SARTIN v. STATE (2023)

OPINION

A jury convicted Kelli Diedre Sartin of murdering her 81-year-old father—Charles Douglas Sartin.

In the punishment phase of her trial, the jury decided Kelli should be confined to prison for 81 years. Charles died at his home. Kelli first told police that Charles committed suicide by hitting his head and body with his fists, a metal spatula, and a wooden rolling pin. But on being further questioned that day by detectives, Kelli changed her story while giving detectives her recorded statement, she claimed she had acted in self-defense when Charles came at her with a knife, and that she had defended herself by hitting him with the spatula and the rolling pin.

Kelli raised ten issues in her appeal. Six of Kellis issues challenge the trial courts rulings admitting evidence in the guilt-innocence phase of her trial. Three of Kellis issues, issues seven through nine, argue the prosecutor engaged in improper argument in the guilt-innocence phase of her trial. In Kellis last issue, she argues that the attorney who represented her in her trial failed to provide her with effective assistance of counsel.

We hold Kellis first nine issues were forfeited because they were not properly preserved. As to Kellis claim of ineffective assistance of counsel, we conclude that its not firmly founded in the record. A motion for new trial was not filed following the trial, so Kellis attorney didnt have the chance to explain the strategy behind the approach he took in Kellis defense. We will affirm.

Background

Since Kelli doesnt argue the evidence isnt sufficient to support her conviction, we limit our discussion to the information needed to explain the Courts resolution of the issues Kelli has raised in her appeal.

The testimony of the States pathologist, Dr. Selly Strauch-River, shows that Charles died between four and seven days before September 9, 2019. On September 9, Sergeant Toby Paul went to Charless home in response to a request the Port Arthur Police Department received to check on his welfare. According to Sergeant Paul, Kelli came outside and told him that four or five days earlier “her dad committed suicide” by hitting himself with a metal spatula and a wooden rolling pin. After Kelli took Sergeant Paul inside the house, she showed him Charless bedroom. Inside the bedroom, Sergeant Paul found Charless body on top of his bed.

When Kelli was taken to the police station and questioned further by detectives, she changed her story around three hours into her interview, claiming she acted in self-defense when Charles came at her with a knife. During the interview on September 9, Kelli told the detectives that when Charles came at her with a knife, she hit him with her fists, a metal spatula, and a wooden rolling pin, but that she didnt intend to kill him.

In all, nine witnesses were called by the State in the guilt-innocence phase of Kellis trial. Four of these were employed by the Port Arthur Police Department: (1) Sergeant Toby Paul; (2) Marie Kirkland, a crime scene investigator; (3) Detective Thomas Barboza; and (4) Detective Adam Cousins. Of the remaining five witnesses, one testified she was Charless niece, Charlene Deslatte, and three others testified they considered him a friend: (1) Jerry Eldridge; (2) Belinda Perkins; and (3) Kristi Heid. The States remaining witness was a forensic pathologist, Dr. Selly Strauch-Rivers. Dr. Struach-Rivers testified that she agreed with the cause of death stated in Charless autopsy report, written by Dr. John Wayne, who died before the trial. The autopsy report, which was admitted into evidence, states that Charles died due to blunt force injuries to his head consistent with a physical assault.

Kelli called two witnesses to testify in her defense. One of these was Dr. Edward Gripon. He told the jury that individuals with Alzheimers disease may become violent “particularly if theyre thwarted in some way.” But Dr. Gripon conceded that he never met or treated Charles. Kellis remaining witness was Jeffery Boudreaux. Boudreaux testified that he and Kelli were married at one time but had been divorced for several years. Boudreaux explained that after the divorce, he and Charles had remained close and that although Charles had more members of his family than Kelli, Kelli was his sole provider. According to Boudreaux, Charles had Alzheimers disease, his condition had been deteriorating, and before he died, Charles depended on Kelli for his care.

In its charge, the trial court instructed the jury to determine whether Kelli had murdered Charles and to decide whether Kellis conduct was not justified by self-defense. The jury found Kelli guilty of “Murder, as charged in the indictment.”

