Ex Parte: Danny Salcido ( 2020 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
No. 08-19-00178-CR
EX PARTE: §
Appeal from the
DANNY SALCIDO. §
120th District Court
§
of El Paso County, Texas
§
(TC# 20150D02954-120-1)
§
OPINION
Appellant Danny Salcido was charged with the third-degree felony offense of family-
violence assault committed by impeding the normal breathing or circulation of the blood of a
person by applying pressure to the person’s neck or by blocking the person’s nose or mouth. See
TEX. PENAL CODE ANN. § 22.01(b)(2)(B) (family-violence assault by strangulation). The
complaining witness of the charge was his wife, Diana Salcido. After a jury trial, Salcido was
convicted of the lesser-included charge of family-violence assault even though Diana provided no
testimony. See TEX. PENAL CODE ANN. § 22.01(a)(1) (class-A misdemeanor family-violence
assault).
On direct appeal, Salcido raised two arguments with this Court about his conviction: (1)
that the trial court erred by admitting certain items of evidence to include the out-of-court
statements made by Diana on a recorded 911 call, which were also included in an associated
computer-aided dispatch (CAD) record, as well as related statements she similarly made to the
responding police officer, with all items of evidence admitted in contravention of the
Confrontation Clause; and (2) that, assuming his Confrontation Clause objections were waived by
trial counsel’s failure to timely object on that basis, Salcido argued that trial counsel rendered
ineffective assistance of counsel by failing to so object. Rejecting Salcido’s arguments, we held
that he had waived his Confrontation Clause complaints by failing to timely object at trial, and
further held that no deficient performance was shown given the absence of any testimony from
trial counsel explaining the reasons for his trial omissions or inactions.
Soon after we issued our mandate on Salcido’s direct appeal, he filed an application for a
post-conviction writ of habeas corpus under article 11.072 of the Code of Criminal Procedure in
which he carried forward his ineffective assistance of counsel claim. See TEX. CODE CRIM. PROC.
ANN. art. 11.072, § 1. After receiving the State’s answer and an affidavit from trial counsel, the
habeas court, which was presided over by the same judge who had presided over Salcido’s jury
trial, denied relief.
Now, in a single issue in which Salcido appeals the denial of his application for a writ of
habeas corpus, Salcido argues that the court erred by denying relief on his claim of ineffective
assistance of counsel. Specifically, he complains about trial counsel’s failure to make
Confrontation Clause objections on a timely basis to the admission of Diana’s out-of-court
statements as admitted through a variety of forms: (1) the 911 recording, a transcript of the
recording, and associated CAD record for the call; (2) Officer Talamantes’ testimony about
Diana’s out-of-court statements made to him after he responded to her call; and (3) Officer
2
Talamantes’ testimony about Diana’s out-of-court statements made to him upon his subsequent
arrival at a hospital to which Diana was taken for treatment. We affirm the habeas court’s
judgment because, for each complained-of source of evidence, Salcido has failed to prove either
the deficient performance or prejudice prongs of an ineffective assistance of counsel claim under
Strickland to establish his entitlement to post-conviction relief.
BACKGROUND
Statement on the State of the Appellate Record
As a preliminary matter, we begin with the state of the record pertaining to the appeal of a
writ proceeding. In his briefing, Salcido cites not only to the writ proceeding below but also to the
reporter’s record of his underlying jury trial. And, despite the trial court also making similar
references in its findings of fact and conclusions of law, Salcido did not formally offer nor seek
admission of the reporter’s record of his jury trial during his writ proceeding. And nowhere in the
clerk’s record or reporter’s record of this cause is there any indication that the trial court took
judicial notice of any record from Salcido’s jury trial.
Ordinarily, a deficiency of a record to support what occurred in a jury trial on which a post-
conviction writ is based would likely be detrimental to an applicant’s ability to prove entitlement
to relief. See Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016) (instructing that an
applicant for a post-conviction writ of habeas corpus bears the burden of proving his claim by a
preponderance of the evidence). However, without explaining how or why we should consider the
reporter’s record from Salcido’s jury trial, the State likewise appears to have adopted the jury trial
record as being a part of the record in this appeal by also citing to it in its briefing without comment
or objection.
3
As recognized by the Court of Criminal Appeals, “the general rule is that an appellate court
cannot go to the record of another case for the purpose of considering testimony found there but
not shown in the record case before it.” Fletcher v. State, 214 S.W.3d 5, 7 (Tex. Crim. App. 2007)
(quoting Turner v. State, 733 S.W.2d 218, 223 (Tex. Crim. App. 1987)). But the Court of Criminal
Appeals has also instructed that “an appellate court may take judicial notice of its own records in
the same or related proceedings involving [the] same or nearly same parties[.]” Fletcher, 214
S.W.3d at 7 (quoting Turner, 733 S.W.2d at 223) (internal citations omitted). In applying Fletcher
in the context of an appeal from a post-conviction ruling, some of our sister courts have found it
permissible to take judicial notice of the appellate record stemming from the direct appeal of a
case. See State v. Bryan, No. 11-17-00236-CR, 2019 WL 6337604, at *2 (Tex. App. – Eastland
Nov. 27, 2019, no pet.) (mem. op., not designated for publication) (rejecting the State’s contention
on appeal from a ruling on a post-conviction DNA motion that the appellate court could not
consider the trial record from the defendant’s conviction because it was not offered as a part of the
record in the hearing on the post-conviction motion and, instead, holding that “we may take judicial
notice of the contents of our file in the direct appeal of the conviction”); Ex parte Cox, Nos. 14-
09-00102-CR, 14-09-00103-CR, 2009 WL 1057338, at *1-2 (Tex. App. – Houston [14th Dist.]
