dissenting.
I respectfully dissent. In my view, no rational person could believe that the evidence establishes beyond a reasonable doubt that Amunson killed Vincent Matteo.
Review UndeR a “No Evidence” Scope of Review
The majority holds that “the evidence, when viewed in the light most favorable to the verdict, supports the jury’s finding that Amunson was guilty of murder beyond a reasonable doubt.” In reaching this conclusion, however, the majority recites only “the circumstances indicating Amunson’s guilt....” As discussed below, I disagree with the majority’s use of the “no evidence” *609scope of review.1 But even under the majority’s analytical construct, and despite its attempt to make the inculpating evidence appear substantial, the recited facts establish no more than opportunity, flight, and burglary:
1. Opportunity — “Amunson was left alone -with the victim on the night of the murder; the victim was last seen alive with Amunson; Amunson admitted to being left alone with the victim on the night of the murder;” ... “Amunson was familiar with the kitchen and the knives kept there; Amun-son was aware of the antique wheelchair at the victim’s home;”
2. Flight — “Amunson fled the state immediately after the murder;” and
3. Burglary — “Amunson stole a VCR and Nintendo from the victim’s home on the night of the murder.”
Under the majority’s “no evidence” scope of review, therefore, the question is whether this circumstantial evidence is sufficient for a reasonable juror “to reach a subjective state of near certitude of the guilt of the ac-cused_” Jackson, 443 U.S. at 315, 99 S.Ct. at 2787 (emphasis added).
Clearly, none of the circumstances cited by the majority, standing alone, is sufficient to establish guilt beyond a reasonable doubt. See, e.g., Burns v. State, 676 S.W.2d 118, 120 (Tex.Crim.App.1984) (en banc) (“The mere presence of [the defendant] at the scene of the offense is insufficient to prove that he committed the offense charged.”); Nathan v. State, 611 S.W.2d 69, 78 (Tex.Crim.App. [Panel Op.] 1981) (fact that a defendant was the last to see a victim alive creates nothing more than a “suspicious circumstance”), overruled on otker grounds, Matson v. State, 819 S.W.2d 839, 842-43 (Tex.Crim.App.1991); Flores v. State, 551 S.W.2d 364, 367-69 (Tex.Crim.App.1977) (possession of a victim’s property, if unexplained, can indicate guilt of robbery but fails to support a conviction for murder without other evidence of guilt); Holloway v. State, 525 S.W.2d 165, 167 (Tex. Crim.App.1975) (while flight may evince guilt, it does not prove guilt beyond a reasonable doubt).2
It is also well-established that “[p]resence in the vicinity of a crime and flight are not alone sufficient to conclude, beyond a reasonable doubt, that the accused committed the offense.” King v. State, 638 S.W.2d 903, 904 (Tex.Crim.App.1982). Thus the question becomes whether opportunity and flight are made sufficient — could establish in a reasonable person “near certitude” of Amunson’s guilt — by the addition of his stealing Mat-teo’s VCR and Nintendo. In my view, to state the question is to answer it. No rational person could reasonably believe with “near certitude” that opportunity, flight, and burglary establish Amunson murdered Vincent Matteo. At most this circumstantial evidence creates a “strong suspicion” or “mere probability” — but neither of these is sufficient to support Amunson’s conviction. Denby v. State, 654 S.W.2d 457, 462 (Tex.Crim.App.1983), overruled on other grounds, Geesa v. State, 820 S.W.2d 154, 161 (Tex.Crim. App.1991).
A closely analogous case to this is Turner v. McKaskle, 721 F.2d 999 (5th Cir.1983). In Turner, “[t]he government point[ed] to four facts which [were] allegedly sufficient, in combination, to establish Turner’s guilt [of murdering Clifford Carr] beyond a reasonable doubt: (1) the fact that Turner admitted [in his written statement] being with Carr on the day of the murder; ... (2) his presence *610near the scene of the crime; (3) his departure from Texas the day after the murder;3 and (4) his possession of some of Carr’s personal belongings.” Id. at 1001 (footnote omitted). Reviewing Texas caselaw, the Fifth Circuit Court of Appeals held that this evidence was insufficient to meet the Jackson standard. Id. at 1003.
In short, even under the majority’s “no evidence” scope of review, the evidence is legally insufficient to support Amunson’s conviction. This conclusion is buttressed by application of the correct scope and standard of review.
STANDARD AND SCOPE OF REVIEW
The majority’s reliance on a “no evidence” scope of review is based upon footnote 10 in Clewis v. State, 922 S.W.2d 126, 132 n. 10 (Tex.Crim.App.1996), which states:
The court of appeals’ opinion stated that a correct standard of review under Jackson must include a review of all of the evidence adduced at trial to determine the sufficiency of the evidence to prove the elements of the offense. Clewis [v. State ], 876 S.W.2d [428] at 436 [(Tex.App.-Dallas 1994)]. While the court of appeals correctly noted that Jackson specifically requires appellate courts to look at all the evidence, in Texas, we have applied Jackson in such a way that the only evidence a reviewing court considers is the evidence that supports the verdict. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.1991) (holding that the jury is the sole judge of the credibility of the witnesses and may choose to believe all, some, or none of the testimony); Burns v. State, 761 S.W.2d 353, 355-56 (Tex.Crim.App.1988) (holding that reconciliation of conflicts in the evidence is within the exclusive province of the jury); Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim. App.1986).
Clewis, 922 S.W.2d at 132 n. 10. The majority reads footnote 10 mechanistically and effectively reverts to the “no evidence” scope of review, despite the fact the “no evidence” standard itself was abandoned by the Court of Criminal Appeals in Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App. [Panel Op.] 1981). Using this “no evidence” scope of review as its starting point, the majority isolates the evidence supporting the verdict, views this evidence in the light most favorable to the verdict, and then determines that, because there is some evidence to support the verdict, Amunson’s legal sufficiency challenge must be rejected. Classic “no evidence” review. See, e.g., Banks v. State, 510 S.W.2d 592, 595 (Tex.Crim.App.1974), overruled by Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989).