Standard of Review

Kellis first nine issues hinge on error preservation. To preserve an issue for appellate review, a party must lodge a timely objection and state the specific legal basis for the objection.

Preservation is a “systemic requirement[,]” which means that when an issue hasnt “been preserved for appeal, neither the court of appeals nor [the Court of Criminal Appeals] should address the merits of that issue.”

“Ordinarily, a court of appeals should review preservation of error on its own motion[.]”

Generally speaking, to preserve a complaint for appeal, a party must first present a timely request, objection, or motion in the trial court that states the specific grounds for the desired ruling if it isnt apparent from the context of the record to avoid forfeiting the right to raise it in an appeal.

The trial court also must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial courts refusal to rule.

Almost every right—whether constitutional or statutory—is waivable if the party fails to object, move for relief, or ask the trial court for relief before complaining about the alleged error in a later appeal.

There are, however, two relatively small categories of errors that are exceptions to the general rule, which requires a party to preserve the error to avoid forfeiting the right to raise it later in an appeal. The two exceptions to the general rule are: (1) violations of rights which are waivable only; and (2) denials of absolute systemic requirements.

Waivable-only rights are “ ‘rights of litigants which must be implemented by the system unless expressly waived.’ ”

When the appellant has secured a ruling on the evidence made the subject of the issue in the appeal, the trial courts decision to admit or to exclude the evidence is reviewed under an abuse of discretion standard.

An abuse of discretion occurs when the trial courts ruling falls outside the zone of reasonable disagreement.

If the trial courts ruling is correct under any theory of law that applies, we will not reverse the judgment in the appeal.

Under the abuse of discretion standard, we may not reverse the trial courts ruling unless the record shows it was arbitrary, unreasonable, or made without reference to guiding rules and principles.

The rules of error preservation also apply to a partys complaints about errors that may arise during a partys closing argument. “The right to a trial untainted by improper jury argument is forfeitable.”

The trial judge “has no duty to enforce forfeitable rights unless requested to do so.”

“[T]o cure erroneous jury argument, the defendant must object and pursue his objection to an adverse ruling.”

A defendant who fails to pursue his objection to an adverse ruling forfeits his right to complain on appeal.

“Even an inflammatory jury argument is forfeited if the defendant does not pursue his objection to an adverse ruling.”

Analysis

I. The issues that assign errors to the trial courts admission of opinion testimony elicited from Detective Cousins

Five of Kellis issues are tied to the answers that Detective Cousins gave the prosecutor when responding to questions he was asked by the prosecutor. In issue one, Kelli argues reversible error occurred when Detective Cousins answered, “I do not” when the prosecutor asked him if, after being at the scene and based on his knowledge of the Sartins, he felt “like Kelli acted in self-defense?” In issue two, Kelli argues reversible error occurred when Detective Cousins testified that he believed Kellis “actions, the assault was the cause of death” after the prosecutor asked him whether he believed that Kelli striking Charles in the head with a rolling pin and spatula caused Charless death. Kelli discussed her first two issues together in her brief. We note that at trial, the record shows that Kellis attorney didnt object to either the questions or Detective Cousins’ answers.

According to Kelli, it wasnt necessary to object to the prosecutors questions or Detective Cousins’ answers since the detective isnt an expert on what causes a persons death or on whether a person acted in self-defense. Kelli contends that in reaching its verdict, it was the jurys sole responsibility to resolve these questions, and she concludes that when Detective Cousins testified on these ultimate issues, which were the jurys alone to resolve, she suffered egregious harm.

