## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 20

- 00028

- CR

___________________________

On Appeal from t he 431st District Cour t Denton County, Texas Trial Court No. F18

- 3564

- 43 1 Before Gabriel, Kerr, and Bassel, JJ. Memorandum Opinion by Justice Gabriel 

### C HA RLES 

### S ALAS 

### J R 

### . , Ap pellant

V 

### . T HE 

### S TA TE OF 

### T EXAS2 MEMORANDUM OPINION Appellant Cha rles Salas Jr. appeals from his c onviction for assa ult against a fami ly or household memb er and from his e nhanced si xty

- year s entence . Salas

c halle nges the suffici ency of the ev idence to justify the jury ’ s rej ection of his justification defense of self

- de f ense ; however , the evidence , which included the vi ctim ’ s statement s to the police immedi ately after the offense and the na ture of his injuries , allowed a rational fact

- finder to reasonably dete rmine that Salas had committed as s ault and had not acted in s e lf

- def ense. S al a s also argues that the trial
court abused its discre tion by admitting a video of Salas ’ s commentary while he was being transpo rted to jail because it constituted i nadmissible character

- conformity evidence

. Because Salas ’ s relevan ce objection at trial did not preserve his appellate argument based on character conformity, we do not address the merits of th is issue. Finally, Sala s argues that his sent ence is co nstitutional ly dispr oportionate to the nature of the o ffense ; however, he has procedurally defaulted this complaint by failing to bring it to the attention of the trial court . Therefore, we affirm the trial co urt ’ s judgment

. I. BACKGROU ND Salas live d wi th his f

ather (Charl es Sr.), mother (S a n dra), and neph ew (Je s se). One night, S a l as and Charles Sr. began arguing about Salas ’ s girlfriend. S andra and Charles Sr. asked S a las to leave the home

. Salas wa lked ou t the fron t d o or, and Charles Sr. followed him out. Jesse heard arguing and went outside to see wh at was3

happe ning. Salas hit Charles Sr., and Jes se stepped between the two. Salas then hit Jesse t wice in the f

ace, c ausing Jess e to fall back. Salas left. Sandra c a lled 911 and told the dispatcher that Salas had hit Charles Sr. and had push ed Charle s Sr. and J e ss e down. Sh e a lso gave the dispatc her a d escription of Sa las. Officer Niko Bookman re sponded to the call and located Salas while driving to the scene

. Sal a s told Book man that Charles Sr. and Jesse “ had jumped on him. ” Salas, wh o was not we aring a shi rt, had no inju ries

. Bookman placed Salas i n the back of his patrol car and drove to Salas ’ s h ome. When Bookman arrived, he spoke to Je s se and noticed that Jesse had bleeding
cut s near his ri ght eye and on his chest. J esse told Bookman t hat Salas had hit Charles Sr. first and had then hit Jesse in the eye when Jesse tried to intervene

. Sa ndra and Charles Sr. told the other responding officer, Officer Jasmi n e Badiru, that S alas was ups et about his girlfri end, that their at te mpts to calm him down enrage d him, that Charles S r. told Salas to leave, and that Salas hit Jesse when he tried to step between Charles Sr. and S alas. Ch arles Sr. and Sandra said tha t S a l as had hit Ch arles Sr. as well. Ba di ru noticed that Charles Sr. had injuries to his right eye a nd left arm and that Jesse had injuries to his right eye and chest. How ever, Charles Sr., Sandra, and Jesse refused t o give wr

itten statements a nd stated they did n ot wa nt to “ pre ss charges. ” Nevertheless, Bookma n arrested Salas based on th eir verbal rep orts of Salas ’ s actions and Charles Sr. ’ s and Jesse ’ s injurie s consistent with those statements .4

Whi le Book man drove S alas to jail, Book ma n ’ s body camer a re c orde d what S a las was sa ying. He was “ upset and irate , ” cursing in a ste ady stream of invectives , which included ethnic slurs and ge nder ed insults

. Sala s ’ s comments were not the pro duc t of any questioning by Bookman. Salas threatened t o “ kill your b

---- a -- whe n I get out ” and t hat “ you ’ re go nna burn, [ ethnic slur ]. ” Salas also said , “ [

H]e ’ s lu cky I did n ’ t knock him out li k e I did the la st two or three time s. ” Book man presum ed that Salas ’ s rant was directed at Charles Sr. Salas was indicted with t wo counts of assault c ausin g bodily injury to a household or f

amily member

— Charles Sr. a nd Jesse

— bo th third

- degree felon ies based on the jur isdictional indictment allega tion that S al as had been previously convicted of an assaultive offense aga inst a househol d or family member in 2004

. See Tex. Penal Code Ann. § 2 2.01(a)(1) , (b)(2) (A); Price v . State , 4 57 S.W.3d 437, 442 (T e x. Crim. App. 2015) ; R

eyes v. State , 314 S.W.3d 74, 81 (Tex. App.

