¶1(dissenting).
¶2I dissent to the denial of appellant’s motion for rehearing and the affirmance of this conviction. The majority opinion on motion for rehearing succinctly states appellant’s second contention and its disposition as follows:
“Appellant’s remaining contention is that the State failed to prove the corpus delicti in that there is no proof that the shot fired by appellant caused the death of the deceased, or that death in fact resulted. Two of the eyewitnesses to the shooting testified that they took the deceased to the hospital immediately after the shooting, and one of them stated that he thought that it was at the hospital that the deceased died rather than in the car. This testimony was sufficient to show both causation and the fact of death.”
¶3The relevant testimony describing the events upon which this prosecution was based includes the following excerpts: Witness Kelly testified:
“Q. After you first arrived at the apartment what happened? Excuse me, after Gregory and Burnett George first arrived at the apartment what happened?
“A. We walked in, we rushed in, and Larry said that we had frightened him when we rushed in.
“Q. Where was Larry at this time?
“A. He was laying down on the mattress.
“Q. Larry said you had frightened him when you first walked in?
“A. Yes.
“Q. Where was the pistol?
“A. He had the pistol in his hand.
“Q. Alright sir, what happened after you got in the apartment?
“A. Well, the pistol went off, Larry attempted to get up, he said he was trying to uncock the pistol and the pistol went off.
*651
“Q. You said he was trying to get up. Was he lying on his side, his back, or what?
“A. On his stomach. He got up on one knee, he was getting up.
“Q. Alright sir, after the gun went off what happened?
“A. When he fell, and we saw that he was shot, we picked him up and took him to the hospital.
“Q. Alright, have you ever seen a dead person before?
“A. Yes sir.
“Q. Do you know whether or not he was dead in the car, or did he die after you got him to the hospital?
“A. After we got him to the hospital I think.”
¶4Witness Graham testified as follows:
“A. We first walked in and like I said we headed for the rear of the bed. Larry raised up off the floor and the pistol accidently went off, just that fast, it happened just that fast.
“Q. It was in his hand at that time?
“A. Yes sir.
“Q. Did it appear that he was intending to shoot anyone?
“A. No sir.
“Q. Who did he shoot?
“A. He shot Clyde. He didn’t shoot anyone, the gun just went off.”
¶5The majority find this evidence sufficient on authority of Hines v. State, 515 S.W.2d 670 (Tex.Cr.App.), and Taylor v. State, 489 S.W.2d 890 (Tex.Cr.App.).
¶6Regarding cause of death, Hines v. State quoted with approval from 29 Tex.Jur.2d, Homicide, Sec. 180, as follows:
“Opinion evidence is not the only mode of establishing the cause of the decedent’s death; circumstantial evidence may fully suffice for this purpose. It is not necessary to establish by the testimony of a physician the fact that the wounds inflicted by the defendant caused the death; it is sufficient if it appears from all the evidence that the wounds were sufficient to cause death, and that death occurred within a reasonable time after the wounds were inflicted. It is permissible to show the good health of the deceased prior to a shooting, his condition thereafter and his subsequent death.”
¶7In the case at bar there is not one word describing the wound, or even whether it was to the head, chest, or foot. How can the majority on this sparse record conclude that “it appears from all the evidence that the wounds were sufficient to cause death”?
¶8In Taylor v. State, supra, the other case relied on by the majority, it is written:
“Under the state’s testimony, it is shown that deceased was alive before being shot and that after the shooting he was dead at the scene with seven gunshot wounds on his body. Appellant admitted shooting deceased and gave the gun she used to Sheriff Reaves. The gun, which had seven empty cartridges in it, was introduced into evidence without objection. Proof of these circumstances is sufficient to establish that the cause of death of the deceased was the gunshot wounds received from the gun fired by appellant.”
¶9In the instant case there was no such testimony of numerous gunshot wounds and death at the scene. In fact, a careful reading reveals that no witness was even asked if any wounds were inflicted or if death did in fact occur, although several questions assume death had occurred, and the only question as to time of death was answered, “After we got him to the hospital I think.”
¶10In Williams v. State, 464 S.W.2d 114 (Tex.Cr.App.), it was stated:
“The appellant admitted shooting the deceased. Officer Rose identified the body at the hospital. Testimony revealed that she was an 18 year old girl and no evidence of bad health or other cause of death was shown.”
