Transito Jose Rodriguez v. State

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00161-CR

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TRANSITO JOSE RODRIGUEZ, Appellant

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V.

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THE STATE OF TEXAS, Appellee

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On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 30307-B

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Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Ross

O P I N I O N

          Transito Jose Rodriguez was convicted by a jury of aggravated robbery with a

deadly weapon.

He pled true to the enhancement paragraph, and the jury assessed thirty

years' imprisonment. Rodriguez contends that there is legally and factually insufficient

evidence to support his conviction and that the sentence imposed was disproportionate to

the offense, and was therefore cruel and unusual punishment in violation of the Eighth

Amendment to the United States Constitution.

I. Factual Background

          Brandi Johnson and LaToya Williams were two female clerks working at a gasoline

station and convenience store when Rodriguez stopped and began filling his vehicle with

gasoline. Williams recognized Rodriguez and felt he was pumping more gasoline than he

could afford. She approached Rodriguez and asked him whether he had enough money

to pay for the gasoline. He told her he did, but only showed her a one dollar bill. Williams

took the keys from Rodriguez' truck and went back inside the store. Johnson called the

police and went outside to make a note of Rodriguez' license plate number. While

Johnson was noting the license plate number, she heard a click. When she turned around,

Rodriguez was three feet away, pointing the open blade of a knife at her. Johnson told

Rodriguez to "go on with that knife," and went back into the store. Williams called the

police again and informed them Rodriguez had a knife. Rodriguez then came into the

store, asked the clerks for his keys, and tried to convince them he could obtain the money

to pay for the gasoline. They declined to return his keys. Although it is unclear from the

record how he did so, Rodriguez was able to start his car and leave the scene before the

police arrived.

          When the police arrived, Johnson and Williams described the events and gave a

description of Rodriguez, including what he was wearing and the car he was driving. The

police apprehended Rodriguez a few hours later. They discovered an open pocketknife

in the console of his vehicle. They transported him back to the station and store, where

Johnson identified him. She also identified the knife found in Rodriguez' car as the same

knife used in the confrontation.

          The indictment charged that Rodriguez did "while in the course of committing theft

. . . intentionally or knowingly threaten and place Brand[i] Johnson in fear of imminent

bodily injury or death, and the defendant did then and there use or exhibit a deadly

weapon, to-wit: a knife." The jury found him guilty of aggravated robbery, and an

affirmative finding of the use of a deadly weapon was made.

II. Legal and Factual Sufficiency

          In our review of the legal sufficiency of the evidence, we employ the standards set

forth in Jackson v. Virginia , 443 U.S. 307, 319 (1979). This calls on the court to view the

relevant evidence in the light most favorable to the verdict and determine whether any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Johnson v. State , 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In our

review, we must evaluate all of the evidence in the record, both direct and circumstantial,

whether admissible or inadmissible. Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim.

App. 1999).

          When reviewing a challenge to the factual sufficiency of the evidence to support the

conviction, we are required to determine whether, considering all the evidence in a neutral

light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v.

State , No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex. Crim. App. Apr. 21,

2004). There are two ways in which we may find the evidence factually insufficient. First,

if the evidence supporting the verdict, considered alone, is too weak to support the jury's

finding of guilt beyond a reasonable doubt, then we must find the evidence insufficient. Id.

Second, if—when we weigh the evidence supporting and contravening the conviction—we

conclude that the contrary evidence is strong enough that the state could not have met its

burden of proof, we must find the evidence insufficient. Id. "Stated another way, evidence

supporting guilt can 'outweigh' the contrary proof and still be factually insufficient under a

beyond-a-reasonable doubt standard." Id. If the evidence is factually insufficient, then we

must reverse the judgment and remand for a new trial. Clewis v. State , 922 S.W.2d 126,

135 (Tex. Crim. App. 1996).

          Conflicts in the evidence are to be resolved by the jury. In doing so, it may accept

one version of facts and reject another or reject any of a witness' testimony. Penagraph

v. State , 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). In so doing, it is the

jury's job to judge the credibility of the witnesses and the weight to be given their testimony,

and it may resolve or reconcile conflicts in the testimony, accepting or rejecting such

portions thereof as it sees fit. Banks v. State , 510 S.W.2d 592, 595 (Tex. Crim. App.