— S a n Antonio 2010, no pet.)

. The indictments additionally included t wo n onjurisdictiona l pun ishment

enhancement paragraphs, alleging that Salas had been conv icte d of fe lony assault involving family viol ence in 2010 and 2016. See Reyes , 314 S.W.3d at 80 (citing Brooks v. State , 957 S.W. 2 d 30, 33

– 34 (Tex. C ri m. App. 1997) )

. T h e se two prior felony allegat ions enhanced Salas ’ s po ssible punishment range from that of a third

- degr ee fe lony to a term of “ life, or for any term of not more than 99 years or less than 25 years. ” Tex. Penal Code Ann. § 12.42(d).5

At trial, Charles Sr. a n d Jesse state d that they did not remember the details of the incident and did not wan t to testif y against S a las

. Sandra also was reluctant to testify at trial

. Charles Sr. testified that he did not know if he wa s truthful wh en h e had talked to Badiru at the sce ne about what had happ ened; but Jesse testifi ed that he would not have lied t o the police th at night. Cha rles Sr. believed the incident was “ a little b it of [his] fault for f ollowing [ Salas] out side. ” Salas testified that after he tried to leav e the ho use, Charles Sr. grabbed Salas ’ s left arm, blocking Salas ’ s exit. Salas “ soft ly just set [Charles Sr.] to the side ” when Jesse sudden ly appeared behind Salas. Salas “ lift[ed] his hand ” to defend himself from Je sse whi le also “ dealing w ith ” Charle s Sr. who was “ in fro nt of [Salas ] at the same time

. ” Salas testified that Charles Sr

. frequentl y frustrated him and knew “ how to push [ his ] button s ” but that Charles Sr. was his be st frien d. The jury fou nd Salas not guilty of the a ssault a gainst Charl e s Sr. but guilty of th e assault against Jesse. At the punishment hearing, Salas p lea ded true to the two punishme nt

- enhan cement paragraphs. The ju ry hear d evidence regarding Salas ’ s crim inal h istory : (1 ) a 2007 misdemeanor conviction for harassment, (2) t wo 2005 misdemeanor conviction s for violating a protective order, ( 3 ) a 2005 felony c onvic tion f or possession of a control led substa nce , and (4) a 199 8 state

- jail felony convict ion for possession of a controlled subst ance . Additi onally, the jury heard th a t Salas had five6

prior convictions for assault invol ving family violence, four o f whi ch were fe lonies. 1 At the time of trial, Salas also stood accused of ass ault involv ing his girlfriend after he had allege dly chased her, grab b ed her by the hair to pull h er to the ground, and h it her rep eatedly in the face with a closed fist. After the p unish ment tri al, t he jury a ssesse d Sala s ’ s puni shment at sixty years ’ confinement. O n appeal, S alas challenge s the s uffic iency of the evidence to convict him in light o f his justification defense, the admission of the audio from Bookman ’ s body

cam e ra, a nd the len gth of his senten ce.

II. SUFFICIENCY OF THE E VIDENCE Salas argu es that no evidence supported the jury ’ s implied rejection of his justification defe nse of se l f

- defense. He argues that because the jury should have

v iewed his actions “ solely fr om [his] p erspective , ” the evid ence did not s upp ort a finding co ntrary to Sala s ’ s testimony about the assau lt , ren dering the jury ’ s verdict

“ irratio nal

. ” When a defend a nt raises a justificati on defense such as self

- defense , the j ury ’ s guilty verdict is an imp lici t factual finding th at it rejected the defense. See Saxton v. State , 804 S.W .2d 910, 913

– 14 (Tex. Crim. App. 1991); see al so Tex. Penal Co de Ann. § § 9.02, 9.31 ( a). When a defendan t raises self

- def e n se, he bears the bu rden to

1 T he mi sdemeanor assault convic tion was alleged a s a jur i sdictional e nhancement; t

wo of the four felony assault convictions wer e alleged as punishment enh anc emen ts.7

produce some eviden ce support ing the defen se, an d t he State bears the burden of persuasion to disp rove the defen se by provi ng its affirmative cas e beyond a reasonable doubt. See Braughton v . State , 569 S.W.3d 592, 608 (Tex. Crim. A p p . 2018) ; see also T ex. Penal Co de An n. § 2.03(c)

