NUMBER 13-11-00321-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

JUAN MANUEL SALAZAR, Appellant,

v.

THE STATE OF TEXAS, Appellee. 

 

On appeal from the 389th District Court

of Hidalgo County, Texas.

 

MEMORANDUM OPINION

Before Justices Benavides, Vela, and Perkes

Memorandum Opinion by Justice Rose Vela 

A jury convicted appellant, Juan Manuel Salazar, of murder, see TEX. PENAL CODE 

ANN. § 19.02(b) (West 2011), and assessed punishment at life imprisonment, plus a 

$10,000 fine. By three issues, appellant argues: (1) the trial court erred by admitting 

hearsay; (2) the trial court erred by admitting autopsy photos; and (3) he received 

ineffective assistance of counsel. We affirm.
2

I. BACKGROUND

This case involves the brutal slaying of Jose "Joe" Fiscal, whose charred body was 

found at the Donna Lakes area in rural Hidalgo County, Texas. After he and his wife, 

Alma Fiscal, separated, she moved to Louisiana, and he moved in with his girlfriend, 

Guadalupe "Lupita" De Leon Acuna, who lived in Donna, Texas. Later, he decided to 

end their relationship, and in June 2010, he moved into a home in Weslaco, Texas. 

Lupita's daughter's boyfriend, Ezequiel Gamez, testified that on June 23 or 24, 2010, 

Lupita sent him a text message, stating "she wanted him dead." By "him," Gamez 

understood her to mean "Joe."

On July 1, 2010, Alma Fiscal returned from Louisiana and went to Joe's house. 

When she arrived, Lupita was inside Joe's house. Alma told Joe she wanted her out of 

the house, so he told Lupita to leave. The next day, Lupita sent Joe a text message that 

read, "Well, I see you're happy having two women. . . . You messed up big time." That 

same day, Lupita sent her son, Antonio "Tony" De Leon, a text message that stated, 

"Don't know what to do. It's like I want him six feet under. . . ."

Lupita's daughter, M.A., testified that about noon on July 3, 2010, Lupita left home 

with Joe. Afterwards, Tony and appellant left the house in Lupita's Expedition. Fifteen 

or twenty minutes later, appellant, Tony, and Lupita returned in the Expedition. 

About noon that day, Aaron Garcia saw "a column of smoke" coming from the 

Donna Lakes area. He also saw "the tail of a vehicle" that was "coming out headed 

southbound" possibly from the area where he saw the smoke. When the prosecutor 
3

showed him a photograph1of Lupita's Expedition and asked him, "[I]s it similar in size 

and color as the . . . [vehicle] that you saw leaving from the smoke?," he said, "Yes."

Troy McMillan arrived at Donna Lakes about midday on July 3, 2010. He saw a 

burning vehicle as well as a charred body laying near the burning vehicle. Investigators 

testified the burned vehicle belonged to Jose Fiscal and that a Texas identification card 

belonging to Jose Fiscal was found on the body.

Investigator Jonathan Palacios testified that on July 3, 2010 at 11:50 a.m., 

appellant sent Lupita a text message, stating "Try it, to take him over there." Fifteen 

minutes later, Lupita texted appellant saying, "On my way to the beach." Nine minutes 

later, appellant texted Lupita, saying, "We're on our way too."

Norma Farley, M.D., the forensic pathologist who performed Joe's autopsy, 

testified she saw thermal burns on his head, neck, torso, and extremities. He also had 

forty-five stab wounds, including stab wounds to the liver and lungs. In addition, he 

suffered blunt-force trauma to his head. When the prosecutor asked Dr. Farley if she 

had an opinion about the cause of death, she said, "Yes, . . . . I called it multiple stab 

wounds of torso with blunt force head trauma, . . . ." She ruled the death a homicide and 

said the stab wounds were consistent with the wounds a knife would produce.

Appellant testified that after he and his wife separated he began staying at Lupita's 

house. About 9:30 a.m. on July 3, 2010, Joe came to Lupita's house and picked her up. 