1974). Thus, the appellate court can consider only those few matters bearing on credibility

that can be fully determined from a cold appellate record. Johnson , 23 S.W.3d at 8 . "Such

an approach occasionally permits some credibility assessment but usually requires

deference to the jury's conclusion based on matters beyond the scope of the appellate

court's legitimate concern." Id. Thus, conflicts between witnesses will generally be

inviolate, but the validity of testimony can be treated as questionable because of other

factors, such as adverse conditions affecting the ability of the witness to observe an

assailant. Id. at 9 . When evidence both supports and conflicts with the verdict, we must

assume the fact-finder resolved the conflict in favor of the verdict. Turro v. State , 867

S.W.2d 43, 47 (Tex. Crim. App. 1993).

          A person commits the offense of robbery if, in the course of committing a theft, with

intent to obtain or maintain control of the property, he or she intentionally or knowingly

threatens or places another in fear of imminent bodily injury or death. T ex. Pen. Code Ann.

§ 29.02(a)(2) (Vernon 2003). The offense becomes aggravated if the person uses or

exhibits a deadly weapon. T ex. Pen. Code Ann. § 29.03(a)(2) (Vernon 2003). "In the

course of committing theft" means conduct that occurs during or in immediate flight after

the commission of theft. T ex. Pen. Code Ann. § 29.01(1) (Vernon 2003).

          Rodriguez contends the evidence is legally and factually insufficient to show that he

was guilty of aggravated robbery or that the knife he used during the alleged robbery was

a deadly weapon . He does not contest his identity as the perpetrator or whether he, in fact,

stole the gasoline.

          A. Threaten or Place Another in Fear of Imminent Bodily Injury or Death

          The accused need not expressly threaten another or display a weapon to commit

robbery. See Welch v. State , 880 S.W.2d 225, 227 (Tex. App.—Austin 1994) , vacated &

remanded on other grounds , 941 S.W.2d 949 (Tex. Crim. App. 1997); Williams v. State ,

827 S.W.2d 614, 616 (Tex. App.—Houston [1st Dist.] 1992, pet. ref'd). It is sufficient to

constitute robbery if the accused places the complainant in fear of imminent bodily injury

or death to the degree that "reason and common experience" will likely induce the

complainant to part with her or his property against his or her will. Devine v. State , 786

S.W.2d 268, 270 (Tex. Crim. App. 1989); Cranford v. State , 377 S.W.2d 957, 958 (Tex.

Crim. App. 1964).

          In Cranford , 377 S.W.2d at 958 , the defendant committed robbery when he

approached a cashier in a grocery store, handed her a note reading, "Give me your

money," verbally assured the cashier he was not joking, and made a gesture the cashier

thought was a reach for a weapon. A robbery conviction was also upheld when the

defendant was not armed and made no express threats, but his demands for money and

"generally aggressive manner" were enough to place a reasonable person in fear of

imminent bodily injury or death. Welch , 880 S.W.2d at 227 ; see also Pitte v. State , 102

S.W.3d 786, 793 (Tex. App.—Texarkana 2003, no pet.) (threat, "you'd better move or I'll

knock you out," in conjunction with close proximity and other circumstances sufficient to

place complainant in fear of imminent bodily injury or death).

          Rodriguez points out he did not take any action to stab or "slash" at Johnson, or

threaten her with words. While the record supports this contention, there was ample

testimony Johnson was reasonable in fearing imminent bodily injury or death when

Rodriguez pointed the knife at her. Johnson testified that, when she was taking note of

Rodriguez' license plate number, she heard a click. When she turned around, Rodriguez

was three feet away, pointing the open blade of a knife at her. She testified she was afraid

he would use it, it put her in fear, and she felt threatened. In addition, Officer Chris Taylor

testified that pointing a knife at someone, as did Rodriguez, is a direct threat to use deadly

force.

           Here, the threat of a knife pointed at Johnson, in conjunction with Rodriguez'

proximity to her, taken together with the other circumstances, was sufficient to place

Johnson in fear of imminent bodily injury or death. Reason and common experience

suggest that this set of circumstances would place Johnson in the kind of fear likely to

induce her to part with her property against her will.

