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.