That day, at 12:30 or 12:45 p.m., appellant planned to visit his boys, who were living at 

410 Jalapeno Street. Before he and Tony left in Lupita's Expedition, Tony put a gas can 

inside the vehicle. En route to Jalapeno Street, Tony asked him to pick up Lupita, who 

 

1

The trial court admitted this photo into evidence as State's exhibit 2.
4

was with Joe at Donna Lakes. When they arrived at Donna Lakes, appellant saw that 

Lupita and Joe were arguing. Tony grabbed a bat from inside the Expedition, and when 

Tony exited the vehicle, appellant saw a knife in his hand. Tony hit Joe with the bat four 

or five times on the head, nose, and back. Tony then began stabbing Joe. While Tony 

attacked Joe, Lupita told appellant to "help them." He refused and got into the 

Expedition's back seat. After Tony finished hitting and stabbing Joe, he gave appellant 

the knife and took the gas can and a lighter from the Expedition. Tony poured the 

flammable liquid onto Joe's body and inside his truck and then set both ablaze. When 

appellant, Lupita, and Tony returned to Lupita's house, appellant was still sitting in the 

backseat, "holding the knife and shocked." While still in the Expedition, appellant closed 

the knife, wrapped it in one of Tony's socks, and put the knife in a trash bag, which was in 

the vehicle. Afterwards, appellant took a shower. Later that day, he and Tony went to 

Relampago Lake where appellant threw the trash bag containing the knife into the lake. 

Appellant testified he threw the trash bag into the lake because he was trying to help 

Tony, who is his wife's nephew. 

II. DISCUSSION

A. Admission of Hearsay Testimony

In issue one, appellant contends the trial court erred by admitting hearsay 

testimony.

1. Standard of Review

"We review a trial court's decision regarding the admissibility of evidence under an 

abuse of discretion standard." Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 
5

2007). "Because trial courts are in the best position to decide questions of admissibility, 

appellate courts uphold a trial court's admissibility decision when that decision is within 

the zone of reasonable disagreement." Id. "An appellate court may not reverse a trial 

court's decision regarding the admissibility of evidence solely because the appellate court 

disagrees with the decision." Id.

2. Background

During the State's case-in-chief, Tony's wife, Renee Mejia, testified that on July 3, 

2010, she was in Tony's room when appellant came in and asked Tony to "leave with 

him." She stated Tony and appellant left in Lupita's Expedition. Later, Tony, appellant, 

and Lupita returned to the house. When the prosecutor asked Mejia, "At that time did 

you ask Tony if they had done something to Joe?," she said, "Yes." When the 

prosecutor asked her, "And what did Tony tell you?", defense counsel did not object to 

this question. Mejia replied, "Well, he just told me that he had seen something that Juan 

[appellant] had done." At that point, defense counsel stated, "Objection, Your Honor." 

When the trial court stated, "I don't know what your objection is," defense counsel said, 

"Objection, hearsay." The trial court overruled the objection.

3. Preservation of Error

"As a prerequisite to presenting a complaint on appeal, a party must have made a

timely and specific request, objection, or motion to the trial court." Grant v. State, 345 

S.W.3d 509, 512 (Tex. App.—Waco 2011, pet. ref'd) (citing TEX. R. APP. P. 33.1(a)(1)(A)). 

Whether a defendant is required to object before a witness answers a question depends 

upon whether it called for a hearsay response. See Rodriguez v. State, 274 S.W.3d 760, 
6

764 (Tex. App.—San Antonio 2008, no pet.). "If a defendant fails to object until after an 

objectionable question has been asked and answered, and he can show no legitimate 

reason to justify the delay, his objection is untimely and error is waived." Lagrone v. 

State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997).

Hearsay is "a statement, other than one made by the declarant while testifying at 

trial or hearing, offered in evidence to prove the truth of the matter asserted." TEX. R.

EVID. 801(d); Baldree v. State, 248 S.W.3d 224, 230–31 (Tex. App.—Houston [1st Dist.] 

2007, pet. ref'd). Here, the prosecutor's question to Mejia—"And what did Tony tell 

you?"—called for a hearsay response. However, appellant did not object to the 

question; rather, he objected after she answered the question. Appellant has offered no 

reason, legitimate or otherwise, to justify delaying his objection until after Mejia 

responded, and we have found nothing in the record to justify the delay.

We note that after the trial court overruled the objection, the prosecutor asked 

Mejia, "Can you go ahead and answer that again, Renee, what is it that Tony told you?" 