The State presents four arguments in response to the arguments Kelli relies on to support her first two issues. First, the State argues that Kellis complaints about the admission of Detective Cousins’ opinions were forfeited because Kelli didnt comply with the rules of error preservation. Second, the State argues that the questions the prosecutor asked Detective Cousins were proper when they are viewed in the context, which the State says is when considering the technique the jury had seen Detective Cousins use when questioning Kelli in the statement she gave to police on September 9. In that statement, Detective Cousins repeatedly suggests to Kelli that the detectives might see her situation differently were she to claim that she had acted in self-defense. Third, the State argues the opinions Detective Cousin expressed in the trial—that Kelli didnt act in self-defense and that Charless injuries resulted from the assault—were reasonable deductions from the evidence police gathered in the investigation from “what was logically possible[.]” Fourth, the State argues that even if the trial court erred in admitting the detectives opinions into evidence, the trial courts errors werent egregious. An abuse of discretion standard applies to a trial courts ruling on the admissibility of the opinion testimony from a witness, whether the witness is a lay witness or an expert under Rules 701 and 702 of the Texas Rules of Evidence.

Even were we to assume that admitting Detective Cousins’ opinions on the matters Kelli made the subject of issues one and two violated the rules of evidence, issues we expressly do not decide, evidentiary complaints like the ones Kelli raised under the Marin framework are forfeited unless the defendant preserved the right to raise them by making a proper and timely objection to the evidence when they were in trial.

Thus, we agree with the State that Kelli forfeited her first two issues by failing to preserve them in the trial court for our review on appeal. Issues one and two are overruled.

In issue three, Kelli complains that when responding to other questions posed by the prosecutor, Detective Cousins testified that he didnt believe Kelli provided him with a completely truthful account when she told him how Charles was injured. Yet the record shows that Kelli didnt object to the prosecutors questions or to the detectives responses about whether he believed Kelli had been completely truthful with him during her interview on September 9. We conclude that Kelli forfeited her right to complain about the admission of the detectives opinion about Kellis truthfulness in the interview.

In issue five, Kelli argues the trial court erred in admitting Detective Cousins’ opinion that he thought “the result would have or could have been different” had Kelli called someone when Charles “was first injured.” In issue six, Kelli argues the trial court erred by allowing Detective Cousins to say that it would have been “easier” for Charles to have stabbed himself with the knife that Kelli claimed Charles used to attack her than for his injuries to have occurred in the manner Kelli claimed. At trial, Kelli objected to both the questions about whether there might have been a different result or an easier way to commit suicide because the questions called for speculation. Even though the objections to “speculation” were timely, they were overruled.

We turn first to Kellis argument that the trial court erred in admitting Detective Cousins’ opinion that the result might have been different had Kelli promptly called for help. As mentioned before, Kelli claims the testimony was objectionable because it embraced an ultimate issue of fact, which she claims that as an “ultimate issue” she had a right to have decided by the jury alone. Kellis argument isnt persuasive. All the cases she relies on in her brief were decided before 1998, the year the Court of Criminal Appeals adopted Texas Rule of Evidence 704. Rule 704 currently provides: “An opinion is not objectionable just because it embraces an ultimate issue.”

Kelli also argues the testimony is speculative and therefore inadmissible because Detective Cousins “was not qualified to interpret the facts that were before the jury.” That said, Kelli didnt make that argument in the trial court. Even had she done so, the argument Kelli relies on to support her fifth issue is unclear about whether she is relying on Rule 701, the rule of evidence that applies to opinions of lay witnesses, or Rule 702, the rule that applies to expert witnesses.

She didnt point either rule out to the trial court or provide the trial court with sufficient information to know that she wanted the trial court to evaluate the detectives opinion under one of those rules. To the extent that Kellis argument relies on Rule 701 or 702 and suggests Detective Cousins wasnt qualified to interpret the facts before the jury, her argument doesnt comport with the objections she made in the trial and was waived.

