Lauro Eliud Salinas v. the State of Texas

In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                               ________________

                               NO. 09-24-00144-CR
                               ________________

                     LAURO ELIUD SALINAS, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee
________________________________________________________________________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 22-11-15643-CR
________________________________________________________________________

                          MEMORANDUM OPINION

      A Montgomery County Grand Jury indicted Lauro Eliud Salinas for assaulting

a family member or person with whom he had a dating relationship, “Michelle,” by

impeding breath or circulation, a third-degree felony.1 See Tex. Penal Code Ann. §

22.01(b)(2)(B). The jury found Salinas guilty. Sentencing was to the trial court,


      1
        We use pseudonyms to refer to the alleged victim and the victim’s family
members. See Tex. Const. art. 1, § 30(a)(1) (granting crime victims “the right to be
treated with fairness and with respect for the victim’s dignity and privacy throughout
the criminal judicial process”).
                                          1
which found the enhancements “true” and sentenced Salinas to fifty years of

confinement. In a single issue, Salinas challenges the trial court’s judgment and

complains it erred in denying the redaction of a 911 recording that mentioned a gun

being present. In support of his issues, he asserts, among other things, the

complained-of evidence was irrelevant, and the prejudicial effect outweighed the

probative value. We hold the trial court did not abuse its discretion in admitting the

complained-of portion of the 911 call. We affirm the trial court’s judgment as

discussed below.

                         INITIAL MATTER: BRIEFING

      In his original brief, filed in August 2024, Salinas raises the sole issue

mentioned above. In January 2025, the State filed its brief, responding to Salinas’s

sole issue. Over eight months later, in August 2025, Salinas filed another document

titled “Appellant’s Brief on the Merits,” (“second brief”) which the State moved to

strike. Salinas did not file a motion for leave to file the second brief. In the second

brief, Salinas restated the issue from his opening brief plus added a second point of

error, challenging admission of another statement in the 911 recording that the

appellant “would be aggressive towards responding officers.” In its Motion to Strike,

the State argues that Salinas’s second brief was untimely, and he failed to obtain

leave of the Court to file it. Therefore, the State contends that Salinas’s second issue

is not properly before the Court.

                                           2
      Texas Rule of Appellate Procedure 38.1 requires that an appellant designate

all issues for review in the original brief. See Tex. R. App. P. 38.1; Garrett v. State,

220 S.W.3d 926, 928 (Tex. Crim. App. 2007). A reply brief to an appellee’s brief is

due twenty days after the appellee files its brief. Tex. R. App. P. 38.6(c). An

appellant generally may not raise a new issue in a reply brief because Rule 38.3

allows appellate courts to decide the matter prior to receiving the reply brief.

Chambers v. State, 580 S.W.3d 149, 161 (Tex. Crim. App. 2019). “[T]he purpose of

a reply brief is to address ‘any matter in the appellee’s brief.’” Houston v. State, 286

S.W.3d 604, 612 (Tex. App.—Beaumont 2009, pet. ref’d) (quoting Tex. R. App. P.

38.3). Therefore, “inclusion of an argument concerning [a] new issue not addressed

in either appellant’s or appellee’s brief would generally be inappropriate for a reply

brief.” Id. While “[a] brief may be amended or supplemented with the court’s

permission ‘whenever justice requires, on whatever reasonable terms the court may

prescribe[,]’” here, Salinas did not ask for permission to supplement or amend his

brief. Id. (quoting Tex. R. App. P. 38.7). That said, appellate courts can consider

arguments and authorities in a reply brief that are related to the arguments in the

original brief. Chambers, 580 S.W.3d at 161.

      Salinas did not raise his second issue in his opening brief, and it is not

responsive to anything raised in the State’s brief nor did he ask for permission to

amend or supplement his brief. See Tex. R. App. P. 38.1, 38.7; Garrett, 220 S.W.3d

                                           3
at 928; Houston, 286 S.W.3d at 612. Further, Salinas’s second issue about the

statement on the 911 call that he would be aggressive with officers is unrelated to

his first issue in his opening brief, which dealt with the statement about the gun. See

Chambers, 580 S.W.3d at 161. The record shows that although they originated in

the same 911 call, Salinas presented these statements as separate and distinct

complaints during the trial court’s hearing. The trial court treated them that way by

first ruling on the statement about the gun, then hearing and ruling on separate

arguments about whether the caller believed Salinas would be aggressive. We

conclude that it is inappropriate for Salinas to raise an unrelated issue that he failed

to present in his opening brief, and we will not address it. See id.; see also Tex. R.

