DISSENTING OPINION ON STATE’S MOTION FOR REHEARING
CLINTON, Judge,dissenting.
Not wishing to belabor the position of the unanimous panel opinion on original submission, but finding the treatment of this cause by the majority on rehearing so woefully inadequate to justify the conclusion, I am compelled to respond.
Citing the appellant’s “presence at the scene of the crime,” together with “evidence that [appellant] and his companion fled the scene together, then later split the stolen proceeds,” the majority concludes that the State met its burden to establish, beyond a reasonable doubt, that appellant did “intentionally and knowingly BREAK into and ENTER a vehicle. . . without the effective consent of. . . the owner. . . with intent THEN and THERE to commit the offense of theft,”1 as charged in the indictment.
Implicit in the majority’s conclusion is the concession that there is no direct evidence either that appellant himself “entered” the affected vehicle, or assisted as a party the “entry” by Gutierrez. Under V.T.C.A. Penal Code, § 30.04,2 it is the “breaking” or the “entry” into the vehicle which constitutes “the forbidden conduct”3 element of the offense charged. V.T.C.A. Penal Code, § 1.07(aX13)(A). Therefore, under the rationale of the majority opinion, proof that appellant committed the “forbidden conduct” charged, could be furnished only by circumstantial evidence that either he himself “entered” the vehicle, or, that, “acting with intent to promote or assist the commission of the offense,” appellant solicited, encouraged, directed, aided, or attempted to aid Lupe Gutierrez in commission of the offense. V.T.C.A. Penal Code, § 7.02(a)(2).4
Viewing the evidence in a light most favorable to the verdict of guilt, it reveals that appellant’s juvenile companion alone, entered the vehicle, and obtained therefrom the tapes and speaker; that both appellant and Gutierrez fled the scene; and then — as the majority characterizes it — “split” the stolen proceeds.5 Assuming that the evi*323dence clearly established a calculated “split” of the property obtained by Gutierrez from the vehicle, does the majority hold that this circumstance, coupled with “presence” and “flight,” constitute sufficient direct proof of secondary facts which, by logical inference, demonstrate the ultimate fact to be proved: that appellant himself entered Perez’ vehicle with the accompanying mental state charged? If not, the only circumstantial proof left is the inference of guilt this Court has held can arise from proof of the defendant’s possession of recently stolen property. But the majority explicitly rejects the necessity to rely on this “presumption” in reaching the conclusion that the evidence is sufficient.6
While § 7.02(a)(2), supra, is cited, plainly the majority result is in no manner dependent upon application of the law of “parties.” Neither does the majority assail the panel’s application of that body of law on original submission. Again, assuming unambiguous proof of a “split” of the property taken by Gutierrez, does the majority hold that the criminal conduct alleged against appellant can be committed by “adoption” or “ratification” of Gutierrez’ act, after the fact? Does the majority hereby revive the old code concept of “accessory” conduct?7
The real problem with the State’s evidence in this. case is that it was merely amplified by the defensive testimony adduced; the latter clearly did not conflict with the State’s evidence in any respect material to the offense charged. [See opinion on original submission.] Granted, the jury had unlimited authority to disbelieve the testimony of appellant and Gutierrez that appellant neither knew of Gutierrez’ intent nor acted with intent to assist it, but such rejection does not establish for the State the elements of the offense.
Obviously, when the defendant’s evidence is exculpatory but nevertheless consistent with the State’s circumstantial evidence, we should acknowledge our confrontation with a classic case in which the State has simply been unable to exclude every reasonable hypothesis other than the guilt of the ac*324cused of the offense charged,8 See, e. g., Urtado v. State, 605 S.W.2d 907 (Tex.Cr.App.1980) (Majority opinion and Odom, J., concurring on original submission, and Douglas, J., dissenting to denial of State’s motion for rehearing); Pierce v. State, 577 S.W.2d 253 (Tex.Cr.App.1979); see also Nelson v. State, 599 S.W.2d 809 (Tex.Cr.App.1980); and Owens v. State, 576 S.W.2d 859 (Tex.Cr.App.1979).
To the demurral of a majority of the Court to make such an acknowledgment in this case, I respectfully dissent.
