concurring and dissenting.
I concur insofar as the majority finds the evidence legally insufficient to support the conviction for capital murder. However, I do not believe the evidence is factually sufficient for any conviction.
The majority notes nineteen items from which they claim a jury could logically infer Brewer killed Sasser:
• the first two simply speak to the death by shotgun blast at someplace other than the car;
• the next two state Sasser’s access to and knowledge of the use of a shot gun;3
• the next several indicate some animosity and an apparent confrontation between Brewer and Sasser;
• the next couple involve carpeting from Brewer’s trailer;
• the next one declares Brewer could not be excluded was a contributor to DNA found on Sasser’s jeans;
• the next attempts to establish the date of death;
• the next shows the Sheriffs Department could not tie any of the items found in Sasser’s car to any known individual;
• the next fairly establishes no other vehicle was around Sasser’s car; and
• the last shows Brewer had left the area and was arrested in South Carolina.
The majority notes seven items which apparently are not favorable to the state:
*307• the first acknowledges there is no direct evidence implicating Brewer;
• the next two acknowledge that none of the physical evidence, except for the DNA on the jeans, implicates Brewer and there was fingerprint, DNA and hair evidence found in Sasser’s car from “unknown persons”;
• the next simply acknowledges the actual murder weapon was never found;
• the next acknowledges that Brewer’s trip had been planned before the murder; therefore the trip may not have been “flight” after the murder;
• the next noted Brewer “appeared genuinely upset upon learning of Sasser’s death”; and
• the last notes another possible suspect was never located.
The majority, quite correctly, finds the evidence of a robbery legally insufficient because “[t]he trier of fact would have to speculate in order to reach such a conclusion.” I contend the same is true for the murder itself.
The only evidence cited by the State which connects Brewer to the death of Sasser is the DNA found on Sasser’s jeans. The DPS forensic analyst testified he could not “exclude” Brewer as a contributor, therefore he was included. This exclusion evidence is acknowledged by the majority and, as I appreciate it, shows that the probability that someone other than Brewer or one of his relatives could have been a contributor is 1 in 136. Under the State’s evidence, there is in excess of 42 million people who could have been a contributor.4 That Brewer was, in fact the contributor, is pure speculation.5
The weakness of this DNA evidence plus the fingerprint, DNA and hair evidence found in Sasser’s car from “unknown persons” makes the verdict so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). Consequently, I would acquit totally.
. No one can argue there must be hundreds of thousands of individuals within a 100 mile radius of San Jacinto County, this writer in-eluded, who has access to and a knowledge of shotguns.
. The world population of 6 billion divided by 136.
. Would any court let a 7/10% probability (1/136) establish paternity?