      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-09-00228-CR



                              Solomon Robledo Salazar III, Appellant

                                                   v.

                                     The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
        NO. 08-1397-K368, HONORABLE BURT CARNES, JUDGE PRESIDING



                               MEMORANDUM OPINION


                  The State charged Solomon Salazar with assault of a public servant after he allegedly

kicked a police officer while the officer was attempting to restrain his legs. See Tex. Penal Code

Ann. § 22.01(a)(1), (b)(1) (West Supp. 2009). The jury found Salazar guilty and assessed

punishment at 10 years’ confinement. Salazar appeals, arguing in three points of error that (1) the

trial court abused its discretion in admitting a video recording depicting uncharged misconduct,

(2) admission of the video violated Salazar’s constitutional rights, and (3) the trial court abused its

discretion in admitting evidence of a prior conviction. Finding no reversible error, we affirm

the conviction.


                                           BACKGROUND

                  Shawn Johnson, an officer with the Round Rock Police Department, testified that

during patrol duty on the evening of September 19, 2008, he received a report that a man was either
stumbling or had fallen near traffic on the 700 block of McNeil Road in Round Rock, Williamson

County.1 Arriving at the scene shortly after 10:00 p.m., Johnson observed defendant Salazar leaning

up against a speed-limit street sign. Upon approaching Salazar, Johnson smelled a strong odor of

alcohol and observed that Salazar’s eyes were bloodshot and glassy. Johnson testified that Salazar

was unresponsive when Johnson asked him his name and whether he had consumed alcohol that

evening. Johnson attempted to perform the horizontal gaze nystagmus test,2 but Salazar did not

cooperate, instead simply looking straight ahead and refusing to perform the test. Johnson noticed

that Salazar had partial paralysis on one side of his body3 and concluded it would be unsafe to

administer the one-leg-stand test, as Salazar could have fallen into the highway during administration

of the test. Johnson asked Salazar whether there was someone who could come to pick him up, to

which Salazar responded, “Just take me to jail.” Johnson did so, explaining that he concluded that

Salazar was a danger to himself due to his apparently intoxicated state and his position between the

highway and a railroad track.4 Johnson handcuffed Salazar, escorted him to the back seat of the


        1
            The facts recited herein are taken from the testimony and exhibits admitted at trial.
        2
          The horizontal gaze nystagmus test is a field sobriety test that examines a suspect’s eyes
for equal tracking and pupil size.
        3
           Salazar’s sister, Linda Maria Salazar, testified that Salazar became partially paralyzed on
his left side after a childhood incident involving Salazar’s ingestion of spear grass.
        4
          A patrol car video of the stop, admitted at trial, shows Salazar leaning against a traffic sign
by the side of the road. After Johnson begins speaking with him, several other patrol cars and an
ambulance also arrive on the scene. By the time Johnson begins the horizontal-gaze nystagmus test,
there are a total of four uniformed police officers standing around Salazar. The video, which runs
roughly seven-and-a-half minutes, ends after Salazar is placed in the back seat of the patrol car and
Johnson begins to drive off. The recording does not include audio of the interaction between
Johnson and Salazar. According to Johnson, when the car video is on, the “body mike” he wears
must be manually turned off (or malfunctioning) for it not to record audio. Johnson testified that he
did not know why the body mike was not activated during the stop.

                                                   2
patrol car, and took him to the Round Rock Police Department to complete a complaint affidavit so

that Salazar could be booked into the Williamson County jail on the charge of public intoxication.

               Upon arriving at the police department, Johnson parked his patrol car in the sally port

and went inside to fill out the required paperwork, asking sergeant Shawn Normand to supervise

Salazar. Normand testified that Salazar was lying down on his back in the rear seat of the patrol car.

