In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00312-CR __________________
KELLI DIEDRE SARTIN, Appellant
V.
THE STATE OF TEXAS, Appellee __________________________________________________________________
On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 19-33104 __________________________________________________________________
OPINION
A jury convicted Kelli Diedre Sartin of murdering her 81-year-old
father—Charles Douglas Sartin. 1 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
1Tex. Penal Code Ann. § 19.02.
1 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 Kelli’s issues challenge
the trial court’s rulings admitting evidence in the guilt-innocence phase
of her trial. Three of Kelli’s issues, issues seven through nine, argue the
prosecutor engaged in improper argument in the guilt-innocence phase
of her trial. In Kelli’s last issue, she argues that the attorney who
represented her in her trial failed to provide her with effective assistance
of counsel.
We hold Kelli’s first nine issues were forfeited because they were
not properly preserved. As to Kelli’s claim of ineffective assistance of
counsel, we conclude that it’s not firmly founded in the record. A motion
for new trial was not filed following the trial, so Kelli’s attorney didn’t
2 have the chance to explain the strategy behind the approach he took in
Kelli’s defense. We will affirm.
Background
Since Kelli doesn’t argue the evidence isn’t sufficient to support her
conviction, we limit our discussion to the information needed to explain
the Court’s resolution of the issues Kelli has raised in her appeal.
The testimony of the State’s 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 Charles’s 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 Charles’s bedroom.
Inside the bedroom, Sergeant Paul found Charles’s 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
3 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 didn’t
intend to kill him.
In all, nine witnesses were called by the State in the guilt-innocence
phase of Kelli’s 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
Charles’s niece, Charlene Deslatte, and three others testified they
considered him a friend: (1) Jerry Eldridge; (2) Belinda Perkins; and (3)
Kristi Heid. The State’s remaining witness was a forensic pathologist,
Dr. Selly Strauch-Rivers. Dr. Struach-Rivers testified that she agreed
with the cause of death stated in Charles’s 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.
4 Kelli called two witnesses to testify in her defense. One of these was
Dr. Edward Gripon. He told the jury that individuals with Alzheimer’s
disease may become violent “particularly if they’re thwarted in some
way.” But Dr. Gripon conceded that he never met or treated Charles.
Kelli’s 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 Alzheimer’s 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 Kelli’s
conduct was not justified by self-defense. The jury found Kelli guilty of
“Murder, as charged in the indictment.”
Standard of Review
Kelli’s first nine issues hinge on error preservation. To preserve an
issue for appellate review, a party must lodge a timely objection and state
5 the specific legal basis for the objection. 2 Preservation is a “systemic
requirement[,]” which means that when an issue hasn’t “been preserved
for appeal, neither the court of appeals nor [the Court of Criminal
Appeals] should address the merits of that issue.” 3 “Ordinarily, a court of
appeals should review preservation of error on its own motion[.]” 4
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 isn’t apparent
from the context of the record to avoid forfeiting the right to raise it in an
appeal. 5 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 court’s refusal to rule. 6 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
2Tex. R. App. P. 33.1(a)(1). 3Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). 4Id. at 533. 5See Tex. R. App. P. 33.1. 6Id.
6 about the alleged error in a later appeal. 7 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. 8 Waivable-only rights are “‘rights of
litigants which must be implemented by the system unless expressly
waived.’” 9
When the appellant has secured a ruling on the evidence made the
subject of the issue in the appeal, the trial court’s decision to admit or to
exclude the evidence is reviewed under an abuse of discretion standard.10
An abuse of discretion occurs when the trial court’s ruling falls outside
the zone of reasonable disagreement. 11 If the trial court’s ruling is correct
7Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). 8Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002) (cleaned up). 9Mendez 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. 10Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). 11Id.