I disagree with the majority’s application of the “no evidence” scope of review for three reasons. First, the United States Supreme Court has already held that the “no evidence” standard of review fails to meet the constitutional due process requirements of the Fourteenth Amendment. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In Jackson the lower federal courts, like the majority, applied the “no evidence” standard to review the sufficiency of the evidence to support the conviction, and it was on this precise point that the Supreme Court granted a writ of certiorari. Id. at 312, 99 S.Ct. at 2785. To demonstrate why it was “readily apparent” that the “no evidence” standard is “inadequate to protect against misapplications of the constitutional standard of reasonable doubt,” the Court stated:
“[A] mere modicum of evidence may satisfy a ‘no evidence’ standard.... Jacobellis v. Ohio, 378 U.S. 184, 202, 84 S.Ct. 1676 [1686], 12 L.Ed.2d 793, 28 Ohio Ops.2d 101 (Warren, C. J., dissenting). Any evidence that is relevant — that has any tendency to make the existence of an element of a crime slightly more probable than it would be without the evidence, cf. Fed Rui Evid *611401 — could be deemed a “mere modicum.” But it could not seriously be argued that such a “modicum” of evidence could by itself rationally support a conviction beyond a reasonable doubt.”
Jackson, 443 U.S. at 320, 99 S.Ct. at 2789. Having rejected the “no evidence” standard as constitutionally inadequate, the Court held that the minimum standard for reviewing the legal sufficiency of the evidence, consistent with the due process guarantee of the Fourteenth Amendment, is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319, 99 S.Ct. at 2789 (emphasis in original). By interpreting footnote 10 as it does, therefore, the majority imputes to the Court of Criminal Appeals a reversion to one aspect of a constitutionally inadequate standard of review. And in applying the “no evidence” scope of review, the majority engages in a legal sufficiency analysis that had already been determined by the United States Supreme Court to be constitutionally infirm.
My second basis for disagreeing with the majority’s interpretation of footnote 10 in Clewis and its resulting adoption of a “no evidence” scope of review is simply that it defies common sense, logic, and traditional principles of legal analysis to conclude, as the majority apparently does, that the Court of Criminal Appeals both affirmed and abandoned the Jackson standard in one footnote in one case. I find this particularly unlikely since this one ease is Clewis, which does not turn upon the Jackson standard but whether the Texas Constitution requires Texas Courts of Appeals to conduct factual sufficiency review in criminal cases. Clewis, 922 S.W.2d at 128. Even a cursory reading of footnote 10 demonstrates that it inadvertently confuses the Jackson scope of review with one aspect of the Jackson standard of review.
Under Jackson, the scope of review is all of the evidence before the jury. The standard of review is two-fold: (1) viewing all of the evidence in the light most favorable to the prosecution, (2) the reviewing court must determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 (emphasis in original). The eases cited in footnote 10 reflect appropriate applications of the first aspect of the standard of review, i.e., viewing all of the evidence in the light most favorable to the prosecution, all conflicts in the evidence and credibility determinations are resolved in favor of the prosecution. Id. at 319, 99 S.Ct. at 2789. But these cases have nothing to do with the scope of review, i.e., reviewing all of the evidence before the jury. Disregarding the nature of the cited cases, the majority simply interprets footnote 10 mechanistically and abandons the Jackson scope of review in favor of the pre-Jackson “no evidence” scope of review.
Finally, I fail to see how this court or any other can answer the Jackson question with a “no evidence” scope of review, that is by looking only at the evidence supporting the conviction. Surely Jackson ⅛ “rational trier of fact” would not find guilt beyond a reasonable doubt merely because some evidence supports guilt — when other evidence, or the absence of certain evidence, raises reasonable doubt. See Jackson, 443 U.S. at 317 n. 9, 99 S.Ct. at 2788 n. 9 (reasonable doubt may arise from evidence or lack of evidence).
For these reasons, I believe the standard and scope of legal sufficiency review post-Cletvis remains the Jackson, standard, not the “no evidence” standard adopted by the majority. I also believe this very difficult case forcefully demonstrates the difference and why the Jackson standard can only be considered legitimately in the context of all the evidence before the jury. The majority recites the evidence supporting the verdict. Here, as Paul Harvey would say, is “the rest of the story.”
Review Undee the Jackson Scope AND STANDARD OF REVIEW
The Evidence Before the Jury
On November 11, 1992, the Bexar County Sheriff’s Department responded to a call on Mallow Drive north of San Antonio. When Officer Donáis arrived, she found a young boy, Vincent Matteo, sitting cross-legged in *612front of the TV in the living room. Vincent had been stabbed in the back with a butcher knife, and his spinal cord had been severed by repeated blows to his head “in such a fashion that his entire brain was turned to mush.” Although the boy’s father, Anthony Matteo, was a suspect in the case for over a year, the grand jury ultimately indicted John Wesley Amunson, a hitchhiker Matteo had picked up and taken home the day before the murder. At trial, both Matteo and Amunson testified. Without explanation from the State, Matteo’s friend, Gilbert Garcia, who was also with them the afternoon of the murder, did not testify.
Anthony Matteo
At the time of trial, Matteo was a forty-six year old homosexual who for many years had been a member of the armed services. From 1969 to 1977, Matteo was married to Shelva Diebler. The couple divorced approximately two years after Matteo left regular service under an early-out program in 1975. In September 1979, however, after Matteo was accepted into a tour of active duty, Matteo married again, this time to Cheryl Gaddy, a resident of Alaska, where Matteo was then stationed. According to Matteo, his marriage to Gaddy was strictly a marriage of convenience. Matteo wanted to look “more normal” for his tour of active duty at Randolph Air Force Base in San Antonio, Texas.
Matteo and Gaddy had only lived together for a couple of months when Gaddy returned to Alaska. Nonetheless, in December 1981, Matteo and Gaddy, as husband and wife, legally adopted Matteo’s niece’s baby, Vincent. Although Matteo’s niece knew Matteo was once a homosexual, Matteo believed she and his other family members assumed he was no longer a homosexual in light of his marriage to Gaddy. Shortly after adopting Vincent, Matteo purchased a whole life insurance policy on Vincent’s life; Matteo planned to finance Vincent’s college education by borrowing against this policy at a low interest rate. The face amount of the policy was $65,000.