App. P. 38.1, 38.7; Garrett, 220 S.W.3d at 928; Houston, 286 S.W.3d at 612.

Therefore, we reach the merits of the sole issue raised in Salinas’s opening brief. See

Tex. R. App. P. 38.1; Garrett, 220 S.W.3d at 928; Houston, 286 S.W.3d at 612.

                                  BACKGROUND

Trial Testimony

      Deputy Payton Palmer, a patrol deputy with the Montgomery County Sheriff’s

Office (MCSO), testified at trial. Palmer said that on July 11, 2022, he worked the 6

p.m. to 6 a.m. shift. He explained that at about 12:30 a.m., he responded to a

domestic violence call at a Splendora address in Montgomery County.




                                           4
      Palmer testified that when he first arrived, he observed Michelle, who had

blood on her T-shirt. He also observed “numerous other injuries” to Michelle,

including a swollen lip, scratches on her face, scratch marks to her neck, abrasions

to her arm, and petechiae on her left ear. He explained that in strangulation cases, he

is trained to look for certain things, including “bruising, scratching, bleeding, [and]

petechiae.” Palmer testified that photographs showed marks on Michelle’s neck

which were signs of strangulation, and from his training, they appeared to be from

fingers.

      Palmer described the scene of the incident, including an ashtray dumped over,

and said that alcohol was present. He testified that Michelle was “upset, and she was

fearful.” Michelle spoke “broken English,” so her twenty-year-old son, “Josh,”

helped translate for Palmer. Palmer learned that Michelle’s younger son, “Emmett,”

who was eight, witnessed the incident. Palmer said that he spoke with five people at

the residence, who all told him the same thing. Josh and Michelle both reported that

she was strangled. Michelle also reported that she had alcohol that night.

      Palmer testified that he called EMS given the “seriousness of the injuries” and

due to the “injuries to her neck area.” EMS arrived and transported Michelle to the

hospital. Palmer followed the EMS transport to the hospital, and he spoke with

Michelle and completed a “Strangulation Supplement Form.” According to Palmer,




                                          5
Michelle relayed that she felt “pain in her shoulder, her neck, and raspy voice and

swollen tongue.”

      Palmer testified that Salinas was nowhere on the scene that night, and Palmer

could not locate him that night. During the investigation, he identified Salinas as a

suspect. Palmer said that based on his investigation, he determined an assault

strangulation occurred and filed a felony warrant.

      Michelle testified at trial but suggested she did not want to be there, because

she was afraid. The evidence established that Salinas and Michelle were

romantically involved; Salinas lived with her and her children in Splendora. She

explained that she and Salinas were at a party the night of the incident, where they

both drank alcohol.

      Michelle said that they rode home from the party in an Uber. Once they

arrived home, they stayed outside but began to argue. Michelle testified that she did

not know if Salinas was angry that she had talked to the Uber driver or for something

else. She described Salinas hitting her twice in the face and pushing her back in the

chair. Michelle said that Salinas then put his hands on her neck, and she lost

consciousness. She testified that when she came to, she heard her younger son,

Emmett, telling Salinas to leave her alone, and Emmett was afraid. 2



      2
       Michelle testified that Emmett was seven whereas Palmer testified that he
was eight.
                                         6
      She explained that when Salinas put his hands around her neck, it hurt, and “I

couldn’t breathe. I couldn’t move. Everything kind of got cloudy, and I lost

consciousness.” After she awoke, she told her son to call the police. According to

Michelle, Salinas left when he heard her say that. Her older son, Josh, called the

police. She testified that she was afraid for her children because she did not know if

Salinas would return.

      Dr. Bhushan Kukkalli, an emergency room physician who treated Michelle

the night of the incident, also testified. Kukkalli explained that she and EMS reported

that she was strangled by “the significant other.” He noted Michelle primarily

complained that her boyfriend hit and choked her.

      Kukkalli testified that Michelle reported that she passed out. He explained that

usually when people say that it “means there was a temporary loss of blood supply

to the brain.” He also told the jury that when someone loses consciousness while

being choked, it was serious, because they “have to look for vascular injuries, big

vessels which supply blood to the brain.” He testified that this results in the loss of

the ability to breathe and loss of circulation. He noted that in strangulation patients,

they look for hematomas and petechiae. Kukkalli said that he observed large

hematomas and petechiae around her mouth, left ear, and left cheek. Kukkalli said

that based on what Michelle reported plus her injuries, it was consistent with

strangulation and a loss of consciousness.

