NUMBER 13-13-00559-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

XAVIER SALINAS, Appellant,

 v.

THE STATE OF TEXAS, Appellee.

On appeal from the 117th District Court

of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Chief Justice Valdez

Appellant was convicted of continuous family violence, a third-degree felony, 

enhanced to a first-degree felony under the habitual felony statute, and the jury sentenced 

him to sixty years’ incarceration. See TEX. PENAL CODE ANN. § 25.11 (West, Westlaw 

through 2015 R.S.). By four issues, appellant contends that: (1) the evidence is legally 
2

insufficient to support a finding that he intentionally or knowingly caused or intended to 

cause serious bodily injury to the complainant; (2) the evidence is factually insufficient to 

support a finding that he intentionally or knowingly caused serious bodily injury to the 

complainant; (3) his trial counsel rendered ineffective assistance of counsel by failing to 

object to the relevance of the testimony concerning injury to a child, which was harmful 

and prejudicial; and (4) the trial court “erred in allowing testimony concerning injury to a 

child to be admitted and [in allowing] hearsay upon hearsay statements made by the 

officer in the defendant[’]s interrogation video” to be admitted. We affirm.

I. BACKGROUND

Armando Vasquez, a police officer with the Corpus Christi Police Department, 

responded to a 911 call at the complainant’s residence on November 11, 2012 at 10:19 

a.m. Officer Vasquez testified that when he arrived, the complainant, who was crying, 

“scared,” and “frantic,” was outside and told him that appellant had “just hit” her. Officer 

Vasquez stated that the complainant explained that appellant woke her up because it was 

hot and asked her to turn on the air conditioner. According to Vasquez, when the 

complainant told appellant to do it, appellant “got upset, started arguing, punched her in 

the face or the head [causing] her to hit the dresser,” which caused her pain. Officer 

Vasquez took the complainant and her children to another residence. Officer Vasquez 

testified that the complainant said that she injured her head when appellant hit her.

Manuel Dominguez, a police officer with the Corpus Christi Police Department, 

testified that on December 22, 2012, he was dispatched to the complainant’s residence 

and that when he arrived, the complainant was “pretty mad” and “breathing heavily.” 

Officer Dominguez said, “It looked like she was in a fight.” According to Officer 
3

Dominguez, the complainant claimed that appellant was carrying her son, that her son 

told her that appellant had bitten him, that appellant spanked, kicked, and pushed her 

son, and that her son fell after appellant pushed him. Officer Dominguez stated that the 

complainant reported that when she attempted to intervene, appellant turned around and 

started punching her in the chest and ribs with his closed fist, which caused her pain. 

Officer Dominguez arrested appellant.

Matt Harmon, a police officer with the Corpus Christi Police Department, testified 

that he was also dispatched to the complainant’s residence on December 22, 2012. He 

described the complainant as being “very upset,” “crying,” and “distraught.” Officer 

Harmon stated that the complainant told him that appellant struck her with his fist, and 

Officer Harmon observed that the complainant had slight red marks on her ribs and that 

her son had a “large welt” on the back of his head.

Javier Cantu, a police officer with the Corpus Christi Police Department, testified 

that on April 20, 2013, he was dispatched to Christus Spohn South Hospital in reference 

to a walk-in assault. When he arrived, he saw the complainant crying, and she had a 

black eye. Officer Cantu testified that the complainant “was upset, frightened, in pain, 

crying, [and] sort of [in] disarray.” Several pictures taken on that date were admitted into 

evidence, and Officer Cantu stated that the pictures displayed a “hematoma” on the back 

of the complainant’s head, defensive wounds on her hands, and injuries to the left side of 

her head and face.

The complainant testified that she has two children, that appellant was her exhusband, and that they had been together on and off for about twelve years.1

 The 

 

1 The trial court granted the State’s request to treat the complainant as a hostile witness and allowed 
4

complainant stated that on April 20, 2013, appellant banged on her door accusing her of 

cheating. The complainant testified that she left her residence by exiting from another 

door because she did not want to be alone with him. The complainant agreed that at that 

time she was afraid of appellant and that once she was outside of the residence, she 

“yelled for help maybe once.” The complainant explained that she was injured when she 

fell to the concrete floor after appellant gave her a bear hug from behind. She said that 

she “fell out of his arms and hit the concrete.” The complainant believed that she had told 

Officer Cantu the same thing when she was interviewed.

