Danny Salcido v. State ( 2018 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
DANNY SALCIDO, No. 08-16-00284-CR
§
Appellant, Appeal from
§
v. 120th District Court
§
THE STATE OF TEXAS, of El Paso County, Texas
§
Appellee. (TC # 20150D02954)
§
OPINION
Appellant Danny Salcido appeals his conviction for the offense of misdemeanor assault-
family violence.
BACKGROUND
On May 27, 2015, Appellant’s wife, Diana Salcido pulled into the emergency lane on
Highway 54 with her three-month old baby in the back seat of the vehicle. She called 9-1-1, and
advised the dispatcher that she had left her home after Appellant had hit and kicked her. Appellant
was charged with intentionally, knowingly, or recklessly impeding Diana’s normal breathing or
circulation of the blood by applying pressure to her throat or neck or by blocking her nose or
mouth. See TEX.PEN.CODE ANN. § 22.01(b)(2)(West Supp. 2017).
At trial, the State introduced in evidence an audio recording of Diana’s 9-1-1 call,
computer-aided dispatch records, the testimony of both the responding police officer, Richard
Talamantes, and the arresting police officer, Hector Argumedo, Diana’s medical records,
photographs of portions of Diana’s body. Diana did not testify at trial.
The jury found Appellant guilty of the lesser-included misdemeanor offense of assault-
family violence. Prior to trial, Appellant elected to have punishment assessed by the trial court,
which imposed an agreed sentence of 365-days’ confinement at the El Paso County Detention
Facility. In accordance with the agreement, sentence was suspended and Appellant was placed
on community supervision for a period of two years.
DISCUSSION
Appellant presents six issues for our consideration on appeal. In Issues One, Two, and
Three, Appellant complains that the trial court erred when it overruled his Sixth Amendment
Confrontation Clause objections and admitted the victim’s out-of-court statements in evidence.
See U.S. CONST. amend. VI. In Issues Four, Five, and Six, Appellant complains that he was
denied the effective assistance of counsel when counsel failed to object the to admission of
evidence.
I.
Confrontation Clause
A. 9-1-1 Recording and Transcript
In Issue One, Appellant argues the trial court erred when it overruled his Confrontation
Clause objection to the admission of the 9-1-1 recording and computer-aided dispatch document
regarding the emergency call as evidence. At the time the State offered the recording and
transcript in evidence as State’s Exhibits 1 and 1a, Appellant objected to the admission of the
records based on improper foundation. The trial court overruled the objection, admitted the
records in evidence, and the State continued to elicit several pages worth of testimony from the
2
sponsoring witness. After the State published 9-1-1 recording to the jury, Appellant lodged a
Confrontation Clause objection to the recording and declared, “[W]e didn’t listen to the tape[.]”
The trial court noted that defense counsel had not made a Confrontation Clause objection at the
time the evidence was offered for admission and had only objected on the basis of improper
foundation, and declared the records were already in evidence. It also noted that defense counsel
had informed the trial court that he had listened to the recording a day earlier. The trial court
listened to the recording outside the presence of the jury, and overruled Appellant’s Confrontation
Clause objection.
The State contends the trial court correctly overruled Appellant’s Confrontation Clause
objection as untimely. Although not presented to the trial court, on appeal Appellant counters
that at the time the records were offered in evidence, the only proper objection to be made at trial
was that of improper foundation, and that his Confrontation Clause objection was timely made
after the records were published to the jury.
A defendant’s right to confrontation under the Sixth Amendment is violated when a witness
is permitted to relate out-of-court “testimonial” hearsay statements unless the declarant is
unavailable, and the defendant had a prior opportunity to cross-examine the declarant. Crawford
v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1368, 158 L. Ed. 2d 177 (2004); Ricks v. State, AP-
77,040, 2017 WL 4401589, at *15 (Tex.Crim.App. Oct. 4, 2017), cert. denied, 138 S. Ct. 1553,
200 L. Ed. 2d 751 (2018); De La Paz v. State, 273 S.W.3d 671, 680 (Tex.Crim.App. 2008).
Confrontation and compulsory process rights are subject to procedural default. Taylor v. Illinois,
484 U.S. 400, 410, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988)(“the decision whether to employ [the
right to compulsory process] in a particular case rests solely with the defendant.”); Reyna v. State,
3
168 S.W.3d 173, 179 (Tex.Crim.App. 2005)(holding that appellant forfeited appellate review of
his Confrontation Clause claim by his failure to properly object at trial). Generally, to preserve
error there must be a timely and specific objection to the complained-of evidence. Davis v. State,
313 S.W.3d 317, 347 (Tex.Crim.App. 2010). Specifically, to preserve a complaint for appellate
review, the record must show that a defendant made a timely and specific objection to the trial
court in compliance with the rules of evidence or the rules of appellate procedure, that the objection
was sufficiently specific to make the trial court aware of the complaint unless the specific grounds
were apparent from the context, and that the trial court ruled on the objection, either expressly or
implicitly, or refused to rule and the complaining party objected. TEX.R.APP.P. 33.1(a)(1)(A),
(a)(2)(A-B); see Lovill v. State, 319 S.W.3d 687, 691-92 (Tex.Crim.App. 2009). Confrontation
Clause claims are subject to this preservation requirement. Davis, 313 S.W.3d at 347.