Apr. 21, 2009, no pet.) (mem. op., not designated for publication) (rejecting the State’s contention
that the defendants were not entitled to relief on their post-conviction claims because they failed
to produce the record from their first trial to the habeas court and holding instead, in “this unique
situation in which appellants complain of ineffective assistance of counsel on appeal[,]” that the
appellate court could take judicial notice of its own records from the defendants’ direct appeal
filed in the appellate court).
4
Here, lacking any challenge, complaint or briefing on this issue, we expressly decline to
adopt a holding on whether we can properly take judicial notice of the record from a separately
filed appeal. Nonetheless, under these circumstances where both parties have cited to the appellate
record of a separately filed case involving the same parties and same case and neither party has
raised any challenge to the other party having cited to the record in this manner, we will ourselves
take judicial notice of the record from Salcido’s direct appeal which was previously filed in our
appellate cause number, 08-16-00284-CR, and styled, Salcido v. State. See Salcido v. State, No.
08-16-00284-CR, 2018 WL 4660091 (Tex. App. – El Paso Sep. 28, 2018, pet. ref’d) (not
designated for publication).
The Overall Evidence Presented at Trial
On May 27, 2015, Salcido’s wife, Diana, pulled into the emergency lane of a highway with
her three-month-old baby in the backseat of the vehicle. From this location, she called 911 and
advised the dispatcher that she had left her home after Salcido hit and kicked her.
At trial, the State introduced into evidence the 911 call, the call’s associated CAD record,
the testimony of both the responding officer, Richard Talamantes, and the arresting officer to
whom Salcido voluntarily surrendered himself a few days later, Diana’s medical records, and
photographs of Diana’s injuries. Diana did not testify at trial.
Salcido did not present any evidence after the State rested.
The 911 Call and CAD Record1
1
Although Salcido argues in this appeal that both Diana’s 911 call and its associated CAD record were testimonial,
he does not point to any specific contents of the CAD record that reflect information beyond that contained in the 911
call. Our review of the CAD record likewise reveals no unique information contained only in the CAD record that is
relevant to our resolution of this appeal. Therefore, our opinion will refer only to the contents of Diana’s 911 call
when addressing these two pieces of evidence together.
5
At the time the State offered the 911 and CAD record into evidence, trial counsel objected
to the admission of both based on improper foundation. The trial court overruled the objection
and admitted the records, and the State continued to elicit several pages worth of testimony from
the sponsoring witness. After the State published the 911 call to the jury, trial counsel belatedly
lodged a Confrontation Clause objection to the call. The trial court noted that trial counsel had not
made a Confrontation Clause objection at the time the evidence was offered and had only objected
on the basis of improper foundation, and the trial court declared that the records were already in
evidence. Nonetheless, the trial court listened to the recording outside the jury’s presence and
overruled trial counsel’s belated Confrontation Clause objection.
At the outset of the 911 call, the 911 operator obtained Diana’s location on Highway 54
and McCombs in El Paso before asking Diana what was going on. While frantic, crying, and
speaking quickly and loudly, Diana said that she wanted to “report a domestic violence” and that
she “just got out of the house” because her husband hit her and struck her against the floor “right
now.” The 911 operator then confirmed from Diana that her assailant was her husband, was at
11768 Jim Webb, was not under the influence, and did not have any weapons. The 911 operator
asked for Diana’s name, asked what she was wearing, and asked for a description of her vehicle.
After confirming that Diana was parked in the emergency lane of the highway, the 911 operator
asked if Diana needed an ambulance. Although Diana refused an ambulance, she said that her arm
hurt because her husband kicked her elbow. Pursuant to the 911 operator’s remaining questions,
Diana identified Salcido, gave his name and date of birth, described his physical features and
clothing, and gave the make and model of his vehicle. The 911 operator then told Diana that the
information had been passed along and that an officer was on the way to her precise location on
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the highway, and the 911 operator asked Diana to turn on her hazard lights.
Officer Talamantes’ Testimony about Diana’s Out-of-Court Statements Made
upon His Arrival to Her Location on the Highway
Officer Talamantes testified at trial that he arrived at the scene within about a minute of
being dispatched. He saw Diana’s vehicle on the shoulder of the highway, parked behind it, and
upon his approach, he saw Diana and her crying three-month-old infant inside. Diana looked
“shaken up,” her hands were shaking, she appeared scared, and she was crying, as well. Officer
Talamantes did not know where the assailant was at that point in time, and he had Diana identify
herself and explain what happened. Before Officer Talamantes testified about Diana’s out-of-
court statements at the scene, trial counsel made an objection in which he referenced his belief that
“there is no ongoing emergency” but asserted as the legal basis of his objection only that the out-
of-court statements were hearsay, and the trial court overruled his objection.
In a brief conversation that lasted only about a minute, Diana told Officer Talamantes that
she had been assaulted by her husband, Salcido, who was an ex-Las Cruces police officer, and she
was concerned that Officer Talamantes would not do anything about her situation due to her
husband’s law-enforcement affiliation. Diana stated that she left her house in a hurry, and she also
complained of pain to her arm. At that point, two other officers arrived at the scene, and based on
the noise from the nearby traffic and Diana’s complaint of arm pain, Officer Talamantes drove
Diana to a nearby hospital. The other two officers went to Diana’s home to try to locate Salcido.
Officer Talamantes’ Testimony about Diana’s Out-of-Court Statements Made
upon His Arrival at the Hospital
As the hospital was in close proximity, Officer Talamantes and Diana arrived at the hospital
within a minute or so. After Diana was taken to a pre-examination room so that her vitals could
7
be checked, Officer Talamantes was able to speak with her further after only a few additional
minutes. Diana still appeared to be scared and “shaken up.”