The complainant testified that she blacked out when she hit the concrete and that 

when she awoke, her face was hurting. According to the complainant, appellant left when

he saw a neighbor open the door to his residence. Eventually, the complainant admitted 

that she told the police that appellant had slammed her to the floor and that she feared 

for her life.

The complainant testified that she went to the hospital on April 20, 2013, after her 

doctor told her that she had a “very large contusion” on the back of her head. The trial 

court admitted the complainant’s hospital records from that date, which showed that the 

complainant told hospital personnel that appellant “assaulted her about two hours ago, 

hitting her head on pavement” and documented, “Assault by History Physical; Weapon 

Used ‘Bear Hug and Threw PT to Ground.’”2

When asked, the complainant agreed that at the hospital she told the officer that 

“I’m scared he’s going to come after me” and “[h]e said he didn’t want no one else to have 

 

the prosecutor to ask the complainant leading questions.

2 On cross-examination, the complainant stated that at the hospital she was given pain medication.
5

me, he couldn’t have me, nobody else was going to have me, and he would kill me.” The 

complainant also agreed that she told the cops that appellant “slammed” her to the floor. 

The complainant testified that she told the officer that appellant “picked me up and he 

threw me like a rag doll,” that “she had a contusion to the back of her head, [and] that she 

blacked out.” The complainant testified that at that moment she feared for her life. The 

complainant answered, “Yes” when asked if she hurt her neck and her back when she fell 

on the concrete.

Regarding the December 22, 2012 incident, the complainant agreed that the police 

were called on that date. When asked why she called 911, the complainant replied, “I 

believe that my pocket—it was a pocket dial. They called back about twice and I 

answered.” The complainant denied that she told the 911 operator that appellant hit her 

and said, “At the beginning, it was due to another situation, but I believe I did state that 

later and that he did hit me but—.” The complainant stated that she told the 911 operator 

that appellant hit her three year-old son; however, she did not recall stating that appellant 

attacked her when she attempted to stop appellant from kicking her son. After refreshing 

her memory by silently reading her statement to the officer from that date, the complainant

agreed that she had said that appellant attacked her when she attempted to stop him 

from kicking her son. The complainant agreed that she told the officer that appellant hit 

and kicked her; however, she testified at trial that appellant had not kicked her. The 

complainant agreed that she felt pain when appellant hit her, that he threatened her, and 

that she felt at the time as if appellant would kill her.3

 

3 On cross-examination, the complainant testified that she made up the allegations that appellant 

hit her on December 22, 2012 “to get him into trouble so that he could get arrested for trying to discipline 

[her] son because [she] was very upset.” She also stated that at that time no charges were brought against 
6

The jury found appellant guilty of continuous family violence and sentenced him to 

sixty years’ confinement. This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

By his first issue, appellant contends that the evidence is legally insufficient to 

support a finding that he intentionally or knowingly caused serious bodily injury to the 

complainant.

4

 See TEX. PENAL CODE ANN. § 22.01(a)(1) (West, Westlaw through 2015 

R.S.) (requiring that the State prove that appellant caused “bodily injury”); id. § 1.07(a)(8) 

(West, Westlaw through 2015 R.S.) (defining “bodily injury” as “physical pain, illness, or 

any impairment of physical condition”).

A. Standard of Review and Applicable Law

In a sufficiency review, we examine the evidence in the light most favorable to the 

prosecution to determine whether any rational fact-finder could have found the essential 

elements of the crime beyond a reasonable doubt.5 Jackson v. Virginia, 443 U.S. 307, 

319 (1979); see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) 

(plurality op.). The fact finder is the exclusive judge of the facts, the credibility of 

witnesses, and of the weight to be given testimony. Brooks, 323 S.W.3d at 899. We 

must resolve any evidentiary inconsistencies in favor of the judgment. Id.

 

appellant.

4 Appellant has not challenged any other element of the offense. Thus, we need not address those 

elements.

5 By his second issue, appellant contends that the evidence is factually insufficient to support a 

finding that he intentionally or knowingly caused serious bodily injury to the complainant. However, under 

Brooks, we no longer apply a separate factual sufficiency review, and we are not allowed to reverse and 

remand for insufficient evidence. Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality 

op.). We must apply the above-stated standard of review, and if the evidence is insufficient, we render an 

acquittal. See id. Thus, we no longer refer separately to legal and factual sufficiency review under Brooks. 