Additionally, an objection stating one legal basis may not be used to support a different legal theory
on appeal. See e.g., Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App. 2004)(objection
based on Fifth Amendment did not preserve state constitutional ground). A complaint is timely
if it is made “as soon as the ground of objection becomes apparent.” Pena v. State, 353 S.W.3d
797, 807 (Tex.Crim.App. 2011)(citation omitted).
The evidence at issue consists not only of the 9-1-1 recording but the computer-aided
dispatch document related to the emergency dispatch call. Defense counsel did not object to the
9-1-1 recording and transcript on Confrontation Clause grounds until after the trial court had
admitted them in evidence, after the sponsoring witness had continued her testimony under direct
examination comprising several pages of the record, and after the jury had begun hearing the
recording. When counsel did object on this basis, he initially informed the trial court that he had
4
listened to the 9-1-1 recording one day before the State offered and the trial court admitted the
recording and the dispatch document in evidence. Defense counsel then advised the trial court
that he did not listen to the recording. On this record and the evidence before us, we conclude
Appellant’s Confrontation Clause objection was untimely made, and has not been preserved for
our consideration on appeal. Issue One is overruled.
B. Out-of-Court Statements
In Issues Two and Three, Appellant contests the trial court’s admission of Diana’s out-of-
court statements made to Officer Talamantes after he responded to her location on the highway
and thereafter at the hospital, and urges that the admission of the testimony violated his Sixth
Amendment right to confront witnesses. U.S. CONST. amend. VI. Appellant urges that Diana’s
statements to Talamantes were made after the assault had occurred, that is, there was no crime in
progress, and her statements did not describe a crime in progress. He contends that the admission
of Diana’s statements to Officer Talamantes in evidence was the sole evidence that provided
context for the photographs of Diana’s injuries and an explanation regarding her injuries and who
caused them.
The State asserts that Appellant failed to preserve each of his complaints about Officer
Talamantes’ testimony regarding Diana’s out-of-court statements. We agree.
As we have noted, to preserve a complaint for appellate review, a defendant must make a
timely and specific objection to the trial court. TEX.R.APP.P. 33.1(a); Lovill v. State, 319 S.W.3d
at 691-92. In making the objection, terms of legal art are not required, but a litigant should at
least “let the trial judge know what he wants, why he thinks himself entitled to it, and to do so
clearly enough for the judge to understand him at a time when the trial court is in a proper position
5
to do something about it.” Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992). An
objection stating one legal basis cannot support a different legal theory on appeal. See
Heidelberg, 144 S.W.3d at 537 (objection based on Fifth Amendment did not preserve state
constitutional ground); Goff v. State, 931 S.W.2d 537, 551 (Tex.Crim.App. 1996)(variance in
charge objection with contention on appeal waived error); Bell v. State, 938 S.W.2d 35, 54
(Tex.Crim.App. 1996), cert. denied, 522 U.S. 827, 118 S. Ct. 90, 139 L. Ed. 2d 46 (1997)(objection
at trial regarding illegal arrest did not preserve claim of illegal search and seizure on appeal).
“The purpose of requiring a specific objection in the trial court is twofold: (1) to inform the trial
judge of the basis of the objection and give him the opportunity to rule on it; (2) to give opposing
counsel the opportunity to respond to the complaint.” Resendez v. State, 306 S.W.3d 308, 312
(Tex.Crim.App. 2009).
The Court of Criminal Appeals has held that Confrontation Clause complaints constitute a
right that a litigant must affirmatively invoke. See Paredes v. State, 129 S.W.3d 530, 535
(Tex.Crim.App. 2004); Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000); Dewberry v.
State, 4 S.W.3d 735, 752 & n.16 (Tex.Crim.App. 1999); Briggs v. State, 789 S.W.2d 918, 924
(Tex.Crim.App. 1990)(“We hold that in failing to object at trial, appellant waived any claim that
admission of the videotape violated his rights to confrontation and due process/due course of
law.”), overruled on other grounds by, Karenev v. State, 281 S.W.3d 428, 434 (Tex.Crim.App.
2009). This Court and others have done the same. See Ortiz v. State, 08-15-00344-CR, 2017
WL 3667829, at *3-4 (Tex.App.--El Paso Aug. 25, 2017, pet. ref’d)(not designated for
publication)(objections to exhibits on the bases of relevance, hearsay, and Code of Criminal
Procedure, Article 37.07 did not preserve Confrontation Clause complaint); Thomas v. State, No.
