “Z” had been unsuccessful and the grand jury determined that further investigation would be futile. He revealed the grand jury then returned the indictment alleging that “Z” was a person unknown to the grand jury.
Turning to the question presented on appeal, the sufficiency of the evidence, it is observed that this is a circumstantial evidence case. The question is not whether the evidence is sufficient to show that appellant was connected with bookmaking but whether the State sustained its burden of proof to specifically show that on or about January 12, 1973, in Dallas County the appellant “did then and there unlawfully take and offer to take and accept and place for a person known only to the Grand Jurors as ‘Z’ bets and wagers of money on a football game, to wit: lll Miami + 2¾⅞ 220” as charged in the indictment.
“The legal meaning of the term ‘bet’ is the mutual agreement and tender of a gift of something valuable, which is to belong to one of the contending parties, according to the result of a trial of chance, or skill, or both combined.” Odle v. State, 139 Tex.Cr.R. 288, 139 S.W.2d 595 (1940). “A wager is a contract by which two or more parties agree that a certain sum of money or other thing shall be paid or delivered to one of them on the happening of an uncertain event.” Odle v. State, supra.
The State relies in large measure upon the notation found in State’s Exhibit #5, “ ‘Z’ Miami + 2Vfe 220,” and upon the opinion testimony that this represented a wager on a football game.
While the State offered an officer’s opinion that “Z” was a code name or initial for an individual and the grand jury foreman testified as to efforts to locate “Z,” this was the only proof offered to show “Z” was a living person or that “Z” ever represented a living person capable of making a wager.
The only evidence that the bet or wager was on a football game as alleged in the indictment was Officer Vaughn’s opinion testimony the entries on page 3 of Exhibit 5 were “probably going to be” football bets on the Super Bowl and so identified the notation “ ‘T Miami + 2⅛ 220” as being such a bet. However, when shown the entry “C M Washington ... 2 110” on Exhibit 6 he could not say whether that was a wager on a football game or not.
Next, we look to see if the appellant was connected with Exhibit 5.
Although appellant was arrested in the apartment, there was no showing who owned, rented or leased the apartment, no showing to whom the telephones were listed and no showing who paid the utilities. Much of the exhibits were in handwriting, including the notation in State’s Exhibit # 5, as well as State’s Exhibit #8, found in appellant’s pocket, but no handwriting testimony was offered and there was a void of fingerprint testimony. While Officer Glenn testified he saw some betting slips on the kitchen table, he never testified that State’s Exhibit #5, a spiral notebook of nine pages, was one of the items observed or that it was found in the apartment in question. If it was, he never identified the notation “ ‘Z’ Miami + 2½ 220” as being part of such exhibit when found. The code “Z” was found only in Exhibit # 5 and that exhibit bore no date at all.3
*124The appellant was in the apartment at the time of his arrest, but his relationship to the apartment was not established. Even if Exhibit #5 was found in the apartment, his connection thereto by fingerprints, handwriting or possession was not established. There can be no doubt that other proof raised a strong suspicion or probability that the appellant was involved in the alleged offense, but in a circumstantial evidence case is this sufficient?
In 24 Tex.Jur.2d, Evidence, Sec. 742, p. 422, it is written:
“In criminal cases, a judgment of conviction, to be sustained on appeal, must be supported by evidence that produces a moral certainty of the guilt of the accused to the exclusion of every reasonable doubt. The evidence will be insufficient to sustain the conviction where, although not leaving the accused free from suspicion of guilt, it still fails to show his guilt to a moral certainty, so as to exclude all reasonable doubt.”
In Smith v. State, 165 Tex.Cr.R. 445, 308 S.W.2d 516 (1958), this court wrote:
“As the state’s case depends solely upon circumstantial evidence, the evidence in order to be sufficient to show appellant’s guilt must exclude every other reasonable hypothesis save and except his guilt and must go further than to raise a probability or suspicion.” See also Hollingsworth v. State, 419 S.W.2d 854 (Tex.Cr.App.1967).
And as stated in Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969):
“A conviction on circumstantial evidence cannot be sustained on proof amounting only to a strong suspicion or mere probability. Such proof does not exclude every other reasonable hypothesis except that of the guilt of the accused.”
See also Higgins v. State, 515 S.W.2d 268 (Tex.Cr.App.1974); Walker v. State, 513 S.W.2d 39 (Tex.Cr.App.1974); Randolph v. State, 505 S.W.2d 845 (Tex.Cr.App.1974); Prejean v. State, 480 S.W.2d 652 (Tex.Cr.App.1972).
It is true in circumstantial evidence cases it is not necessary that every fact point independently and directly to the defendant’s guilt, for it is enough if the conclusion of guilt is warranted by the combined and cumulative force of all the incriminating circumstances, Mills v. State, 508 S.W.2d 823 (Tex.Cr.App.1974), but the circumstantial evidence must be sufficient to exclude every other reasonable hypothesis except that of the defendant’s guilt. Nelson v. State, 505 S.W.2d 271 (Tex.Cr.App.1974).
I would find the evidence in the instant case insufficient to sustain the conviction. The judgment should be reversed and the cause remanded.
ROBERTS, J., joins in this opinion.. It is observed the indictment upon which this trial was had was not returned until January 20. 1975.
. On page 1 of State’s Exhibit #5 is the handwritten “Mon,” which the witness translated into “Monday.”
. Article 21.02, Sec. 6, Vernon’s Ann.C.C.P., provides:
“The time mentioned must be some date anterior to the presentment of the iadictment, and not so remote that the prosecution of the offense is barred by limitation.”
It is well settled that under this provision and its forerunners the State is not bound by the *124date on or about which the offense is alleged to have been committed, but a conviction may be had upon proof that the offense was committed any time prior to the return of the indictment that is within the period of limitation. Rogers v. State, 169 Tex.Cr.R. 239, 333 S.W.2d 383 (1960), and cases there cited; Neal v. State, 374 S.W.2d 668 (Tex.Cr.App.1964); Nees v. State, 402 S.W.2d 186 (Tex.Cr.App.1966). The period of limitation for the offense of bookmaking would be three years under Article 12.04, Vernon’s Ann.C.C.P., in effect at the time of the alleged offense.
The only evidence bearing on the question of whether the offense, if any, was committed prior to the return of the indictment on January 20, 1975, and within the three year limitation period is the fact that the undated exhibit containing the notation may have been found in the apartment on January 12, 1973. As earlier noted, State’s Exhibit # 5 was not identified as having been found in the apartment on the date in question. There was speculation by some witnesses that the notation had referred to the Super Bowl game which occurred on January 14, 1973, but this was based only on the fact that the arrest took place on January 12, 1973, and Miami was one of the teams in that contest. There was no showing that Miami and Washington had never met in a football game before. So there is also clearly a question of “when” the alleged offense occurred.