          Rodriguez contends Johnson was not placed in fear. He points to the fact that she

did not scream or yell when he pulled the knife or when he went into the store and that she

continued to work until her shift was over. Johnson, however, testified she did not want to

continue working, but her supervisor directed her to finish her shift. She also testified

positively that she was afraid he would use the knife, that it put her in fear, and that she felt

threatened.

          Viewing the relevant evidence in the light most favorable to the verdict, there was

ample testimony from which a rational trier of fact could have found that Johnson was

reasonable in fearing imminent bodily injury or death when Rodriguez pointed the knife at

her . In addition, weighing the evidence in a neutral light, there is factually sufficient

evidence to establish that Johnson was reasonable in fearing imminent bodily injury or

death .

          B. Deadly Weapon

          A deadly weapon is "a firearm or anything manifestly designed, made, or adapted

for the purpose of inflicting death or serious bodily injury; or . . . anything that in the manner

of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen.

Code Ann. § 1.07(17) (Vernon Supp. 2004). Generally, a knife is not a deadly weapon by

design. Thomas v. State , 821 S.W.2d 616, 620 (Tex. Crim. App. 1991). A knife can be

a deadly weapon, however, if in the manner of its use or intended use it is capable of

causing death or serious bodily injury. McCain v. State , 22 S.W.3d 497, 503 (Tex. Crim.

App. 2000); Brown v. State , 716 S.W.2d 939, 946 (Tex. Crim. App. 1986). To determine

whether a knife is a deadly weapon in the manner of its use or intended use, we consider

the size, shape, and sharpness of the knife; the manner of its use or intended use; its

capacity to produce death or serious bodily injury; and testimony concerning the knife's life-threatening capabilities. Brown , 716 S.W.2d at 946 ; Nickerson v. State , 69 S.W.3d 661,

670 (Tex. App.—Waco 2002, pet. ref'd). Wounds need not be inflicted before a knife can

be determined to be a deadly weapon. Brown , 716 S.W.2d at 946 . Each case is

examined on its own facts to determine whether the jury could have concluded from the

surrounding circumstances that the knife was used or intended to be used as a deadly

weapon. Wade v. State , 951 S.W.2d 886, 892 (Tex. App.—Waco 1997, pet. ref'd). These

surrounding circumstances can include a defendant's verbal threats, the distance between

the defendant and the victim, and the witness' description of the knife. Id.

          In this case, the knife was admitted into evidence. It had a relatively short blade

with the tip broken off. Johnson testified the knife could hurt a person. See Tisdale v.

State , 686 S.W.2d 110, 117 (Tex. Crim. App. 1984) (op. on reh'g) (Clinton, J., concurring)

(finding that, if from actual observations made at time of offense, victim should express

opinion as to "capability" of knife exhibited, it has probative value). Officer Jose Montalvo,

Jr., testified the knife found in Rodriguez' vehicle and identified by Johnson as appearing

to be the knife Rodriguez pointed at her was a deadly weapon capable of inflicting serious

bodily injury or death. Taylor testified that holding that knife out to someone would be a

direct threat of deadly force and that the knife could easily kill, or at least do serious bodily

injury. In addition, Rodriguez was in close proximity to Johnson, three feet, with the knife

pointed at her back.

          In Tisdale , 686 S.W.2d at 115 (op. on reh'g), the evidence demonstrated that the

defendant's use of the knife was by showing it to his victim. The defendant entered a

grocery store and carried several items to the cashier. Id. When the cashier opened the

cash register, the defendant placed his left hand over the cash tray. Id. The cashier

grabbed his hand and said, "No," to which the defendant replied, "Yes," and produced a

knife. Id. The cashier backed up, and the defendant took the money from the cash tray.

Id. The court noted the defendant was within reach of the cashier, the cashier was in fear

of death or serious bodily injury, and thought the defendant could have caused serious

bodily injury or death. Id. The court found the defendant's actions were perceived by the

cashier as an implied threat, and the finder of fact could find likewise. Id. The concurring

opinion in Tisdale pointed out that, in order to determine in a given situation whether a

knife is a deadly weapon, a fact-finder should consider its intended use from the attitude

indicated by the perpetrator. Id. at 117 . When a suspect acts in a way that shows his or

her purpose is to convey to the victim that he or she will thwart resistance to a taking by

using a knife to harm the person of the victim, the suspect intends for the victim "to believe

that the knife [is] capable of producing serious bodily injury or death to obtain the money,"

Cruz v. State , 576 S.W.2d 841, 843 (Tex. Crim. App. 1979), and the fact-finder is

warranted in concluding the knife is capable of causing death or serious bodily injury. Id.

