                                  NO. 12-08-00083-CR

                        IN THE COURT OF APPEALS

           TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

JACKIE RONALD GREEN,                               §            APPEAL FROM THE 241ST
APPELLANT

V.                                                 §            JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                           §            SMITH COUNTY, TEXAS


                                    MEMORANDUM OPINION
        Jackie Ronald Green appeals his conviction for murder, for which he was sentenced to
imprisonment for life. In three issues, Appellant argues that (1) the trial court erred by admitting the
transcript of a witness’s grand jury testimony and (2) the evidence is legally and factually insufficient
to support the trial court’s judgment. We affirm.


                                            BACKGROUND
        Appellant was charged by indictment with the murder of Andrew Deese. The indictment
further alleged that Appellant had been previously convicted of aggravated assault. Appellant
pleaded “not guilty,” and the matter proceeded to a jury trial.
        Joyce Green testified as the State’s first witness. Green testified that she had been married
to Appellant for five years. Green further testified that she, Appellant, and Andrew Deese were
living together in the same residence on May 18, 2007. Green stated that on May 18, 2007,
Appellant struck Deese with a “steel pole broom handle” multiple times from his “head down to his
mouth.” Green further stated that Appellant pulled Deese’s hair, hit his face on the floor, and kicked
him with his boots. Green testified that Deese never hit Appellant or otherwise did anything to
deserve such treatment by Appellant. Green further testified that Appellant’s beating of Deese
continued through the night on Friday to the next day. Green described Deese’s appearance as sick
with two black eyes. Green stated that when she returned from church on Sunday, Appellant began
to kick Deese again. Green further stated that Appellant eventually pushed Deese down to the floor.
During cross examination, Appellant impeached Green’s testimony with her grand jury testimony
concerning certain events. Green admitted that certain portions of her in-court testimony conflicted
with her grand jury testimony.1 On redirect examination, the prosecutor questioned Green
concerning numerous statements she made in her grand jury testimony that were consistent with her
testimony at trial. Green confirmed during redirect examination that, during the time in question,
she saw Appellant punch and kick Deese as well as strike him with a metal pole. Upon further
redirect examination, Green testified that she saw Appellant hitting Deese and that such actions
caused Deese’s death.2
         Helen Ferguson testified next on the State’s behalf. Ferguson testified that she lived across
the street from Appellant. Ferguson stated that on Saturday, May 18, 2007, she saw Appellant and
another man walk toward Appellant’s house. Ferguson further stated that Appellant appeared to be
yelling at the man and as the man approached the door to the house, Appellant shoved him very hard.
According to Ferguson, the man reeled, but did not fall, and he and Appellant then entered the house.
During cross examination, Ferguson testified that the man she saw that day had been staying at
Appellant’s residence most of the time. On redirect examination, Ferguson described the man with
Appellant that day as a large white male, standing over six feet tall, and weighing in excess of two
hundred pounds.
         Smith County Sheriff’s Department Detective Tina Glover testified as the State’s next
witness. Glover testified that she responded to a call at Appellant’s residence regarding a deceased
person on May 20, 2007. From her observations at the scene, Glover decided that Deese had died



         1
          Specifically, Green admitted to conflicting testimony concerning (1) whether Appellant went to sleep on
Saturday night, (2) whether Appellant wanted Deese to leave the residence, (3) when Appellant began hitting Deese,
(4) when Appellant threw Deese down to the floor, and (5) whether the group had neighbors living nearby .

         2
           As Green’s testimony neared its conclusion, the trial court admitted into evidence the written transcript of
her grand jury testimony over Appellant’s objection.