¶11No witness here testified regarding the health or age of deceased or even that he was in fact dead.
¶12*652The following excerpts from the record suggest the reason for this defect in the State’s case:
“MR. ALEXANDER: State calls Dr. Erickson. Your Honor, she may not have arrived yet. May I check and see if she has left yet?
“THE COURT: Was she under subpoena?
“MR. ALEXANDER: Yes sir. We talked to her just a few minutes ago Your Honor and she was on her way. … *
“THE COURT: Is there any other business we could take care of while we are waiting?
“MR. PATRICK: May I step across the hall Your Honor?
“THE COURT: Yes sir.
“MR. ALEXANDER: The State only has Dr. Erickson remaining as a witness in this case.
“THE COURT: Take the jury out Mr. Bailiff.
“THE COURT: Mr. Alexander it’s been over an hour ago.
“MR. ALEXANDER: Yes sir, I understand it’s been over an hour ago.
“THE COURT: Mr. Bailiff bring the jury in. Call your next witness.
“MR. ALEXANDER: State rests Your Honor and we will call Dr. Erickson in rebuttal.
“THE COURT: Call your first witness.
“MR. PATRICK: The Defense would rest without calling any witnesses.
“THE COURT: Alright. Here is the charge Mr. Patrick.”
¶13Although the failure of the State to present this witness’ testimony may explain why the proof is deficient, it certainly does not excuse the State from the requirement to prove its entire- case beyond a reasonable doubt. This Court is powerless to supply the missing proof by speculation on what testimony Dr. Erickson might have given or by making evidence out of presumptions in the questions asked.
¶14The case of Jones v. State, 151 Tex.Cr.R. 114, 205 S.W.2d 603, that the majority opinion seeks to distinguish, is more like the instant case on the issue of causation than those above distinguished. In Jonesit was stated:
“Undoubtedly, the State proved that the deceased was dead by one who attended the funeral, and also proved that appellant shot the deceased twice with a pistol. However, the proof further shows that the deceased walked away after being shot. It would have been further shown that the deceased died as a result of wounds on his body created by these pistol shots. This is not shown, and under the law, the corpus delicti must appear as shown by the record. We find in the record no proof that the death of deceased was caused by the proven acts of appellant.”
¶15In view of the total lack of evidence on the extent or nature of whatever wound was inflicted, or of any other evidence of cause of death, assuming arguendo that a death did occur, I would sustain appellant’s second ground of error, reverse the conviction, and remand the cause for a new trial.
¶16I next dissent to the majority opinion’s discourse on the defense óf accident in homicide cases and its grounds for rejecting the test set out in Stiles v. State, 520 S.W.2d 894 (Tex.Cr.App.).
¶17*654The majority, after citing V.T.C.A. Penal Code Sec. 6.03, Definitions of Culpable Mental States, reason that “intentional” is the highest culpable mental state, and that criminal offenses may be committed with lesser or “unintentional” culpable mental states, and from this conclude that “the precise distinction drawn by Stiles— between intentional and unintentional acts— can no longer stand.”
¶18With respect to this reasoning, while I agree that the Stiles’ distinction is no longer viable (and never was a per se rule for all cases) for the reasons stated in footnote 1, I do not believe that “unintentional act” as used in Stilesmay properly be equated with the less-than-intentional culpable mental states of Sec. 6.03.
¶19In Stilesthe intentional-unintentional distinction was used in describing the act resulting in death. Two of the less-than-intentional culpable mental states of Sec. 6.03, however, are defined in this language:
“(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. .
“(d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. . . .” (Emphasis added.)
¶20These two culpable mental states, then, are defined in such a way that they can properly be used to describe an actor’s mental state with respect to the circumstances surrounding the conduct or the result of the conduct, but they may not properly be used to describe the act itself. Thus, they may not be characterized as destructive of the “unintentional” category referred to in Stileswhen one recalls that Stiles expressly pointed out, “The focus is on the accused’s act, not on the result of his act” (emphasis added), nor, it may be added, on the circumstances surrounding his act.
¶21Also, I find the majority’s discussion of the role of V.T.C.A. Penal Code Sec. 6.01 and the “voluntary act” requirement something less than clear. The majority appear to hold that the absence either of a voluntary act or of a culpable mental state renders a homicide excusable as accidental. It is my opinion, for two reasons, that accidental homicide is distinguished from culpable homicide by the absence of a culpable mental state.