          The Amarillo Court of Appeals in Billey v. State , 895 S.W.2d 417, 422 (Tex.

App.—Amarillo 1995, pet. ref'd), wrote:

[E]vidence is sufficient if a knife is capable of causing death or serious bodily

injury or if it is displayed in a manner conveying an express or implied threat

that serious bodily injury or death will be inflicted if the desire of the person

displaying the knife is not satisfied. Â

          In this case, Johnson was making a note of Rodriguez' license plate number after

he had pumped gasoline into his vehicle for which he could not pay. Rodriguez' action in

pointing a knife at Johnson was an implied threat of deadly force to stop the efforts to

effectuate his capture and an implied threat he would thwart efforts to hinder his getaway.

See T ex. Pen. Code Ann. § 29.01(1) ( "In the course of committing theft" means conduct

that occurs during the commission, or in immediate flight after the commission, of theft).

The State met its burden of showing that the knife used was a deadly weapon. Rodriguez

intended for Johnson to believe that the knife was capable of producing serious bodily

injury or death, and the fact-finder was warranted in so concluding. For those reasons,

viewing the relevant evidence in the light most favorable to the verdict, there was ample

evidence from which a rational trier of fact could find that Rodriguez used or exhibited the

knife as a deadly weapon during the course of committing robbery . In addition, weighing

the evidence in a neutral light, there was factually sufficient evidence to establish that

Rodriguez used or exhibited the knife as a deadly weapon during the course of the

robbery.

III. Disproportionate Sentence

          Rodriguez also contends his thirty-year sentence constitutes cruel and unusual

punishment in violation of the Eighth Amendment to the United States Constitution. See

U.S. C onst . amend. VIII.

          Aggravated robbery is a first degree felony. T ex. Pen. Code Ann. § 29.03(b)

(Vernon 2003). A first degree felony is punishable by imprisonment for a term of life or for

any term of not more than ninety-nine years or less than five years and by a fine of up to

$10,000.00. Tex. Pen. Code Ann. § 12.32 (Vernon 2003). In addition, Rodriguez pled true

to the enhancement paragraph, which presented that he was convicted of felony

possession of a controlled substance listed in Penalty Group One of the Texas Controlled

Substances Act. This enhanced the punishment range for Rodriguez from fifteen to ninety-nine years. See Tex. Pen. Code Ann. § 12.42(c)(1) (Vernon Supp. 2004). The jury

assessed Rodriguez' punishment at thirty years' imprisonment.

          Rodriguez did not preserve his alleged error for review. To preserve a complaint for

appellate review, an appellant must have presented to the trial court a timely request,

objection, or motion stating the specific grounds for the ruling desired. Tex. R. App. P.

33.1(a)(1)(A); Rhoades v. State , 934 S.W.2d 113, 119 (Tex. Crim. App. 1996). Rodriguez

did not object at the sentencing hearing to his thirty-year sentence on the basis of it being

disproportionate to the offense, and therefore being cruel and unusual punishment in

violation of the Eighth Amendment. Nor did he raise the issue in a post-judgment motion.

Accordingly, he has waived this point of error. See Steadman v. State , 31 S.W.3d 738,

742 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd) (holding defendant waived issue of

whether forty-year sentence for aggravated robbery was cruel and unusual punishment);

Jackson v. State , 989 S.W.2d 842, 844 (Tex. App.—Texarkana 1999, no pet.) .

          Even if Rodriguez did properly preserve error, we find his sentence does not amount

to cruel and unusual punishment under the Eighth Amendment.

