                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                 §
  DANNY SALCIDO,                                                 No. 08-16-00284-CR
                                                 §
                       Appellant,                                     Appeal from
                                                 §
  v.                                                              120th District Court
                                                 §
  THE STATE OF TEXAS,                                          of El Paso County, Texas
                                                 §
                       Appellee.                                 (TC # 20150D02954)
                                                 §

                                          OPINION

       Appellant Danny Salcido appeals his conviction for the offense of misdemeanor assault-

family violence.

                                        BACKGROUND

       On May 27, 2015, Appellant’s wife, Diana Salcido pulled into the emergency lane on

Highway 54 with her three-month old baby in the back seat of the vehicle. She called 9-1-1, and

advised the dispatcher that she had left her home after Appellant had hit and kicked her. Appellant

was charged with intentionally, knowingly, or recklessly impeding Diana’s normal breathing or

circulation of the blood by applying pressure to her throat or neck or by blocking her nose or

mouth. See TEX.PEN.CODE ANN. § 22.01(b)(2)(West Supp. 2017).

       At trial, the State introduced in evidence an audio recording of Diana’s 9-1-1 call,

computer-aided dispatch records, the testimony of both the responding police officer, Richard

Talamantes, and the arresting police officer, Hector Argumedo, Diana’s medical records,
photographs of portions of Diana’s body. Diana did not testify at trial.

       The jury found Appellant guilty of the lesser-included misdemeanor offense of assault-

family violence. Prior to trial, Appellant elected to have punishment assessed by the trial court,

which imposed an agreed sentence of 365-days’ confinement at the El Paso County Detention

Facility. In accordance with the agreement, sentence was suspended and Appellant was placed

on community supervision for a period of two years.

                                         DISCUSSION

       Appellant presents six issues for our consideration on appeal. In Issues One, Two, and

Three, Appellant complains that the trial court erred when it overruled his Sixth Amendment

Confrontation Clause objections and admitted the victim’s out-of-court statements in evidence.

See U.S. CONST. amend. VI. In Issues Four, Five, and Six, Appellant complains that he was

denied the effective assistance of counsel when counsel failed to object the to admission of

evidence.

                                                    I.

                                      Confrontation Clause

A. 9-1-1 Recording and Transcript

       In Issue One, Appellant argues the trial court erred when it overruled his Confrontation

Clause objection to the admission of the 9-1-1 recording and computer-aided dispatch document

regarding the emergency call as evidence. At the time the State offered the recording and

transcript in evidence as State’s Exhibits 1 and 1a, Appellant objected to the admission of the

records based on improper foundation. The trial court overruled the objection, admitted the

records in evidence, and the State continued to elicit several pages worth of testimony from the


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sponsoring witness. After the State published 9-1-1 recording to the jury, Appellant lodged a

Confrontation Clause objection to the recording and declared, “[W]e didn’t listen to the tape[.]”

The trial court noted that defense counsel had not made a Confrontation Clause objection at the

time the evidence was offered for admission and had only objected on the basis of improper

foundation, and declared the records were already in evidence. It also noted that defense counsel

had informed the trial court that he had listened to the recording a day earlier. The trial court

listened to the recording outside the presence of the jury, and overruled Appellant’s Confrontation

Clause objection.

       The State contends the trial court correctly overruled Appellant’s Confrontation Clause

objection as untimely. Although not presented to the trial court, on appeal Appellant counters

that at the time the records were offered in evidence, the only proper objection to be made at trial

was that of improper foundation, and that his Confrontation Clause objection was timely made

after the records were published to the jury.

       A defendant’s right to confrontation under the Sixth Amendment is violated when a witness

is permitted to relate out-of-court “testimonial” hearsay statements unless the declarant is

unavailable, and the defendant had a prior opportunity to cross-examine the declarant. Crawford

v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 1368, 158 L.Ed.2d 177 (2004); Ricks v. State, AP-

77,040, 2017 WL 4401589, at *15 (Tex.Crim.App. Oct. 4, 2017), cert. denied, 138 S.Ct. 1553,

200 L.Ed.2d 751 (2018); De La Paz v. State, 273 S.W.3d 671, 680 (Tex.Crim.App. 2008).

Confrontation and compulsory process rights are subject to procedural default. Taylor v. Illinois,

484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988)(“the decision whether to employ [the

right to compulsory process] in a particular case rests solely with the defendant.”); Reyna v. State,


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168 S.W.3d 173, 179 (Tex.Crim.App. 2005)(holding that appellant forfeited appellate review of

his Confrontation Clause claim by his failure to properly object at trial). Generally, to preserve

error there must be a timely and specific objection to the complained-of evidence. Davis v. State,

313 S.W.3d 317, 347 (Tex.Crim.App. 2010). Specifically, to preserve a complaint for appellate

review, the record must show that a defendant made a timely and specific objection to the trial

court in compliance with the rules of evidence or the rules of appellate procedure, that the objection

was sufficiently specific to make the trial court aware of the complaint unless the specific grounds

were apparent from the context, and that the trial court ruled on the objection, either expressly or

implicitly, or refused to rule and the complaining party objected. TEX.R.APP.P. 33.1(a)(1)(A),

(a)(2)(A-B); see Lovill v. State, 319 S.W.3d 687, 691-92 (Tex.Crim.App. 2009). Confrontation

Clause claims are subject to this preservation requirement.           Davis, 313 S.W.3d at 347.