¶22First, in a comparison of possible volitional or mental situations, involuntariness would rank below mere absence of a culpable mental state. That is, every instance of involuntariness is necessarily an instance *655lacking a culpable mental state, but not every instance ¡lacking a culpable mental state is necessarily an instance of involuntariness. If so, then the existence or not of a voluntary act is superfluous in defining the distinction between accidental homicide and culpable homicide because the line between those two is crossed before the involuntariness level is reached.
¶23The second reason for my opinion that Section 6.01 and voluntariness issues play no role in distinguishing accidental homicide from culpable homicides is based on the relevant Practice Commentaries.
¶24The Practice Commentary to Sec. 6.01, cited by the majority, makes no reference to accident. On the other hand, the Practice Commentary to V.T.C.A. Penal Code Sec. 19.01 observes:
“The prior law’s excusable homicide is a killing under this chapter by an actor who does not possess the requisite culpable mental state, e. g., an accidental killing.”
¶25In this respect, the Practice Commentary’s observation on accidental killing is not unlike the statutory distinction under prior' law of Art. 1233, V.A.P.C. (1925), which provided:
“The want of proper care and caution distinguishes this offense [negligent homicide of the first degree] from excusable homicide. The degree of care and caution is such as a man of ordinary prudence would use under like circumstances.”
¶26Both state that accidental killing is characterized by the absence of the lowest culpable mental state affixed to a criminal homicide. It is the absence of the requisite culpable mental state, not the absence of a voluntary act, that distinguishes excusable homicide from culpable homicide.
¶27For the reasons stated, I dissent.
¶28. Although I dissent to the majority’s reasons by which the Stilestest is rejected, I concur in their conclusion that the “magic formula” of the Stilestest is not viable under the new Penal Code.
The language of Stiles at issue reads:
“The difference between accidental homicide and negligent homicide is whether the act resulting in death was intentionally or unintentionally done. The focus is on the accused’s act, not on the result of his act. Accidental homicide is the result of an unintentional act while negligent homicide may only result from an intentional act.”
¶29From the enactment of this State’s first Penal Code in 1856 until the enactment of our most recent Penal Code in 1973, the statutes governing accidental homicide and negligent homicide remained virtually unchanged. The statutory source of accidental homicide appeared in Art. 575, Texas Penal Code (1856) and later in Art. 1228, V.A.P.C. (1925), which defined excusable homicide as follows:
*653“Homicide is excusable when the death of a human being happens by accident or misfortune, though caused by the act of another who is in the prosecution of a lawful object by lawful means.”
¶30Negligent homicide was governed by Arts. 577-592, T.P.C. (1856), and later by Arts. 1230-1243, V.A.P.C. (1925). Regarding the distinction between excusable homicide and negligent homicide of the first degree, Art. 581, T.P.C. (1856) and Art. 1233, V.A.P.C. (1925), each provided:
“The want of proper care and caution distinguishes this offense [negligent homicide of the first degree] from excusable homicide. The degree of care and caution is such as a man of ordinary prudence would use under like circumstances.”
¶31At least as early as 1915, in the case of Egbert v. State, 76 Tex.Cr.R. 663, 176 S.W. 560, and later in Harris v. State, 150 Tex.Cr.R. 38, 198 S.W.2d 264, it was stated, as in Stiies, that negligent homicide and accidental homicide differed according to whether the act that caused death was done intentionally or unintentionally. The basis for this distinction in the case law, however, is not to be found expressly stated in the statutes. It appears instead to have been the result of applying the law (as stated in the last above quoted article) to the facts in those cases where the issue of proper care and caution was reducible to terms of the act resulting in death being identifiable as either intentional or unintentional, as, for example, the discharge of a firearm. See, e. g., Groszoehmigen v. State, 57 Tex.Cr.R. 241, 121 S.W. 1113; Biggerstaff v. State, 59 Tex.Cr.R. 575, 129 S.W. 840; McPeak v. State, 80 Tex. Cr.R. 50, 187 S.W. 754, at 756, and at 758 (concurring opinion). Such reducibility would be present in those fact situations where intentional commission of the act would exhibit at the least a “want of proper care and caution . . . such as a man of ordinary prudence would use under like circumstances” and where the other acts done, in conjunction with the unintentional commission of the act so disputed as to intent, would not exhibit a want of such care and caution. But in cases where the issue of proper care and caution is not thusly reducible to terms of the death-causing act being intentional or unintentional, negligent homicide and excusable homicide were nevertheless distinguishable under the terms of Art. 1233, supra.