          We recognize that a prohibition against grossly disproportionate sentences does

survive under the Eighth Amendment and that it does so apart from any consideration of

whether the punishment assessed is within the range established by the Legislature in a

valid statute. Jackson , 989 S.W.2d at 846 . In Solem v. Helm , 463 U.S. 277 , 287–90

(1983), the United States Supreme Court enunciated three factors for evaluating the

proportionality of a sentence: (1) the gravity of the offense and the harshness of the

punishment, (2) the sentences imposed on other criminals in the same jurisdiction, and (3)

the sentences imposed for commission of the same crime in other jurisdictions. The Solem

test has subsequently been called into question by Harmelin v. Michigan , 501 U.S. 957

(1991). Therefore, we assess the proportionality of Rodriguez' sentence by applying the

Solem test in keeping with our approach in Davis v. State , 905 S.W.2d 655, 664 (Tex.

App.—Texarkana 1995, pet. ref'd), and consistent with the Fifth Circuit's modified test as

set out in McGruder . We initially make a threshold comparison of the gravity of the offense

against the severity of the sentence and then ask whether the sentence is grossly

disproportionate to the offense. McGruder v. Puckett , 954 F.2d 313, 316 (5th Cir. 1992);

see also Jackson , 989 S.W.2d at 845–46. Only if gross disproportionality is found do we

then compare this sentence to sentences received for similar crimes in this and other

jurisdictions. McGruder , 945 F.2d at 316; Jackson , 989 S.W.2d at 846 . Â

          Considering whether Jackson's sentence is grossly disproportionate to the offense,

it should be noted that not only is Jackson's sentence within the range of punishment

prescribed by the Legislature for habitual felony offenders, but it is also on the low end of

the range that could be assessed under these facts. This is not a harsh sentence for

conviction of a second felony offense, the second felony being for aggravated robbery with

a deadly weapon. Because we find Rodriguez' sentence is not grossly disproportionate

to the offense for which he was convicted, factors two and three of the Solem test need not

be considered.

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IV. Â Â Â Â Â Â Conclusion

          We affirm the judgment.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted: Â Â Â Â Â Â February 26, 2004

Date Decided: Â Â Â Â Â Â Â Â Â June 8, 2004

Do Not Publish

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                    TREY BECK, AS EXECUTOR OF THE ESTATE OF

                         HAYDEN RUSSELL,

Appellee

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                                      On Appeal from the 217th

Judicial District Court

                                                          Angelina County, Texas

                                                       Trial Court

No. CV-36,849

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                                         Before Morriss, C.J.,

Carter and Moseley, JJ.

                                             Memorandum Opinion by Justice Carter

                                                     MEMORANDUM OPINION

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I. Â Â Â Â Â Â Â Â Â Background and Procedural Posture

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           Hayden

Russell placed on record in Angelina County twelve quitclaim deeds, purportedly

executed by his father, Dale Blanton Russell. [1]  The deeds conveyed Dale’s interest in real estate

to Hayden and Hayden’s sister, Loretta Russell Kingsley.  In this suit, Dale alleges the deeds were

forged by Hayden after Hayden learned his father was disinheriting him; the

jury found Dale signed the deeds. Â The

suit was originally tried to the court, but resulted in a mistrial. Â After the first suit, Hayden died, leaving a

will which left his estate (except one dollar left to his daughter, Cynthia

Keiser) to his friend Trey Beck. [2]

           Even though

the only jury question was whether Dale signed the deeds, the issue presented

on appeal is an evidentiary ruling on whether the entirety of the will of the

alleged forger, Hayden, should have been admitted into evidence.

           Prior to

trial, the court granted the estate’s motion in limine regarding the identity

of the beneficiaries of Hayden’s will, after having determined that this

information was not relevant to the issue of whether the signatures on the

quitclaim deeds were forged. [3] Â A three-day jury trial ensued in August

2010. Â During the course of the trial,

Dale reurged his motion to admit Hayden’s will into evidence.  Dale offered the will to show that Hayden did

not name Kingsley as a beneficiary in rebuttal of Hayden’s testimony. [4]  As further grounds for admission, Dale argued

that the testimony of the witness (and probate attorney) Jim Farrell revealed

that his file contained notes to the effect that Hayden intended to leave half

of his estate to Kingsley and half to Cindy, except that Cindy was to receive

an extra $1,000.00. Â Dale argued that as

a result, the jury was left with the impression that Hayden either left

everything to Kingsley or to Kingsley and Cindy, when in fact, Hayden’s will

essentially disinherited Cindy. [5] Â Â Â Â Â Â Â Â Â Â Â Â

           The estate

opposed the admission of Hayden’s will on the ground that it was irrelevant and

would be like throwing “the skunk in the jury box.”  Counsel for the estate urged:

[The Will] has no relevance to any issue which

Mr. Seale has now argued . . . [the] more narrow [issue of] forgery, just the

signature is the only issue. Â Certainly

our client’s Will . . . and who the beneficiaries of the estate are, bear no

rational evidentiary basis as to whether the man [Dale Russell] signed the

signatures [on the deeds] or not . . . . The 403 argument is still there.