To this, she said, "That Juan had done something." Defense counsel did not object to 

the question or the answer. "It is also necessary that the objecting party must continue 

to object each time the objectionable question or evidence is offered, obtain a running 

objection, or request a hearing outside the jury's presence in order to preserve a 

complaint for appellate review." Grant, 345 S.W.3d at 512; see Martinez v. State, 93 

S.W.3d 189, 193 (Tex. Crim. App. 2003); Fuentes v. State, 991 S.W.2d 267, 273 (Tex. 

Crim. App. 1999). In the instant case, defense counsel (1) did not renew his objection, 

(2) did not obtain a running objection, and (3) did not request a hearing outside the jury's 
7

presence. Thus, appellant failed to preserve this complaint for our review. See TEX. R.

APP. P. 33.1(a). Therefore, we hold the trial court did not abuse its discretion by 

admitting the complained-of testimony. Issue one is overruled.

B. Admission of Autopsy Photographs

In issue two, appellant contends the trial court erred by admitting autopsy 

photographs into evidence during the State's case-in-chief.

1. Background

During the State's direct-examination of Dr. Farley, the prosecutor offered into 

evidence State's exhibits 90 through 137, which are autopsy photographs depicting the 

numerous wounds to the victim's body. Defense counsel objected to State's exhibits 90 

through 127 under Texas Rule of Evidence 403 and stated "that the probative value is 

substantially outweighed by the danger of unfair prejudice. . . ." The trial court overruled 

the objection. Next, defense counsel objected to State's exhibits 128 through 137 "under 

the same reason . . . [and] the autopsy photographs . . . depict mutilation of the victim 

caused by the autopsy. . . ." Before the trial court ruled on the objections to State's 

exhibits 128 through 137, the prosecutor asked Dr. Farley the following:

Q. Dr. Farley, will those photographs [State's exhibits 128 through 137] 

assist you in explaining to the jury the injuries that were inflicted on 

the body of Jose Fiscal and the injuries that you observed while 

performing your autopsy?

A. Yes. I mean, they'll help visualize what I observed.

Q. Do they show injuries that you could not otherwise see by just 

looking at the outside of the body?

A. Well, yes.
8

At that point, the trial court asked Dr. Farley:

Q. The injuries that are depicted in these photographs, did you do these 

injuries? Or are these the injuries that . . . we are viewing that you 

will be describing?"

A. They're injuries that were already there that I'm going to be 

describing. They're not me. I didn't do them.

Afterwards, the trial court overruled the objections to State's exhibits 128 through 

137. State's exhibits (SX) 90 through 137 show the following: SX 90 shows burns to 

the victim's buttocks and lower extremities; SX 91 shows charring and burns to the inner 

thighs and lower calves; SX 92 shows burning and charring to the face and neck; SX 93 

shows burns to the left hand and fingers; SX 94 shows the palm of the victim's hand; SX 

95 shows a stab wound to the lower right face; SX 96 and SX 97 show a stab wound 

above the clavicle; SX 98, 99, and 100 show stab wounds to the chest; SX 101, 102, and 

103 show stab wounds to the abdomen; SX 104 shows a stab wound to the pelvis; SX 

105 shows a stab wound to the left side; SX 106 and 107 show stab wounds to the chest;

SX 108 shows a stab wound to the head; SX 109 through 115 show stab wounds to the 

back; SX 116 shows a stab wound to the abdomen; SX 117 shows a stab wound to the 

right lung; SX 118 shows a stab wound to the right buttock; SX 119 shows a stab wound 

to the chest; SX 120 shows a stab wound to the back of the left arm; SX 121 shows a stab 

wound to the left hand; SX 122 shows a contusion to the lower lip; SX 123 shows an 

abrasion to the forehead; SX 124 shows trauma to the nose; SX 125 is a photo showing 

burns to the victim's cowboy boots; SX 126 is a photo of the victim's shirt, showing the 

marks left by the stab wounds; SX 127 is a photo of the victim's pants showing burn 

marks; SX 128 shows the top of the victim's skull, revealing a small fracture; SX 129 
9

shows part of the trachea and larynx, showing no soot in the airway;2 SX 130 shows 

where the stab wounds entered the chest; SX 131 shows all of the stab wounds that are 

coming into the body along the right side; SX 132 shows a contusion to the left frontal lobe 

of the brain; SX 133 shows four penetrating wounds to the right lung; SX 134 shows 

wounds to the back; SX 135 shows the scalp with a contusion; SX 136 shows a 

subarachnoid hemorrhage to the brain; and SX 137 shows "one wound going through the 

mesentery right next to the bowel." 