Salazar then began kicking the window of the rear door of the car. Normand opened the door, at

which point Salazar stopped kicking. Normand told Salazar to stop kicking the window. According

to Normand, “[Salazar] told me, ‘Fuck you,’ and then started to kick at me, and that’s when I closed

the door.” Normand then opened the door again to attempt to place leg restraints on Salazar, at

which point Johnson and two other officers, officer Tony Rojas and sergeant Mike Osborne, came

over to assist. As Normand attempted to place the leg restraints on Salazar, Salazar kicked him in

the face and on the wrist, while screaming obscenities at the officers. Normand testified that he felt

pain when Salazar kicked him on the face and on the wrist. Johnson testified, “I could see something

had happened to Sergeant Normand. You know, as the kicking was going on, you could see him,

kind of the motion of a body, get knocked back.” Normand testified that the sally port where the

patrol car was parked was well lit and that he was wearing his uniform with a shiny badge, and that

Salazar was looking directly at him when he kicked him.5

               Eventually, the officers were able to restrain Salazar’s legs. Johnson testified that,

after Salazar was restrained, he could see redness on the side of Normand’s face and on one of his



       5
          The incidents that occurred while the patrol car was parked in the sally port at the
Round Rock Police Department were not videotaped. Normand testified that it was not standard
procedure to have the car camera on while the vehicle was parked at the department and that there
were no other functioning cameras in the area at the time.

                                                  3
wrists.6 Johnson arrested Salazar for assault of a public servant and transported him to the

Williamson County jail. Consistent with the protocol for dealing with a “combative prisoner,” the

jail arranged for Salazar’s arrival to be recorded with a hand-held camera.

                At trial, the State offered the video recording of Salazar’s arrival at the Williamson

County jail into evidence. Over objection by defense counsel, the trial court admitted the video. The

video shows officers taking Salazar out of the patrol car into an entrance to the jail. Salazar, who

is still handcuffed, is put face-first against a wall inside the jail doors as his pockets are searched and

his belt and shoes are removed by two officers. After Salazar begins to slide down the wall, the

officers seat him on a bench, where he slumps over and appears to lose consciousness. An

emergency medical technician (EMT) arrives, and after telling Salazar to “wake up” and getting no

response, the EMT performs a sternum rub several times on Salazar.7 Salazar eventually responds,

saying, “Get off my shit, bitch.” The two officers then transport Salazar down the hall to a cell. In

the cell, the officers place Salazar face-down on his bed, with his legs hanging off the side. After

the officers remove Salazar’s pants and are attempting to remove his shirt in order to dress him in

prison garb, Salazar begins to struggle, possibly attempting to bite one of the officers. After a third

officer arrives to aid in subduing Salazar, the officers leave Salazar in his cell in his underwear, and

the video, which runs just over ten minutes, ends. The video was shown to the jury at trial.




        6
          After the incident, Osborne took photographs of Normand’s injuries, which were shown
to the jury. Normand did not require any medical attention for his injuries.
        7
          Kimberly Martin, the EMT who attended to Salazar, testified at trial that a sternum rub,
a painful stimulus which involves pressuring the subject’s sternum, is a technique used to gauge the
subject’s level of consciousness and responsiveness.

                                                    4
               Later in the trial, on rebuttal and over objection by defense counsel, the trial court

admitted the testimony of Jason Jones, a detective with the Georgetown Police Department. Jones

testified that he arrested Salazar for assault on September 6, 2003. Jones testified that, on that date,

he received a call about a potentially intoxicated person walking on the shoulder of Interstate

Highway 35. When Jones arrived on the scene and tried to guide Salazar off of the roadway and onto

the median, Salazar pushed him. After Jones forced Salazar to the ground, Salazar punched Jones

in the face. Several motorists, including two off-duty police officers, stopped to help Jones subdue

Salazar, after which Salazar was arrested.

               At the conclusion of the guilt/innocence phase of the trial, the jury found Salazar

guilty of assault of a public servant. See Tex. Penal Code Ann. § 22.01(a)(1), (b)(1). During the

sentencing phase of the trial, the State presented evidence that Salazar had previously been convicted

of a felony, as alleged in the penalty paragraph of the indictment. The jury found the penalty

paragraph to be true, resulting in a punishment range of two-to-twenty years’ imprisonment. See id.

