OPINION
TEAGUE, Judge.
Alberto Perales Alvarez, Appellant, appeals his conviction by a jury for committing the offense of rape of a female who was “physically unable to resist.” The same jury assessed appellant’s punishment at confinement in the penitentiary for three (3) years.
Appellant challenges the sufficiency of the evidence. We agree with the appellant that the evidence presented is insufficient and will order the conviction reversed.
The facts in this circumstantial evidence case reveal that the 19 year old victim, whom we will hereinafter refer to only as Linda, died while in a diabetic coma. From the evidence adduced, we are also able to infer that apparently no one, including Linda herself, was aware that she was suffering from acute sugar diabetes. Other than suffering from acute sugar diabetes, Linda otherwise had the appearance of one who was in good physical condition.
The State chose to prosecute appellant pursuant to V.T.C.A. Penal Code, Sec. 21.02(a), (b)(3), which provides that a person commits the offense of rape if he has sexual intercourse with a female not his wife without the female’s consent and the intercourse occurs when the female was physically unable to resist.
It is axiomatic that the State is bound by the allegations stated in the charging instrument, and the State must prove those allegations beyond a reasonable doubt. Moore v. State, 531 S.W.2d 140, 142 (Tex.Cr.App.1975); Seiffert v. State, 501 S.W.2d 124 (Tex.Cr.App.1973); Butler v. State, 429 S.W.2d 497 (Tex.Cr.App.1968). See also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The two elements of lack of consent and physically unable to resist, like elements of any other crime, may be proved by the prosecution by circumstantial evidence, and indeed the trial court charged the jury in this cause that [615]*615this was a circumstantial evidence case. When reviewing the sufficiency of the evidence in a circumstantial evidence case, this Court has held many times, see Volume 4, Texas Criminal Practice Guide, Sec. 90.06[2][c], that the evidence will be deemed insufficient to sustain proof of an alleged element or elements in the charging instrument unless the circumstances adduced exclude every other reasonable hypothesis except that of the guilt of the accused. Where a conviction rests upon circumstantial evidence, this Court also reviews the circumstantial evidence in light of the presumption that the accused is innocent. Furthermore, in a circumstantial evidence case we will not presume any acts against the accused. Lastly, a conviction resting on circumstantial evidence will not be sustained on appeal, regardless of how horrible, ghastly, shocking, or revolting the facts may be, if the evidence does not sufficiently establish, either by direct or circumstantial evidence, all the material elements of the offense charged. Sewell v. State, 578 S.W.2d 131, 135 (Tex.Cr.App.1979). Every conviction based upon circumstantial evidence must necessarily be tested by its own facts to determine on appeal whether the evidence is sufficient to sustain the verdict of guilt. Swink v. State, 617 5.W.2d 203 (Tex.Cr.App.1981); Sinor v. State, 612 S.W.2d 591 (Tex.Cr.App.1981); Earnhart v. State, 575 S.W.2d 551 (Tex.Cr.App.1979).
After carefully reviewing the circumstantial evidence presented in this cause, we are unable to state, to a moral and reasonable certainty, that the appellant unlawfully had sexual intercourse with Linda, and have further concluded that the State has failed to exclude, to a moral certainty, every other reasonable hypothesis except the appellant’s guilt.
It appears from the evidence adduced that in order to engage in sexual intercourse with Linda, all one had to do was ask her to engage in sexual intercourse, she would then consent, and she would thereafter engage in sexual intercourse with the person asking. On occasion she would also willingly and voluntarily engage in deviate sexual intercourse with others. On the day prior to the day her body was found, Linda had been asked by another person, who was then with appellant, “Can we fuck you?,” with Linda responding in the affirmative that they could. Thereafter, the appellant had sexual intercourse with Linda, after which the other male also had sexual intercourse with Linda. The next day the body of Linda was found in the vicinity, if not the exact location, where she had had sexual intercourse with appellant and the other person. By the testimony of the pathologist, who testified for the State in this cause, there was no indication on the body of Linda that the sexual intercourse she had had with appellant and the other person had been forcibly caused. Although the pathologist did not testify to a cause of death, we are able to discern from his testimony that Linda probably died while in a diabetic coma. Also, from the evidence adduced, we have concluded that at times both before and after the time when appellant had sexual intercourse with Linda, Linda was lethargic, and may not have been at all times physically able to resist or consent to having sexual intercourse. However, the evidence does not exclude to a moral certainty that at the actual time appellant had sexual intercourse with Linda she was then unable to consent or was physically unable to resist having sexual intercourse with the appellant.