In 1983, Matteo met and became lovers with Henry Bailey.4 In September 1984, when Matteo’s active tom* of duty was over, he again separated from the armed services, receiving separation pay of $26,000. Matteo, Bailey, and Vincent then returned to Alaska. Bailey, however, did not like Alaska, and the three returned to Texas a couple of months later. With Matteo’s $26,000 in separation pay, the couple bought a beauty shop in Austin, Texas. The beauty shop failed, and Matteo lost his investment.
In November 1985, Matteo and Bailey broke off their relationship. A few months later, in February 1986, Matteo reenlisted. Six years later, effective January 1, 1992, Matteo retired from the armed services and moved with Vincent into a rental house in North San Antonio. For most of 1992, Mat-teo was unemployed. Additionally, since he had to pay back the $26,000 he had received in the early-out program, Matteo’s retirement check was reduced by 75% to approximately $250 to $300 a month until the $26,-000 was paid off. Accordingly, to pay for their living expenses, Matteo took out a $6,000 loan, collateralized by the $11,000 in his credit union account.
By October 1992, Matteo had only a couple of thousand dollars left in his credit union account, and he began to supplement his retirement income with the income from two part-time jobs. During the day, Matteo worked as a home health care worker for various agencies. In the evenings, Matteo worked for the City of San Antonio as a gatekeeper at local softball parks. Matteo’s total gross monthly income was then about $1280.
About twice a week, Matteo would pick up male hitchhikers and take them home for a one-night stand. And so it was that, at approximately 2:30 p.m. on Tuesday, November 10, 1992, when Matteo was on his way home from work, he stopped to give a ride to a hitchhiker, John Amunson. Amunson said he was on his way to Waco to look for work. *613Amunson was very friendly and seemed to Matteo to be a person down on his luck. Amunson told Matteo he had a child about Vincent’s age. Matteo asked if Amunson was in a hurry, and he said “no.” Matteo then told Amunson that he was moving and could use some help. Amunson agreed to help, and the two returned to Matteo’s house, where they met Matteo’s son, Vincent. After the three ate a fish sticks dinner that Matteo had prepared, Matteo and Amunson made three or four trips to Matteo’s new apartment. Later that evening, the two men drank beer, watched TV, and had sexual relations in Matteo’s bedroom.
The next morning, Vincent went to school, and Matteo went to work. Since Amunson was still asleep, Matteo left him a note on the kitchen table indicating he would return around 2:30 p.m. and would pick up some beer on his way home. By the time Matteo returned to the house about 11:30 a.m., Amunson was awake. Matteo told him he would return around 2:30 p.m. Around 2:20 p.m., Matteo picked up his friend Gilbert Garcia at the San Antonio AIDS Foundation and then returned home. Matteo started packing, while Amunson cooked dinner, using some canned goods he had brought with him and a chicken set out by Matteo. Around 4:00 or 4:30 p.m., the three men and Vincent ate dinner.
Sometime that afternoon, Matteo gave Amunson $20. Also that afternoon, Matteo received a phone call instructing him to go to work that night. He therefore cancelled his moving plans and, at approximately 5:30 p.m., proceeded to work. He dropped Garcia back off at the San Antonio AIDS Foundation. Vincent and Amunson stayed at home. When Matteo left, Vincent and Amunson were playing Monopoly.
Since Amunson had said he would help at the yard sale that Saturday, Matteo expected him to be at the house when he returned that evening at 10:20 or 10:30 p.m. When Matteo entered through the back door, he saw a blanket on the floor in the living room and thought that was a “stupid” place for Amun-son to be sleeping. He then went in the kitchen and deposited his briefcase and keys on the table and checked his messages. After returning one of the calls, Matteo went into Vincent’s room to turn off the TV. Vincent was not in his bed. Matteo then ran into his bedroom to find Amunson. No one was there. Matteo then went into the living room and lifted the blanket. He saw Vincent on his knees laying on the left side of his head. Thinking he was asleep, Matteo bent down to pick him up. Vincent was cold. Only then did Matteo see the kitchen knife in Vincent’s back; he saw no blood. Matteo called 911, and an officer arrived shortly after 10:35 p.m.
When asked for a suspect, Matteo described Amunson and gave his name as John or J.J. With an officer’s help, Matteo put together a composite, which aired on TV that night. The following day Matteo gave a statement to the Bexar County Sheriffs Department. In this statement Matteo reportedly said that he touched the knife in Vincent’s back and then called 911. Sometime after this statement was given, Matteo learned that there were no fingerprints on the knife. At trial, Matteo testified that he did not touch the knife, and he did not know why his statement indicated that he said that he had.
Within a couple of days of Vincent’s murder, Matteo submitted a claim on Vincent’s whole term life insurance policy.5 The death benefit on this policy was approximately $104,000. As a result of Vincent’s death Matteo also inherited assets valued at approximately $14,000.
On September 18, 1993, Matteo appeared before the grand jury as a suspect. His attorney sat in the hall outside. On the advice of this attorney, in response to every question posed of him — including his age, whether he had any affection whatsoever for his adopted son, whether he knew any of the people in a long list of names, whether he killed his son, whether he knew anything about the cause of his son’s death, and whether he would help with the investiga*614tion — Matteo invoked his Fifth Amendment right against self-incrimination. At trial, Matteo said he did so because he was “offended” by the nature of some of the State’s questions. In Matteo’s view, the State’s questions were sometimes “accusatory” and sometimes implied that he felt less for Vincent because he was adopted.
In January 1994, the grand jury indicted Amunson for the murder of Vincent Matteo, but Matteo didn’t learn of the indictment until May. In October, the case went to trial. At trial, Matteo denied killing Vincent and expressed his belief that Amunson had murdered his son. Matteo testified that, at the time Vincent was murdered, the life insurance policy on Vincent’s life was located in the bookshelf by the TV, and he denied telling Amunson about it. Matteo further denied that he had engaged in sadomasochistic sex; he testified that the S & M paraphernalia at his home was left to him by a friend, and he simply kept it in a box in the closet.
Don Kiolbassa
At the time of trial, Kiolbassa was the service analyst and records custodian for VIA Metropolitan Transit. Kiolbassa testified at length about the bus schedules between Matteo’s home and downtown San Antonio.
Amarel Hubbard
Sergeant Hubbard is the composite kits operator who created a composite of Amun-son from Matteo’s description.