In response to Kellis fifth issue, the State argues that what the prosecutor meant by “the result” being changed is unclear. According to the State, if “the result” refers to Charless physical condition, the trial court didnt abuse its discretion by allowing Detective Cousins to suggest that Charles might have survived the assault, as Kelli told the detective that following the fight Charles was still alive, she fed him dinner, put him to bed, and that she checked several times that night and that he waved at her, which Kelli told the detective indicated to her that he was still alive. The State also notes the prosecutor never expressly asked Detective Cousins whether he thought Charles would have survived if Kelli had promptly called for help. The State further argues that if “the result” means the detectives testimony implies that a prompt call by Kelli for help on the day she fought with Charles might have changed the trajectory of the investigation that was later conducted by the police in some way, then his opinion about that is arguably based on his training and grounded on the knowledge he obtained in the investigation he conducted on Kellis case. Consequently, the State contends, Detective Cousins’ opinion was helpful to the jury in determining a fact in issue, which was whether Kelly had acted in self-defense. So the State concludes that even if Kelli had objected to the prosecutors question, the trial court would have had the discretion to have overruled Kellis objection had one been raised and allowed the detective to express his opinion as a lay witness about whether the result would have or could have been different. 25

We begin by noting that we agree the question is ambiguous in the context it was asked about whether a “result” would have or could have changed. Was the prosecutor referring to the possibility that Charles might have received medical care before he died, the possibility that Charles lost a chance to survive the assault, or the manner in which the police managed the investigation of the case and how Kellis failure to promptly call for help impacted the trajectory of the investigation conducted by police?

All the same, we need not resolve what the question meant or what the detectives answer means to resolve Kellis fifth issue. Thats because Kellis objection—“calls for speculation”—fails to sufficiently identify what her problem is with the question so that the trial court had an opportunity to identify the evidentiary basis of her complaint and determine whether there was an appropriate remedy. For instance, perhaps the trial court would have sustained Kellis objection had she objected on the basis that the detective didnt have the training required to provide the jury with an expert opinion about whether Charles probably lost his chance of surviving injuries he suffered during his altercation with Kelly because Kelly didnt promptly call for help. Or, had Kelli objected and argued that the detectives opinion on whether the investigation might have changed was not helpful to the jurys understanding of the detectives testimony, the State would have had the opportunity to tell the trial judge why it thought the detectives testimony was necessary to place his other testimony in context and explain what the State claimed the evidentiary basis was for admitting the testimony on those grounds. Under the rules of error preservation, “[t]he complaining party bears the responsibility of clearly conveying [their] particular complaint to the trial judge.”

“To avoid forfeiting a complaint on appeal, the party must let the trial judge know what [they] want[ ], why [they] think [they are] entitled to it, and to do so clearly enough for the judge to understand [them] at a time when the judge is in the proper position to do something about it.”

Simply put, Kellis objection “calls for speculation” doesnt identify the reason she claimed the question was speculative. Here, depending on what “the result” meant, the reasons Kelli could have argued the detective shouldnt have been allowed to answer the question could have included that the question (1) called for an answer that wasnt rationally based on the witnesss perception, (2) wasnt helpful to a clear understanding of the witnesss testimony, (3) wasnt helpful to the jurys determining a fact in issue, or (4) called for an answer from a witness who wasnt qualified to answer as an expert by his knowledge, skill, experience, training, or education.

Or instead of these four grounds, Kellis objection might have been based on an argument that the testimony was more prejudicial than probative and as such should be excluded under Rule 403.

We conclude that Kellis objection—calls for speculation—did not inform the trial court what the appellant wanted, why she thought she was entitled to it, or inform the trial court of her complaint with enough specificity to allow the trial court to understand her when the trial court was in the position to do something about it. Because Kelli forfeited her right to our review of her fifth issue, the issue is overruled.

In issue six, Kelli argues the trial court erred by admitting Detective Cousins’ opinion that it would have been easier for Charles to have killed himself with a knife than by beating himself to death in the manner that Kelly described. At trial, Kelli objected to the prosecutors question “calls for speculation if it was easier or not.” Based on the guiding principles discussed above, the objection “calls for speculation” simply failed to let the trial court know what the appellant wanted, why she thought she was entitled to it, or to do so with enough specificity to allow the trial court to understand her when the trial court was in a position to provide her with a possible cure.

Because the complaint Kelli raised in her sixth issue wasnt properly preserved, issue six is overruled.