2. Standard of Review

In order for photographs to be admissible, they must first be relevant. Garza v. 

State, 963 S.W.2d 926, 928 (Tex. App.—San Antonio 1998, no pet.). "Generally, a 

photograph is admissible if verbal testimony as to matters depicted in the photograph is 

also admissible." Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007) (citing 

Long v. State, 823 S.W.2d 259, 271–72 (Tex. Crim. App. 1991)). "In other words, if 

verbal testimony is relevant, photographs of the same are also relevant." Id. "Texas 

Rule of Evidence 401 defines relevant evidence as 'evidence having any tendency to 

make the existence of any fact that is of consequence to the determination of the action 

more probable or less probable than it would be without the evidence." Id. "Evidence 

must satisfy two requirements to be considered relevant: first, materiality, and second, 

probativeness." Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001). "For 

evidence to be material it 'must be shown to be addressed to the proof of a material 

 

2 When the prosecutor asked Dr. Farley "[W]hat is that indicative of?," she testified this "usually 

means that the individual is dead at the time of the fire because when things burn you know that you see 

black smoke. When you inhale that smoke, it ends up not only bringing some of that soot into the airway 

but also causing thermal injuries to the airway itself in the mucosa or the lining surface will start to slough 

off."
10

proposition, i.e., 'any fact that is of consequence to the determination of the action.' 'If 

the evidence is offered to help prove a proposition which is not a matter in issue, the 

evidence is immaterial.'" Id. (quoting STEVEN GOODE ET AL., TEXAS PRACTICE GUIDE TO 

THE TEXAS RULES OF EVIDENCE: CIVIL AND CRIMINAL § 401.1 (2d ed. 1993 & Supp. 1995)). 

"If the proponent establishes that the proffered evidence is material, Rule 401 also 

requires that the proponent establish that the evidence is probative, i.e., the proffered 

evidence must tend to make the existence of the fact more or less probable than it would 

be without the evidence." Id. (internal quotations omitted). "The proffered evidence is 

relevant if it has been shown to be material to a fact in issue and if it makes that fact more 

probable than it would be without the evidence." Id.

3. Analysis

The State had to prove appellant murdered Jose Fiscal. Dr. Farley described the 

types of injuries Fiscal received, the extent of those injuries, and the cause of his death. 

Thus, her testimony was material because it helped to prove a proposition that was a 

matter at issue. Her testimony was probative because it tended to make the existence of 

a fact, the scope and extent of the injuries and the cause of death, more probable than it 

would have been without the testimony. Because her testimony was relevant, the 

photographs are relevant as well. See TEX. R. EVID. 401; Gallo, 239 S.W.3d at 762 

(stating, "if verbal testimony is relevant, photographs of the same are also relevant"). 

In determining whether a trial court "erred in admitting relevant photographs into 

evidence, our review is limited to determining whether the probative value of the photos is 

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or 
11

misleading the jury, or by considerations of undue delay or needless presentation of 

cumulative evidence." Young v. State, 283 S.W.3d 854, 874 (Tex. Crim. App. 2009) 

(citing TEX. R. EVID. 403). "The trial court's decision is reviewed under an abuse of 

discretion standard, and may be disturbed on appeal only when the trial court's decision 

falls outside the zone of reasonable disagreement." Id. (citing Montgomery v. State, 810 

S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g)). "Rule 403 favors the admission 

of relevant evidence and carries a presumption that relevant evidence will be more 

probative than prejudicial." Gallo, 239 S.W.3d at 762. A court may consider many 

factors in determining whether the probative value of photographs is substantially 

outweighed by the danger of unfair prejudice, including: the number of exhibits offered; 

their gruesomeness; their detail; their size; whether they are in color or black-and-white; 

whether they are close up; whether the body depicted is clothed or naked; the availability 

of other means of proof; and other circumstances unique to the individual case. Davis v. 

State, 313 S.W.3d 317, 331 (Tex. Crim. App. 2010) (citing Santellan v. State, 939 S.W.2d 

155, 172 (Tex. Crim. App. 1997); Long v. State, 823 S.W.2d 259, 277 (Tex. Crim. App. 

1991)).