. T o resolve whether the evidence is sufficient to support the jury ’ s implicit rejection of a justification defense , we do not look to whether the State pr oduced e vidence refuting the defe ndant ’ s self

- d ef en se testi mony ; rather , we view t he evidence in the li gh t most favorabl e to the jury ’ s verdict to determine whether any rational trier of fact would have found the essential eleme nts of the offense beyond a reasona b le doubt and also would h ave found agai nst the defe ndant on h is defensive issue beyon d a reason able doubt. 2 See Braughton , 569 S.W.3d at 608

– 09 ; see also Tex. Penal Code Ann. § 2.03(b). In short, we do not view the justification evidenc e so lely from the def endant ’ s perspective in our sufficiency review , as Sal as a sserts; we review al l of the evide nce in light of and in favor of the j ury ’ s rejec tion of the defense

. 3 See Saxton , 804 S.W.2d at 914 ; Smith v. State , 355 S.W.3d 138, 146 (Tex. App.

— Houston [1s t Dist.] 2011, pet. ref ’ d)

.

2 Salas does not dispute that t he State pr esented sufficient ev idence of the elements of assault involving family violence.

3 The defendant ’ s perspective comes in to play wh en de termining wheth er the evidence sufficiently raised self

- defense s uch t hat t

he defendant is entitled to a s elf

defense jury instru ct ion. See Fe rrel v. State , 55 S.W.3d 586, 591 (Tex. Crim. App. 2001). S uch an instruction was inclu ded in Sal as ’ s ju ry charge.8

“ [A] person is justified in u sing force against anot h er w hen and to the degree the actor reasonably be li eves the force is immediately nec essary to protect the actor against the other ’ s use or attempted use of u nlawful force. ” T ex. Penal Code Ann. § 9.31( a). Thus, self

- defen se is jus tifi ed when “ the amount of f orce actua lly used was permitted by the circu ms tances. ” Alonzo v. State , 353 S. W.3d 778, 783 (Tex. Crim. App. 2011) ; see Kelley v. State , 968 S.W.2d 395 , 399 (Tex. App.

— T yler 1998, no pet.) ( “ The amount of force u sed must be in pro portion to the force enc ountered. ” )

. Here , the jury saw pictures of Je sse ’ s injuries , which were consis tent with Je sse ’ s statement
to Bookman that Salas had hit Charles Sr., Jesse had then ste p p ed between Charles Sr. and Salas , and Sala s had hit Jesse in the face twice

. Charles Sr. and S andra similarly told Badiru that Salas h ad hit Charles Sr. and then Je sse after he had stepped between Charles Sr. and Sala s. There was evidence that Jesse use d no physic al force again st S alas and did not threaten t o do so , 4 rendering S ala s ’ s us e of force ag ainst Jesse

un reasonable and, thus, u nju stified

. See , e.g. , Graves v. S t

ate , No. 01

- 13

- 00630

- CR, 2014 WL 280 9814, at *2 (Tex. App.

— Houston [1st Dist.] June 1 9, 2014, no pet.) (mem. op., not de signated for public a tion) ; Bottenfield v. St ate , N o. 12

- 02

- 0011 3

- CR, 2002 WL 31835289, at *2

– 3 (Tex. Ap p.
— Tyler Dec. 1 8, 2002, no pet.) ( not designated for publica tion) ; Pa yne v. State , No. 05

- 01

- 01289

- CR, 2002 WL 149471 0 , at *2 (Tex. App

. — Dallas July 15, 2002, no pet.) (not designated for publicati on)

. See

4 Although Sala s told Bookm an that Jesse had “ jumped on him, ” Sala s t esti fied at trial only that Jesse sudden ly appear ed behind h im

.9

generally T ex. Penal Code Ann. § 9.31( b)(1) (prov iding use of force not justified “ in response to verbal provocation a lone ” ). And the j ury was entitled to di scount S a las ’ s claim of se lf

- defense and to instead credit what Jesse , Charles Sr., and Sandra had told Boo kman and Badiru at the scene

. See Little v. S tate , N o. 05

- 14

- 00697

- CR, 2015 WL 5022283, at *6 (Tex. App.