                                                           2
from unnatural causes, called other officers to the scene, and proceeded to secure the area pending
an investigation of Deese’s death. Glover described Appellant’s behavior at that time as “nervous”
and “agitated.” Glover further stated that Appellant was “controlling” of Green and became agitated
whenever Glover tried to speak to Green without his being present.
        Smith County Sheriff’s Department Detective Noel Martin testified next on the State’s
behalf. Martin testified that he went to Appellant’s residence following Deese’s death to investigate
the scene. Martin further testified that based upon his assessment of the scene, he determined that
it should be treated as the scene of a homicide and that he ultimately found no proof to contradict
that determination. Martin testified extensively concerning blood stain, blood trail, and blood spatter
evidence found at the scene. Martin also identified a metal pipe that he located in the living room,3
which, according to Martin, was a deadly weapon capable of causing death or serious bodily injury.
Concerning Deese, Martin testified that upon viewing his body at the scene, it was obvious to him
that Deese had suffered injuries that were consistent with blunt force trauma and that the metal pipe
may have been used as a weapon. Martin also identified a photograph of Appellant’s hands taken
on the date of his investigation, which he stated showed Appellant’s injured, swollen, and red hands,
and described the injuries as offensive type wounds. At the conclusion of his direct examination
testimony, Martin conclusively stated that Appellant caused Deese’s death by inflicting blunt force
trauma upon him. On redirect examination, Martin testified that he believed a person who would
hit another person with a metal pipe, a hard object, a hand, or a foot was engaged in acts that are
clearly dangerous to human life. Furthermore, Martin testified that based on the entirety of his
investigation of the case, it was his opinion that the acts committed against Deese were intentional.
        Dr. Reade Quinton, a forensic pathologist, testified as the State’s next witness. Quinton
testified concerning the autopsy he performed on Deese. Quinton further testified that he noted
numerous bruises, cuts, and tears on Deese’s facial tissue consistent with blunt force trauma to that
area of the body. Quinton described Deese’s injuries as consistent with someone’s being struck with
a fist, a foot, a metal pipe, or any other blunt or hard object. Quinton further testified that, during
his examination, he observed that Deese had sustained multiple rib fractures on both sides of his


        3
           The metal pipe was admitted into evidence without objection. Yet, concurrent with its admission, the
record reflects that Appellant remarked, “Can I see that? I didn’t use that.”

                                                         3
body,4 which resulted from the application of significant force. From his examination, Quinton
concluded that the cause of Deese’s death was multiple blunt force injuries combined with Deese’s
hypertensive cardiovascular disease. On cross examination, Quinton testified that Deese died due
to the combination of blunt force trauma with his then existing state of poor health. Quinton
conceded that a normally healthy person might have survived similar infliction of blunt force trauma.
On redirect examination, Quinton confirmed that had someone not beaten Deese over every part of
his body and broken over half of his ribs, Deese would likely not have died on May 22, 2007 as he
did. Quinton also stated that the beating that Deese suffered constituted an act clearly dangerous to
his life.
         Department of Public Safety Crime Lab Forensic Scientist Melissa Haas testified next on the
State’s behalf. Haas testified that she conducts DNA analysis and biological evidence testing in
forensic case work. Haas further testified that she compared the DNA profiles of blood specimens
from the tip of the metal pipe and other blood samples taken from the scene with the blood specimen
taken from Deese. Haas stated that from her comparisons between these specimens and the
specimens taken from the victim, she determined that the DNA profiles obtained from these
specimens were consistent with the DNA profile of Deese.5 Haas further stated that when comparing
a full DNA profile from a known reference sample with an evidentiary sample that has a full DNA
profile, it can be said to a reasonable degree of scientific certainty that the known sample is the
source of the comparative sample. Subsequently, both parties rested.6
         Ultimately, the jury found Appellant “guilty” as charged. Following a trial on punishment,
the jury found the enhancement allegations in the indictment to be “true” and assessed Appellant’s
punishment at imprisonment for life and a ten thousand dollar fine. The trial court sentenced
Appellant accordingly, and this appeal followed.



            4
           Quinton specifically testified that Deese had seven rib fractures on the right side of his body and eight rib
fractures on the left side of his body.

            5
           W ith regard to one specimen, Haas noted that she did not obtain a DNA profile because there was not
sufficient DNA present to obtain any results.

            6
          Two witnesses testified for the State after Haas. W e do not recount their testimony here because it is not
germane to our analysis of the issues Appellant has raised on appeal.