Trial counsel made a hearsay objection to Diana’s out-of-court statements to Officer
Talamantes while in the hospital room, but the trial court overruled the objection. In that hospital
room, Diana proceeded to tell Officer Talamantes in detail how Salcido assaulted her in their home.
When Diana confronted Salcido about her suspicion of him cheating on her, he pushed her, threw
her to the floor, kicked her, and choked her to the point where she could not breathe. When Salcido
saw Diana was running out of breath, he let go of her neck and pounded her head against the floor
multiple times. After letting Diana up and asking her if she was going to leave him, Diana said
she was going to do so, and Salcido pushed her to the floor, got on top of her, and struck her in the
chest with a ruler. Only when Salcido got a phone call about a potential job was Diana able to flee
with her baby.
The Remaining Evidence: Photos and Testimony Relating to Diana’s Injuries
and Diana’s Medical Records
Photos of Diana taken at the hospital were admitted into evidence and showed a red mark
on the right side of her chest and redness around her neck. Officer Talamantes also testified at
trial that, as he spoke with Diana, he saw a red mark on her chest and saw some redness on her
neck that, based on his training and experience, was consistent with her having been grabbed
around the neck. Officer Talamantes also saw that Diana was cradling her elbow as though it were
in pain throughout the entirety of their interactions.
Diana’s medical records from the hospital reflected that she reported being assaulted by
her spouse while her infant was at their bedside. Her spouse hit her with his fists, kicked her,
pushed and threw her, and choked her. Her hospital diagnosis showed that she had bruises on her
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face and neck area, stomach, and elbow. She reported feeling pain on her head, face, stomach, and
elbow, and she reported her pain as a “10” on a scale of 1-to-10. Based on Diana’s statements to
hospital staff, the hospital ordered a CT scan on her head and x-rays on her elbow.
After Officer Talamantes finished speaking with Diana at the hospital, he prepared an arrest
warrant for Salcido. Two days after the assault, Salcido went to the police station to turn himself
in for the pending warrant.
The Verdict
Although Salcido was indicted for the third-degree felony of family-violence assault by
impeding Diana’s breath or circulation, the jury instead convicted Salcido of the lesser-included
class-A misdemeanor of family-violence assault. Pursuant to an agreed-upon sentence by the State
and Salcido, the trial court sentenced Salcido to 365 days’ confinement, suspended the sentence,
and placed Salcido on 2 years’ community supervision.
The Direct Appeal
In Salcido v. State, this Court addressed Salcido’s direct appeal from his conviction. See
Salcido v. State, No. 08-16-00284-CR, 2018 WL 4660091 (Tex. App. – El Paso Sep. 28, 2018,
pet. ref’d) (not designated for publication). On direct appeal, Salcido argued that the trial court
committed reversible error by admitting Diana’s out-of-court statements that she made on her 911
call and its associated CAD record, as well as the additional statements she made to the responding
officer, Officer Talamantes. Id., at *1-3. Salcido also argued that, assuming his Confrontation
Clause issues were waived by trial counsel’s failure to lodge timely objections, that trial counsel
had rendered ineffective assistance of counsel by failing to so object. Id., at *4. On direct appeal,
we held that Salcido failed to preserve his Confrontation Clause argument by failing to object on
9
that particular basis, as opposed to the improper-foundation and hearsay objections that trial
counsel instead lodged. Moreover, we further held that Salcido failed to show deficient
performance for his ineffective-assistance claims where the record on appeal was silent as to why
trial counsel failed to make such objections at trial, and we affirmed the trial court’s judgment.
Id., at *2, 4-5.
The Writ Proceeding
Shortly after we issued our mandate in Salcido’s direct appeal, he filed his application for
a post-conviction writ of habeas corpus under article 11.072 of the Code of Criminal Procedure.
In his application, Salcido once again asserted the ineffective-assistance arguments that he made
on direct appeal regarding trial counsel’s failure to raise Confrontation Clause objections to
admission of Diana’s out-of-court statements through the following sources of evidence during
trial: (1) the 911 call and associated CAD record; (2) Officer Talamantes’ testimony about Diana’s
out-of-court statements made to him upon his arrival to her location on the highway; and (3)
Officer Talamantes’ testimony about Diana’s out-of-court statements made to him at the hospital.
Salcido asserted that he suffered prejudice from these failures because trial counsel’s failure to
object “let in the only substantive evidence of assault” where the victim did not testify at trial.
The State filed an answer to Salcido’s writ application. In response to Salcido’s
ineffective-assistance complaint regarding the 911 call and CAD record, the State contended that
Salcido failed to prove deficient performance because the trial court excused the jury and
reconsidered admission of those items of evidence under the belated Confrontation Clause
objection, despite the court’s initial comment that the objection was untimely. The State
additionally responded to Salcido’s complaints regarding each of the three sources of evidence by
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contending that he failed to prove deficient performance because Diana’s out-of-court statements
were nontestimonial and therefore did not implicate the Confrontation Clause. Finally, the State
responded that Salcido failed to prove prejudice by the trial court’s admission of each source of
evidence because exclusion of any such challenged evidence would not have changed the outcome
of the trial due to admission of other evidence, which aside from the challenged evidence still
included Officer Talamantes’ testimony regarding Diana’s demeanor and visible injuries as he saw
them at the scene, photographs showing Diana’s injuries, and medical records reflecting that Diana
sought treatment for injuries she sustained after being assaulted by Salcido.
The habeas court held a hearing on Salcido’s writ application, and at the hearing, the court
admitted an affidavit from Salcido’s trial counsel. In trial counsel’s affidavit, he explained the
nature of his objections by attesting that he anticipated the trial court would address the substance
of his objections differently, and trial counsel further attested, “I don’t believe it was necessarily a
mistake to object in the manner that I did.”
