Martinez v. State , 1986 Tex. App. LEXIS 9426 ( 1986 )

BUTTS, Justice,

concurring.

I concur in the result. The focus of the main insufficiency point is the variance between the allegation in the indictment of the manner and means of causing death and the proof of the means: “by beating the said complainant with his hands and kicking the said complainant with his feet

The only proof offered as to cause of death was the testimony of the medical examiner, who stated there were other possible means in this case which may have caused death such as a bottle, or being struck against the floor. The only other relevant proof to sustain the allegation in the indictment was the statement by one of the persons who saw appellant with the deceased in the locked room: that appellant’s foot was “against” the deceased’s face. “Like he had just finished kicking him” is a conclusory statement, an opinion only.

It is well settled in Texas that the burden of proof in a criminal case is upon the State to prove every element of the offense beyond a reasonable doubt. Moreover, the burden is upon the State to prove the deceased was killed in the manner and means alleged in the indictment.

This is a circumstantial evidence case, and the specific allegation of the manner and means plays an important part in the circumstantial evidence presented. See Jones v. State, 132 Tex.Crim. 216, 104 S.W.2d 42 (1937).

The majority opinion addresses all three insufficiency questions as if they involve the same issues. I believe the issue of manner and means of causing death should be addressed separately. It is a “close question,” not to be summarily treated.