6
08-14-00095-CR, 2015 WL 6699226, at *3 (Tex.App.--El Paso Nov. 3, 2015, pet. ref’d)(not
designated for publication)(authentication, chain of custody, and Rule 702 objections did not
preserve Confrontation Clause objection); see also Deener v. State, 214 S.W.3d 522, 527
(Tex.App.--Dallas 2006, pet. ref’d)(“We conclude the right of confrontation is a forfeitable right-
-not a waivable-only right--and must be preserved by a timely and specific objection at trial.”);
Robinson v. State, 310 S.W.3d 574, 577-78 (Tex.App.--Fort Worth 2010, no pet.)(failure to object
waived Confrontation Clause claim).
In this case, when the State asked Officer Talamantes to describe Diana’s statements to
him, defense counsel objected and stated, “I would say this is inadmissible hearsay. The
testimony is that there is no ongoing emergency. So hearsay.” Although Appellant agrees that
a hearsay objection does not preserve for appellate purposes a Confrontation Clause argument, he
contends that defense counsel’s reference to “no ongoing emergency” sufficiently “tracks the
language of the Bryant line of cases where the Court recognized the “ongoing emergency”
exception to Crawford’s confrontation protections.”
First, we have examined the record on appeal and find no discussion with the trial court
regarding the “Bryant line of cases.” See Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 1153,
179 L. Ed. 2d 93 (2011). Second, nowhere in the record to we find any mention of the Sixth
Amendment or the Confrontation Clause or any exception applicable to the holding in Crawford.
Rather, the only objection Appellant voiced in the trial court regarding Officer Talamantes’
testimony about Diana’s out-of-court statements was that the complained-of testimony constituted
hearsay.
Texas courts have held that hearsay objections are not synonymous with an objection
7
raising Sixth Amendment issues. Paredes, 129 S.W.3d at 535; Wright, 28 S.W.3d at 536; Ortiz,
08-15-00344-CR, 2017 WL 3667829, at *3-4; Rios v. State, 263 S.W.3d 1, 6-7 (Tex.App.--
Houston [1st Dist.] 2005, pet. dism’d, untimely filed). Because he failed to raise a Confrontation
Clause objection to Officer Talamantes’ testimony in the trial court, Appellant’s complaints on
appeal are not preserved. TEX.R.APP.P. 33.1. Issues Two and Three are overruled.
II.
Ineffective Assistance of Counsel
In Issues Four, Five, and Six, Appellant contends trial counsel rendered ineffective
assistance because he failed to object to the admission of the 9-1-1 call and the computer-aided
dispatch document and Officer Talamantes’ testimony regarding Diana’s out-of-court statements,
thereby waiving his right “to confront the State’s non-testifying witness,” Diana.
To prevail on a claim of ineffective assistance of counsel, an appellant must establish by a
preponderance of the evidence that: (1) trial counsel’s performance was deficient; and (2) that this
deficient performance deprived appellant of a fair trial. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Ex parte Chandler, 182 S.W.3d 350, 353
(Tex.Crim.App. 2005). Appellant must satisfy both Strickland components; the failure to satisfy
either will defeat his ineffectiveness claim. Perez v. State, 310 S.W.3d 890, 893 (Tex.Crim.App.
2010).
We presume that counsel’s representation fell within the wide range of reasonable and
professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). Thus, an
ineffective-assistance claim must be “firmly founded in the record” and “the record must
affirmatively demonstrate” the meritorious nature of the claim. Goodspeed v. State, 187 S.W.3d
8
390, 392 (Tex.Crim.App. 2005), quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.
1999).
Usually, direct appeal is an inadequate vehicle for raising a claim of ineffective assistance
of counsel because the record is generally undeveloped. See Thompson, 9 S.W.3d at 813. This
is true regarding the deficient-performance prong of the inquiry, when the reasons for counsel’s
omission do not appear in the record. Menefield v. State, 363 S.W.3d 591, 593 (Tex.Crim.App.
2012).
Ordinarily, trial counsel should be afforded an opportunity to explain his actions before
being denounced as ineffective. Id. (citation omitted). If trial counsel is not provided that
opportunity, then we should not find deficient performance unless the challenged conduct was “so
outrageous that no competent attorney would have engaged in it.” See Menefield, 363 S.W.3d at
593.
We do not know why defense counsel failed to raise a Confrontation Clause objection
because the record is silent on the matter. Neither trial counsel nor the State have been provided
an opportunity to respond to appellant’s allegation. Consequently, on this record, Appellant has
failed to show that defense counsel’s performance was deficient. See Menefield v. State, 363
S.W.3d 591, 592-93 (Tex. Crim. App. 2012). Issues Four, Five, and Six are overruled.
CONCLUSION
The trial court’s judgment is affirmed.
September 28, 2018
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)
9