Following the writ hearing, the habeas court entered findings of fact, conclusions of law,
and its order denying relief. The habeas court entered the following findings of fact relevant to
our resolution of this appeal: (1) Diana called 911 “in a frantic voice, upset and crying” and “was
distraught and crying throughout the call”; and (2) during the “brief contact” that Officer
Talamantes had with Diana, who had pulled her vehicle into an emergency lane of the highway,
she was “under emotional distress” and was “shaking and crying.” Although some were styled as
findings of fact, the habeas court also entered the following conclusions of law: (1) Diana’s
statements on her 911 call were nontestimonial; (2) Diana’s statements to Officer Talamantes both
at the scene and at the hospital were nontestimonial; (3) trial counsel did not render deficient
11
performance because any Confrontation Clause objections to Diana’s out-of-court statements
would not have been meritorious; and (4) even assuming Salcido had a meritorious objection to
admission of Officer Talamantes’ testimony about Diana’s out-of-court statements, Salcido was
not prejudiced in light of the remaining evidence presented at trial.2
Salcido timely filed his notice of appeal from the habeas court’s order denying relief on his
writ application.
DISCUSSION
In this appeal, Salcido carries forward the same ineffective-assistance arguments that he
made in his writ application, namely, that trial counsel rendered ineffective assistance by failing
to raise Confrontation Clause objections to admission of Diana’s out-of-court statements through
the 911 call and associated CAD record, the testimony from Officer Talamantes about his
conversation with Diana on the side of the highway, and the testimony from Officer Talamantes
about his conversation with Diana at the hospital. The State likewise carries forward the same
arguments from its writ answer that Salcido failed to show deficient performance regarding
admission of the 911 call and CAD record where the trial court ultimately considered his
Confrontation Clause objection before overruling it, that Salcido failed to show deficient
performance regarding admission of each complained-of source of Diana’s out-of-court statements
where all of Diana’s statements to the 911 operator and to Officer Talamantes were nontestimonial
and therefore did not implicate the Confrontation Clause, and that Salcido failed to prove prejudice
where exclusion of any one of the complained-of sources of evidence would not have changed the
2
We note that, regardless of how a trial court labels its findings of fact and conclusions of law, an appellate court must
examine the substance of the findings and conclusions and treat them by their substance rather than by their label.
State v. Ambrose, 487 S.W.3d 587, 597 (Tex. Crim. App. 2016).
12
outcome of the trial due to the remaining evidence available to the jury.
We hold that Diana’s out-of-court statements made on her 911 call and associated CAD
record and made to Officer Talamantes upon his arrival to her car on the side of the highway were
nontestimonial. Thus, the trial court would have properly admitted these statements even in the
face of a Confrontation Clause objection, and Salcido has failed to prove deficient performance
regarding the admission of Diana’s out-of-court statements under these circumstances. And even
assuming that Diana’s out-of-court statements to Officer Talamantes at the hospital were
testimonial and that the trial court would have erred by admitting them over a Confrontation Clause
objection, we hold that Salcido failed to prove prejudice from admission of the statements Diana
made at the hospital in light of the remaining evidence that was available to the jury. Thus, we
ultimately affirm the habeas court’s order denying relief on Salcido’s writ application.
Standard of Review and Burden of Proof
An applicant for a post-conviction writ of habeas corpus bears the burden of proving his
claim by a preponderance of the evidence. Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App.
2016). Normally, we review the habeas court’s ruling on an application for a writ of habeas corpus
for an abuse of discretion. Ex parte Salim, --- S.W.3d ---, Nos. 02-19-00200-CR, 02-19-00201-
CR, 2020 WL 241967, at *6 (Tex. App. – Fort Worth Jan. 16, 2020, no pet.); Ex parte Garcia-
Escontrias, No. 08-18-00203-CR, 2019 WL 6713282, at *2 (Tex. App. – El Paso Dec. 10, 2019,
no pet.) (not designated for publication). As the habeas court is the sole finder of fact in a post-
conviction application for writ of habeas corpus filed under article 11.072, we afford almost total
deference to a habeas court’s factual findings in this setting when they are supported by the record.
Ex parte Torres, 483 S.W.3d at 42. However, we review de novo pure questions of law and
13
application-of-law-to-fact questions that do not turn on credibility and demeanor. Ex parte Beck,
541 S.W.3d 846, 852 (Tex. Crim. App. 2017). We will uphold the habeas court’s ruling if it is
correct on any theory of law applicable to the case. Id.
Ineffective-Assistance Claims Based on a Failure to Object to Evidence
The Sixth Amendment guarantees criminal defendants the right to the effective assistance
of counsel for their defense. U.S. Const. amend. VI; Garza v. Idaho, 139 S. Ct. 738, 743 (2019).
To establish entitlement to relief on the basis of ineffective assistance of counsel under the two-
pronged Strickland test, a defendant must prove that: (1) counsel’s performance was deficient, i.e.,
that it fell below an objective standard of reasonableness; and (2) the deficient performance
prejudiced the defense, i.e., that but for counsel’s errors there is a reasonable probability that the
result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687
(1984). Regarding the prejudice prong, a reasonable probability is a probability sufficient to
undermine confidence in the outcome. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.
1999). A failure to prove either prong defeats a claim for ineffective assistance. Rylander v. State,
101 S.W.3d 107, 110 (Tex. Crim. App. 2003).
To establish ineffective assistance of counsel based on a failure to object, a defendant must
demonstrate that the trial court would have committed harmful error in overruling the objection if
trial counsel had objected. See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004);
DeLeon v. State, 322 S.W.3d 375, 381 (Tex. App. – Houston [14th Dist.] 2010, pet. ref’d).