Additionally, an objection stating one legal basis may not be used to support a different legal theory

on appeal. See e.g., Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App. 2004)(objection

based on Fifth Amendment did not preserve state constitutional ground). A complaint is timely

if it is made “as soon as the ground of objection becomes apparent.” Pena v. State, 353 S.W.3d

797, 807 (Tex.Crim.App. 2011)(citation omitted).

       The evidence at issue consists not only of the 9-1-1 recording but the computer-aided

dispatch document related to the emergency dispatch call. Defense counsel did not object to the

9-1-1 recording and transcript on Confrontation Clause grounds until after the trial court had

admitted them in evidence, after the sponsoring witness had continued her testimony under direct

examination comprising several pages of the record, and after the jury had begun hearing the

recording. When counsel did object on this basis, he initially informed the trial court that he had


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listened to the 9-1-1 recording one day before the State offered and the trial court admitted the

recording and the dispatch document in evidence. Defense counsel then advised the trial court

that he did not listen to the recording. On this record and the evidence before us, we conclude

Appellant’s Confrontation Clause objection was untimely made, and has not been preserved for

our consideration on appeal. Issue One is overruled.

B. Out-of-Court Statements

       In Issues Two and Three, Appellant contests the trial court’s admission of Diana’s out-of-

court statements made to Officer Talamantes after he responded to her location on the highway

and thereafter at the hospital, and urges that the admission of the testimony violated his Sixth

Amendment right to confront witnesses. U.S. CONST. amend. VI. Appellant urges that Diana’s

statements to Talamantes were made after the assault had occurred, that is, there was no crime in

progress, and her statements did not describe a crime in progress. He contends that the admission

of Diana’s statements to Officer Talamantes in evidence was the sole evidence that provided

context for the photographs of Diana’s injuries and an explanation regarding her injuries and who

caused them.

       The State asserts that Appellant failed to preserve each of his complaints about Officer

Talamantes’ testimony regarding Diana’s out-of-court statements. We agree.

       As we have noted, to preserve a complaint for appellate review, a defendant must make a

timely and specific objection to the trial court. TEX.R.APP.P. 33.1(a); Lovill v. State, 319 S.W.3d

at 691-92. In making the objection, terms of legal art are not required, but a litigant should at

least “let the trial judge know what he wants, why he thinks himself entitled to it, and to do so

clearly enough for the judge to understand him at a time when the trial court is in a proper position


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to do something about it.” Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992). An

objection stating one legal basis cannot support a different legal theory on appeal.             See

Heidelberg, 144 S.W.3d at 537 (objection based on Fifth Amendment did not preserve state

constitutional ground); Goff v. State, 931 S.W.2d 537, 551 (Tex.Crim.App. 1996)(variance in

charge objection with contention on appeal waived error); Bell v. State, 938 S.W.2d 35, 54

(Tex.Crim.App. 1996), cert. denied, 522 U.S. 827, 118 S.Ct. 90, 139 L.Ed.2d 46 (1997)(objection

at trial regarding illegal arrest did not preserve claim of illegal search and seizure on appeal).

“The purpose of requiring a specific objection in the trial court is twofold: (1) to inform the trial

judge of the basis of the objection and give him the opportunity to rule on it; (2) to give opposing

counsel the opportunity to respond to the complaint.” Resendez v. State, 306 S.W.3d 308, 312

(Tex.Crim.App. 2009).

       The Court of Criminal Appeals has held that Confrontation Clause complaints constitute a

right that a litigant must affirmatively invoke. See Paredes v. State, 129 S.W.3d 530, 535

(Tex.Crim.App. 2004); Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000); Dewberry v.

State, 4 S.W.3d 735, 752 & n.16 (Tex.Crim.App. 1999); Briggs v. State, 789 S.W.2d 918, 924

(Tex.Crim.App. 1990)(“We hold that in failing to object at trial, appellant waived any claim that

admission of the videotape violated his rights to confrontation and due process/due course of

law.”), overruled on other grounds by, Karenev v. State, 281 S.W.3d 428, 434 (Tex.Crim.App.

2009). This Court and others have done the same. See Ortiz v. State, 08-15-00344-CR, 2017

WL 3667829, at *3-4 (Tex.App.--El Paso Aug. 25, 2017, pet. ref’d)(not designated for

publication)(objections to exhibits on the bases of relevance, hearsay, and Code of Criminal

Procedure, Article 37.07 did not preserve Confrontation Clause complaint); Thomas v. State, No.