                                           7
      Paramedic Amy Sewell testified at trial regarding her treatment of Michelle.

Sewell said that on June 11, 2022, law enforcement called EMS to a Splendora

address to evaluate Michelle. Sewell observed that Michelle had a swollen, bloody

lip with abrasions on both sides of her neck. Sewell said that Michelle reported she

was in pain and admitted drinking alcohol.

      Sewell testified that Michelle said “[h]er husband” caused the abrasions

around her neck when he put his hands around her throat and choked her. Michelle

told Sewell that she lost consciousness, which is why Sewell believed Michelle

should go to the hospital. According to Sewell, Michelle told her that “she had been

unconscious for possibly up to five minutes.” Sewell testified that they transported

Michelle to the hospital.

911 Call and Hearing Regarding Admissibility

      Michelle’s son, Josh, spoke with 911 about the events. 3 This 911 recording

was admitted and played for the jury during Palmer’s testimony. The trial court

conducted a hearing outside the jury’s presence pertaining to Salinas’s request that

it redact three specific portions of the 911 call. As relevant to the appeal, the

complained-of portion included a reference to Salinas leaving the scene with a

firearm.


      3
        On the recording, the initial caller is an unidentified female, who says she is
a “friend,” but less than a minute into the call, Josh begins speaking with the 911
operator and communicates for the call’s duration.
                                          8
      Salinas identified the objectionable material regarding the gun being located

at the time stamp between forty and forty-four seconds, which included this

exchange:

      [OPERATOR]: What’s going on there, [Josh]?

      [JOSH]: My mom’s boyfriend was here, and he, um, he hit her. And
      then he took off with a gun.

The operator kept asking questions, and Josh responded to the questions by

explaining that Salinas left and described his clothing. As to the possession of the

gun, Salinas argued it was inflammatory, since there was no gun involved in the

offense and it was only mentioned to make him sound more dangerous, it was

irrelevant and more prejudicial than probative. The defense also contended that

Salinas having a gun was a bad act, since he is a convicted felon. Among other things,

the State asserted that it was relevant to show why Michelle’s family called the

police and why this is a dangerous situation. The trial court noted that simply having

a gun is not considered a bad act in Texas, and the jury did not know that Salinas

was a convicted felon. The trial court ruled that the statement about Salinas leaving

with a gun was admissible. It reasoned the evidence was relevant and that the

probative value was not greatly outweighed by the prejudicial effect.




                                          9
Other Evidence

      Other evidence admitted at trial included: medical records from Michelle’s

hospital visit after the assault; photographs of Michelle’s injuries and the scene; and

the paramedic’s report.

                                       ISSUE

      Salinas complains that the trial court erred when it admitted the unredacted

portion of the 911 call over his objection that it was irrelevant and the probative

value was outweighed by the prejudicial impact. 4 The complained-of portion of the

911 call includes Josh telling the operator that Salinas left with a gun, which Salinas

characterizes as “extraneous offense” evidence. In his opening brief, Salinas also

contends that this violated the 14th Amendment. That said, since he did not object

at trial based on the 14th Amendment, he has failed to preserve that complaint for

our review. See Tex. R. App. P. 33.1(a).

             STANDARD OF REVIEW AND APPLICABLE LAW

      We review a trial court’s admission of evidence under an abuse-of-discretion

standard. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)



      4
       In his opening brief, Salinas also complains about “Article 404 of the Texas
Code of Criminal Procedure[,]” which does not exist. Yet, Texas Rule of Evidence
404 governs “extraneous offense evidence,” so we have addressed that along with
his complaints that the objected-to portion of the 911 call was irrelevant, and the
probative value of the evidence was outweighed by the prejudicial effect. See Tex.
R. Evid. 401, 402, 403, 404.
                                           10
(discussing in the context of a 404(b) ruling); Montgomery v. State, 810 S.W.2d 372,

391 (Tex. Crim. App. 1991) (op. on reh’g); see also De La Paz v. State, 279 S.W.3d

336, 343 (Tex. 2009) (explaining that a trial court’s rulings under Rules 403 and 404

are reviewed for abuse of discretion). “As a general rule, an appellate court

reviewing a trial court’s ruling on the admission or exclusion of evidence must do

so in light of the arguments, information, and evidence that was available to the trial

court at the time it ruled.” Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App.