Determining Whether a Statement is Testimonial or Nontestimonial under the
Confrontation Clause: the “Primary Purpose” Test
The Confrontation Clause of the Sixth Amendment to the United States Constitution,
applicable to the states through the Fourteenth Amendment, provides that “[i]n all criminal
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prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him[.]” U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36, 42 (2004); Pointer v. Texas,
380 U.S. 400, 406 (1965). The Confrontation Clause prohibits the admission of “testimonial” out-
of-court statements by a witness who does not appear at trial unless: (1) the witness is unavailable
to testify; and (2) the defendant had a previous opportunity to cross-examine the witness.
Crawford, 541 U.S. at 53-54. Once a defendant raises a Confrontation Clause objection, the
burden shifts to the State to prove either that: (1) the proffered statement does not contain
testimonial hearsay and thus does not implicate the Confrontation Clause; or (2) the statement does
contain testimonial hearsay but is nevertheless admissible. See De la Paz v. State, 273 S.W.3d
671, 680-81 (Tex. Crim. App. 2008). In the instant appeal, the parties are concerned with only the
first avenue for admissibility.
A statement is testimonial if “in light of all the circumstances, viewed objectively, the
‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial
testimony.’” Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015) (quoting Michigan v. Bryant, 562 U.S.
344, 358 (2011)). As one example of a situation where the primary purpose of a statement is
nontestimonial, the Supreme Court of the United States held in Michigan v. Bryant that the
statements made by a victim about his assailant were not testimonial because the circumstances
objectively indicated that the conversation was primarily aimed at enabling police assistance to
meet an ongoing emergency, not establishing evidence for the prosecution. Bryant, 562 U.S. at
377-78; see also Clark, 135 S. Ct. at 2180. Ultimately, where the primary purpose of an out-of-
court statement was not to create an out-of-court substitute for trial testimony, the out-of-court
statement is nontestimonial and the Confrontation Clause is simply not implicated. See Clark, 135
15
S. Ct. at 2180.
Failure to Object to 911 Call and CAD Record
Applicable Law
911 calls initiated to summon police assistance are generally nontestimonial because they
are “a cry for help” or “the provision of information enabling officers to end a threatening
situation.” See, e.g., Duchesneau v. State, Nos. 02-18-00321-CR, 02-18-00322-CR, 2019 WL
2455619, at *2 (Tex. App. – Fort Worth June 13, 2019, pet. ref’d) (mem. op., not designated for
publication) (quoting Davis v. Washington, 547 U.S. 813, 832 (2006)); Colbert v. State, No. 03-
17-00558-CR, 2019 WL 1065889, at *3 (Tex. App. – Austin Mar. 7, 2019, pet. ref’d) (mem. op.,
not designated for publication).
In Davis v. Washington, the Supreme Court of the United States addressed whether
statements made by a victim of domestic violence to a 911 operator were testimonial in nature.
See Davis, 547 U.S. at 817, 826-27. In determining that the caller’s statements were
nontestimonial and therefore admissible, the Davis Court considered the following factors: (1) the
caller was describing events as they were happening, rather than describing past events; (2) any
reasonable listener would recognize that the caller was facing an ongoing emergency; (3) the
questions asked of the caller elicited information necessary to resolve the present emergency,
rather than information about what had already happened; and (4) the statements were not made
in a formal setting. Id. at 827-28.
As the primary purpose inquiry considers the totality of the circumstances surrounding the
making of a statement, whether or not the perpetrator is absent from the scene of a crime is not
dispositive and is simply one factor in the inquiry. See Wilson v. State, 296 S.W.3d 140, 147 (Tex.
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App. – Houston [14th Dist.] 2009, pet. ref’d) (“We note that [the victim] was questioned separately
from the suspect and in an environment that was relatively safe inasmuch as police officers were
present. However, we cannot say that the environment was ‘tranquil’ or that [the victim] provided
a deliberate, step-by-step statement such as that involved in Crawford.”) [internal footnotes
omitted]; Dixon v. State, 244 S.W.3d 472, 484-85 (Tex. App. – Houston [14th Dist.] 2007, pet.
ref’d) (rejecting the defendant’s contention “that [the victim’s] statements to the 9–1–1 operator
were testimonial because [the victim] was not presently being assaulted, was reporting a crime that
occurred at a different location, and was willing to wait until the next day to file a police report”
and, instead, holding that the victim’s statements to the 911 operator were not testimonial where
the primary purpose of her statements was to cry for help, to allow the dispatcher to determine if
medical assistance was needed, and to allow the dispatcher to assess the potential for a continuing
threat to the victim’s safety or the safety of the responding officer); Clark v. State, 282 S.W.3d
924, 931-32 (Tex. App. – Beaumont 2009, pet. ref’d) (holding that the trial court could reasonably
find that the responding officer was still assessing an emergency situation, despite the fact that the
defendant was in custody, based on the totality of the circumstances of the scene upon the officer’s
arrival); cf. Ramjattansingh v. State, 587 S.W.3d 141, 161 (Tex. App. – Houston [1st Dist.] 2019,
no pet.) (rejecting the DWI defendant’s contention that any emergency dissipated once he and the
911 caller pulled into a parking lot and holding that the caller’s statements continued to be
nontestimonial where “[t]he emergency was not contained because without the police intervention
that [the caller] was still seeking, [the defendant] could have wandered off or returned to the road
and put himself and others at risk of harm”).