¶32In Bertrong v. State, 2 Tex.App. 160, the Court of Appeals approved the following charge on accidental homicide even though the firearm was intentionally discharged:
“If the jury believe from the evidence that the defendant, by accident, shot and killed the deceased, Rogers, taking him for wild game, you will find the defendant not guilty. But, before you can acquit the defendant on this ground, you must also believe from the evidence that the defendant, before and at the time of the alleged shooting, exercised the same degree of care and caution that a man of ordinary prudence would have done under the same circumstances.”
¶33In Vick v. State, 71 Tex.Cr.R. 50, 159 S.W. 50, the following charge on accident given by the trial court was characterized on appeal as “a full, fair, and apt charge,” even though the fírearm was intentionally discharged. The charge read:
“You are further charged that no act done by accident is an offense except where there has been a degree of carelessness or negligence which the law regards as criminal, and homicide is excusable when the death of a human being happens by accident or misfortune, though caused by the acts of another who is in the prosecution of a lawful object by lawful means; and, as heretofore instructed, you are charged that the defendant at the time of the alleged killing had the legal right, with such care and caution as a man of ordinary prudence would exercise under the same or similar circumstances, to fire off his gun for the purpose of frightening the deceased or alarming him to cause him to leave his premises, if he was hunting thereon, or was on there without the defendant’s permission, and if you believe from the evidence that on the date of the killing, if the defendant, not knowing the deceased was in the thicket on his premises, shot in that direction for the purpose of alarming the witness Hors-field to make him leave said premises, or if you believe that the defendant knew the deceased was in said thicket, but fired off his gun to alarm him and make him leave said premises, using at the time such care and caution as a man of ordinary prudence would use under like circumstances, then you will acquit him.”
¶34See also the charges approved in Morris v. State, 35 Tex.Cr.R. 313, 33 S.W. 539, and Manley v. State, 69 Tex.Cr.R. 502, 154 S.W. 1008. Thus, on a proper set of facts, even the intentional discharge of a firearm resulting in death may be accidental and therefore excusable homicide. These cases, considered in light of the controlling statutes on excusable homicide and negligent homicide, demonstrate that the intentional act-unintentional act distinction of Egbert, Harris, and Stiles, all supra, is not a magic formula. Indeed, in Harris v. State, supra, it was implicitly recognized that no ironclad rule was being enshrined, for it was there stated:
“So then, in a broad sense, a distinguishing element between negligent homicide and accidental killing lies in the fact that, in the first, the act which causes death must be intentionally done, while in the other, the act which causes the death was unintentional.” (Emphasis added.) 198 S.W.2d at 266.
¶35From the statutes and cases discussed here, I am compelled to the conclusion that the difference between negligent homicide and acciden*654tal homicide under the statutes in force prior to January 1, 1974, never has been precisely identified in all cases with the intentional-unintentional distinction. The latter distinction, instead, constituted a test applicable in certain cases only.
¶36In contrast to the existence of statutory provisions in the prior law that expressly addressed accidental homicide and distinguished it from negligent homicide, the new Penal Code contains no such provisions. V.T.C.A. Penal Code Sec. 19.01(a) provides:
“A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual.”
¶37Sections 19.02-19.05 and 19.07 define the five criminal homicide offenses enumerated in Section 19.01(b), to-wit: murder, capital murder, voluntary manslaughter, involuntary manslaughter, and criminally negligent homicide, respectively. Excusable (including accidental) homicide under prior law is no longer expressly addressed by statute. The Practice Commentary to Sec. 19.01 observes:
“Homicide under prior law was criminal or noncriminal. Homicide was criminal unless excusable or justifiable. .
“This chapter defines only criminal homicide. The prior law’s excusable homicide is a killing under this chapter by an actor who does not possess the requisite culpable mental state, e. g. accidental killing.”
¶38It would be my opinion that accidental or excusable homicide would be distinguishable from criminally negligent homicide under the new Penal Code by the absence of the culpable mental state required to show a criminal homicide, but in view of my other ground for dissent that would require reversal of this conviction, further elaboration upon this point will be reserved for another day.