                                                            4
                    ADMISSION OF TRANSCRIPT OF GRAND JURY TESTIMONY
       In his first issue, Appellant argues that the trial court erroneously admitted into evidence the
transcript of Green’s grand jury testimony. Specifically, Appellant contends that the admission of
such extrinsic testimony for impeachment purposes after Green unequivocally admitted she made
the prior inconsistent statements at issue violated Texas Rule of Evidence 613. In his second issue,
Appellant argues that the trial court’s admission of the transcript of Green’s grand jury testimony
caused harm.
       We review a trial court’s ruling to admit or exclude evidence under an abuse of discretion
standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). A trial
court abuses its discretion when its decision is so clearly wrong as to lie outside the zone of
reasonable disagreement, or in other words, the decision was arbitrary, unreasonable, and made
without reference to any guiding rules or principles. Id. We review the trial court's ruling in light
of what was before it at the time the ruling was made and uphold the ruling if it is reasonably
supported by the record and is correct under any theory of law applicable to the case. Khoshayand
v. State, 179 S.W.3d 779, 784 (Tex. App.–Dallas 2005, no pet.).
       Texas Rule of Evidence 613 provides that a prior inconsistent statement of a witness is
admissible for impeachment of the witness. See TEX . R. EVID . 613. However, the rule also
explicitly states that the extrinsic evidence of the statement itself is admissible only if the witness
refuses to admit making the statement.         See Paron v. State, 193 S.W.3d 116, 120 (Tex.
App.–Texarkana 2005, pet. ref’d). This is not merely a refusal to admit making a statement, but
refusing to admit making the contents of the statement. Id. The courts reason that, when a defendant
admits making the statement, it is unnecessary to admit the document itself because the witness
impeaches himself or herself. Id. Since, as Appellant argues in his brief, Green admitted that her
grand jury testimony was inconsistent with her trial testimony in each instance raised by Appellant,
it follows that the transcript of Green’s grand jury testimony would ordinarily be inadmissible
pursuant to rule 613.
       However, Appellant neglects to address the State’s argument made to the trial court that the
transcript of Green’s grand jury testimony should be admitted under the rule of optional
completeness. Commonly referred to as the “Rule of Optional Completeness,” Texas Rule of


                                                  5
Evidence 107 addresses admissibility and permits the introduction of otherwise inadmissible
evidence. See Walters v. State, 247 S.W.3d 204, 217–18 (Tex Crim. App. 2007). Rule 107
provides, in pertinent part, as follows:


                  W hen 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, as when a letter is read, all letters on the same subject
        between the same parties may be given.



TEX . R. EVID . 107. Rule 107 is designed to guard against the possibility of confusion, distortion, or
false impression that could be created when only a portion of evidence is introduced. See Grunsfeld
v. State, 813 S.W.2d 158, 163 (Tex. App–Dallas 1991), aff’d, 843 S.W.2d 521 (Tex. Crim. App.
1992). There are two threshold requirements for the application of rule 107. See Washington v.
State, 856 S.W.2d 184, 186 (Tex. Crim. App. 1993). First, some portion of the matter sought to be
“completed” must have actually been introduced into evidence. Id.; Mendiola v. State, 61 S.W.3d
541, 545 (Tex. App.–San Antonio 2001, no pet.); see also Livingston v. State, 739 S.W.2d 311, 331
(Tex. Crim. App. 1987) (reading from document during cross examination constitutes “use of a
portion” of the document pursuant to rule 107). Second, the party seeking to complete the matter
must show that the remainder being offered under rule 107 is on the same subject and is necessary
to fully understand or explain the matter. Mendiola, 61 S.W.3d at 545.
        In the case at hand, Appellant’s attorney read from Green’s grand jury testimony when
seeking to impeach her on cross examination.7 The prosecuting attorney, in turn, also read from
Green’s grand jury testimony and questioned her about it with regard to her prior consistent
statements in her prior testimony. The portion of Green’s grand jury testimony transcript that was
admitted into evidence involved the same subject matter that was in evidence by Green’s in-court
testimony, i.e., Green’s account of the event occurring at the scene in the days preceding Deese’s
death. Appellant’s extensive cross examination of Green concerning her prior statements, even
considering the State’s attempt to balance such testimony with Green’s prior consistent statements,


        7
            Appellant’s attorney read the grand jury testimony to Green because Green testified that she could not
read.

                                                           6
is best understood in light of the totality of her testimony on the events leading to Deese’s death.
Nonetheless, the State’s examination of Green concerning her prior consistent statements arguably
painted a broader picture of her prior testimony for the jury. However, Green’s illiteracy necessitated
that both attorneys read her prior testimony aloud to her. This unusual circumstance that necessitated
that the attorneys read her grand jury testimony aloud to her could have caused confusion for the jury
concerning the substance of that prior testimony.8 Therefore, we conclude that the trial court’s
admission of the transcript of Green’s grand jury testimony was necessary for the jury to gain a full
understanding of her testimony, both at trial and before the grand jury. Thus, we hold that the trial
court did not abuse its discretion in admitting the transcript under the rule of optional completeness.
Appellant’s first issue is overruled.9


                                           EVIDENTIARY SUFFICIENCY
         In his third issue, Appellant contends that the evidence was neither legally nor factually
sufficient to support the trial court’s judgment of conviction. Specifically, Appellant argues that
there is no evidence that Appellant intentionally or through an act clearly dangerous to human life
caused Deese’s death.
Legal Sufficiency
         Legal sufficiency is the constitutional minimum required by the Due Process Clause of the
Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307,
315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1,
6 (Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a legal sufficiency challenge
is whether any rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871
S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to

         8
           Indeed, Appellant’s counsel questioned Green about whether she was confused by the questions
concerning her grand jury testimony with regard to its variance from her in-court testimony. From our review of the
record, both the extent of the examination conducted by the parties and the manner of the examination, which was
necessitated by Green’s illiteracy, makes any confusion on Green’s part understandable.