Anthony Lehman
Anthony Lehman, a sous chef at the Holiday Inn Riverwalk North, testified that he left the Holiday Inn and walked to the bus stop at St. Mary’s and Commerce Streets sometime between 9:30 and 10:00 p.m. After missing his bus, Lehman called his son-in-law, George De Los Santos, to pick him up. While waiting for De Los Santos, Lehman was asked to watch the bags of a man he identified at trial as Amunson, while he went to a nearby store to get a beer. After a few minutes, Amunson returned with a quart of beer and thanked Lehman. Lehman testified that Amunson seemed like “a very nice person” and “polite.” The two men began talking, and Amunson told Lehman that he had gotten into an argument with his wife, had left their house in Corpus Christi, and was hitchhiking north out of town. Amunson also told Lehman he needed some money and had a VCR to sell. Lehman had no money, but he relayed the conversation to De Los Santos when he arrived, and De Los Santos indicated that he wanted to buy the VCR. Lehman and De Los Santos then went to a nearby cash machine on Main Street. When they returned to St. Mary’s and Houston, they asked Amunson to get in the car so he could show them the VCR. Amunson did so, and De Los Santos bought the VCR for $30. Amunson said he also had a Nintendo and a leather jacket to sell, but Lehman told him they were not interested. Lehman then asked Amunson if he would like a ride somewhere. Amunson replied that it didn’t matter where they dropped him off. De Los Santos therefore left Amunson near the SAM shelter on West Commerce. Lehman and De Los Santos then went home.
At trial, Lehman testified that when he recognized Amunson as the man depicted in the composite that aired on TV the evening following Vincent’s murder, he called the police. The police came to his home and picked up the VCR. A few days later Lehman gave a statement. At trial, Lehman identified Matteo’s VCR as the VCR his son-in-law purchased from Amunson.
Debbie P. Donáis
At approximately 10:30 or 10:35 p.m. on November 11, Officer Donáis was working the swing shift (3:00 to 11:00 p.m.) when she received a “Code 3” call dispatching her to Matteo’s home. A Code 3 call means the officer is to arrive as quickly and as safely as she can. Donáis therefore turned on her lights and siren, took the next exit, turned around, and proceeded to Matteo’s house. As she was pulling up to the house, she saw Matteo in the roadway waving his arms and motioning her into the house. Donáis followed Matteo into the house. Matteo, who was still on the phone with 911, asked Donáis if she needed to speak with the 911 dispatch*615er and picked up the blanket to reveal Vincent, “on his knees with a knife [handle] protruding from his back....” Donáis told Matteo she did not need to speak with 911 and to hang up. Matteo did so. Donáis and Matteo then went into the kitchen, and Do-náis began taking down information for her report. Matteo identified Vincent as his child and gave his date of birth. According to Donate, Matteo was “real, real excited, kind of antsy like” but not “really emotional.” Matteo told Donáis that “he stepped out of the house,” so she asked him if he had left anyone with his son. Matteo said “yes,” “a hitchhiker that he picked up a couple of days before” named John Amunson or something similar. Matteo also gave Donate a physical description of Amunson and told her his VCR was missing. Donate then called in the description to the dispatcher. Other officers, as well as EMS, then arrived, and the scene was secured and the investigation begun.
Randall Stang
Officer Stang was dispatched to Matteo’s home at approximately 10:30 p.m. When he arrived, Donate was coming out of the house; she looked shocked. Stang walked in and saw a body with an afghan over it; the body had a hump on it. When Stang pulled off the afghan, he saw a boy lying in a fetal position trying to protect his head, which had a couple of large gashes in it. There was a knife stuck in the boy’s back all the way down to the handle. Stang had never seen a child brutally killed like that and was shocked.
Stang next went in the kitchen to talk with Matteo. He was unable to remember much of what happened after that. He did remember that he learned that someone with a nickname was staying at the house; he saw a note from someone saying they would return at a certain time and would pick up some beer, and it was signed with someone’s nickname. Stang testified that he later learned that this was a roommate of Matteo’s. He also recalled that Vincent, whom Stang believed to be ten or twelve, was not wearing a shirt and was covering his head. Stang also recalled that there was a broken rocking chair nearby. He did not touch the boy and did not pay any attention to his feet. After talking with Matteo, Stang sealed the scene. Although he made a report, he was not able to find it before trial.
John Hearn
Investigator Hearn was called at home at approximately 11:10 p.m and told to respond to the call at Matteo’s home. When he arrived, Chief DeLesdemier and Officer Do-náis took him on a brief tour of the scene. Hearn, assisted by Sergeant Sanchez, began taking photographs and measurements. Hearn also looked for anything out of place, as well as signs of forced entry. Although the house was in disarray, and the back door was open, there were no signs of forced entry. The back door may have been opened after the sheriffs officers arrived.
Hearn saw a boy in a sitting position, with his legs crossed and his body leaning forward. There was a knife with a wood handle sticking out from his back. Hearn also noticed splattered blood on a half-empty Schafer beer can and a wash cloth on the coffee table; an open, empty cash box on the love seat next to Vincent; a broken board from the wheelchair, which appeared to be spattered with blood; a bloody red robe, which was on a cushion that was at the top of Vincent’s head; and a pair of shorts on Vincent’s left shoulder. Hearn was not able to pick up any identifiable fingerprints from either the knife or the board. Amunson’s prints were found on Monopoly cards and the can of Schafer beer found in the living room and on an applesauce can label recovered from the kitchen. Only Matteo’s fingerprints were found on the glass jar that Matteo delivered to the sheriffs office on or about November 16. Hearn further testified that the photographs indicated lividity in the bottom of Vincent’s feet and on his stomach. Finally, Hearn testified that when he picked Vincent up, he was in the first stages of rigor mortis. On cross-examination Hearn identified a photograph depicting three leather collars with metal studs displayed on Mat-teo’s bed.
Daniel Sanchez, Jr.
Sergeant Sanchez was also called at home at approximately 11:20 or 11:30 p.m. and *616dispatched to the Matteo residence. He arrived at 11:56 p.m. After receiving a brief summary of the scene, Sanchez walked into the living room and could “right away” see Vincent’s body in what appeared to be a squatting position by the coffee table. As he got closer, Sanchez saw the handle of a knife protruding from between Vincent’s shoulder blades.
