¶1dissenting).
¶2While the circumstances outlined above may have been sufficient to support a finding of guilt, they clearly are not the equivalent of direct evidence of guilt. Though the State’s evidence, apart from the complainant’s uncertain identification of appellant as his assailant, may lead to an almost irresistible conclusion that appellant is guilty, and although circumstances indicating guilt are strong, the trial court is not relieved of the duty of charging the jury on circumstantial evidence where, as here, the case is based upon inference and reasoning. Frazier v. State, supra; Levi v. State, 573 S.W.2d 784 (Tex.Cr.App.1978); Hielscher v. State, 511 S.W.2d 305 (Tex.Cr.App.1974). The failure of the trial court to so instruct the jury was, therefore, reversible error.
¶3We note in passing, that this record also reflects that the prosecutor engaged in argument during the punishment phase which encouraged the jury to consider an extraneous offense when affixing punishment after being instructed not to go into this area during the trial on the merits. Such a practice is beyond the pale, see, e. g., Berryhill v. State, 501 S.W.2d 86 (Tex.Cr.App.1973), especially in light of the punishment here assessed. In the event of a retrial, the State is expected to, as always, confine its arguments to those areas sanctioned by this Court. See Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973).
¶4For the error found, the judgment is reversed and the cause remanded.
¶5Before the court en banc.