CROSSOVER: Fort Worth Court Rejects ‘Excited Utterance’ Label for Child’s Casual Statement, While Reaffirming Article 38.07 Sufficiency

Salzido v. State, 02-24-00278-CR, August 20, 2026.

On appeal from 432nd District Court, Tarrant County, Texas

Synopsis

The Fort Worth Court of Appeals held that a conviction for indecency with a child by sexual contact may rest on the child complainant’s testimony alone under Article 38.07(a), even without DNA evidence, so long as the testimony proves the statutory elements and the jury credits it. The court also held that a child’s casual statement made while “acting like a kid” at a flea market did not qualify as an excited utterance because the record did not show the declarant was still dominated by the stress of the event.

Relevance to Family Law

Although Salzido is a criminal case, its evidentiary and sufficiency principles matter in Texas family litigation whenever allegations of child sexual abuse intersect with conservatorship, possession, supervised access, protective orders, or divorce-related injunction practice. Family lawyers regularly litigate cases where one side argues that abuse allegations are undermined by the absence of physical evidence, forensic testing, or corroborating third-party proof; Salzido is a useful reminder that Texas law does not always require that kind of corroboration when the factfinder credits detailed testimony from the child. At the same time, the opinion is equally important on hearsay: not every child statement about abuse will fit Rule 803(2), and practitioners should not assume that a statement becomes an “excited utterance” merely because it concerns abuse.

Case Summary

Fact Summary

The defendant was convicted of indecency with a child by sexual contact under Penal Code Section 21.11(a)(1). On appeal, he challenged the legal sufficiency of the evidence, even though the child complainant testified in detail that he had sexually abused her on multiple occasions and identified him as the perpetrator. His sufficiency argument centered on two points: the defense theory that someone else committed the acts, and the absence of DNA evidence.

He also challenged the exclusion of testimony from the complainant’s grandmother. Outside the jury’s presence, the grandmother described an incident from when the complainant was six or seven years old. According to the grandmother, the child was running around at a flea market, climbed into her lap, repeatedly put her mouth over the grandmother’s mouth despite being told to stop, and then, when asked, “Who’s doing this to you?,” responded that it happened when her cousin hurt her. The grandmother characterized the child as active, silly, aggressive, and upset that the grandmother moved away, but also testified that the child was “acting like a kid,” resumed shopping, and did not say anything else about the accusation. The defense offered the statement solely as an excited utterance.

Issues Decided

• Whether the evidence was legally sufficient to support a conviction for indecency with a child by sexual contact when the child complainant testified in detail and the State offered no DNA evidence.
• Whether Article 38.07(a) permits a conviction to rest on the child complainant’s testimony alone.
• Whether the trial court abused its discretion by excluding the grandmother’s testimony about the child’s statement under the excited-utterance exception in Texas Rule of Evidence 803(2).

Rules Applied

The court relied on a familiar but important cluster of criminal rules and authorities:

• Texas Code of Criminal Procedure Article 38.07(a), which permits certain child-abuse-related convictions to rest on the victim’s testimony without independent corroboration.
• Texas Code of Criminal Procedure Article 38.04, which vests the jury with authority over witness credibility and the weight of the evidence.
• Jackson v. Virginia, 443 U.S. 307 (1979), which requires appellate courts to review legal sufficiency with deference to the factfinder’s credibility determinations.
• Texas Penal Code Section 21.11(a)(1), (c), defining indecency with a child by sexual contact.
• Texas Rule of Evidence 803(2), the excited-utterance exception.
• Apolinar v. State, 155 S.W.3d 184 (Tex. Crim. App. 2005), and Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003), both emphasizing that the key inquiry for excited utterances is whether the declarant was still dominated by the stress of the event when speaking.
• Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), rejecting factual-sufficiency review in criminal cases beyond the constitutional legal-sufficiency standard.

Application

On sufficiency, the court treated the appeal as straightforward. The child complainant gave testimony that the defendant touched her vagina with his hand on multiple occasions and tried to keep her from disclosing the conduct to her mother. That testimony, if believed, tracked the elements of Penal Code Section 21.11(a)(1): intentional sexual contact with a child, including touching the genitals with the requisite intent to arouse or gratify sexual desire. The court did not view the defense theory that someone else committed the abuse, or the lack of DNA evidence, as creating a legal insufficiency problem. Instead, those points merely framed a credibility dispute for the jury, and Article 38.04 together with Jackson required deference to the jury’s resolution of that dispute.

On the hearsay issue, the court focused on the specific foundation offered by the defense. The grandmother’s description did not depict a child speaking while overwhelmed by fear, pain, or stress from the alleged event. To the contrary, the child was described as active, silly, shopping, and behaving normally enough that the encounter appeared casual rather than stress-dominated. The statement about the cousin came only after the grandmother asked a question, and the grandmother further testified that the child moved on and continued shopping without further discussion. On that record, the court concluded that the trial court acted within its discretion in finding the excited-utterance predicate unsatisfied.