Matteo’s house was in disarray, like it had not been picked up for a long time. Sanchez assisted Hearn in taking photographs and measurements, sketching the crime scene, and collecting evidence. By the time Sanchez and Hearn moved Vincent’s body at 1:00 a.m., rigor mortis had set in, and Iividity was present on Vincent’s stomach, chest, and feet. On cross-examination, Sanchez agreed that Matteo’s house was filthy.
Bill Rodriguez
Rodriguez was an employee and the custodian of records for the City of San Antonio’s Parks and Recreation Department. Rodriguez testified that the City’s time records for Matteo for November 11 showed that he began work at 6:00 p.m. and left at 10:00 p.m. He was paid for four hours. The records further showed that $26.25 was collected for the 105 tickets sold for the game that evening.
Camilo Villanueva
Villanueva was the grounds keeper at the ball park where Matteo worked as gatekeeper on the evening of November 11. The score keepers were Johnny Lopez and Herman Cortez. According to Villanueva, he arrived at the ball park at 6:00, “as always.” Matteo was waiting in his car and met Villa-nueva at the gate. Both men went about their duties. Villanueva saw Matteo at various times during the evening and for a few minutes sat for Matteo while he went to the bathroom or got a soda. Villanueva testified that he also saw Matteo between 10:00 and 11:00 p.m. Matteo was at the bleachers watching the game after he had finished his work. According to Villanueva, Matteo usually finished selling tickets during the third inning, around 10:00 p.m. Matteo then picked up his table, chairs, and flags and filled out a cash report. This took around fifteen to twenty minutes. Villanueva left at 11:00 p.m., and Matteo left before him. Villanueva met Matteo through work and is not a social Mend. He described Matteo as a “Mendly, quiet person.” On cross-examination, Villanueva testified that he is now a gatekeeper for the City and enjoys his work.
Herman Cortez
As noted by Villanueva, Cortez was a scorekeeper at the ball park on November 11. He met Matteo through work; the two men were not social Mends. Cortez testified that he arrived at the ball park at 6:00 or 6:15 p.m., and the first person he saw was Matteo. Matteo had already set up his table and was sitting at the gate. Matteo appeared no different than usual, but he was always quiet. Around 9:15 or 9:30 p.m., Mat-teo brought his cash report and gate receipts to Cortez in the scoring booth and then stood behind the back stop to watch the game, as he always did. Matteo stayed until the game ended around 10:00 p.m. Cortez didn’t see Matteo leave “but he had to have been there, you know, right after the ball game, a little bit after.” Cortez never met Vincent and knew nothing about Matteo’s home life.
Bud Baker
Lieutenant Baker was a sergeant in the Homicide Division on November 11, 1992. He first became involved in the investigation of Vincent Matteo’s murder when he and Deputy Chief Jim DeLesdernier drove to Ormund Beach, Florida in early December to pick up Amunson. On the way, the men stopped in Livingston, Louisiana to pick up photographs and a statement from the sheriff there. They arrived in Ormund Beach on Monday, December 7, 1992, and met with Amunson, who at the tíme was using the alias John Allen Smith.
Baker first identified himself and explained that he had a warrant for Amunson’s arrest for murder, and he was there to take Amunson back to Texas. Baker then read Amunson his Miranda rights. After Amun-son indicated he understood his rights, Baker said he planned to pick Amunson up the next morning and asked if he had anything he *617needed to get ready. Amunson said he could be ready in five minutes. Baker did not question him or attempt to question him. At the time, Amunson had “long afro style hair, very curly, and a full beard.”
Baker returned the following morning at approximately 5:00 a.m., and the trio departs ed at approximately 5:30 a.m. Amunson was handcuffed. During the ensuing eighteen-hour drive, they made three stops for gasoline, food and drink, and personal relief. During the trip, Baker asked Amunson if he would be willing to talk to him about the events of the Matteo homicide, and Amunson said he would.
Amunson told Baker that he was hitchhiking along Loop 410 in San Antonio en route from Corpus Christ to Waco when Matteo picked him up. Matteo offered him a job helping him move to an apartment. Although the move was never made, Amunson said, he had stayed at Matteo’s home, spent the previous night there, and prepared dinner for Matteo, Vincent, and another guest. According to Amunson, Vincent was very friendly and open and wanted attention, but he was afraid of his father. Amunson also said he had played Monopoly with Vincent for some period of time before Vincent went to his bedroom to watch TV. This was after or during the time Matteo and his guest were preparing to leave. Amunson said that he had had eighteen beers that day; he was an alcoholic; and he intended to leave that evening, but when he told Matteo of his plan, Matteo tried to convince him not to leave at that time. Amunson said Matteo was openly homosexual, and Amunson “didn’t play that game.”
According to Amunson, Vincent overheard his conversation with Matteo regarding his planned departure, and Vincent also asked, then begged, Amunson not to leave. Amun-son said he decided to leave after their Monopoly game was over and to take the VCR after Vincent went into his bedroom. Amun-son said he took the VCR and Nintendo game because he needed money. Amunson said he left just before dark, which he thought was around 6:30 p.m., and walked to a nearby bus stop, where he caught the first bus that came by and took it downtown. Amunson said that he last saw Vincent when he went into his bedroom to watch TV.
When he arrived downtown, Amunson met the person to whom he eventually sold the VCR for $30. When Baker first mentioned the Nintendo game, Amunson didn’t recall taking it; later he remembered that he did and said he had left it underneath a bridge near the Bexar County Jail after being dropped off by the people to whom he sold the VCR. He said he left the Nintendo game under the bridge because he realized he was in an area where there were a lot of police, it was late at night, and he did not want to try to explain to a police officer why he was carrying a Nintendo game in a canvas bag at that time of night. It was near the Bexar County Jail that Amunson said he was picked up by a black man and taken to his home, where Amunson spent the night.