See id. Accordingly, we overrule it.
7

We measure the sufficiency of the evidence by the elements of the offense as 

defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303, 314 

(Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234, 240 

(Tex. Crim. App. 1997)). A person commits the offense of continuous violence against 

the family,

if, during a period that is 12 months or less in duration, the person two or 

more times engages in conduct that constitutes an offense under Section 

22.01(a)(1) against another person or persons whose relationship to or 

association with the defendant is described by Section 71.0021(b), 71.003, 

or 71.005, Family Code.

[And, i]f the jury is the trier of fact, members of the jury are not 

required to agree unanimously on the specific conduct in which the 

defendant engaged that constituted an offense under Section 22.01(a)(1) 

against the person or persons described by Subsection (a) or the exact date 

when that conduct occurred. The jury must agree unanimously that the 

defendant, during a period that is 12 months or less in duration, two or more 

times engaged in conduct that constituted an offense under Section 

22.01(a)(1) against the person or persons described by Subsection (a).

TEX. PENAL CODE ANN. § 25.11.

Section 22.01(a)(1) states that “a person commits an offense if the person 

intentionally, knowingly, or recklessly causes bodily injury to another, including the 

person’s spouse.” Id. § 22.01(a)(1). Section 1.07(a)(8) defines bodily injury as “physical 

pain, illness, or any impairment of physical condition.”6 Id. § 107(a)(8).

B. Discussion

Appellant argues that the evidence is insufficient to show that he caused “serious 

bodily injury.” However, we agree with the State that, under a hypothetically correct jury 

charge, it was not required to show that appellant caused “serious bodily injury.” Instead, 

 

6 Appellant only challenges the “bodily injury” element of the offense. Thus, we will only discuss 

the issue presented. See TEX. R. APP. P. 47.1.
8

the State was required to show that the complainant suffered “bodily injury” such as 

physical pain, illness, or any impairment of physical condition. See id. §§ 1.07(a)(8), 

22.01(a)(1), 25.11(a). Thus, construing appellant’s brief liberally, we will address whether 

there was sufficient evidence presented that appellant caused “bodily injury” to the 

complainant.

The State alleged in the indictment that appellant committed the offense of 

continuous family violence by intentionally, knowingly, or recklessly causing bodily injury 

to the complainant, a member of appellant’s household or person with whom appellant 

had a dating relationship, by striking the complainant on or about November 11, 2012, by 

striking the complainant with his hand on or about December 22, 2012, and by grabbing 

the complainant with his hand and causing the complainant to contact the ground on or 

about April 20, 2013 and that said conduct of appellant occurred during a period that was 

twelve months or less in duration.7 Evidence was presented that: (1) on November 11, 

2012, appellant punched the complainant in the face or the head which caused her to hit 

the dresser; (2) that on December 22, 2012, appellant punched the complainant in the 

chest and ribs with his closed fist, which caused her pain; and (3) on April 20, 2013, 

appellant had slammed the complainant to the floor, that she feared for her life, that she 

suffered a contusion to her head, and that she was in pain. Finally, the complainant

agreed that she felt pain when appellant hit her.

Viewing the evidence in the light most favorable to the prosecution, we conclude 

that a rational fact-finder could have found that appellant caused the complainant to suffer 

 

7 As previously stated, appellant challenges the evidence as not supporting a finding that he caused 

the complainant serious bodily injury. He does not challenge the other elements of the offense.
9

pain on all three occasions beyond a reasonable doubt. See Jackson, 443 U.S. at 319; 

see also Brooks, 323 S.W.3d at 898–99. Therefore, we conclude the evidence was 

sufficient to show that the complainant suffered bodily injury on each of the three charged 

occasions. We overrule appellant’s first issue.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

By his third issue, appellant contends that his counsel rendered ineffective 

assistance by failing to object to the relevance of the injury to a child evidence and under 

rule of evidence 403.8 The State responds that the evidence was relevant and admissible; 

thus, no objection was required. The State also notes that appellant’s trial counsel 

objected to the admission of evidence regarding the injury to the child on grounds that it 

was an extraneous offense that was highly prejudicial and that it was irrelevant.

Under Strickland v. Washington, an appellant claiming ineffective assistance must 

show that (1) counsel’s performance was deficient by falling below an objective standard 

of reasonableness, and (2) “there is a probability sufficient to undermine the confidence 

in the outcome that but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Ex parte White, 160 S.W.3d 46, 50 (Tex. Crim. App. 2004) 

(citing Strickland v. Washington, 466 U.S. 668, 687 (1994)).