No Deficient Performance
17
As to the first Davis factor regarding whether the caller was describing events as they were
happening, we note that Diana was no longer at the location where she was assaulted and had some
unknown amount of time to drive herself to the highway in order to escape from Salcido. However,
at the outset of her 911 call, Diana stated that she “just got out of the house” and had been assaulted
“right now.” In addition, the situation was not one in which she was emotionally distanced from
the recent assault by her own husband where the 911 call revealed that Diana was still frantic,
crying, and speaking loudly and quickly at the time she placed her call. In the habeas court’s
findings of fact, the court found that Diana called 911 “in a frantic voice, upset and crying” and
“was distraught and crying throughout the call.” Based on Diana’s emotional state demonstrating
her immediate concerns and her statements that the assault recently happened, we find that this
factor weighs in favor of holding Diana’s statements nontestimonial. See Davis, 547 U.S. at 827-
28.
As to the second Davis factor regarding whether a reasonable listener would recognize that
the caller was facing an ongoing emergency, Diana was in distress following an assault by her
husband in her own home in which she had been hit, struck against the floor, and kicked. The
situation was such that Diana found it necessary to leave her home and park in the emergency lane
of a highway. We find that this factor also weighs in favor of holding Diana’s statements
nontestimonial. See id.
As to the third Davis factor regarding whether the questions asked of the caller elicited
information necessary to resolve the situation, the 911 operator’s questions here were tailored to
obtain pertinent information that would allow responding officers to better address the situation
and allow medical assistance to help Diana if necessary. These questions were focused on
18
determining Diana’s location, her situation, her physical welfare, her identifying information, and
her assailant’s identifying information. The only statements Diana made about the assault itself
were responses to brief questions asked by the 911 operator to determine what the situation was
and if an ambulance was needed. Therefore, we find that this factor weighs in favor of holding
Diana’s statements nontestimonial. See id.
Finally, as to the fourth factor regarding whether the statements were made in a formal
setting, Diana made her 911 call while parked in the emergency lane of a highway and while she
was frantic and crying. We thus likewise find that this factor weighs in favor of holding her
statements nontestimonial. See id.
Based on all the circumstances at the time Diana called 911, along with our findings that
all four of the Davis factors weigh in favor of holding that Diana’s statements to the 911 operator
were nontestimonial, we hold that the primary purpose of Diana’s statements contained in the 911
call and CAD record was to enable police assistance to meet an ongoing emergency. See Davis,
547 U.S. at 827-28 (concluding that the primary purpose of the caller’s statements on her 911 call
was to enable police assistance to meet an ongoing emergency where all four factors weighed in
favor of such a conclusion); see also Rosenbusch v. State, No. 03-18-00096-CR, 2018 WL
6837741, at *2 (Tex. App. – Austin Dec. 28, 2018, no pet.) (mem. op., not designated for
publication) (holding that the 911 callers made their calls primarily to seek help in an emergency
where: (1) the assault had just taken place; (2) the victim was injured; (3) the callers did not know
the whereabouts of the assailant; and (4) the callers were either explicitly requesting law
enforcement and medical personnel or implying that they should quickly come to the scene). As
the strongest possible factor favoring a converse holding, we recognize that Diana and Salcido
19
were no longer at the same location because she escaped her own home and drove to the highway
as she fled the assault. However, this factor is simply one of many present here, and we do not
believe it alone outweighs the other factors in this case. See Wilson, 296 S.W.3d at 147; Dixon,
244 S.W.3d at 484-85; Clark, 282 S.W.3d at 931-32; cf. Ramjattansingh, 587 S.W.3d at 161.
Thus, we agree with the habeas court’s conclusion of law that these statements were
nontestimonial and did not implicate the Confrontation Clause. See Bryant, 562 U.S. at 377-78;
see also Clark, 135 S. Ct. at 2180. We therefore also hold that trial counsel did not render deficient
performance by failing to raise a non-meritorious Confrontation Clause objection to Diana’s out-
of-court statements contained in her 911 call and the CAD record. See Ex parte White, 160 S.W.3d
at 53; DeLeon, 322 S.W.3d at 381 (holding that a defendant must demonstrate the trial court would
have committed harmful error in overruling an objection in order to establish ineffective assistance
of counsel based on a failure to object). And as Salcido failed to prove deficient performance, we
overrule this first part of his ineffective-assistance claim and need not address the prejudice prong
here. See Strickland, 466 U.S.at 687; see also Rylander, 101 S.W.3d at 110 (holding that a failure
to prove either Strickland prong defeats a claim for ineffective assistance).
Failure to Object to Diana’s Out-of-Court Statements to Officer Talamantes
at Dispatch Location on the Side of the Highway
Applicable Law
Responses to preliminary questions by police at the scene of a crime while police are
assessing and securing the scene are generally not testimonial. See, e.g., Villanueva v. State, 576
S.W.3d 400, 405 (Tex. App. – Houston [1st Dist.] 2019, pet. ref’d); Duchesneau, 2019 WL
2455619, at *2; see also Santacruz v. State, 237 S.W.3d 822, 828 (Tex. App. – Houston [14th
Dist.] 2007, pet. ref’d) (“The Supreme Court also observed that ‘initial inquiries’ by law
20
enforcement officers arriving at crime scenes involving domestic disputes ‘may often’ produce
nontestimonial statements because ‘officers called to investigate . . . need to know whom they are
dealing with in order to assess the situation, the threat to their own safety, and possible danger to
the potential victim.’”).
In Vinson, the Court of Criminal Appeals suggested a non-exhaustive list of factors to
consider when determining whether statements a domestic-violence victim made in-person to a
responding officer at the scene of a crime were made during the existence of an ongoing
emergency. Vinson v. State, 252 S.W.3d 336, 337-39 (Tex. Crim. App. 2008). These factors
included the following: (1) whether the situation was still in progress; (2) whether the questions
sought to determine what is presently happening as opposed to what has happened in the past; (3)
whether the primary purpose of the interrogation was to render aid rather than to memorialize a
possible crime; (4) whether the questioning was conducted in a separate room, away from the
alleged attacker; and (5) whether the events were deliberately recounted in a step-by-step fashion.