ONION, P. J., and ROBERTS, J., join.
. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
. “(a) A person commits an offense if, without the effective consent of the owner, he breaks into or enters a vehicle or any part of a vehicle with intent to commit... theft.
(b) For purposes of this section, ‘enter’ means to intrude;
(1) any part of the body; or
(2) any physical object connected with the body * * Section 30.04, supra.
. “ ‘Conduct’ means an act or omission and its accompanying mental state.” V.T.C.A. Penal Code, § 1.07(a)(8). And “ ‘[a]ct’ means a bodily movement, whether voluntary or involuntary, and includes speech.” V.T.C.A. Penal Code, § 1.07(a)(1).
. The trial court, in applying the law to the facts authorized the jury to find appellant guilty only if they found appellant knew of Gutierrez’ intent and acted with intent to promote or assist Gutierrez’ commission of the offense. [See p. 319, n. 5, opinion on original submission wherein the court’s charge is recited verbatim.]
. Of course the only testimony contained in the record on this matter of “splitting” the proceeds was that of appellant and Gutierrez, who both insisted that Gutierrez had “left” two of fifteen tapes in appellant’s car unintentionally. The majority apparently relies, exclusive of this *323entirely consistent testimony, only on a single statement, out of context, in appellant’s written statement: “I took two two [sic] of the tapes and Lupe took about ten tapes.... ” [See p. 318, n. 3, opinion on original submission for recitation of appellant’s entire statement.]
In my view, the majority has abandoned “viewing the evidence in a light most favorable to the verdict,” and has undertaken supplantation of the State’s proof by stating “there was evidence that [appellant] and his companion. .. later split the stolen proceeds.”
. Irrespective of whether benefit of the “presumption” is defeated by an accused’s reasonable explanation “given at the time [he] is first confronted with the possession,” or given as evidentiary rebuttal at trial, (and likewise, irrespective of the implications resolution of that question may have regarding the use of pretrial silence against a defendant, as well as the presumption of innocence), it is well settled that “possession” will not warrant the inference of guilt absent a showing of a distinct and conscious assertion of a right to the property by the accused, such as an attempt to “pawn” or sell it. Rodriguez v. State, 549 S.W.2d 747 (Tex.Cr.App.1977).
As the panel observed on original submission, no such assertion was shown to have been made by the accused here, (and in fact, the opposite was established, the victim having testified that appellant returned his property). Thus, this circumstance alone, would defeat the State’s entitlement to the ab initio “presumption of guilt,” even if appellant’s pretrial explanation were absent or unreasonable.
However, as was stated in the opinion on original submission:
“[Deputy] Hons informed appellant that he knew about the burglary and after discussing it for awhile appellant gave Hons a statement.” [See p. 319, n. 4 and accompanying text.]
Apparently the prosecutor believed this “explanation” was “reasonable,” considering it was the only evidence he introduced which even connected appellant to the burglary, notwithstanding its patently exculpatory tenor regarding that offense. In any event, the “unexplained possession” rule is not applicable to a burglary without evidence of unlawful entry “independent of the missing property,” Nelson v. State, 599 S.W.2d 809 (Tex.Cr.App.1980). Since the State failed to prove a burglarious entry by appellant, the presumption does not obtain.
. It is curious that the majority would imply application of the law of “parties,” yet cite cases for the proposition that the evidence here is sufficient, which in no way involve or employ the law of “parties.” See n. 8, infra.
. Equally as troublesome to me as the majority’s compendium of the “sufficient” evidence, are the cases cited to support the conclusion:
Williams v. State, 461 S.W.2d 614 (Tex.Cr.App.1970) was a case in which two eyewitnesses identified Williams as one of the robbers, while a co-defendant testified that he alone committed the robbery. In view of this conflicting testimony in a direct evidence case, the sufficiency of the evidence was correctly upheld on the basis of the jury’s resolution of that conflict.
Espinosa v. State, 463 S.W.2d 8 (Tex.Cr.App.1971), was resolved on the “presumption” of guilt, arising from the appellant’s possession of recently stolen property, a concept the majority insists is not implicated here.
Citation of these cases signals to me a dangerous departure by the Court from established and proven analyses of sufficiency claims.