II. The issue that assigns error to the admission of Charlene Deslattes opinion that Charles would have recognized her voice

In issue four, Kelli argues the trial court erred when it allowed Charlene Deslatte to testify that while yelling and banging on the door to Charless home, she believed Charles would have come to the door if he could have done so. During the trial Kelli objected to the prosecutors question, asserting the question “calls for speculation.”

At trial, Deslatte testified she is a retired investigator, formerly employed by the Federal Bureau of Prisons. According to Deslatte, Charles was her uncle, she lives around four blocks from his home, and she had concerns about his well-being, which arose beginning in 2017. On September 4, 2019, Deslatte went to Charless house twice, once by herself and once with three others. Both times she “beat on the door” and called out “Uncle Charles.” According to Deslatte, Charles would have recognized her voice. When the prosecutor asked: “Do you think – do you think if he were able, he would have come to the door[,]” Kelli objected that the question “calls for speculation.”

On appeal, Kelli argues Deslattes opinion wasnt admissible under Rule 403, but she never specifies whether she claims the probative value of the testimony was outweighed by one or more of the five factors trial courts consider in deciding whether to exclude evidence under Rule 403, specifically: (1) unfair prejudice, (2) confusing the issues, (3) misleading the jury, (4) undue delay, or (5) the needless presentation of cumulative evidence.

On top of that, we note that at trial, Kelli never claimed Deslattes testimony about her belief that Charles would have come to the door upon hearing her voice was overly prejudicial or that it was not relevant to an issue of material fact in the trial.

In the context of Kellis objection, the trial court couldnt have known if Kellis complaint about Deslattes testimony was that she wasnt qualified to testify to the opinion as a lay witness under Rule 701.

On the other hand, the objection possibly recognized that Deslattes testimony was relevant, but perhaps Kellis complaint was that it should be excluded because if admitted, it would be more prejudicial than probative to a fact at issue under one or more of the factors in Rule 403.

Because Kellis objection that the question called for “speculation” didnt put the trial court on notice of Kellis complaint—that is whether her complaint was based on Rule 701, Rule 403, or some other Rule—we hold that Kellis Rule 403 objection wasnt properly preserved for our review.

III. The issues that assign errors to the prosecutors closing argument

Three of Kellis issues, issues seven through nine, contend that Kelli is entitled to a new trial because the prosecutor based his closing argument on evidence that wasnt admitted before the jury in the trial and on arguments that injected the prosecutors personal opinions into the case.

For example, in issue seven Kelli argues that the prosecutor argued his mother died when she was 81 and suffered from Alzheimers even though there wasnt any testimony about that before the jury. In issue eight, Kelli contends the prosecutor injected his opinion into the case when he argued that anyone who treated someone the way Charles was treated was “not an accident.” “That is murder. Theres no excuse for it.” In issue nine, Kelli contends the prosecutor made an improper comment on Kellis right to remain silent when he argued that only two people know what happened on September 4th, and one of them wont tell us.

The record shows no objections were made to any of the prosecutors arguments that Kelli has complained of in issues seven through nine. On appeal, Kelli concedes no objections were raised to arguments she complains about in issues seven through nine. Since Kellis attorney didnt object to the arguments, we hold that Kellis complaints about them werent preserved for our review.

Issues seven through nine are overruled.

IV. The ineffective assistance of counsel claim

In Kellis final issue, issue ten, she argues that she received ineffective assistance of counsel because her trial attorney failed to object to the same errors that she complained about in issues one through three, and in issues seven through nine. We have held that these six issues were not properly preserved at trial for the purposes of her appeal.

Both the United States and Texas Constitution guarantee an accused the right to assistance of counsel.

This right necessarily includes the right to reasonably effective assistance of counsel.

To prevail on a claim of ineffective assistance, the record before the reviewing court must show these two things: (1) the defendants attorney performed at a standard that fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by the errors made the subject of the ineffective assistance of counsel claims that the appellant has relied on in their appeal.

To establish a claim of ineffective assistance of counsel, the defendant must create a record that shows the claim is “firmly founded” in the record in the trial court, and the record must “affirmatively demonstrate the meritorious nature of the claim.”