Amunson said he spent the next day drinking beer in downtown San Antonio. He called the black man he had met the previous evening and asked if he could again spend the night at his home, but he said no. Amunson eventually spent the night under a bridge or culvert at Interstate Highway 10 and Loop 410 East. He spent some time the next day at a nearby truck stop, trying to catch a ride. Eventually a security guard told him to leave, so Amunson walked to Interstate 10 East and caught a ride to Se-guin. A little before dark Amunson was picked up by three young men from Arizona, two of whom were brothers. When asked where he was headed, Amunson said east. Amunson accompanied the young men to Livingston, Louisiana. The group spent Saturday, November 14,1992, with the brothers’ family and that night attended their uncle’s birthday party. The next day they headed to Miami, Florida to find construction work in the wake of the hurricane. Amunson said he had spent all of his money in San Antonio, he had no identification, and he had no relatives in Florida. Amunson also told Baker , that had he not been identified as someone other than John Allen Smith, he intended to head for New York City and disappear into the crowd.
During their conversation, Baker showed certain photographs of Vincent’s body to *618Amunson to see what kind of reaction he would get. Amunson showed no anger or grief, which Baker would have expected, nor did he ask any questions as to how Vincent died. Amunson simply shook his head. Amunson was of course aware that he was the primary suspect, but he insinuated to Baker that he needed to look at Matteo because Matteo had mentioned to Amunson that “he had a large amount of insurance on Vincent and that he had a large insurance premium to pay each month on Vincent.” Amunson said he had no other information; it was “just a feeling” he had that Matteo was somehow involved.
John Hearn
Hearn was recalled to identify a glass jar found at Matteo’s home. According to Hearn, fingerprints were taken from the jar but they were unknown. The prints were neither Matteo’s nor Amunson’s. They could have been Vincent’s or anyone else’s.
Anthony Matteo
On recall, the only new information provided by Matteo was that, when preparing dinner, Amunson used cans of food he provided. Matteo also identified the jar previously identified by Hearn as Vincent’s “bank,” which he kept in his bedroom and which had contained approximately $18. According to Matteo, he discovered the jar — empty—on the Monday or Tuesday following Vincent’s murder and delivered it to the sheriff’s representatives. Matteo did not discover earlier that the jar was empty because his house had flooded.
Matteo also identified on a map of the city the route he took from his home to the San Antonio AIDS Foundation and from the Foundation to the ballpark. According to Matteo, the trip from his home to the Foundation took approximately ten or fifteen minutes, while the trip from the Foundation to the ballpark took him about ten minutes.
On cross-examination, Matteo again denied stating on the night of the murder that he had touched the knife in Vincent’s back. He also testified that he did not believe that Henry Lee Bailey had said he was scared of Matteo for various reasons, and he did not know that Bailey was dying from AIDS and therefore unable to testify.
J. Albert Acevedo, Jr.
Acevedo was the grand jmy foreman in January 1994. Acevedo identified the indictment of Amunson and further testified that the grand jury was unable to ascertain the instrument used to inflict Vincent’s head wounds.
Robert Charles Bux
Dr. Bux, the chief deputy medical examiner for Bexar County, performed the autopsy on Vincent on November 12, 1992. After describing Vincent’s injuries, Bux concluded that Vincent was killed somewhere between 5:00 or 5:30 p.m. and 10:00 or 10:30 p.m. Bux believed it most probable that Vincent died at approximately 8:00 or 8:30 p.m.
Market Shirley
Shirley lives in Denham Springs, Louisiana. According to Shirley, Amunson arrived at her -uncle’s house on November 14,1992 in the company of her two nephews and their friend from Sedona, Arizona. The group was on its way to Homestead, Florida to find construction work. Shirley met the group the following Sunday morning when she went over to her uncle’s house. Shirley stayed at her uncle’s home, visiting with the men, until that evening when they followed her to her aunt’s house, where they were having dinner. Shirley’s uncle bought tires for their car and gave them $50. The group went to Shirley’s uncle’s birthday party that night and then spent the night at the home of Shirley’s other aunt and uncle. Shirley identified photographs taken at the birthday party. The photographs depicted members of Shirley’s family and Amunson. According to Shirley, Amunson’s demeanor was “fantastic”; he was “enjoying himself’; he was “very amicable,” charming, and could talk easily with strangers; and “the women had an affinity for him.... ” Amunson did not seem evasive but entirely normal. Shirley did not believe Amunson drank too much, although her nephews did.
*619 John Wesley Amunson
Amunson was twenty-eight years old at the time of trial and testified in his own behalf. According to Amunson, when Matteo picked him up on November 10, he was hitchhiking to Waco. Amunson had been working in Corpus Christi and had just broken up with his girlfriend, Norma Pena. He was on his way to the home of his ex-wife, Laura Miller, in Lorena, just south of Waco, to get some money to go to Florida, where Amun-son was going to try to get construction work in the aftermath of the hurricane.
During their conversation, Matteo asked if Amunson had been married and had children. Amunson responded that he was divorced and had one child, approximately three years old, who lived with his ex-wife. Matteo asked Amunson if he would be interested in some work, specifically helping him move to his new apartment. Amunson told him he couldn’t be paid with a check because he was “on the run from the law” — in the previous twelve years, Amunson had been convicted of burglary of a habitation, theft, and unauthorized use of a vehicle, and he was in violation of the terms of his parole when Matteo picked him up. Matteo asked then if Amunson was using another name, and Amunson told him he had used “J.J.” before. Matteo said that was what he would call him.
On the way to Matteo’s house, the two men stopped and picked up some beer. When they arrived at Matteo’s house, Vincent was in the living room doing his homework. While the two men were talking, Vincent frequently interrupted with questions. It appeared to Amunson that Matteo was more interested in talking with him than with Vincent. Matteo was visibly annoyed and told his son to go to his bedroom. When Vincent said “no,” Matteo moved towards him, and Vincent cowered. Then Matteo looked at Amunson and started “play wrestling” with Vincent. Matteo then sent his son to his bedroom.