Appellant’s trial counsel objected to the evidence regarding the assault of the 

complainant’s son, outside the jury’s presence prior to its admission, stating the following:

Obviously, this is not an injury to a child case and I think if any 

testimony comes out eliciting or any testimony’s elicited that my client may 

or may not have done that, that is not a proper extraneous offense to be 

 

8

In his brief, appellant appears to argue that his trial counsel was also ineffective by not objecting 

on the basis that the complained-of evidence was not relevant. However, appellant does not provide a 

clear and concise argument with citation to appropriate authority to support such a conclusion. Therefore, 

we conclude that to the extent that appellant makes such an argument that it is inadequately briefed. See

TEX. R. APP. P. 38.1(i).
10

bringing before this Court. It’s not part of the indictment. I understand that 

it may be part of the offense that the State is trying to prove with regards to 

how the [complainant] got hit. However, I think the State can say that the 

[complainant] intervened. We don’t have to say that it was her son or how 

old the kid was. It can be, to the juror’s knowledge, an adult. I think we can 

all agree that injury to a child cases are very sensitive, and I think it’s 

incredibly prejudicial if that information was to come out. That offense was, 

in fact, no[-]charged and has not been re[-]indicted at least as of now. So I 

think for that information to come out, I don’t think it’s necessary. The 

prejudice far outweighs the relevancy. I think the State can certainly elicit 

testimony that what happened to the [complainant] whenever she tried to 

intervene, you know, without mentioning that it was a child, her son, or a 

little boy.

(Emphasis added). Subsequently, appellant’s trial counsel stated:

I think [admitting evidence of appellant’s alleged injury to a child is] 

incredibly prejudicial, and especially when I’m gonna have to voir dire on 

people on basically as if this is an injury to a child case as well. And if I 

have to do that, I have to do that. But there’s a huge portion, I think, of 

society and of people, at least in my experience and I’m sure in the Court’s 

experience as well that refuse to be on those kinds of cases, or hates those 

kinds of cases, or anyone that does anything to a child, or if it is alluded that 

they do anything to a child. I think it’s gonna be entirely prejudicial. The 

odds of finding him guilty of an offense just because of that I think are very 

high.

Rule of evidence 403 states, “Although relevant, evidence may be excluded if its 

probative value is substantially outweighed by the danger of unfair prejudice. . . .” TEX.

R. EVID. 403. To have preserved error, if any, under rule 403, appellant’s trial counsel 

was required to (1) timely object or move to strike, and (2) state the specific ground, 

unless it was apparent from the context of the argument. See id. R. 103(a). In addition, 

if an objection is made outside the presence of the jury, trial counsel is not required to reurge the objection in front of the jury in order to preserve error. See id. R. 103(b) (“When 

the court hears a party’s objections outside the presence of the jury and rules that 

evidence is admissible, a party need not renew an objection to preserve a claim of error 

for appeal.”).
11

Here, outside the jury’s presence, appellant’s trial counsel stated that the 

complained-of evidence was incredibly prejudicial and that the prejudice far outweighed 

the relevance. We conclude that it is apparent from the context of appellant’s trial 

counsel’s argument that she was objecting to the evidence under rule 403. See id. R.

403. In addition, because appellant’s trial counsel made the objection outside the jury’s 

presence, she was not required to renew that objection in order to preserve error, if any, 

in the admission of the complained-of evidence. See id. R. 103(a). Therefore, we cannot 

conclude that appellant’s trial counsel failed to preserve error in this case and that she 

rendered defective assistance. See Strickland v. Washington, 466 U.S. 668, 687 (1994) 

(requiring a showing of both deficient performance and that “there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding would 

have been different”). Moreover, appellant has not argued that but for trial counsel’s 

alleged error, the result of the proceeding would have been different.9 See id. We 

overrule appellant’s third issue

IV. ADMISSION OF HEARSAY TESTIMONY

By his final issue, appellant contends that the trial court improperly admitted 

hearsay upon hearsay in a video of a police interview of appellant. Appellant does not 

specify which statements he is contending constitute hearsay upon hearsay and whether 

 

9 The trial court admitted the complained-of evidence under the same-transaction contextual 

evidence exception to rule 404(b)’s prohibition of the admittance of extraneous offenses. See TEX. R. EVID. 