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           The trial court initially

ruled that Hayden’s entire will was admissible. Â

After the court read the will and was confronted with the fact of

Cindy’s disinheritance, the court determined (as a compromise offered by the

estate) to admit the will into evidence only after the amount of the bequests

to Cindy and to Beck were redacted. Â A

copy of Hayden’s redacted will was thereafter introduced into evidence.  Dale introduced an unredacted copy of Hayden’s

will via a bill of exception. Â Although

the estate objected to the introduction of Hayden’s unredacted will, it did not

object to the introduction of Hayden’s redacted will. Â

           The evidence

at trial included the testimony of handwriting experts for both Dale and the

estate. Â At the conclusion of the

evidence, the jury determined that the deeds were signed by Dale. Â

II. Â Â Â Â Â Â Â Appellate Issues

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           Only one question was asked of the jury:  “Do you find . . . the deeds . . . were signed

by someone other than Dale Russell?”  The

jury answer was:  “No, They were signed

by Dale Russell.”  On appeal, Dale does

not dispute the jury’s dispositive finding that the twelve deeds were executed

by him. Â Rather, Dale sets out five

issues, all of which basically argue that Hayden’s will should have been

admitted in its entirety. Â

           The estate

presents seven counter-issues, which argue that, for a variety of reasons,

the  trial court did not err in its

decision to admit only a redacted version of Hayden’s will or that if any error

occurred, it was harmless.

           Because we

find (1) no violation of the rule of optional completeness in disallowing

introduction of the unredacted will; (2) the specific bequests in Hayden’s will

are not relevant to the issue of forgery; and (3) any perceived probative value

of those bequests was substantially outweighed by the danger of unfair

prejudice, the trial court did not abuse its discretion in refusing to admit

into evidence Hayden’s unredacted will. Â

We affirm the judgment of the trial court.

III. Â Â Â Â Â Â Analysis

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           Together, Dale’s appellate

issues and the estate’s counter issues call for the ultimate determination of

whether the trial court abused its discretion in refusing to admit into

evidence Hayden’s unredacted will.  The

admission or exclusion of evidence is a matter within the sound discretion of

the trial court. Â City of Brownsville

v. Alvarado , 897 S.W.2d

750, 753 (Tex. 1995); Hathcock v. Hankook ,

330 S.W.3d 733, 740 (Tex. App.—Texarkana 2010, no pet.).   A

trial court abuses its discretion when it acts without regard for any guiding

rules or principles. Â Downer v.

Aquamarine Operators , 701

S.W.2d 238 , 241–42 (Tex. 1985); Hathcock ,

330 S.W.3d at 740 . Â Moreover, we must

uphold the trial court’s evidentiary ruling if there is any legitimate basis

for the ruling. Â Owens-Corning Fiberglas Corp. v. Malone , 972 S.W.2d 35, 43 (Tex.

1998).

           A.        Optional

Completeness

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           Dale initially asserts that the

unredacted will was admissible under Rules 106 and 107 of the Texas Rules of

Evidence, often jointly referred to as the rule of optional completeness. Â Rule 106 provides:

When a writing or recorded statement or part

thereof is introduced by a party , an adverse party may at that time introduce

any other part or any other writing or recorded statement which ought in

fairness to be considered contemporaneously with it.  “Writing or recorded statement” includes

depositions.

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Tex. R. Evid .

106 (emphasis added). Â Rule 107 provides,

in pertinent part:

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When part

of an act, declaration, conversation, writing or recorded statement is

given in evidence by one party , the

whole on the same subject may be inquired into by the other , and

any other act, declaration, writing or recorded statement which is necessary to

make it fully understood or to explain the same may also be given in evidence .