Generally, unless a record is created in the trial court that allows the attorney who represented the defendant to explain the reasons a case was handled the way it was handled at trial, the record in the direct appeal will not be sufficiently developed for the appellant to meet their burden to establish their attorney provided ineffective assistance of counsel in the trial.

For example, without a record that shows why the trial attorney defended the matter in the manner the case was defended, the record will be insufficient to establish that the assistance the trial attorney provided the defendant violated the standards of reasonable professional assistance.

Here, the record shows Kelli didnt file any post-judgment motions, including a motion for new trial. Kellis attorney also did not testify in her trial, so we dont have a record that shows whether a reasonable explanation exists that might explain why her attorney didnt object to the matters that she has complained about for the first time in her appeal. Thus, on this record, Kelli hasnt met her burden to establish that the assistance she received from her attorney violated the standards of reasonable professional assistance.

For these reasons, we overrule Kellis tenth issue.

Conclusion

Because Kellis issues are either unpreserved or lack merit, the trial courts judgment is

AFFIRMED.

FOOTNOTES

. Tex. Penal Code Ann. § 19.02.

. Tex. R. App. P. 33.1(a)(1).

. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).

. Id. at 533.

. See Tex. R. App. P. 33.1.

. Id.

. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986).

. Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002) (cleaned up).

. Mendez v. State, 138 S.W.3d 334, 340 (Tex. Crim. App. 2004) (quoting Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997)); Saldano, 70 S.W.3d at 888.

. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).

. Id.

. State v. Lerma, 639 S.W.3d 63, 68 (Tex. Crim. App. 2021).

. Hernandez v. State, 538 S.W.3d 619, 622 (Tex. Crim. App. 2018).

. Marin, 851 S.W.2d at 279-80.

. Hernandez, 538 S.W.3d at 622.

. Id.

. Id. at 622-23; see Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010) (observing that even if a prosecutors argument was so egregious that it could not be cured by an instruction to disregard, the defendant “should have moved for a mistrial to preserve this error”).

. Gallo v. State, 239 S.W.3d 757, 765 (Tex. Crim. App. 2007); Fairow v. State, 943 S.W.2d 895, 901 (Tex. Crim. App. 1997).

. See Saldano, 70 S.W.3d at 889 (Observing that under the Marin framework, a defendants “failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence.”).

. Id.

. Tex. R. Evid. 704 (adopted by Tex. Crim. App. effective April 1, 2015, 78 Tex. B. J. 376, superseding the prior Rule 704 without substantive change that was adopted by Tex. Crim. App. effective March 1, 1998, 61 Tex. B. J. 373).

. Tex. R. Evid. 701, 702.

. Tex. R. App. P. 33.1; Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (holding the complaint on appeal “must comport with the objection made at trial”).

. See id. 701.

. Mosley v. State, 666 S.W.3d 670, 676 (Tex. Crim. App. 2023).

. Id. (cleaned up).

. Id.; see Tex. R. Evid. 701, 702.

. Tex. R. Evid. 403.

. Id.

. Tex. R. App. P. 33.1.

. Tex. R. Evid. 403.

. Id. 701.

. Id. 403.

. Tex. R. App. P. 33.1. To be clear, we are not holding that objections must provide the trial court with the exact rule number under the rules of evidence. That said, a partys objection must provide the trial court with enough information to allow the trial court to know whether the party is asking the court weigh the probative value of the evidence against its prejudicial value (a Rule 403 analysis) or whether the party is asking the court to determine whether the witness doesnt have the qualifications required to testify as a lay witness, an expert witness, and the reason or reasons why.

. Id.

. U.S. Const. amend. VI; Tex. Const. art. I, § 10.

. See Strickland v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986) (applying the Strickland standard to ineffective-assistance-of-counsel claims under the Texas Constitution).

. See Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052; Hernandez, 726 S.W.2d at 55.

. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (cleaned up).

. Id.

. See Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

HOLLIS HORTON, Justice

SARTIN v. STATE (2023)

Authorities cited

Opinion · public domain