In the instant case, the admission of the photographs did not cause undue delay in 

the trial, especially when considering the time the State spent in presenting other 

evidence to the jury. In addition, the photographs were not cumulative of other evidence, 

including Dr. Farley's testimony about what each photograph depicted. See Gallo, 239 

S.W.3d at 762 (stating, "A visual image of the injuries appellant inflicted on the victim is 

evidence that is relevant to the jury's determination. The fact that the jury also heard 
12

testimony regarding the injuries depicted does not reduce the relevance of the visual 

depiction."). In this case, the photographs show the detail of the injuries inflicted upon 

the victim. The photographs are four and one-half by six and one-half inches in size. 

Many of them appear to have been taken from about three to four feet away from the 

target. The body is not naked. Some of the photographs are gruesome, but they 

portray no more than the gruesomeness of the injuries inflicted. And, the record does 

not show the State introduced them into evidence in order to inflame the jury. Because 

Dr. Farley testified about what each photograph depicted, there was no danger the jury 

would be misled into thinking appellant was responsible for the removal of the scalp, the 

skull cap, and the exposing of the brain and other organs. Furthermore, the photographs 

were highly probative to show the full extent of the injuries appellant inflicted on the victim. 

See Gallo, 239 S.W.3d at 763.3 We conclude that the probative value of the autopsy 

photos was not substantially outweighed by the danger that they unfairly prejudiced 

appellant. Therefore, we hold the trial court did not abuse its discretion by admitting the 

photographs into evidence. Issue two is overruled.

C. Ineffective Assistance of Counsel

 

3

In Gallo, the trial court admitted into evidence autopsy photographs marked as State's exhibits 

91-99, three and one-half inch by five-inch color photographs, showing "injuries discovered during the 

internal examination of the victim's body." Gallo v. State, 239 S.W.3d 757, 763 (Tex. Crim. App. 2007). 

The court noted that exhibits 91 and 92 are close-up views of the victim's cracked ribs and that in exhibit 91, 

the rib had been removed from the body. Id Exhibits 93-99 showed various views of the underside of the 

victim's scalp, the victim's skull, and one picture of the victim's brain. Id. The court of criminal appeals 

noted that "[t]he medical examiner used the photographs to show the massive amount of damage that was 

inflicted on the victim before her death, including a twelve-inch fracture that began at the base of her skull 

where the bone is thick." Id. The court also noted that the medical examiner "used the photographs to 

show the injuries that could not be seen on the surface of the body." Id. The court stated that "[a]though 

these photographs are gruesome, there was no danger that the jury would attribute the removal of the rib, 

scalp, or skull cap to the defendant. Furthermore, the photographs were highly probative to show the full 

extent of the injuries appellant inflicted on the victim." Id. The court held that under the circumstances of 

this case, the trial court did not abuse its discretion in deciding that the probative value of the photographs 

substantially outweighed the danger of unfair prejudice. Id. 
13

In issue three, appellant complains of ineffective assistance of counsel.

1. Standard of Review

"The Sixth Amendment to the United States Constitution, and section ten of Article 

1 of the Texas Constitution, guarantee individuals the right to assistance of counsel in a 

criminal prosecution." Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)

(citing U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10). "The right to counsel requires 

more than the presence of a lawyer; it necessarily requires the right to effective 

assistance." Id. (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); Powell v. 

Alabama, 287 U.S. 45, 57 (1932)). "However, the right does not provide a right to 

errorless counsel, 4but rather to objectively reasonable representation." Id. (citing 

Strickland v. Washington, 466 U.S. 668, 686 (1984)).

"To prevail on a claim of ineffective assistance of counsel, an appellant must meet 

the two-pronged test established by the U.S. Supreme Court in Strickland. . . ." Id. 

"Appellant must show that (1) counsel's representation fell below an objective standard of 

reasonableness, and (2) the deficient performance prejudiced the defense." Id. (citing 

Strickland, 466 U.S. at 689). "Unless appellant can prove both prongs, an appellate 

court must not find counsel's representation to be ineffective." Id. (citing Strickland, 466 

U.S. at 687). "In order to satisfy the first prong, appellant must prove, by a 

preponderance of the evidence, that trial counsel's performance fell below an objective 

standard of reasonableness under the prevailing professional norms." Id. "To prove 

prejudice, appellant must show that there is a reasonable probability, or a probability 

sufficient to undermine confidence in the outcome, that the result of the proceeding would 

 

4 Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
14

have been different." Id. (citing Strickland, 466 U.S. at 687).