. . .

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Tex. R. Evid .

107 (emphasis added).

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           We are

unconvinced that the rule of optional completeness applies. Â Here, both the redacted and unredacted will

were offered into evidence by Dale. Â The

estate objected to admission of the unredacted will, but as a compromise agreed

to admission of the will in a redacted form. Â

The rule of optional completeness only applies when one party introduces

part of a statement or document, and in fairness, the opposing party is

permitted to introduce as much of the balance as is necessary to explain the

first part.  Jones v. Colley , 820 S.W.2d 863, 866 (Tex. App.—Texarkana 1991,

writ denied). Â It is permitted to correct

any misleading impressions left when one party introduces only a portion of the

evidence. Â See Wright v. State , 28

S.W.3d 526, 536 (Tex. Crim. App. 2000). Â

A plain reading of Rules 106 and 107 indicates their inapplicability

when the same party seeks to offer an inadmissible omitted portion of a

document it initially sought to introduce. Â

Here, Dale’s introduction of admissible evidence (the redacted will)

does not open the door to his further introduction of otherwise inadmissible

evidence (the unredacted will).

           This rule

does not apply for yet another reason. Â Under

the rule of optional completeness, additional material from a document or

recording, part of which has been admitted into evidence, is admissible if that

material “ought in fairness to be considered contemporaneously.”  Meuth

v. Hartgrove , 811 S.W.2d 626, 629 (Tex. App.—Austin 1990, writ

denied). Â Dale complains that if the will

was going to be admitted into evidence, the specific bequests to Cindy and Beck

should not have been redacted. Â The trial

court admitted the redacted will for the purpose of showing Kingsley was not a

beneficiary [6] (thus

clarifying earlier testimony that Hayden perhaps left his entire estate to

Kingsley). Â In our view, redacting the

specific bequests was an effective method of accomplishing the limited purposes

for which the will was admitted. Â In Meuth , the trial court admitted an

insurance certificate into evidence for the limited purpose of demonstrating

ownership and control of a particular company. Â

The policy limits were redacted because they were not relevant to the

issue of ownership and control and were prejudicial as to the issue of damages.

 Id.

at 629 . Â The same reasoning applies

here. Â The specific bequests to Cindy and

to Beck were not relevant to the issue of Kingsley’s omission from the will;

the rule of optional completeness does not require the inclusion of these

bequests.

           We overrule

this point of error. Â

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           B.        Relevance

of Specific Bequests

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           Dale claims

the unredacted will should have been admitted because evidence of its specific

bequests met the requirements of Rule 401 of the Texas Rules of Evidence.  Rule 401 defines relevant evidence as “evidence

having any tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable than it would be

without the evidence.”  Tex. R. Evid . 401.  Rule 402 provides that evidence which is not relevant

is inadmissible. Â Tex. R. Evid . 402.

           In support

of his assertion of relevance, Dale maintains that he was not permitted to

answer the estate’s closing argument:

But there’s a tendency sometimes to get inpatient [sic]

with your children, but that doesn’t justify - - - doing to a son what this man

has done to his son.  That’s

terrible.  It’s not acceptable.  It’s not right.  And the fact is he told a lie.  He said he didn’t sign the deeds.  Science said he did.

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Dale maintains that had the entire, unredacted will been in

evidence, this argument could have been answered by reminding the jury that

Hayden disinherited his only child. Â This

case was not about Hayden’s disinheritance of his daughter; it was about forgery.   Evidence that Hayden left his only child out

of his will is not relevant in proving that he forged his father’s name on the

deeds.  The specific bequests in Hayden’s

will say nothing about the dynamics of any motivation he allegedly had to forge

the deeds executed some two years prior to the will. Â Â Â Â Â Â

           The jury

argument did not make the unredacted will relevant to the issue of

forgery. Â This argument appears to relate

to the fact that Dale sued his son, claiming Hayden forged the deeds in

question. Â Counsel refers to this as

“unacceptable.”  If Dale believed this

argument to be outside the scope of the evidence presented or otherwise

erroneous, his remedy was to object, ask the court to instruct the jury to

disregard counsel’s statement, and move for a mistrial if necessary.  This he did not do.  We cannot conclude that evidence of Hayden’s

unredacted will tends to make the likelihood that Hayden forged the quitclaim

deeds more probable or less probable than it would be without this evidence. [7]

           C.        Rule

403

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           The estate

maintains on appeal that even if Hayden’s unredacted will was relevant, it was

properly excluded under Rule 403 of the Texas Rules of Evidence. Â We agree. Â

Rule 403 provides that relevant evidence “may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue

delay, or needless presentation of cumulative evidence.”  Tex.