While Matteo fixed dinner, he and Amun-son continued talking. After dinner, Amun-son played Monopoly with Vincent while Matteo made a telephone call to his bank in Connecticut or Canada. Later, after Vincent had taken his bath and gone to bed, Matteo and Amunson continued their conversation. Approximately thirty to forty minutes later, the two men loaded up some trunks and took them to Matteo’s new apartment. On the way home, they picked up more beer. Upon returning to Matteo’s home, Amunson took a shower. Later the two men watched TV and continued their conversation. At one point, Amunson asked Matteo about the antique wheelchair. Matteo responded that a lady had given it to him, and it had broken when he was loading it into a truck. Later Matteo told Amunson that he “had a lot of money tied up” in Vincent’s life insurance policy.6
Amunson denied that he had sexual relations with Matteo. According to Amunson, when Matteo brought up the subject of his homosexuality and asked if Amunson was interested, Amunson said “no,” and that he would feel more comfortable if Matteo would just take him back to the highway. Matteo told Amunson that he would not “mess” with him and asked him to stay and help him move; he had no one else to help him. Amunson agreed to stay and help so long as Matteo promised to leave him alone. At trial, Amunson denied that he was either homosexual or bisexual. That night Amun-son slept in Matteo’s bedroom, while Matteo slept on the couch in the living room.7
The next morning Amunson woke up about 10:30 a.m. Matteo and Vincent had already left, but Matteo had left him a note on the coffee table. The note said Matteo would return around 2:30 p.m. and would pick up some beer. Matteo returned around 11:30 am. with the beer and told Amunson he had arranged for a truck and another person to help with the moving. Amunson stayed at the house, drinking beer and watching TV.
Around 3:30 p.m., Matteo and his friend, Gilbert Garcia, returned. Vincent, who had *620also gotten home from school, went into his bedroom to do his homework. Matteo asked Amunson to prepare dinner, as they had discussed the previous evening. At approximately 3:00 or 3:30 p.m., Amunson began to cut and then fry a chicken Matteo had thawed and fix the canned spinach he had in his bag. While Amunson was preparing dinner, Matteo and Garcia stayed in Matteo’s bedroom.
During dinner, Matteo told Amunson that he had not been able to get a truck, and he was going to leave for thirty to forty minutes to drop Garcia off and run by his new apartment. When he returned, they could start moving Matteo’s stuff. According to Amun-son, Garcia stayed through dinner but did not eat; he was acting “real strange” — “real paranoid or real seared.” However, the only conversation Amunson had with Garcia was when Garcia asked Amunson about his tattoos.
When Matteo and Garcia were leaving, around 5:30 p.m., Amunson “didn’t like the feel of the situation,” so he decided to leave and told Matteo he probably would not still be there when Matteo returned. Amunson denied that he had told Matteo that he would stay through the garage sale that Saturday.8 He also testified that, as far as he knew, Matteo had not received a phone call instructing him to go to work, and he was not going to work when he left that evening.9
After Matteo and Garcia left, Amunson and Vincent played Monopoly for approximately one-half hour. When Vincent kept asking Amunson to stay, Amunson said “no.” Vincent then got mad and stormed into his bedroom. Amunson waited for Matteo for about thirty to forty-five minutes. When Matteo didn’t show by about 6:00 or 6:30 p.m., Amunson packed up the VCR and Nintendo and left through the back door. Amunson took the VCR and Nintendo because he needed money; at the time, he only had $3 to $4. By the time he left, Amunson had consumed approximately eighteen beers. Amunson denied, however, that he blacked out at any time on November 11. Amunson also denied taking the $18 that was in Vincent’s “bank.”
Unfamiliar with the area, Amunson wandered around for approximately thirty minutes looking for the bus stop near Matteo’s home. He finally boarded a bus around 7:15 or 7:30 p.m. After walking around for a while, Amunson met Lehman at the bus stop at the comer of East Houston and South St. Mary’s. It was about 10:00 p.m. Amunson asked Lehman if he would watch his bags while he got a beer. Lehman agreed. Ultimately, Amunson sold the VCR to Lehman’s son-in-law for $30. After driving to a cash machine and getting the money, Lehman and his son-in-law dropped Amunson off on Commerce Street. Thereafter, Amunson walked around downtown San Antonio drinking beer. He left the Nintendo under a bridge because he was afraid the police would stop him and find that he had stolen property. That night, Amunson spent the night at the home of a black man he had met that evening.
The next evening Amunson made his way back to the truck stop where Matteo had picked him up. He first got a ride to Seguin in a small red pickup. Then two brothers from Arizona and their friend picked him up. They said they could take him all the way to Florida because they were going there, too, to look for construction work in the wake of the hurricane. On the way, the group went to a birthday party for the brothers’ uncle in Denham Springs, Louisiana. At the time, because he was violating his parole, Amunson used an alias, John Allen Smith.
A few days later, the group proceeded to Florida. Outside of Daytona, the group— with Amunson at the wheel — was stopped for an expired license plate, and Amunson was ultimately arrested for driving while intoxicated. Amunson, who was still using the name “John Allen Smith,” was sentenced to thirty days in jail. On December 7, 1992, Lieutenant Bud Baker arrived in Florida to take Amunson back to Texas.
While in the Bexar County jail, Amunson requested that he be transferred to the homosexual unit. According to Amunson, in*621mates were harassing him because he was charged with murdering a young boy.10 At trial, Amunson repeatedly denied that he had killed Vincent.
Shirley Schuster
Shirley Schuster is a professional nurse who in 1992 worked a few doors down from Matteo. Schuster cared for Sam Davidson and his adoptive mother, Lorna Wonsik, who were both in wheelchairs. Matteo visited Davidson frequently, referring to him as his “brother” and to Mrs. Wonsik as his “mom” and Vincent’s “grandmother.” Vincent also visited Mrs. Wonsik’s home several times a week.
Schuster testified that she overheard many conversations between Matteo and Davidson in which Matteo talked about Vincent. According to Schuster, Matteo said “the damn kid ties him down;” when he was old enough, Matteo would throw him out of his house and his life. Schuster also testified that, when Vincent came to use the bathroom at Mrs. Wonsik’s, Vincent told her that on several occasions Matteo locked him out of the house for a couple of hours at a time. Finally, Schuster testified that she had seen marks and bruises on Vincent. However, because the trial judge sustained the State’s hearsay objection, Schuster was not permitted to relate what Vincent told her as to the origin of his injuries. Finally, after the trial judge sustained another of the State’s hearsay objections, Schuster testified that she felt someone did not want her to talk about the conversations she had overheard. Like Lehman, Schuster called the Bexar County Sheriffs Office after seeing the composite on TV. She, however, told them the composite looked like Anthony Matteo.