"An appellate court must make a 'strong presumption that counsel's performance 

fell within the wide range of reasonably professional assistance.'" Id. (quoting Robertson 

v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006) (citing Strickland, 466 U.S. at 689)). 

"In order for an appellate court to find that counsel was ineffective, counsel's deficiency 

must be affirmatively demonstrated in the trial record; the court must not engage in 

retrospective speculation." Id. (citing Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. 

App. 1999)). "'It is not sufficient that appellant show, with the benefit of hindsight, that his 

counsel's actions or omissions during trial were merely of questionable competence.'" 

Id. at 142–43 (quoting Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007)). 

"When such direct evidence is not available, we will assume that counsel had a strategy if 

any reasonably sound strategic motivation can be imagined." Id. at 143 (citing Garcia v. 

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). "In making an assessment of 

effective assistance of counsel, an appellate court must review the totality of the 

representation and the circumstances of each case without the benefit of hindsight." Id. 

(citing Robertson, 187 S.W.3d at 483).

The court of criminal appeals "has repeatedly stated that claims of ineffective 

assistance of counsel are generally not successful on direct appeal and are more 

appropriately urged in a hearing on an application for a writ of habeas corpus." Id. 

(citing Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002); Mitchell v. State, 

68 S.W.3d 640, 642 (Tex. Crim. App. 2002)); see Ex parte Nailor, 149 S.W.3d 125, 131 

(Tex. Crim. App. 2004). "On direct appeal, the record is usually inadequately developed 
15

and 'cannot adequately reflect the failings of trial counsel' for an appellate court 'to fairly 

evaluate the merits of such a serious allegation.'" Id. (quoting Bone, 77 S.W.3d at 833). 

2. Analysis

a. Cross-Examination of Investigator Jonathan Palacios

During the State's case-in-chief, defense counsel cross-examined Investigator 

Jonathan Palacios about Lupita providing a statement to investigators. Investigator 

Palacios testified Lupita provided her statement on July 3, 2010, the day of the murder. 

When defense counsel asked him, "Can you tell this jury what were you able to find out 

after your initial visit with Lupita?," he referred to her statement and said Lupita "says that 

she makes contact with the victim and they convey text messages to each other." He 

stated that three days later, "[w]e obtained text messages" and "[b]ased on physical 

evidence she [Lupita] became a person of interest" in Joe's murder. He also testified 

Lupita gave "multiple statements." When defense counsel asked him, "[D]id . . . the 

statements taken from Lupita, . . . change at all?," he answered affirmatively and said they 

changed because "[t]here was more information that she wished to add than what she 

originally had provided." When defense counsel asked what information was added, 

Investigator Palacios said he did not know, and defense counsel told him to "go . . . to 

[Lupita's] . . . third statement." Without objection, Investigator Palacios testified as 

follows: 

Assisting Investigators L. Garcia and F. Tanguma, proceeded to 

question Guadalupe Lupita De Leon Acuna. Guadalupe Lupita De Leon 

Acuna was provided with Miranda warnings and provided a voluntary 

statement of accused. Guadalupe Lupita De Leon Acuna went on to say 

that she has a boyfriend named Jose Guadalupe Fiscal.
16

* * *

Okay. They have known each other for almost two years. They do 

not have any children together. Jose had been separated from his wife for 

about three years. She and Jose lived together for about 18 months. She 

said Jose bought a new house located at 2506 Blue Jay in Weslaco, Texas. 

Because he got his children for the summer, she and Jose would take turns 

staying at each other's houses with the children.

Jose would have many problems with his wife, Alma Delia Fiscal. 

Jose would tell her that Alma would always complain about the child 

support. On Saturday July 3rd, 2010 she was at home when Jose texted 

her. He told her he was going over to the house. Most of the morning she 

waited for Jose, but never showed up. Jose finally arrived at the house at 

or about 11:00 a.m. She asked Jose if he would take her to the bank to 

cash her paycheck.

She and Jose left her house in his red Dodge Dakota truck. Jose 

took her to the Frost Bank on Salinas Street in Donna, Texas. After she 

cashed her check, Jose took her to a drive-through convenience store near 

the bank. Jose mentioned to her that he was going to work at a clinic in 

McAllen, Texas. She told Jose to take her back home. Said they drove to 

her house and dropped her off.