404(b); Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) (“Evidence of another crime, wrong, 

or act also may be admissible as same-transaction contextual evidence where ‘several crimes are 

intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, 

and full proof by testimony, . . . of any one of them cannot be given without showing the others.’”); Wesbrook 

v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (explaining that extraneous offenses constituting same 

transaction contextual evidence are admissible to show the context in which the criminal act occurred and 

stating, “This evidence is considered ‘res gestae,’ under the reasoning that events do not occur in a vacuum, 

and the jury has a right to hear what occurred immediately prior to and subsequent to the commission of 

that act so that it may realistically evaluate the evidence”).
12

those portions were actually played for the jury.10 Appellant only generally alleges that 

certain unspecified questions asked by the officers during his interview constitute 

hearsay.

After generally stating that hearsay is inadmissible, appellant states the following:

In the instant case, the Interrogation Officer Richey literally says 

“Officer Lisowski is getting those statements from a report from Officer 

Cantu. . . . Officer Cantu is getting those statements from, allegedly, the 

[complainant]. The Court overruled Defense objections and essentially held 

that since the Defendant waived his rights under Miranda, that the video is 

admitted. This is an abuse of discretion. For hearsay upon hearsay, each 

level of hearsay has to have an exception to it and the analysis must be 

done for each level.”

“The officer should not be permitted to relate historical aspects of the 

case, replete with hearsay statements in the form of complaints and reports, 

on the ground that he was entitled to tell the jury the information upon which 

he acted[.]” That is exactly what happened in this case. The officer related 

hearsay statements on the video, based on statements from another officer 

AND the complaining witness while interrogating Mr. Salinas. This hearsay 

upon hearsay was played to the jury on the video, and should have been 

muted or omitted.

We are unable to address appellant’s general complaint regarding his allegation 

that certain questions constituted hearsay because he has not pointed to the specific 

questions. We would be guessing about which questions he believes constitute hearsay 

were we to address this complaint. Therefore, appellant has not shown that the trial court 

abused its discretion or that appellant was prejudiced in any way. See Wyatt v. State, 23 

S.W.3d 18, 28 (Tex. Crim. App. 2000) (overruling the appellant’s complaint that the trial 

court allowed leading question because the appellant had not “specifically point[ed] out 

any of the numerous’ leading-question violations allegedly committed by the State” and 

had not shown that the trial court abused its discretion or that he was prejudiced in any 

 

10 The record shows that only portions of the video were admitted by the trial court.
13

way); Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008). (“This Court has no 

obligation to construct and compose appellant’s issues, facts, and arguments ‘with 

appropriate citations to authorities and to the record.’”).

Moreover, courts have held that questions and statements made by a police officer 

while interrogating a defendant do not constitute hearsay because they are offered to give 

context to the defendant’s replies. See Kirk v. State, 199 SW3d 467, 479 (Tex. App.—

Fort Worth 2006, pet. ref’d) (concluding that questions asked by police officer during 

interview of the appellant were contextual and not admitted to prove the truth of the matter 

asserted); see also Alexander v. State, No. 03-01-00263-CR, 2002 WL 436993, at *2 

(Tex. App.—Austin Mar. 21, 2002, no pet.) (mem. op., not designated for publication); 

Tully v. State, No. 05-98-00655-CR, 1999 WL 681645, at *1 (Tex. App.—Dallas Sept. 2, 

1999, no pet.) (mem. op., not designated for publication). At trial, when appellant 

generally objected to the video as containing hearsay, the State argued that it was not 

asking to admit the officer’s questions for the truth of the matter asserted and that the trial 

court should admit the questions asked because they were required in order for the 

listener to make sense of appellant’s answers. After reviewing the video, we conclude 

that the trial court may have properly found that the officer’s questions in the video were 

not being admitted for the truth of the matter asserted and were instead admitted in order 

to give context to appellant’s replies. Appellant has not challenged this basis for the trial 

court’s ruling. Therefore, we cannot conclude that the trial court abused its discretion by 

admitting portions of the video interview that included the officer’s questions. We overrule 

appellant’s final issue.11

 

11 Our review of the video shows that the subject matter of the officer’s questions, which related to 

the charged offense, were admitted at trial, without objection, through other witness’s testimony. Thus, no 
14

V. CONCLUSION

We affirm the trial court’s judgment.

/s/ Rogelio Valdez

ROGELIO VALDEZ

Chief Justice

Do not publish.

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

Delivered and filed the

19th day of November, 2015.

 

reversible error is shown. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (“Our rule, 

therefore, is that overruling an objection to evidence will not result in reversal when other such evidence 

was received without objection, either before or after the complained-of ruling. This rule applies whether 

the other evidence was introduced by the defendant or the State.”).