2003) (citations omitted). We uphold the trial court’s ruling if it is within the zone

of reasonable disagreement. Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App.

2002) (citations omitted). We do not disturb a trial court’s ruling if it is correct on

any legal theory of law applicable to that ruling. See De La Paz, 279 S.W.3d at 344.

      “Evidence is relevant if: (a) it has a tendency to make a fact more or less

probable than it would be without the evidence; and (b) the fact is of consequence

in determining the action.” Tex. R. Evid. 401. Relevant evidence is generally

admissible. Id. 402. A court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of unfair prejudice. Id. 403.

      Under Rule 403, it is insufficient that the evidence is prejudicial, since “all

evidence against a defendant is, by its very nature, designed to be

prejudicial.” Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013) (citation

omitted); see also Bluntson v. State, 728 S.W.3d 87, 109–10 (Tex. Crim. App. 2025).

                                          11
Rather, for 403’s exclusion to apply, the party must be unfairly prejudiced by the

evidence, which means there is a “clear disparity between the degree of prejudice of

the offered evidence and its probative value[.]” Bluntson, 728 S.W.3d at 110

(citations omitted). Unfair prejudice means an undue tendency to suggest a decision

on an improper basis, commonly, an emotional one. Id. (citation omitted); see also

Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993). A trial court’s Rule

403 balancing analysis generally includes, but is not limited to, four factors: (1) the

evidence’s probative value; (2) the potential of the evidence to impress the jury in

an irrational but nevertheless indelible way; (3) the time required to develop the

evidence; and (4) the proponent’s need for the evidence. State v. Mechler, 153

S.W.3d 435, 440 (Tex. Crim. App. 2005); see also Hernandez v. State, 390 S.W.3d

310, 324 (Tex. Crim. App. 2012). Rule 403 favors the admission of relevant

evidence and carries a presumption that relevant evidence is more probative than

prejudicial. Martinez v. State, 327 S.W.3d 727, 737 (Tex. Crim. App. 2010) (citation

omitted); Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996). Additionally,

same transaction contextual evidence must meet Rule 403’s balancing requirement.

See Swarb v. State, 125 S.W.3d 672, 681 (Tex. App.—Houston [1st Dist.] 2003, pet.

dism’d). That said, “the prejudicial nature of contextual evidence rarely renders such

evidence inadmissible, as long as it sets the stage for the jury’s comprehension of

the whole criminal transaction.” Id. (citations omitted).

                                          12
      Rule 404(b) of the Texas Rules of Evidence provides in pertinent part:

      (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
      admissible to prove a person’s character in order to show that on a
      particular occasion the person acted in accordance with the character.

      (2) Permitted Uses[.] This evidence may be admissible for another
      purpose, such as proving motive, opportunity, intent, preparation, plan,
      knowledge, identity, absence of mistake, or lack of accident. . . .

Tex. R. Evid. 404(b). Rule 404(b)’s list of enumerated purposes for which

extraneous offense evidence may be admissible is neither exclusive nor

exhaustive. Montgomery, 810 S.W.2d at 388. Extraneous offense evidence may be

admissible if it has relevance apart from a tendency to prove a person’s character to

show that he acted in conformity therewith. Id. at 387. “[M]ere possession of a

handgun,” would not be “in and of itself, a criminal offense or a bad act.” Robinson

v. State, 236 S.W.3d 260, 269–70 (Tex. App.—Houston [1st Dist.] 2007, pet.

ref’d) (citing Tex. Penal Code Ann. § 46.15) (other citation omitted) (stating same

in context of possessing handgun in temporary home while traveling). Texas courts

recognize “consciousness of guilt” as an exception to Rule 404(b)’s general

prohibition against admitting extraneous offense evidence. See Hedrick v. State, 473

S.W.3d 824, 830 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Madden v. State,

911 S.W.2d 236, 243 (Tex. App.—Waco 1995, pet. ref’d); see also Longoria v.

State, No. 09-13-00169-CR, 2014 WL 2922236, at *3 (Tex. App.—Beaumont June

25, 2014, pet. ref’d) (mem. op., not designated for publication) (explaining that

                                         13
evidence that was relevant to perpetrator’s consciousness of guilt, among other

things, was admissible for purposes other than character conformity under 404(b)).