§ 12.42 (West Supp. 2009) (penalties for repeat and habitual felony offenders). The jury then

assessed punishment at ten years’ imprisonment. This appeal followed.


                                    STANDARD OF REVIEW

               We review a trial court’s ruling concerning the admissibility of evidence of other

crimes, wrongs, or acts under an abuse-of-discretion standard. Montgomery v. State, 810 S.W.2d

372, 387, 391 (Tex. Crim. App. 1991). Likewise, the trial court’s determination of whether notice

of intent to introduce evidence of other crimes, wrongs, or acts is reasonable is reviewed under an

abuse-of-discretion standard. See Hayden v. State, 66 S.W.3d 269, 271 (Tex. Crim. App. 2001).

We will not reverse a trial court’s decision admitting evidence unless the decision is outside

                                                   5
the “zone of reasonable disagreement.” See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim.

App. 2003).


                                          DISCUSSION

Admissibility of Video Recording

               In his first point of error, Salazar argues that the trial court erred in admitting the

video recording of Salazar’s arrival at the Williamson County jail. The video showed Salazar in an

apparently intoxicated state and included a sequence during which he struggled with police officers

as they attempted to change him into prison garb.

               While evidence of other crimes, wrongs or acts is not admissible to prove the

character of a person in order to show action in conformity therewith, it may be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident. Tex. R. Evid. 404(b); Berry v. State, 233 S.W.3d 847, 858 (Tex.

Crim. App. 2007). This list is illustrative, not exhaustive. Johnston v. State, 145 S.W.3d 215, 219

(Tex. Crim. App. 2004). In addition, evidence admissible under rule 404(b) may nonetheless be

excluded if the trial judge determines that its probative value is substantially outweighed by the

danger of unfair prejudice. Tex. R. Evid. 403; Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim.

App. 1999).

               In this case, the trial court’s decision to admit the video falls within the zone of

reasonable disagreement. The jury charge contains a limiting instruction stating that evidence of

another crime, wrong, or act introduced by the State could be considered for “the purpose for which

it was introduced, namely, to show intent or the absence of mistake or accident, and for no other

purpose.” The video, which shows Salazar struggling with the police as they attempt to change his

                                                 6
clothes, is probative on the issue of whether Salazar intentionally kicked Normand while in the back

seat of the patrol car or whether he did so by accident. See Tex. R. Evid. 404(b); De La Paz v. State,

279 S.W.3d 336, 344 (Tex. Crim. App. 2009) (holding that “if the trial court’s evidentiary ruling is

correct on any theory of law applicable to that ruling, it will not be disturbed”). Further, the actions

depicted on the video do not warrant the conclusion that the probative value of the video was

substantially outweighed by its prejudicial effect. See Tex. R. Evid. 403. Accordingly, the trial court

did not abuse its discretion in admitting the video into evidence on substantive grounds.8

                Rule 404(b) also requires the State to provide reasonable notice, upon the defendant’s

timely request, of its intent to introduce evidence of other crimes, wrongs, or acts in advance of trial.

Tex. R. Evid. 404(b).9 Whether notice is reasonable depends upon the facts and circumstances of

each individual case. Owens v. State, 119 S.W.3d 439, 443-44 (Tex. App.—Tyler 2003, no pet.).

