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Mendez v. State4/25/2002
overruled.
Appellant's fourth and fifth issues challenge the legal and factual sufficiency of the evidence to support the conviction. Because appellant has briefed the issues together, we will likewise discuss them together. The standards by which we review legal and factual sufficiency challenges are now so well known that it is unnecessary for us to restate them. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We also must remember that the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and it may accept or reject any part of that testimony. Cain v. State, 958 S.W.2d 404, 407 n.4 (Tex.Crim.App. 1997).
Appellant was charged in the indictment with intentionally and knowingly causing Sandra's death by stabbing her with a knife. He alleges that there is a material variance between the indictment and the proof at trial because the police could not identify any specific knife as the murder weapon, one of the doctors testified he could not tell the difference between a knife wound and a wound caused by another object, no knife was entered into evidence at trial, and there was no fingerprint evidence to show that he possessed any instrument which caused Sandra's injury.
In a prosecution based on circumstantial evidence, it is not required that every fact point directly and independently to the guilt of the accused but the cumulative force of all the incriminating circumstances may be sufficient. Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App.), cert. denied, 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994); Vaughn v. State, 607 S.W.2d 914, 921 (Tex.Crim.App. 1980). In this instance, Sandra and appellant both resided in the apartment where she was found by a police officer with a puncture wound in her abdomen. Sandra was not breathing when emergency medical personnel arrived and they worked on her for 26 minutes in an attempt to get her to begin breathing before transporting her. She was transferred to the Parmer County Community Hospital and later to Hereford where emergency surgery was performed.
Guests at the party that evening thought both Sandra and appellant seemed happy. However, within an hour prior to the 911 call, Sandra had made several phone calls to Sanchez, expressing her imminent fear of appellant and saying he had a knife. Appellant himself acknowledged to that same friend that he and Sandra were arguing. Electronic monitoring showed that appellant had not been more than 150 feet away from the apartment for a number of hours prior to the arrival of the police officer. That officer was dispatched to the apartment after a neighbor called 911 after appellant left his daughter, in blood-stained clothes, with the neighbor. Appellant admitted to the officer that he had struck Sandra in the face. The apartment was also in disarray as though there had been a scuffle. Several knives were found in the apartment in various locations, and later Roberto Dominguez, a maintenance man at the apartment complex found a knife about 20 feet from the back door of appellant's apartment after seeing a trail of blood drops in the snow. Law enforcement personnel observed blood stains on the back door, stair walls and bannister, in a sink, and leading to a beer can outside the back door. Photographs taken of appellant's hand showed cut marks on them.
Dr. Nadir Khuri performed surgery on Sandra in an attempt to save her life. He testified that she had a stab wound in her belly that protruded into the iliac artery and vein. The wound was about six inches deep and slightly less than an inch wide. He testified that she hemor
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