Vinson, 252 S.W.3d at 339 (citing Davis, 547 U.S. at 829-30).
No Deficient Performance
As to the first Vinson factor regarding whether the situation was still in progress, Officer
Talamantes quickly arrived at the scene within about a minute of being dispatched, and Diana told
him she had left her house in a hurry. At that moment, Officer Talamantes did not know where
the assailant was located but knew that a scared, crying, and “shaken up” woman was parked on
the shoulder of the highway with her infant inside the vehicle. The habeas court entered fact
findings that Diana was “under emotional distress” and was “shaking and crying” during this initial
encounter with Officer Talamantes, as well. Although Diana separated from Salcido just prior to
21
awaiting police assistance on the side of the highway, the circumstances here established the
immediacy of the events and her ongoing need for assistance. Thus, we find that this factor weighs
in favor of holding Diana’s statements as being nontestimonial. See Vinson, 252 S.W.3d at 339.
As to the second Vinson factor regarding whether the questions sought to determine what
was then-presently happening, Officer Talamantes asked only preliminary questions to have Diana
identify herself and explain what happened so he could assess the scene. We find that this factor
also weighs in favor of holding Diana’s statements nontestimonial. See id.
As to the third Vinson factor regarding whether the primary purpose of the interrogation
was to render aid, Officer Talamantes elicited only the most basic information for him to
understand what he was dealing with during the brief, minute-long conversation with Diana. The
habeas court also entered a fact finding that Officer Talamantes’ contact with Diana was “brief[.]”
In fact, once he elicited this basic information, Officer Talamantes drove Diana to a nearby
hospital—due to her complaint of arm pain and the difficulties posed by the highway noise—rather
than immediately having sought a more detailed account of the assault at that point in time. Thus,
we find that this factor weighs in favor of holding that Diana’s statements were nontestimonial.3
See id.
As to the fourth Vinson factor, the questioning was conducted in a location away from the
assailant. Simply, this factor weighs against holding that Diana’s statements were nontestimonial.
See id. Yet, as we previously noted, this factor is not dispositive of the inquiry into whether the
3
We question the validity of this factor because, under the U.S. Supreme Court’s clarification of the primary purpose
test in Clark, an out-of-court statement is always nontestimonial if the declarant’s primary purpose in making the
statement is anything other than to create an out-of-court substitute for testimony. See Clark, 135 S. Ct. at 2180.
Nonetheless, as consideration of this factor does not affect our analysis (and as the State’s briefing on this issue utilizes
all the Vinson factors), we will consider this factor, as articulated by the Court of Criminal Appeals, in this case.
22
statements at issue were testimonial or not. See Wilson, 296 S.W.3d at 147; Dixon, 244 S.W.3d at
484-85; Clark, 282 S.W.3d at 931-32; cf. Ramjattansingh, 587 S.W.3d at 161.
As to the last Vinson factor, the events were not deliberately recounted in a step-by-step
fashion where Diana was still scared, crying, and “shaken up[,]” and where Officer Talamantes
elicited only the most elementary information necessary for him to understand the situation before
driving Diana to the hospital. This brief conversation between Officer Talamantes and Diana at
the side of the highway was different than the more in-depth conversation between the two at the
hospital. Thus, we find that this last factor weighs in favor of holding that Diana’s statements were
nontestimonial. See Vinson, 252 S.W.3d at 339.
Based on all the circumstances at the time Diana made her statements to Officer Talamantes
on the side of the highway, along with our findings that four out of five of the Vinson factors weigh
in favor of holding that Diana’s statements at that time were nontestimonial, we hold that Diana’s
statements here were made during the existence of an ongoing emergency. See Vinson, 252
S.W.3d at 339; Rodriguez v. State, 274 S.W.3d 760, 765 (Tex. App. – San Antonio 2008, no pet.)
(holding that the victim’s out-of-court statements to a responding officer that she had “escaped”
from her house where she had been assaulted by her boyfriend, her exhibition of the injury to her
lip, and her out-of-court statement that her boyfriend was probably in the bedroom were not
testimonial where: (1) the officer knew he was responding to an alleged assault; (2) the officer was
met by the victim who was in obvious distress and holding a child; and (3) the officer’s initial
questions were objectively designed to determine what was presently happening and to assess the
situation).
We therefore agree with the habeas court’s conclusions of law on this category of evidence
23
that Diana’s statements to Officer Talamantes at the dispatch location were nontestimonial and did
not implicate the Confrontation Clause. See Bryant, 562 U.S. at 377-78; see also Clark, 135 S. Ct.
at 2180. We further agree with the habeas court’s conclusion of law that trial counsel did not
render deficient performance for failing to raise a non-meritorious Confrontation Clause objection
to Diana’s out-of-court statements to Officer Talamantes made at the time she sought police
assistance from the side of the highway, and we so hold. See Ex parte White, 160 S.W.3d at 53;
DeLeon, 322 S.W.3d at 381. And as Salcido failed to prove deficient performance, we overrule
this second part of his ineffective-assistance claim and need not address the prejudice prong here.
See Strickland, 466 U.S. at 687; see also Rylander, 101 S.W.3d at 110.