         9
          Having overruled Appellant’s first issue, we do not reach Appellant’s second issue, which is essentially a
subissue of Appellant’s first issue. See T EX . R. A PP . P. 38.1(e) (The statement of an issue or point will be treated as
covering every subsidiary question that is fairly included.).

                                                             7
the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A
successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court.
See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).
       The sufficiency of the evidence is measured against the offense as defined by a hypothetically
correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a
charge would include one that “accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of
liability, and adequately describes the particular offense for which the defendant is tried.” Id. The
use of the hypothetically correct jury charge applies to review for both legal and factual sufficiency.
See Wooley v. State, No. PD-0861-07, 2008 WL 2512843, at *1 (Tex. Crim. App. Jun. 25, 2008).
       To support a conviction for murder, the evidence must support that the accused
(1) intentionally or knowingly caused the death of an individual or (2) intended to cause serious
bodily injury and committed an act clearly dangerous to human life that caused the death of an
individual. See TEX . PENAL CODE ANN . § 19.02(b)(1), (2) (Vernon 2003).
       In the instant case, Green stated that on May, 18, 2007, Appellant struck Deese with a “steel
pole broom handle” multiple times from his “head down to his mouth.” Green further stated that
Appellant pulled Deese’s hair, hit his face on the floor, and kicked him with his boots. Green
testified that Deese never hit Appellant or otherwise did anything to deserve such treatment by
Appellant. Green further testified that Appellant’s beating of Deese continued through the night on
Friday to the next day. Green stated that when she returned from church on Sunday, Appellant began
to kick Deese again. Green further stated that Appellant eventually pushed Deese down to the floor.
Green later confirmed during the redirect examination that, during the time in question, she saw
Appellant punch and kick Deese as well as strike him with a metal pole. Upon further redirect
examination, Green testified that she saw Appellant hitting Deese and that such actions caused
Deese’s death.
       Ferguson, who lived across the street from Appellant, testified that on Saturday, May 18,
2007, she saw Appellant and another man walk toward Appellant’s house. Ferguson further testified
that Appellant appeared to be yelling at the man and as the man approached the door to the house,
Appellant shoved him very hard. Glover, based on her observations of the scene, decided that Deese


                                                  8
had died from unnatural causes and called other officers to the scene. Glover stated that while she
was securing the scene, she noticed Appellant talking to Green and described Appellant’s behavior
at that time as “nervous” and “agitated.” Glover further stated that Appellant was “controlling” of
Green and became agitated whenever Glover tried to speak to Green without his being present.
       Martin testified extensively concerning blood stain and blood spatter evidence at the scene.
Martin identified a metal pipe that he located in the living room and testified that the pipe was a
deadly weapon capable of causing death or serious bodily injury. Concerning Deese, Martin testified
that upon viewing his body at the scene, it was obvious to him that Deese had suffered injuries that
were consistent with blunt force trauma and that the metal pipe may have been used as a weapon.
Martin further testified that based on the size, shape, and distribution of the bloodstains located in
the living room, it was his opinion that some type of assault occurred all about that area. Martin
stated that Deese’s clothes were wet, which, when considered with evidence of the presence of blood
in and around the bathroom sink, caused him to conclude that someone had attempted to clean up
or remove blood from the scene. Martin further stated that it appeared as if someone had attempted
to wipe blood stains from Deese’s skin. Martin testified concerning blood spatter patterns located
on the wall. According to Martin, one of these patterns indicated multiple spatter producing events
consistent with medium velocity blunt force type injuries. Martin also identified a photograph of
Appellant’s hands taken on the date of his investigation. Martin stated that the photograph showed
that Appellant’s hands were injured, swollen, and red, which Martin described as offensive type
wounds. At the conclusion of his direct examination testimony, Martin conclusively stated that
Appellant caused Deese’s death by inflicting blunt force trauma upon him. On redirect, Martin
testified that he believed that a person who would hit another person with a metal pipe, a hard object,
a hand, or a foot was engaged in acts that are clearly dangerous to human life. Furthermore, Martin
testified that based on the entirety of his investigation of the case, it was his opinion that the acts
committed against Deese were intentional.
       Quinton testified concerning the autopsy he performed on Deese. Quinton noted numerous
bruises, cuts, and tears on Deese’s facial tissue consistent with blunt force trauma to that area of the
body. Quinton stated that the injuries Deese sustained to his face could be caused by multiple strikes
from a blunt instrument such as a fist or other type of blunt object. Quinton further stated that the