About 16 minutes later Jose called her on her cell phone and told her 

to meet him outside of her house. She walked outside and Jose was 

waiting for her in his red truck. She walked over to Jose and he told her to 

get inside his truck. She got inside his truck and he drove away. . . . She 

left with him and they went for a cruise.

After Investigator Palacios stated this, defense counsel asked him, "Through your 

investigation did you find out if Tony had a cut on his right finger?" He answered, "Yes," 

and stated that when Tony "was brought into the office the second time, he was 

questioned and in his statement he says that while stabbing the victim he cut himself."

Appellant argues he was denied effective assistance of counsel because his trial 

attorney elicited testimony from Investigator Palacios that Tony admitted to cutting his 

finger while stabbing the victim and because counsel elicited "a portion of Lupita's 
17

statement." The defensive theory in this case was that even though appellant was 

present during Joe's murder, he did not participate in it. Investigator Palacios's 

testimony showed that Tony, and not appellant, stabbed the victim, and the 

aforementioned portion of Lupita's statement showed she had a relationship with Joe and 

that she alone was with Joe just prior to his murder. Thus, defense counsel's elicitation 

of this evidence is an apparent attempt to place the blame for the murder on Lupita and 

Tony. When, as in this case, "counsel's reasons for his conduct do not appear in the 

record and there is at least the possibility that the conduct could have been legitimate trial 

strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance 

claim on direct appeal." Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002). 

b. Redirect-Examination of Investigator Jonathan Palacios

On redirect-examination, the prosecutor asked Investigator Palacios to finish 

reading the statement made by Lupita. Without objection, he testified, in relevant part, 

that Lupita stated: 

Jose [Fiscal] called her [Lupita] on her cell phone and told her to 

meet him outside of her house. . . . She walked over to Jose and he told 

her to get inside his truck. She got inside his truck and he drove away.

* * *

Jose stopped with his truck and he told her [Lupita] to get off the 

truck. She and Jose sat down on the rocks near the lake. She was talking 

to Jose when she received a text message from Juan or Tony. Juan 

Manual Salazar [appellant] is married to her [Lupita's] sister, Catalina, and 

Antonio De Leon is her [Lupita's] son. . . . She texted back and told them 

that she was at the beach, slash, lake. She knows that Juan and Tony 

know the place that she was talking about. She and Jose continued 

talking.
18

Several minutes later she noticed her beige Ford Expedition driving 

up to them. She noticed that it was her son and her brother-in-law Juan 

Salazar. She saw both of them get off of the truck and Juan struck Jose on 

the head once with a wooden stick. Antonio and Juan began to fight with 

Jose. . . . 

She noticed her son Antonio had handed over a knife to Juan. She 

noticed Juan began to stab Jose on the body and Juan then passed the 

knife to her son who then stabbed Jose several times in the body. . . . Juan 

then . . . told her to get inside the truck. She was going to her truck when 

she heard Juan tell her son to get him a lighter. . . . 

She was able to see Juan and Antonio fighting with Jose on the 

ground. She placed her truck in reverse and faced it south. At the same 

time that she was moving her truck she noticed that flames were coming out 

of Jose's truck. She was not able to see what else was happening. Her 

son and Juan got in her truck and Juan told her to drive away fast. She 

drove south on Valley View Road and Juan told her to drive to her 

house. . . .

Appellant argues defense counsel was ineffective because he let the prosecutor 

elicit testimony showing appellant "had actually stabbed, hit, or acted in any assaultive 

manner against the victim." He contends defense counsel should have objected that the 

testimony is hearsay and that he was denied the right to confront the witness. Before an 

appellate "court may conclude counsel was ineffective for failing to make an objection, 

appellant must show the trial court would have erred in overruling the objection." 

Jagaroo v. State, 180 S.W.3d 793, 801 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd).

"Hearsay is 'a statement, other than one made by the declarant while testifying at 

trial or hearing, offered in evidence to prove the truth of the matter asserted.'" Pena v. 

State, 353 S.W.3d 797, 814 (Tex. Crim. App. 2011) (quoting TEX. R. EVID. 801(d)). 