                                                 6
08-14-00095-CR, 2015 WL 6699226, at *3 (Tex.App.--El Paso Nov. 3, 2015, pet. ref’d)(not

designated for publication)(authentication, chain of custody, and Rule 702 objections did not

preserve Confrontation Clause objection); see also Deener v. State, 214 S.W.3d 522, 527

(Tex.App.--Dallas 2006, pet. ref’d)(“We conclude the right of confrontation is a forfeitable right-

-not a waivable-only right--and must be preserved by a timely and specific objection at trial.”);

Robinson v. State, 310 S.W.3d 574, 577-78 (Tex.App.--Fort Worth 2010, no pet.)(failure to object

waived Confrontation Clause claim).

       In this case, when the State asked Officer Talamantes to describe Diana’s statements to

him, defense counsel objected and stated, “I would say this is inadmissible hearsay.           The

testimony is that there is no ongoing emergency. So hearsay.” Although Appellant agrees that

a hearsay objection does not preserve for appellate purposes a Confrontation Clause argument, he

contends that defense counsel’s reference to “no ongoing emergency” sufficiently “tracks the

language of the Bryant line of cases where the Court recognized the “ongoing emergency”

exception to Crawford’s confrontation protections.”

       First, we have examined the record on appeal and find no discussion with the trial court

regarding the “Bryant line of cases.” See Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 1153,

179 L.Ed.2d 93 (2011). Second, nowhere in the record to we find any mention of the Sixth

Amendment or the Confrontation Clause or any exception applicable to the holding in Crawford.

Rather, the only objection Appellant voiced in the trial court regarding Officer Talamantes’

testimony about Diana’s out-of-court statements was that the complained-of testimony constituted

hearsay.

       Texas courts have held that hearsay objections are not synonymous with an objection


                                                7
raising Sixth Amendment issues. Paredes, 129 S.W.3d at 535; Wright, 28 S.W.3d at 536; Ortiz,

08-15-00344-CR, 2017 WL 3667829, at *3-4; Rios v. State, 263 S.W.3d 1, 6-7 (Tex.App.--

Houston [1st Dist.] 2005, pet. dism’d, untimely filed). Because he failed to raise a Confrontation

Clause objection to Officer Talamantes’ testimony in the trial court, Appellant’s complaints on

appeal are not preserved. TEX.R.APP.P. 33.1. Issues Two and Three are overruled.

                                                 II.

                                  Ineffective Assistance of Counsel

         In Issues Four, Five, and Six, Appellant contends trial counsel rendered ineffective

assistance because he failed to object to the admission of the 9-1-1 call and the computer-aided

dispatch document and Officer Talamantes’ testimony regarding Diana’s out-of-court statements,

thereby waiving his right “to confront the State’s non-testifying witness,” Diana.

         To prevail on a claim of ineffective assistance of counsel, an appellant must establish by a

preponderance of the evidence that: (1) trial counsel’s performance was deficient; and (2) that this

deficient performance deprived appellant of a fair trial. Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Ex parte Chandler, 182 S.W.3d 350, 353

(Tex.Crim.App. 2005). Appellant must satisfy both Strickland components; the failure to satisfy

either will defeat his ineffectiveness claim. Perez v. State, 310 S.W.3d 890, 893 (Tex.Crim.App.

2010).

         We presume that counsel’s representation fell within the wide range of reasonable and

professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). Thus, an

ineffective-assistance claim must be “firmly founded in the record” and “the record must

affirmatively demonstrate” the meritorious nature of the claim. Goodspeed v. State, 187 S.W.3d


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390, 392 (Tex.Crim.App. 2005), quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.

1999).

         Usually, direct appeal is an inadequate vehicle for raising a claim of ineffective assistance

of counsel because the record is generally undeveloped. See Thompson, 9 S.W.3d at 813. This

is true regarding the deficient-performance prong of the inquiry, when the reasons for counsel’s

omission do not appear in the record. Menefield v. State, 363 S.W.3d 591, 593 (Tex.Crim.App.

2012).

         Ordinarily, trial counsel should be afforded an opportunity to explain his actions before

being denounced as ineffective. Id. (citation omitted). If trial counsel is not provided that

opportunity, then we should not find deficient performance unless the challenged conduct was “so

outrageous that no competent attorney would have engaged in it.” See Menefield, 363 S.W.3d at

593.

         We do not know why defense counsel failed to raise a Confrontation Clause objection

because the record is silent on the matter. Neither trial counsel nor the State have been provided

an opportunity to respond to appellant’s allegation. Consequently, on this record, Appellant has

failed to show that defense counsel’s performance was deficient. See Menefield v. State, 363

S.W.3d 591, 592-93 (Tex. Crim. App. 2012). Issues Four, Five, and Six are overruled.

                                          CONCLUSION

         The trial court’s judgment is affirmed.

September 28, 2018
                                        ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)

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