Furthermore, when circumstantial evidence is weak, and the record affirmatively shows not only that other testimony which would have cast additional light on the facts was available to the prosecution, but the prosecution did not introduce such other evidence or satisfactorily account for its failure to do so, this Court will treat the ease as one showing reasonable doubt of the sufficiency of the evidence to support the conviction. Schershel v. State, 575 S.W.2d 548 (Tex.Cr.App.1979). In this cause, another person was present during most of [616]*616the time Linda was at the location where she had sexual intercourse with the appellant. However, this person was not called to testify by the State, nor did the State account for his absence.
Because of the absence in the record of conviction of answers to such questions as the following, our task in reviewing the conviction of the appellant has not been an easy one, especially in light of the shocking facts presented as to the conduct of appellant and others in this cause in leaving Linda in a city park, while nude and apparently torpid from the acute sugar diabetes from which she suffered.
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OPINION
TEAGUE, Judge.
Alberto Perales Alvarez, Appellant, appeals his conviction by a jury for committing the offense of rape of a female who was “physically unable to resist.” The same jury assessed appellant’s punishment at confinement in the penitentiary for three (3) years.
Appellant challenges the sufficiency of the evidence. We agree with the appellant that the evidence presented is insufficient and will order the conviction reversed.
The facts in this circumstantial evidence case reveal that the 19 year old victim, whom we will hereinafter refer to only as Linda, died while in a diabetic coma. From the evidence adduced, we are also able to infer that apparently no one, including Linda herself, was aware that she was suffering from acute sugar diabetes. Other than suffering from acute sugar diabetes, Linda otherwise had the appearance of one who was in good physical condition.
The State chose to prosecute appellant pursuant to V.T.C.A. Penal Code, Sec. 21.02(a), (b)(3), which provides that a person commits the offense of rape if he has sexual intercourse with a female not his wife without the female’s consent and the intercourse occurs when the female was physically unable to resist.
It is axiomatic that the State is bound by the allegations stated in the charging instrument, and the State must prove those allegations beyond a reasonable doubt. Moore v. State, 531 S.W.2d 140, 142 (Tex.Cr.App.1975); Seiffert v. State, 501 S.W.2d 124 (Tex.Cr.App.1973); Butler v. State, 429 S.W.2d 497 (Tex.Cr.App.1968). See also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The two elements of lack of consent and physically unable to resist, like elements of any other crime, may be proved by the prosecution by circumstantial evidence, and indeed the trial court charged the jury in this cause that [615]*615this was a circumstantial evidence case. When reviewing the sufficiency of the evidence in a circumstantial evidence case, this Court has held many times, see Volume 4, Texas Criminal Practice Guide, Sec. 90.06[2][c], that the evidence will be deemed insufficient to sustain proof of an alleged element or elements in the charging instrument unless the circumstances adduced exclude every other reasonable hypothesis except that of the guilt of the accused. Where a conviction rests upon circumstantial evidence, this Court also reviews the circumstantial evidence in light of the presumption that the accused is innocent. Furthermore, in a circumstantial evidence case we will not presume any acts against the accused. Lastly, a conviction resting on circumstantial evidence will not be sustained on appeal, regardless of how horrible, ghastly, shocking, or revolting the facts may be, if the evidence does not sufficiently establish, either by direct or circumstantial evidence, all the material elements of the offense charged. Sewell v. State, 578 S.W.2d 131, 135 (Tex.Cr.App.1979). Every conviction based upon circumstantial evidence must necessarily be tested by its own facts to determine on appeal whether the evidence is sufficient to sustain the verdict of guilt. Swink v. State, 617 5.W.2d 203 (Tex.Cr.App.1981); Sinor v. State, 612 S.W.2d 591 (Tex.Cr.App.1981); Earnhart v. State, 575 S.W.2d 551 (Tex.Cr.App.1979).