Patrick Skillman
At the time of trial, Lieutenant Skillman worked in the Classification Section of the Bexar County Sheriffs Department and was its custodian of records. According to Skill-man, a report was made on December 14, 1992 regarding a housing incident involving Amunson. According to the report, Amun-son said he was homosexual and had been since entering the jail, but he had failed to mention it to anyone. Amunson requested transfer to the Homosexual Unit. According to another report, when Amunson was interviewed on December 15, 1992, he indicated he had a homosexual lover and wanted to be transferred to the Homosexual Unit to be with his lover. Amunson was later transferred to the Homosexual Unit. Skillman also testified that, according to discipline reports dated July 26 and September 25, 1994, Amunson was written up for kissing and fondling another inmate.
On cross-examination, Skillman agreed that one way to get transferred to the Homosexual Unit was to claim to be a homosexual, and he had no personal knowledge as to whether Amunson was a homosexual. Skill-man further testified that homosexual inmates are treated fairly, and he denied that his department would transfer a homosexual to the Homosexual Unit to be with a lover.
Discussion
As demonstrated by the foregoing, the only evidence indicating Amunson’s guilt is the circumstantial evidence recited by the majority, and there is substantial evidence raising reasonable doubt. For instance, there is no evidence that Amunson had a motive to kill Vincent — an act of violence and brutality totally inconsistent with his previous convictions for burglary, theft, and unauthorized use of a vehicle. If Vincent had walked in on Amunson while he was stealing the VCR and Nintendo, would not Vincent’s wounds be somewhere other than the back of his head and his back? And if Amunson’s motive was to steal the VCR and Nintendo so he could sell them and get some money, why would he wait until Vincent came home? Why would he not have stolen the items when he was alone in the house from 9:00 a.m. to mid-afternoon?
Balanced against the absence of evidence as to Amunson’s motive for murdering Vincent is the evidence suggesting that Matteo had not only the opportunity to kill Vincent sometime between 10:00 p.m. and 10:80 p.m., consistent with Dr. Bux’s minimum estimate *622of the time of death, but also a stronger motive for murdering Vincent than did Amunson; Matteo stood to gain not only a substantial sum of money but also his freedom.
And if Amunson killed Vincent, why were his fingerprints not found on the knife or Vincent’s “bank”? Is it really reasonable to assume he would have wiped his prints off the knife and “bank” but not the Monopoly cards and beer and food cans? For that matter, whose fingerprints were on Vincent’s “bank”? And where was Gilbert Garcia? Finally, how did Amunson know about the life insurance policy Matteo took out on Vincent’s life if Matteo did not tell him? And why would Matteo tell a hitchhiker like Amunson about the policy?
In short, the evidence in this ease, as well as the gaps in the evidence, are far less inculpatory and raise far more doubt as to Amunson’s guilt than did the evidence in Turner. The evidence in Turner was constitutionally inadequate; the evidence in this case is even more so.
Conclusion
No remotely compassionate person could remain unmoved by the monstrous crime in this case. An innocent child was brutally and senselessly murdered. Such a horrible crime cries out for punishment and retribution. For this reason, I can fully understand and sympathize with the overwhelming psychological need to convict. But in light of the questions and reasonable doubts raised by the evidence and lack of evidence in this case, I simply cannot agree that the evidence, when viewed as a whole and in the light most favorable to the prosecution, establishes with “near certitude” that it was Amunson who murdered Vincent Matteo. In my view, any rational person who is able to temporarily suspend the pain and horror this crime necessarily generates must have doubts and suspicions not only with respect to Amunson but also with respect to Matteo and Garcia. Nor does this record exclude the very real alternative that Vincent was murdered by none of these men but by someone else. As a result, I simply cannot agree that this record establishes with near certainty that John Wesley Amunson murdered Vincent Matteo.
Nor can I agree to “split the baby,” as the majority effectively does by reversing and remanding this case for a new trial. If the evidence is legally insufficient to support Amunson’s conviction, he is constitutionally entitled to his freedom; he cannot legitimately be made to suffer a second trial. This is simply not a case of prosecutorial incompetence; the State made the best case it can. It is just that the State’s best case is insufficient as a matter of federal due process. Accordingly, I would reverse the judgment and instruct the trial court to enter a judgment of acquittal.
. Cf. W. Wendell Hall, Revisiting Standards of Review in Civil Appeals, 24 St. Mary’s L.J. 1041, 1049 (1993) ("The standard of review should be carefully distinguished from the scope of review. The applicable standard of review determines whether the trial court has committed an error. The scope of review defines what the reviewing court will examine to determine whether the trial court has committed an error. In other words, the scope of review defines what part of the record is relevant to a particular appellate complaint.”).
. In applying the Jackson standard for legal sufficiency, the reviewing court should consider state evidentiary rules. See Turner v. McKaskle, 721 F.2d 999, 1003 (5th Cir.1983) (citing Moore v. Duckworth, 443 U.S. 713, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979) (per curiam)). Consideration does not, however, require "rigid adherence" because the question is not whether the evidence is sufficient under state law, but whether it is sufficient “to satisfy federal due process." Turner, 721 F.2d at 1003.
. "Turner was an itinerant worker with no fixed home, who had recently been asked to move out of his girlfriend’s home.” Turner, 721 F.2d at 1002. Based upon this fact, the court discounted the government’s allegation of flight for two reasons. First, “Turner's trip to Denver was not clearly flight rather than mere ‘traveling about.' Second, if Turner did not shoot Carr, but Crow did, Turner’s ‘flight’ to Denver could be attributed to fear that he would be held responsible for Carr’s death, as indeed he was.” Id. Similar evidence admitted at the trial of this case detract from viewing Amunson's "flight" as evidence of his guilt.
. At the time of trial, Bailey was living in Austin and physically unable to travel to San Antonio. Amunson’s counsel sought leave of court to take a deposition of Bailey, purportedly because Bailey would testify that Matteo was violent, and Bailey was afraid of him. The trial judge refused to permit the deposition.
. On cross-examination, Matteo changed his testimony and said he submitted his claim the week following Vincent's death.
. Although Matteo denied telling Amunson that he had a life insurance policy on Vincent’s life, he did not deny telling Amunson that he "had a lot of money tied up” in Vincent.
. In light of the standard of review, we must resolve these conflicts in Matteo’s and Amun-son’s testimony in favor of the prosecution.
. See supra n. 7.
. See supra n. 7.
. See supra n. 7.