Failure to Object to Diana’s Out-of-Court Statements Made to Officer Talamantes While
Receiving Treatment at the Hospital
Applicable Law
Under an ineffective-assistance claim based on trial counsel’s failure to object to specific
evidence, the admission of the unobjected-to evidence is not prejudicial where other sources of
evidence established substantially similar facts as the unobjected-to evidence and where the legal
sufficiency of the remaining evidence would be unaffected if the unobjected-to evidence was
disregarded. See Alarcon v. State, Nos. 13-16-00243-CR, 13-16-00244-CR, 2017 WL 1737958,
at *3 (Tex. App. – Corpus Christi May 4, 2017, no pet.) (mem. op., not designated for publication)
(holding that the defendant was not prejudiced by admission of certain out-of-court statements by
the victim in violation of the Confrontation Clause where “similar evidence” was admitted through
other sources at trial); Irhirhi v. State, No. 01-14-00002-CR, 2016 WL 7104015, at *5 (Tex. App.
– Houston [1st Dist.] Dec. 6, 2016, no pet.) (mem. op., not designated for publication) (holding
that the defendant failed to prove the prejudice prong of his ineffective-assistance claim based on
24
trial counsel’s failure to make Confrontation Clause objections to the testimony of the responding
officer regarding the victim’s description of the family-violence assault committed by the
defendant where: (1) the jury would have nonetheless heard the recorded 911 call the victim made
that provided legally sufficient evidence to prove the assault; (2) the jury would have heard the
officer’s physical observations of the victim’s appearance and demeanor, including the blood on
her face; and (3) the jury would have also seen photographs of the victim bleeding from her lip);
see also Jackson v. State, 487 S.W.3d 648, 660 (Tex. App. – Texarkana 2016, pet. ref’d) (reasoning
that the defendant failed to show prejudice where evidence unaffected by the complained-of
deficiency of trial counsel was alone legally sufficient to convict the defendant).
No Prejudice
Undoubtedly, Diana’s statements to Officer Talamantes at the hospital provided greater
details about Salcido’s assault compared to her statements to Officer Talamantes during the initial
encounter out on the highway. At the hospital, Diana described the conversation that led to
Salcido’s assault, the exact assaultive acts that she suffered, the sequence in which the assaultive
acts occurred, and the event—a fortuitous phone call—that allowed her to escape with her baby.
However, even without this more detailed account of Salcido’s assault, the jury was given
other evidence that established substantially similar facts. While frantic and crying, Diana told the
911 operator that her husband, Salcido, had committed “domestic violence” in their home by
hitting her, striking her against the floor, and kicking her elbow, causing pain. And while still
scared, crying, and “shaken up,” Diana told Officer Talamantes on the shoulder of the highway
that she was assaulted by her husband, that she felt pain to her arm, and that she was worried
nothing would be done to help her due to her husband’s status as an ex-Las Cruces police officer.
25
Furthermore, Diana’s medical records reflected a detailed account of Salcido’s assault similar in
detail to what she told Officer Talamantes at the hospital. Her medical records reflected that
Salcido assaulted her while her infant was at their bedside, that Salcido hit her with his fists, kicked
her, pushed her, threw her, and choked her, that she had bruises on her face, neck, stomach, and
elbow, and that she reported feeling substantial pain from her injuries.
Moreover, the jury also saw photographs of red marks on Diana’s chest and neck. In
addition, Officer Talamantes testified that the redness on Diana’s neck was consistent with her
having been grabbed around the neck and that Diana was cradling her elbow as though it were in
pain.
If anything, the introduction of Diana’s out-of-court statements to Officer Talamantes at
the hospital largely paralleled the other evidence introduced at trial, and we hold that these out-of-
court statements did not result in any prejudice. See Alarcon, 2017 WL 1737958, at *3; Irhirhi,
2016 WL 7104015, at *5; see also Jackson, 487 S.W.3d at 660. We also observe that, regardless
of the introduction of Diana’s out-of-court statements made at the hospital, the jury was essentially
faced with a decision to convict based solely on hearsay statements from a non-testifying victim
and on photographs. The admission of Diana’s out-of-court statements made at the hospital could
not have changed this crucial decision for the jury to make where Diana’s statements at the hospital
merely provided more hearsay from the same non-testifying victim whom the jury would still have
to decide if they believed regardless. For this additional reason, we fail to see how the introduction
of this source of evidence could undermine our confidence in the outcome of the proceeding in
order for Salcido to demonstrate the sort of prejudice he needs to show. See Thompson, 9 S.W.3d
at 812 (defining prejudice as a probability sufficient to undermine confidence in the outcome that
26
but for counsel’s errors the result of the proceeding would have been different).
As Salcido failed to prove prejudice, we overrule this last part of his ineffective-assistance
claim and need not consider whether trial counsel’s performance was deficient. See Strickland,
466 U.S. at 687; see also Rylander, 101 S.W.3d at 110.
Conclusion: The Habeas Court did not Abuse its Discretion in Denying Relief
on Salcido’s Ineffective-Assistance Claims in His Writ Application
Salcido had the burden to prove his ineffective-assistance claims by a preponderance of the
evidence. Ex parte Torres, 483 S.W.3d at 43. He has failed his burden of showing either deficient
performance or prejudice on all three sources of evidence on which he based his failure-to-object
ineffective-assistance claims. See Strickland, 466 U.S. at 687. Therefore, we ultimately hold that
the habeas court did not abuse its discretion in denying relief on Salcido’s application for a writ of
habeas corpus. See Ex parte Salim, --- S.W.3d ---, 2020 WL 241967, at *6; Ex parte Garcia-
Escontrias, 2019 WL 6713282, at *2 (cases reviewing the trial court’s ruling on a writ application
for an abuse of discretion); see also Ex parte Beck, 541 S.W.3d at 852 (instructing that an appellate
court must uphold the trial court’s ruling on a writ application if it is correct on any theory of law
applicable to the case). We consequently overrule his sole issue presented for review.
CONCLUSION
The habeas court’s judgment is affirmed.
GINA M. PALAFOX, Justice
April 14, 2020
Before Alley, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)
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