                This Court has held that even short notice may be reasonable when the State

immediately informs defense counsel of 404(b) evidence upon its discovery. See Patton v. State,

25 S.W.3d 387, 391-92 (Tex. App.—Austin 2000, pet. ref’d) (upholding trial court’s ruling

        8
          We further note that some of the prior acts depicted in the video were discussed without
objection during the testimony of Johnson and Normand. As a general rule, “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.” Montemayor v. State, 55 S.W.3d 78, 86
(Tex. App.—Austin 2001, no pet.).
        9
           An exception to the notice requirement occurs when the evidence arises from the same
transaction. McDonald v. State, 179 S.W.3d 571, 577 (Tex. Crim. App. 2005). Under Rule 404(b),
however, same transaction contextual evidence is admissible “only to the extent that it is necessary
to the jury’s understanding of the offense” and “only when the offense would make little or no sense
without also bringing in the same transaction evidence.” Wyatt v. State, 23 S.W.3d 18, 25
(Tex. Crim. App. 2000). While the State argues that the video constitutes same-transaction
evidence, we disagree. The events underlying the charged offense—all of which happened before
Salazar was taken to the Williamson County jail—can be easily understood without reference to
the video.

                                                   7
admitting evidence of prior conviction where prosecutor first learned of conviction two days before

trial and “had given notice as soon as she learned of that conviction”). In this case, the prosecutor

called defense counsel to inform him of the existence of the video as soon as he learned of it on

April 9, 2009, narrating a portion of the events on the video to defense counsel over the phone.10

According to the State, a copy of the video was made available to defense counsel on April 9th, and

counsel received the video on April 13, 2009, the day before trial. Defense counsel consequently

had notice of the existence of the video and an opportunity to review it before trial. Given these

circumstances, we conclude that the trial court did not abuse its discretion in determining that the

prosecution gave defense counsel reasonable notice of the evidence it was to introduce via the video.

               Even if Salazar had shown that the trial court abused its discretion in either admitting

the video or determining that notice was reasonable under 404(b), he does not demonstrate what

harm resulted. When reviewing non-constitutional error in a criminal case, the court of appeals must

disregard any error that does not affect the substantial rights of the appellant. Tex. R. App. P.

44.2(b); Sells v. State, 121 S.W.3d 748, 764 & n.69 (Tex. Crim. App. 2003). Accordingly, a

conviction should not be reversed when, after examining the record as a whole, the reviewing court

has a fair assurance that the error did not influence the jury or had but a slight effect.

McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005). Here, the other evidence provided



       10
            In explaining the circumstances of the discovery of the video to the trial court, the
prosecutor stated that he had understood the reference to a “video” in one of the officer’s reports as
referring to a recording made by the stationary video camera in the sally port at the Williamson
County jail. According to the prosecutor, videos from the stationary camera are erased every
30 days, leading the prosecutor to believe that the video had been erased. When the prosecutor spoke
to the testifying officers before trial, however, he was informed that the reference to a “video”
referred to the “follow camera video” taken with a hand-held camera upon Salazar’s arrival at the
jail. The prosecutor stated that the video was then produced “immediately.”

                                                  8
by the State, including Normand’s testimony that Salazar intentionally kicked him, corroborating

testimony of eyewitnesses, and photographs showing Normand’s injuries, provide reasonable

assurance that even erroneous admission of the video would have had only a slight effect, if any, on

the jury. Further, Salazar does not show how the lack of reasonable notice of the intent to admit the

video prejudiced the defense in any way. Accordingly, Salazar’s first point of error is overruled.


Due Process and Due Course of Law

               In his second point of error, Salazar argues that the admission of the video violated

his constitutional rights. Specifically, Salazar urges that the erroneous admission of the video denied

him a fair and impartial trial, thereby infringing on his due-process rights under the United States

Constitution and his due-course-of-law rights under the Texas Constitution. See U.S. Const.

Amend. XIV, § 1; Tex. Const. Art. 1, § 19. As explained above, however, the trial court did not err

in admitting the video. Further, even the erroneous admission of extraneous-offense evidence does

not constitute constitutional error. See Roethel v. State, 80 S.W.3d 276, 281 (Tex. App.—Austin

2002, no pet.); see also McDonald, 179 S.W.3d at 578 (holding that constitutional error is not

involved when extraneous-offense evidence is admitted without notice). Salazar’s second point of

error is overruled.