R. Evid . 403. Â When a party

objects under Rule 403, a trial court must conduct a balancing test, weighing

the danger of prejudice against the probative value of the evidence. Â Waldrep

v. Tex. Employers Ins. Ass’n , 21 S.W.3d 692, 703 (Tex. App.—Austin 2000,

pet. denied). Â The redacted portions of

the will would have informed the jury that Hayden left his entire estate to his

friend Beck. Â We have agreed that the

probative value of this evidence on the issue of forgery was minimal. Â The trial court was within its discretion to

conclude that any perceived probative value it may have had was substantially

outweighed by the risk of unfair prejudice. Â

We also note that any error in the exclusion of evidence is not

reversible unless the error “probably caused the rendition of an improper

judgment.”  State v. Cent. Expressway Sign Assocs. , 302 S.W.3d 866, 870 (Tex.

2009). Â Here, Dale does not present

argument or briefing that this evidentiary ruling “probably caused the

rendition of an improper judgment.”

IV. Â Â Â Â Â Â Conclusion

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           The trial court did not abuse

its discretion in excluding Hayden’s unredacted will from evidence.  We affirm the judgment of the trial court.

Â

                     Â

Â

                                                                                  Jack

Carter

                                                                               Justice

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Date Submitted: Â Â Â Â Â Â Â Â Â May

5, 2011

Date Decided: Â Â Â Â Â Â Â Â Â Â Â Â June

7, 2011 Â Â Â

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[1] Originally

appealed to the Twelfth Court of Appeals, this case was transferred to this

Court by the Texas Supreme Court pursuant to its docket equalization efforts.  See Tex. Gov’t Code Ann . § 73.001 (Vernon

2005). Â We are unaware of any conflict

between precedent of the Twelfth Court of Appeals and that of this Court on any

relevant issue. Â See Tex .

R. App . P. 41.3.

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[2] The

parties were realigned prior to commencement of trial so that Kingsley was

named as a plaintiff, together with Russell. Â

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[3] Dale

sought to introduce Hayden’s will to show that Trey Beck was the sole

beneficiary of the will and that Hayden did not leave anything to his

daughter. Â Dale argued to the trial court

that the estate had taken the position that it was “unbelievable, that Dale

Russell would not leave anything to his only child and that is exactly what

Hayden Russell did.”  The court indicated

that to the extent the estate “goes into statements or arguments that what kind

of person would leave their child or one of their children or all of their

children out of that will, then you can come back and balance that out with this

information.” Â

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[4] Hayden’s

transcribed testimony for the earlier trial was read to the jury without

objection. Â That testimony revealed that

after Dale signed the quitclaim deeds, Hayden delivered the deeds to Kingsley

to place in her safety deposit box. Â When

Hayden delivered the deeds to Kingsley, he testified that he also delivered a

will, “willing everything in my possession to her so if something happened to

me, someone else wouldn’t get, you know, a part of that property.” Â

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[5] Hayden’s

actual will left his entire estate (with the exception of a one dollar bequest

to Cindy) to his friend Trey Beck, who was also named the executor of Hayden’s

estate. Â Â

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[6] The

trial court stated that it was “letting him put in the will not on the basis of

his conversation with the Attorney Farrell but strictly on the basis of the

testimony of Mr. Hayden Russell about the will leaving . . . everything to

Loretta [Kingsley] . . . .”  The court

went on to say that “the fact that the daughter gets $1 is not really pertinent

. . . . but the fact that the sister’s left out, I think, is.” Â

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[7] To

the extent Dale maintains the unredacted will should have been admitted for the

purpose of establishing the proper parties (or the real parties in interest),

that concern was addressed in the admission of the redacted will; it shows the

identity of the beneficiaries, but does not show the bequests to those

beneficiaries.