                                                   9
steel pipe found at the scene was capable of causing the types of injuries that Deese had sustained.
Quinton described Deese’s injuries as consistent with someone’s being struck with a fist, a foot, a
metal pipe, or any other blunt or hard object. Quinton testified that based on his training and
experience, injuries such as those Deese received are not the result of an accident. From his
examination, Quinton concluded that the cause of Deese’s death was multiple blunt force injuries
combined with Deese’s hypertensive cardiovascular disease. On cross examination, Quinton
testified that Deese died due to the combination of blunt force trauma with his then existing state of
poor health. Quinton conceded that a normally healthy person might have survived similar infliction
of blunt force trauma. On redirect examination, Quinton confirmed that had someone not beaten
Deese over every part of his body and broken over half of his ribs, Deese would likely not have died
on May 22, 2007 as he did. Quinton also stated that the beating that Deese suffered constituted an
act clearly dangerous to his life.
        Finally, Haas testified that she compared the DNA profiles of blood specimens from the tip
of the metal pipe and other blood samples taken from the scene with the blood specimen taken from
Deese. Haas stated that from her comparisons between these specimens and the specimens taken
from the victim, she determined that the DNA profiles obtained from these specimens were
consistent with the DNA profile of Deese.
        Examining the aforementioned evidence in the light most favorable to the verdict, we
conclude that the jury could have determined beyond a reasonable doubt that Appellant either (1)
intentionally caused Deese’s death or (2) intended to cause serious bodily injury to Deese and
committed an act clearly dangerous to human life that caused Deese’s death. Therefore, we hold that
the evidence was legally sufficient to support the trial court’s judgment of conviction.
Factual Sufficiency
        Turning to Appellant’s contention that the evidence is not factually sufficient to support the
jury’s verdict, we must first assume that the evidence is legally sufficient under the Jackson
standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all
of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute
and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d
155, 164 (Tex. Crim. App. 1997). Although we are authorized to disagree with the jury’s


                                                 10
determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d
at 133, our evaluation should not substantially intrude upon the jury’s role as the sole judge of the
weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is
conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. See Van
Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.– El Paso 1996, pet. ref’d). Ultimately, we must ask
whether a neutral review of all the evidence, both for and against the finding, demonstrates that the
proof of guilt is so obviously weak as to undermine our confidence in the jury’s determination, or
the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.
Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Watson v. State, 204 S.W.3d
404, 417 (Tex. Crim. App. 2006) (Evidence is factually insufficient only when the reviewing court
objectively concludes that the great weight and preponderance of the evidence contradicts the
verdict.).
        In support of his factual sufficiency contention, Appellant argues that Green’s testimony is
so inconsistent that its veracity should be called into question. We acknowledge inconsistencies in
Green’s testimony, most notably, her testimony concerning the time period over which Appellant
pummeled Deese. Yet, we iterate that our evaluation should not substantially intrude upon the jury’s
role as the sole judge of the weight and credibility of witness testimony, see Santellan, 939 S.W.2d
at 164, and where there is conflicting evidence, the trial court’s verdict on such matters is generally
regarded as conclusive. See Van Zandt, 932 S.W.2d at 96. Further, Green’s testimony that
Appellant struck Deese by various means was steadfast. Moreover, Martin’s and Quinton’s
respective testimony is largely consistent with Green’s account.
        We have reviewed the record in its entirety. Our review of the record as a whole, with
consideration given to all of the evidence, both for and against the jury’s finding, has not revealed
to us any evidence that causes us to conclude that the proof of guilt is so obviously weak or is
otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction clearly wrong
or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the trial
court’s judgment. Appellant’s third issue is overruled.




                                                  11
                                                      DISPOSITION
         Having overruled Appellant’s first and third issues,10 we affirm the trial court’s judgment.




                                                                        BRIAN HOYLE
                                                                           Justice




Opinion delivered January 30, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (DO NOT PUBLISH)




         10
              W e did not consider Appellant’s second issue. See n.9.

                                                                12