       Texas courts use a two-step analysis to determine the admissibility of

extraneous offenses or uncharged acts. See Rogers v. State, 853 S.W.2d 29, 32–33

(Tex. Crim. App. 1993). Courts first determine whether the evidence is relevant to a

material issue in the case and second whether the relevant evidence should be

admitted as an exception to Rule 404(b). Id.

                                    ANALYSIS

       From the start, the defense put alcohol use and the reliability of witnesses at

issue. In the defense’s opening statement, it noted that alcohol was a factor in the

incident and contended that people would try to make this seem worse than it is,

noting that “[k]ids are very good at telling stories and embellishing[.]” Defense

counsel also stated in opening that “I think the evidence is going to show that alcohol

was a factor in this case with regards to not only, you know, what may or may not

have happened but also, you know, why people may or may not have said things that

they said[.]” At the time the trial court ruled to admit the complained-of portion of

the 911 call, Salinas had already made these arguments. See Dragoo, 96 S.W.3d at

313.

       During the hearing, the trial court correctly noted that possessing a gun in

Texas, without the jury knowing that Salinas was a convicted felon, was not a bad

                                          14
act, thus, would not preclude the admission of Josh’s statement that Salinas left with

a gun. See Robinson, 236 S.W.3d at 269–70; see also Tex. R. Evid. 404(b)(1)

(explaining evidence of other crimes, bad acts, or wrongs are inadmissible to show

character conformity). Josh’s statements to the 911 operator about Salinas taking off

with a gun after hitting Michelle explained why Josh called the police, tended to

negate the notion that he was embellishing which the defense alleged, was relevant

to Salinas’s state of mind, and provided context for what unfolded at the scene, thus

it was relevant and probative for those purposes. See Tex. R. Evid. 401. The trial

court could have concluded that Salinas fleeing the scene with a gun had relevance

apart from character conformity, since it tended to show Salinas’s consciousness of

guilt and that the altercation was not an accident but something intentional. See id.

404(b)(2); see also Hedrick, 473 S.W.3d at 830; Madden, 911 S.W.2d at 243;

Longoria, 2014 WL 2922236, at *3.

      This evidence also was not unfairly prejudicial under a Rule 403 balancing

test. See Hernandez, 390 S.W.3d at 324; Mechler, 153 S.W.3d at 440. The State

spent little time focusing on Salinas having a gun. See Hernandez, 390 S.W.3d at

324; Mechler, 153 S.W.3d at 440. The evidence was important to show the context

of what unfolded at the scene, explain why Salinas was not there, and show why

witnesses called 911. See Hernandez, 390 S.W.3d at 324; Mechler, 153 S.W.3d at

440. Finally, it is unlikely that this brief mention of the gun, which took only seconds

                                          15
of the 911 call, would impress the jury in an irrational but indelible way. See Cohn,

849 S.W.2d at 820. As noted, possessing a handgun was not unfairly prejudicial

because mere possession of a handgun in Texas is not, in and of itself, a criminal

offense or a bad act. See Tex. Penal Code Ann. § 46.15; Robinson, 236 S.W.3d at

269–70. The probative value of this evidence is not substantially outweighed by the

danger of unfair prejudice given the contextual information it provided, which was

essential to understanding what precipitated the 911 call, witnesses’ reactions,

Salinas’s state of mind, and why they reported what they did to 911. See Tex. R.

Evid. 401, 403, 404(b); Hernandez, 390 S.W.3d at 324; Mechler, 153 S.W.3d at 440;

Cohn, 849 S.W.2d at 820; see also Swarb, 125 S.W.3d at 681 (explaining same

transaction contextual evidence must meet Rule 403’s balancing requirement).

      We hold the trial court was within the zone of reasonable disagreement when

it determined the probative value of the statement about the gun was not substantially

outweighed by the danger of unfair prejudice, thus the trial court did not abuse its

discretion when it admitted this evidence. See De La Paz, 279 S.W.3d at 343; Moses,

105 S.W.3d at 627; Wheeler, 67 S.W.3d at 888; Montgomery, 810 S.W.2d at 391.

We overrule Salinas’s sole issue on appeal.




                                         16
                                 CONCLUSION

      Having overruled Salinas’s sole issue, we affirm the trial court’s judgment.

      AFFIRMED.


                                                   W. SCOTT GOLEMON
                                                        Chief Justice


Submitted on December 30, 2025
Opinion Delivered April 15, 2026
Do Not Publish

Before Golemon, C.J., Johnson and Chambers, JJ.




                                        17