Holding

The court held that the evidence was legally sufficient to support the conviction. In doing so, it reaffirmed that under Article 38.07(a), a child complainant’s testimony alone can sustain a conviction for indecency with a child by sexual contact. The absence of DNA evidence did not defeat sufficiency because the complainant’s testimony itself proved the elements, and the appellate court was required to defer to the jury’s credibility determination.

The court also held that the trial court did not abuse its discretion in excluding the grandmother’s testimony under Rule 803(2). The record did not show that the child’s statement was made while she was still dominated by the emotions, excitement, fear, or pain of the underlying event, so the excited-utterance exception did not apply.

Practical Application

For family lawyers, Salzido has two immediate uses. First, it is a strong analogy when litigating temporary orders, modifications, SAPCRs, or protective-order proceedings involving child-abuse allegations where the opposing side argues that the absence of physical corroboration should be dispositive. The case underscores a broader evidentiary reality: the absence of forensic evidence does not necessarily neutralize detailed testimony if the trier of fact finds that testimony credible. In family court, that principle often appears in a different procedural posture—best-interest findings, endangerment allegations, supervised possession disputes, or restrictions on access—but the strategic lesson is the same: do not overstate the significance of missing physical evidence when testimonial proof is specific and internally coherent.

Second, Salzido is a cautionary case for hearsay foundations. In family cases, counsel often tries to introduce a child’s statement through a parent, grandparent, therapist, investigator, or outcry-adjacent witness without building the evidentiary bridge required by the rule invoked. If the theory is excited utterance, the proponent must establish present stress or emotional domination tied to the startling event—not merely that the statement concerned abuse. If the child was calm, playful, redirectable, or speaking in response to questioning without signs of stress persistence, Rule 803(2) may fail. In those settings, practitioners should evaluate other admissibility routes early, including rule-specific hearsay exceptions, statutory provisions, in-camera procedures, or direct testimony if developmentally and procedurally appropriate.

Checklists

Building a Record When Abuse Allegations Lack Physical Corroboration

• Develop detailed testimony that tracks each statutory or pleaded element.
• Tie the testimony to time, place, conduct, body part, and surrounding circumstances.
• Preserve evidence of disclosure dynamics, including efforts to prevent reporting, if relevant and admissible.
• Avoid assuming that the lack of forensic evidence is fatal; address it directly and explain why testimonial evidence remains probative.
• Frame alternative-perpetrator theories as credibility disputes to be resolved by the factfinder.
• On appeal, anchor sufficiency arguments to the governing standard of review and the deference owed to the trier of fact.

Laying an Excited-Utterance Foundation in Family Court

• Identify the startling event or condition with specificity.
• Establish when the statement was made in relation to the event.
• Elicit testimony showing the child was still under the stress of the event when speaking.
• Develop facts showing visible fear, crying, agitation, shock, panic, pain, or dysregulation.
• Clarify whether the statement was spontaneous or prompted by questioning.
• Show that the child had not yet returned to ordinary play, routine activity, or emotional baseline.
• Avoid conclusory labels like “upset” without concrete behavioral details.

Avoiding the Foundation Failure Seen in Salzido

• Do not rely solely on the subject matter of the statement to prove Rule 803(2).
• Do not ignore testimony suggesting the child was playful, casual, or acting normally.
• Do not offer the statement under only one hearsay exception unless you have evaluated and preserved alternatives.
• Do not leave the record vague about the child’s emotional condition at the precise moment of the statement.
• Do not assume that a response to an adult’s question will automatically qualify as spontaneous.

Appellate Preservation for Family Litigators

• State the exact evidentiary rule supporting admission.
• Make a clear offer of proof outside the factfinder’s presence.
• Preserve alternative hearsay theories if more than one may apply.
• Obtain an express ruling.
• If evidence is excluded, build a record showing why the statement fits each element of the proposed exception.
• If challenging sufficiency, separate complaints about credibility, weight, and legal insufficiency rather than blending them.

Family Law Crossover

The crossover point in Salzido is procedural rather than substantive: it reinforces two recurring adjudicative rules that family litigators confront constantly. First, when the governing law allows a factfinder to rely on direct testimony without corroborating physical evidence, appellate review remains highly deferential to credibility determinations. In a family case, that dynamic can arise in bench or jury trials involving child abuse, family violence, endangerment, restrictions on possession, or protective orders, where one side argues that allegations fail because there is no medical exam, no recording, no photographs, or no forensic evidence. Second, the opinion illustrates the narrow mechanics of Rule 803(2): the proponent must show the declarant was still under the stress of the event when speaking. That issue regularly surfaces in SAPCR and protective-order hearings when counsel seeks to introduce a child’s out-of-court statement through a caregiver, teacher, counselor, or investigator. Salzido is therefore a useful reminder to build the procedural foundation for admissibility and to frame appellate issues around the standard of review that will actually govern.

Citation

Salzido v. State, No. 02-24-00278-CR, 2026 WL ___ (Tex. App.—Fort Worth Aug. 20, 2026, no pet.) (mem. op., not designated for publication).

Full Opinion

Read the full opinion here

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