After carefully reviewing the circumstantial evidence presented in this cause, we are unable to state, to a moral and reasonable certainty, that the appellant unlawfully had sexual intercourse with Linda, and have further concluded that the State has failed to exclude, to a moral certainty, every other reasonable hypothesis except the appellant’s guilt.
It appears from the evidence adduced that in order to engage in sexual intercourse with Linda, all one had to do was ask her to engage in sexual intercourse, she would then consent, and she would thereafter engage in sexual intercourse with the person asking. On occasion she would also willingly and voluntarily engage in deviate sexual intercourse with others. On the day prior to the day her body was found, Linda had been asked by another person, who was then with appellant, “Can we fuck you?,” with Linda responding in the affirmative that they could. Thereafter, the appellant had sexual intercourse with Linda, after which the other male also had sexual intercourse with Linda. The next day the body of Linda was found in the vicinity, if not the exact location, where she had had sexual intercourse with appellant and the other person. By the testimony of the pathologist, who testified for the State in this cause, there was no indication on the body of Linda that the sexual intercourse she had had with appellant and the other person had been forcibly caused. Although the pathologist did not testify to a cause of death, we are able to discern from his testimony that Linda probably died while in a diabetic coma. Also, from the evidence adduced, we have concluded that at times both before and after the time when appellant had sexual intercourse with Linda, Linda was lethargic, and may not have been at all times physically able to resist or consent to having sexual intercourse. However, the evidence does not exclude to a moral certainty that at the actual time appellant had sexual intercourse with Linda she was then unable to consent or was physically unable to resist having sexual intercourse with the appellant.
Furthermore, when circumstantial evidence is weak, and the record affirmatively shows not only that other testimony which would have cast additional light on the facts was available to the prosecution, but the prosecution did not introduce such other evidence or satisfactorily account for its failure to do so, this Court will treat the ease as one showing reasonable doubt of the sufficiency of the evidence to support the conviction. Schershel v. State, 575 S.W.2d 548 (Tex.Cr.App.1979). In this cause, another person was present during most of [616]*616the time Linda was at the location where she had sexual intercourse with the appellant. However, this person was not called to testify by the State, nor did the State account for his absence.
Because of the absence in the record of conviction of answers to such questions as the following, our task in reviewing the conviction of the appellant has not been an easy one, especially in light of the shocking facts presented as to the conduct of appellant and others in this cause in leaving Linda in a city park, while nude and apparently torpid from the acute sugar diabetes from which she suffered. Some of the questions which should have been asked the pathologist, but were not asked by the prosecuting attorney, are the following: What caused the death of Linda; approximately how long a person suffering from acute sugar diabetes would feel ill before lapsing into a coma; whether such a person could fall asleep, thereafter awaken, and immediately be coherent to others; and whether a sufferer of acute sugar diabetes would sweat profusely before lapsing into a coma. Linda displayed all of these signs prior to and after she had sexual intercourse with the appellant and the other person. In light of what the State had alleged, and what it knew it had to prove in order for this Court to sustain the conviction of appellant on appeal, we are at a loss to understand why the prosecuting attorney did not conduct a more probing examination of the pathologist than he did. Because of the absence from the record of evidence concerning the above topics, we are unable to say to a moral certainty that at the time the appellant had sexual intercourse with Linda that she was not alert, coherent, and totally aware of what was then happening, that she consented to having sexual intercourse with the appellant, and was physically able to resist had she chosen to resist.
The judgment of conviction is therefore ordered reversed. It is now well settled that where this Court finds that the evidence to be insufficient to sustain a conviction, the constitutional guarantee against double jeopardy precludes further prosecution of this cause. Burks v. U.S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).
W.C. DAVIS, J., dissents.
Before the Court en banc.