"Generally, hearsay statements are not admissible unless the statement falls within a 

recognized exception to the hearsay rule." Id. Texas Rule of Evidence 107, known as 
19

the rule of optional completeness, is a recognized exception. Id. The rule states:

When part of an act, declaration, conversation, writing or recorded 

statement is given in evidence by one party, the whole on the same subject 

may be inquired into by the other, and any other act, declaration, writing or 

recorded statement which is necessary to make it fully understood or to 

explain the same may also be given in evidence, as when a letter is read, all 

letters on the same subject between the same parties may be given.

TEX. R. EVID. 107. "This evidentiary rule 'is designed to reduce the possibility of the jury 

receiving a false impression from hearing only a part of some act, conversation, or 

writing.'" Id. (quoting Walters v. State, 247 S.W.3d 204, 218 (Tex. Crim. App. 2007)). 

"Rule 107 is not invoked by the mere reference to a document, statement, or act. 

Rather, to be admitted under that rule, 'the omitted portion of the statement must be on 

the same subject and must be necessary to make it fully understood.'" Id. (quoting 

Sauceda v. State, 129 S.W.3d 116, 123 (Tex. Crim. App. 2004)).

In the instant case, the jury heard the first portion of Lupita's statement, which 

described what happened between Joe and Lupita on the day of, but prior to, his murder. 

On redirect-examination, the prosecutor asked Investigator Palacios to read the rest of 

Lupita's statement, which described the events surrounding Joe's murder. The 

testimony about the events surrounding Joe's murder came from the same document and 

the same subject as the testimony used by defense counsel. Defense counsel's 

cross-examination of Investigator Palacios could have left a false impression on the jury 

that appellant was not present when Joe was murdered. Accordingly, the declarations in 

the second portion of Lupita's statement, relating to the roles she, appellant, and Tony 

played in the murder were admissible under the rule of optional completeness. Thus, an 

objection would not have been successful, and we cannot conclude counsel was 
20

ineffective for failing to make an objection where appellant has failed to show the trial 

court would have erred in overruling the objection. See Jagaroo, 180 S.W.3d at 801 

(stating trial counsel's failure to object did not amount to ineffective assistance of counsel 

when objection would have been futile). 

Even assuming defense counsel's performance was deficient, appellant has failed 

to satisfy Strickland's second prong. Appellant testified that at Tony's request, he drove 

to Donna Lakes. There, Tony attacked and killed Joe. Even though appellant stated he 

did not help Lupita or Tony kill Joe, he testified that after Tony stabbed Joe, Tony gave 

him the knife used to commit the murder. Appellant held onto the knife, and when he, 

Tony, and Lupita returned to Lupita's house, appellant closed the knife, wrapped it in 

Tony's sock, put the knife in a trash bag, and went with Tony to dispose of the knife. In 

addition, Gamez testified that after 12:00 noon on July 3, 2010, appellant, Tony, and 

Lupita returned to Lupita's house in her Expedition. After they arrived, appellant asked 

him to clean the interior of the Expedition. While Gamez cleaned the interior, he saw two 

drops of blood. When he asked appellant where the blood came from, he said Tony cut 

himself. An attempt to conceal incriminating evidence is probative of wrongful conduct 

and is also a circumstance of guilt. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. 

App. 2004); see Bryan v. State, 990 S.W.2d 924, 928 (Tex. App.—Beaumont 1999, no 

pet.) (stating that tampering with evidence evidences a consciousness of guilt).

Furthermore, Gamez testified that in the morning of July 3, 2010, he heard Tony 

ask appellant "about the gun, and [appellant] just said that he couldn't get it, but that they 

would just use a knife." M.A. testified that before appellant left Lupita's house on the day 
21

of the murder, "[H]e went into my brother's [Tony's] room and told him to go with him. 

Then he told my brother to get the gasoline that was next to the door and go put it in the 

truck." She saw her brother grab a can of gas and put it into Lupita's Expedition.

Based upon the evidence, a jury could have reasonably concluded appellant was a 

participant in Joe's murder and that he knew he was assisting in the offense. The charge 

included an instruction on the law of parties. Accordingly, appellant has failed to show 

there is a reasonable probability that but for counsel's alleged errors, the result of the 

proceeding would have been different. See Strickland, 466 U.S. at 687–88. We hold, 

therefore, appellant was not denied his right to the effective assistance of counsel. Issue 

three is overruled.

III. CONCLUSION

We affirm the trial court's judgment. 

ROSE VELA

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

21st day of June, 2012.