Admissibility of Evidence of Prior Conviction

               In his third point of error, Salazar argues that the trial court abused its discretion in

admitting the testimony of detective Jones on rebuttal. Jones testified that Salazar had assaulted him

in September 2003. Specifically, Jones testified that Salazar pushed him and punched him in the

face after Jones had been called to the scene based on a report that Salazar was intoxicated and

walking on the shoulder of Interstate Highway 35. Subsequently, Salazar was arrested.

                                                  9
               Under the code of criminal procedure, “[r]ebutting testimony may be offered on the

part of each party.” Tex. Code Crim. Proc. Ann. art. 36.01(a)(7) (West 2007). As a general rule, the

State is entitled to present, on rebuttal, any evidence that tends to refute the defensive theory and

evidence introduced to support that theory. Flannery v. State, 676 S.W.2d 369, 370 (Tex. Crim.

App. 1984). The possibility that such rebuttal evidence may encompass extraneous offenses or acts

on the part of the defendant does not preclude its admission into evidence. Yohey v. State,

801 S.W.2d 232, 236 (Tex. App.—San Antonio 1990, pet. ref’d); Lofton v. State, No. 03-02-00204-

CR, 2003 Tex. App. LEXIS 2338, at *36 (Tex. App.—Austin Mar. 20, 2003, no pet.) (mem. op., not

designated for publication) (citing Yohey).

               In this case, the trial court indicated that the defense had opened the door to the

State’s rebuttal testimony by putting on the testimony of Salazar’s sister, Linda. Linda testified that,

due to his disability, Salazar often has to rock back and forth to get up:


       He has to do a motion where he rocks himself up until he—he has to have a leg up
       in the air, which would be his right leg, because he has no—no help on the left side.
       So he has to motion himself up until he finally gets himself up. You know, like a
       turtle when a turtle’s on its back, he has to do that motion until he flips.


               Based on the record before us, we cannot conclude that the trial court abused its

discretion in admitting Jones’s testimony as rebuttal evidence.11 As Linda’s testimony regarding


       11
            Salazar also argues that he did not receive proper notice regarding Jones’s extraneous-
offense testimony. However, the notice requirements of rule 404(b) apply only to evidence presented
during the State’s case-in-chief, not to rebuttal evidence. See Tex. R. Evid. 404(b); Jaubert v. State,
74 S.W.3d 1, 4 (Tex. Crim. App. 2002). Further, one of the bases for Salazar’s notice argument is
the fact that the State’s notice of intent to introduce extraneous offense evidence describes the 2003
offense, cause number 03-5455-2, only as “ASSAULT W/BODILY INJURY.” Salazar argues that
this description did not properly indicate that the assault was of a public servant. The State’s next

                                                  10
Salazar’s physical disabilities could conceivably support the defensive theory that Salazar kicked

Normand unintentionally or by accident, the admission of Jones’s testimony on rebuttal to show

intent or absence of mistake falls within the zone of reasonable disagreement. See Tex. R. Evid.

404(b). Further, on the record before us, we cannot conclude that the effect of Jones’s testimony was

substantially more prejudicial than probative. See id. R. 403. Finally, Salazar has not shown how

the admission of Jones’s testimony affected his substantial rights, as the other evidence presented

by the State provides reasonable assurance that even erroneous admission of Jones’s testimony

would have had only a slight effect, if any, on the jury. Accordingly, Salazar’s third point of error

is overruled.

                                          CONCLUSION

                Finding no reversible error, we affirm the judgment of the trial court.12


                                               __________________________________________

                                               Diane M. Henson, Justice

Before Justices Patterson, Puryear and Henson

Affirmed

Filed: May 13, 2010

Do Not Publish




entry on the notice, however, bears the same date and a similar cause number (03-5456-3), and
contains an offense description of “RESISTING ARREST / SEARCH.”
       12
          In addition, we dismiss Salazar’s motion to supplement the record as moot, as the district
clerk supplemented the record with the requested exhibits in December 2009.

                                                 11