— Dallas Aug. 25, 2015, pet. ref ’ d) (mem . op., not de s ig nated for public a tion) ; Smith , 3 55 S.W .3d at 146; Payne , 2002 WL 1494 7 10, at *2

. S ee generally Chambers v. State , 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) ( “ As factfinder, the jury is entit led to judge the credibility of witnesses, and can choose to b elieve all, some , or no ne of the testimony presented by the pa rties. ” ). Viewing the evidence in t he light most favorable to the verd ict and deferring to the j ury ’ s credibility choices , we hold that the eviden ce is sufficient to support t he jury ’ s imp lici t rejection of Sala s ’ s s elf

- defense claim. We overrule issue one. III. ADMISSION OF EVIDENCE Sal as contend s that the trial court abused it s discr etion by admitting the aud io from Bookman ’ s body camera , which recorded Salas ’ s constant swearing while bein g driven to jail . Salas is correct that w e review the admissi on of the audio for an a buse of discr et ion, s ee Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim. App. 1 99 1 ) (op. on reh ’ g) , but we find no abuse here

. At trial, Salas unsucc essfully object e d to the admission of th e audio on th e bas is that it was “ irre levant as to what happened after the a r rest. ” See Tex. R. Evid. 401

. On appeal, he argues that the evidence was inadmissible beca use it was “ pu r e10

impermissible character conformity evidence , ” r endering the exhibi t irrelevan t because it did not make a fact of conse qu ence more o r les s probab le

. 5 See Tex. R. Evid. 404(a) (1)

. Salas ’ s relevance objection did not alert the tri al court that his exclusion theory was based on character

- conformity cons i deration s; thus, he has f ailed to preserve this issue for our review. See Golliday v. State , No. 02

- 15

- 00416

- CR, 2019 WL 1830606, at *2 (Tex. App.

— Fort Worth Apr. 25, 2019, pet. ref ’ d) (en banc) (mem. op., not designate d for publication). Even if pr ese rved, however, Salas ’ s argument has no merit

. Evide nce is relevant if it tends to make a fact more or less probable and if the fact is of consequence to the actio n . Tex. R. Evid. 4 01. “ Evidence need not by itself prove or disprove a parti cular fact t o b e relev ant ; it is sufficient if the evidenc e provide s a small nudge toward proving or disprovi ng some fact of con seq uence. ” Ste wart v . State , 129 S.W.3d 93, 96 (T e x. Crim. App. 2004 ). But ev idence of a person ’ s characte r trait is inadmissi ble so lely t o p rove that , on a particular occasion, he act ed in con formity with that trait . Tex. R. E vid. 40 4(a)(1). Thus, c haracter evidence is admissible only if it has re levance to a noncharacter

- conformity issue of consequence

. See Rob bins v. State , 88 S.W.3d 2 56, 259 (Tex. Crim. App. 2002); Powell v. Stat e , 63 S.W .3d 435, 439

5 To the extent Salas attempt s to argue on appeal th at the admission o f the audio was undu ly prejudicial under Rule 403 , that conten tion was not raised in the trial court and is , th us, not pre served for our review

. See Lopez v. State , 200 S.W.3 d 246, 251 (Tex. App.

— Houston [14th Dist.] 2006, pe t. ref ’ d); see als o Medina v. State , 7 S.W.3d 633, 643 (Tex. Crim. App. 1999); Reed v. State , 550 S.W.3d 748, 760 n.8 (Tex. App.

— Texarkan a 20 18, no pet. )

.11

(Tex. Crim. App. 2001); Atlas v. State , No. 02

- 15

- 00380

- CR, 2017 WL 28 13162, at * 4 (Tex. App.

— Fort Worth Jun e 29 , 2017, no pe t.) (mem. op., not designated for publication). Charac ter evid enc e has a pu rpose apart from p roof of conform ity if it is admitted to rebut a defensive theory. Robbins , 88 S.W.3d at 259; Powell , 63 S. W.3d at 439. Salas ’ s s pontaneous comments on the audio rec ording occurred immediately after the ass aul t and showed his belligere nce and ho stility , especially at Charles S r . In short, the exhibit showed Salas ’ s state of mind around the time of the of fense , which

was a contested issue a t trial based on Sa las ’ s justification defense

. See, e.g. , Powell , 63 S.W. 3 d at 439; Du ntsch v. S tate , 568 S.W.3d 193, 226 (Tex. A pp.
— Dalla s 2018, pet. ref ’ d). Th u s , the audio r ecording was relevant because it tended t o make a fact of

c onsequence more or l ess probable and because it had a purpose apart from ch aracter conformity

. See P ow ell

, 63 S.W.3 d at 439; Lott v. State , 662 S.W. 2d 450, 4 52 (Tex. App.

