Although the medical examiner could not determine the exact cause of death, he suspected that some form of violence was involved. It has been written that opinion evidence is not the only mode of establishing the cause of the decedent's death, and that circumstantial evidence may fully suffice for this purpose. See 29 Tex.Jur.2d, Homicide, § 180, p. 282; see also Boone v. State, 689 S.W.2d 467, 468 (Tex.Cr.App. 1985); Hines v. State, 515 S.W.2d 670 (Tex.Cr.App. 1974); Morris v. State, 322 S.W.2d 632 (Tex.Cr.App. 1959); Peterson v. State, 630 S.W.2d 677, 678 (Tex.App.-Houston [1st] 1981, no pet.).
Any other theory is totally speculative. See Guerrero v. State, 605 S.W.2d 262 (Tex.Cr.App. 1980); Hines v. State, 515 S.W.2d 670 (Tex.Cr.App. 1974); Williams v. State, 464 S.W.2d 114 (Tex.Cr.App. 1971); Morris v. State, 168 Tex.Crim. R., 322 S.W.2d 632 (1959). Compare Reeves v. State, 131 Tex.Crim. R., 101 S.W.2d 245 (1937) (where record contained evidence of another potential cause of death).
We hold the evidence sufficient to establish that appellant caused Shaw's death. See Hines v. State, 515 S.W.2d 670 (Tex.Cr.App. 1974); Morris v. State, 322 S.W.2d 632 (Tex.Cr.App. 1959); Hicks v. State, 66 Ga. App. 577, 18 S.E.2d 637 (1942). Finally, appellant complains that evidence of an oral statement he made shortly after the accident was admitted in violation of his right against self-incrimination. Trooper Davis testified that he went to the emergency room of McKenna Memorial Hospital in New Braunfels to identify persons who had been injured in the accident.
See 4 Branch's Ann.P.C., 2d ed., Sec. 2212, p. 569. See also Jennings v. State, 154 Tex.Cr.R. 211, 226 S.W.2d 126, 128 (1950); Tellez v. State, 162 Tex.Cr.R. 456, 286 S.W.2d 154 (1955); White v. State, 165 Tex.Cr.R. 339, 306 S.W.2d 903 (1957), cert. denied, 355 U.S. 936, 78 S.Ct. 420, 2 L.Ed.2d 419 (1958); Morris v. State, 168 Tex.Cr.R. 29, 322 S.W.2d 632 (1959); Madden v. State, 171 Tex.Cr.R. 80, 344 S.W.2d 690 (1961); Williams v. State, 464 S.W.2d 114 (Tex.Cr.App.1971). In the instant case the record shows the deceased, estimated by various witnesses as being between thirty and fifty, apparently in good health, driving a Chrysler automobile in a westerly direction on Interstate #20 when it was struck without dispute by the Pontiac driven by the appellant.
Under the decisions of this Court the cause of death may be proved by circumstantial evidence. Tellez v. State, 162 Tex.Crim. R., 286 S.W.2d 154; Morris v. State, 168 Tex.Crim. 29, 322 S.W.2d 632, and Taylor v. State, Tex.Cr.App., 489 S.W.2d 890. The facts and circumstances proven are sufficient to show that the deceased's death was caused by the collision of the two vehicles. In his third and fourth grounds of error appellant insists that the court erred in allowing testimony as to the results of a breathalyzer test administered to him after the collision which showed that his blood alcohol content was 0.21%.
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. See, Williams v. State, supra; Morris v. State, 168 Tex.Crim. R., 322 S.W.2d 632; Lightfoot v. State, 164 Tex.Crim. R., 296 S.W.2d 554; Jennings v. State, 154 Tex.Crim. R., 226 S.W.2d 126; 4 Branch's Ann.P.C. (2nd Ed.) Section 2191. Appellant contends that "the court committed reversible error in not requiring the recordation and transcription of all proceedings had in this cause to be made part of the record herein.
The cause of death as a result and effect of the wound was sufficiently shown when the deceased, who was in apparently good health, immediately fell and died within a short time. See, E.g., Scott v. State, 47 S.W. 531 (Tex.Cr.App. 1898); Tellez v. State, 162 Tex.Crim. R., 286 S.W.2d 154 (1955); Morris v. State, 168 Tex.Crim. R., 322 S.W.2d 632 (1959); 4 Branch's Ann.P.C.2d § 2025 at 336; 20 Tex.Digest, Homicide, k236(1). The appellant urges that the intent to kill the deceased was not shown. Intent to commit murder may be presumed from the use of a weapon deadly per se, or where death results from the use of an instrument not considered as deadly per se, a jury may find an intent to kill from the circumstances accompanying the use of the instrument.
In such circumstances, expert testimony is essential to support a conviction. Harvey v. Commonwealth, 318 S.W.2d 868 (Ky. 1958); State v. Minton, 234 N.C. 716, 68 S.E.2d 844, 847-848 (1952); Morris v. State, 168 Tex.Cr.R. 29, 322 S.W.2d 632, 633-634 (1959); State v. Engstrom, 79 Wn.2d 469, 487 P.2d 205, 210 (1971); Annot., 31 A.L.R.2d 693 (1953). Kilgore v. State, 95 Ga. App. 462, 98 S.E.2d 72 (1957); Witt v. Commonwealth, 305 Ky. 31, 202 S.W.2d 612, 616 (1947); State v. Lusk, 452 S.W.2d 219, 222-223 (Mo. 1970); Annot., 31 A.L.R. 693 (1953).
All of the evidence adduced at the trial was 'direct evidence as to the facts deposed to but indirect as to the factum probandum' — the breaking and entry under Arts. 1389 and 1390 of the Vernon's Ann. Penal Code. As the majority correctly point out, we adhere to a rule that when the facts proved are in such close juxtaposition to the main fact to be proved as to be equivalent to direct testimony, a charge on circumstantial evidence is not required. Morris v. State, 168 Tex.Crim. R., 322 S.W.2d 632; 4 Branch's Ann.P.C. 359, Sec. 2050. In Brown, supra, the Court discussed the meaning of the term 'juxtaposition.' Quoting from Webster's New International Dictionary, it found the definition to be: 'A placing or being placed in nearness or contiguity; or side by side; as a juxtaposition of words.' Webster's Third International Dictionary defines juxtaposition as 'the act or an instance of placing two or more objects in a close spatial or ideal relationship; also: the condition of being so placed.' The Court in Brown continued its discussion as follows:
We overrule these contentions. No expert opinion evidence was introduced but cause of death may be shown by other means. Morris v. State, 168 Tex.Crim. R., 322 S.W.2d 632; Tellez v. State, 162 Tex.Crim. 456, 286 S.W.2d 154. The appellant admitted shooting the deceased. Officer Rose identified the body at the hospital.