— Corpus Christi

– Edinburg 1 983, pet dism ’ d ) ; see also Robbins , 88 S. W.3d at 261

– 62 ; St irman v. State , N o. 11

- 12

- 00090

- CR, 2 014 W L 1285773, at *7 (Tex. App.

— Eastland Mar. 31, 2014, pet. ref ’ d) (mem. op., not designated for public ation)

. The tri al court did not abuse its discretion b y admitting this relevant evidence

. And even if th e trial court had abused its discretion by admi tting the exhibit , the State aptly argues that Salas would not h ave been harm ed b ecause the exhibit wa s releva nt to Sal as ’ s hostility toward Charles Sr. , and the jury acquitted Salas of

as s aulting Charles Sr. See Tex. R. App. P . 44. 2(b ). We overrule issue two.12 IV. LENGTH OF SENTENCE Finally, S alas argues that hi s si xty

- year s entence was unconstitutionally di sprop orti onate to the nature o f the offense

. Be fore imposing the sentence as sessed by the jury , the tria l court as ked S alas w hether there w as any re ason why sentence could not be i mposed. Salas ’ s counsel res pond ed, “ No, Y our Honor. ” Salas did not file a motio n f

or new trial . Disp roportionate

- sentence claims must be r aised in t he trial court either at sen tencing or in a motion for new trial in orde r to preserve such a claim for our review

. See Kim v. State , 283 S.W.3d 47 3, 475 (Tex. App.

— Fort Worth 2009 , pet. re f

’ d). Salas did n either; thus, he has pr ocedurally defau lted his a ppellate claim. See id. We overrule issue three. Ev en if this claim could be rais ed for the first time on appeal, cf. Mizell v. St ate , 119 S.W.3 d 804, 806 (Tex. Crim. App. 2003) , we w oul d conclude that the length of Salas ’ s se ntence does not r aise an inferen ce that it was unconsti tutionally disp roportionate . Although ass ault causing bodil y injury is a misdemeanor offense , it becomes pun ishable as a third

- degree fe lony if committ ed aga ins t a family or household member

. S ee Tex. Penal Code Ann. § 22 .01(b)(2) ( A)

. And Salas ’ s two pr ior felony family

- vi olence assaults enhanced the available punishment range to
tw enty

- five to ninety

- nine yea rs ’ or lif e confinement. See id. § 12.42(d ). Al ong with the circumstances of the charge d offense, t he jury heard evidence of Salas ’ s extensive

c r iminal history , most of which underscored Salas ’ s p enchant for as saultive and harassing behavior

. We wou ld c onclude, t herefore, that the severity of S a las ’ s13

sen tence , which was within the applicable sentencing range, was not unconstitu tionally disp roport i onate in light of the circumstance s of the charged offense and h is prior offenses

. See Rummel v. Estelle , 44 5 U.S. 263 , 276 (1980); S t ate v. Simpson , 4 88 S.W .3d 318, 323 (Tex. C ri m. App. 2016) ; Karrenbrock v. State , N o. 02

- 16

- 00386

- CR, 2018 WL 5289352, at * 4

– 6 (Tex. App.

— Fort Worth Oct. 25, 2018, pet. ref ’ d) (mem. op., not de signated for publication) ; S hi ver s v. State , No . 02

- 16

- 00387

- CR, 20 17 WL 6884303 , at * 4 (Tex. App.

— Fort Worth Oct . 1 9 , 20 17 , pet. re f ’ d ) (mem. op., not designated for publi cation)

. V. CON CLUSION The j ury heard eviden ce showi ng that Salas ’ s belief that force was necessary was unreasonab le ; th us, the jury ’ s implicit reject ion of Sala s ’ s justification defense of self

- defense was rat ion al and supported by t he evidence

. By only objecti ng on the basis of relevance at tria l, Salas f ailed to preserve his appellate argument that the audio

recor ding of his ride to jail was i nadmissible character

- conformity evidence. And Salas similarly procedurally defaulted his disp roportion ate

- sentence claim b y failing to raise it in the trial court. W e affirm the trial cour t ’ s judgm ent . See Tex. R. App. P. 43.2 (a)

.14 /s/ Lee Gabriel Le e Gabriel Justice Do Not Publish Tex. R. A p p . P. 47.2(b) Delivered : October 29, 2020