7 under any theory of law that applies, we will not reverse the judgment in
the appeal. 12 Under the abuse of discretion standard, we may not reverse
the trial court’s ruling unless the record shows it was arbitrary,
unreasonable, or made without reference to guiding rules and
principles. 13
The rules of error preservation also apply to a party’s complaints
about errors that may arise during a party’s closing argument. “The right
to a trial untainted by improper jury argument is forfeitable.” 14 The trial
judge “has no duty to enforce forfeitable rights unless requested to do
so.” 15 “[T]o cure erroneous jury argument, the defendant must object and
pursue his objection to an adverse ruling.”16 A defendant who fails to
pursue his objection to an adverse ruling forfeits his right to complain on
12Id. 13State v. Lerma, 639 S.W.3d 63, 68 (Tex. Crim. App. 2021). 14Hernandez v. State, 538 S.W.3d 619, 622 (Tex. Crim. App. 2018). 15Marin, 851 S.W.2d at 279-80. 16Hernandez, 538 S.W.3d at 622.
8 appeal. 17 “Even an inflammatory jury argument is forfeited if the
defendant does not pursue his objection to an adverse ruling.” 18
Analysis
I. The issues that assign errors to the trial court’s admission of opinion testimony elicited from Detective Cousins
Five of Kelli’s 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 Kelli’s
“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 Charles’s death. Kelli discussed her first
17Id. 18Id. at 622-23; see Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010) (observing that even if a prosecutor’s 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”). 9 two issues together in her brief. We note that at trial, the record shows
that Kelli’s attorney didn’t object to either the questions or Detective
Cousins’ answers.
According to Kelli, it wasn’t necessary to object to the prosecutor’s
questions or Detective Cousins’ answers since the detective isn’t an
expert on what causes a person’s death or on whether a person acted in
self-defense. Kelli contends that in reaching its verdict, it was the jury’s
sole responsibility to resolve these questions, and she concludes that
when Detective Cousins testified on these ultimate issues, which were
the jury’s 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
Kelli’s complaints about the admission of Detective Cousins’ opinions
were forfeited because Kelli didn’t 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
10 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 didn’t act in self-defense and that Charles’s 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 detective’s opinions into evidence, the trial court’s errors weren’t
egregious.
An abuse of discretion standard applies to a trial court’s 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. 19 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
19Gallo 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). 11 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. 20 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
didn’t believe Kelli provided him with a completely truthful account when
she told him how Charles was injured. Yet the record shows that Kelli
didn’t object to the prosecutor’s questions or to the detective’s 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 detective’s opinion about
Kelli’s truthfulness in the interview. 21
20See Saldano, 70 S.W.3d at 889 (Observing that under the Marin
framework, a defendant’s “failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence.”). 21Id.
12 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 Kelli’s 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. Kelli’s argument isn’t persuasive. All
the cases she relies on in her brief were decided before 1998, the year the
13 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.” 22
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 didn’t 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. 23 She didn’t 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
detective’s opinion under one of those rules. To the extent that Kelli’s
argument relies on Rule 701 or 702 and suggests Detective Cousins
wasn’t qualified to interpret the facts before the jury, her argument
22Tex. 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). 23Tex. R. Evid. 701, 702.
14 doesn’t comport with the objections she made in the trial and was
waived. 24
In response to Kelli’s 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 Charles’s physical condition, the trial
court didn’t 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 detective’s 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
24Tex. 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”). 15 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 Kelli’s 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 prosecutor’s question, the
trial court would have had the discretion to have overruled Kelli’s
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 Kelli’s failure to
25See id. 701.
16 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 detective’s answer means to resolve Kelli’s fifth issue. That’s because
Kelli’s 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 Kelli’s objection had she
objected on the basis that the detective didn’t 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 didn’t promptly call for help. Or, had
Kelli objected and argued that the detective’s opinion on whether the
investigation might have changed was not helpful to the jury’s
understanding of the detective’s testimony, the State would have had the
opportunity to tell the trial judge why it thought the detective’s testimony
was necessary to place his other testimony in context and explain what
17 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.” 26 “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.” 27
Simply put, Kelli’s objection “calls for speculation” doesn’t identify
the reason she claimed the question was speculative. Here, depending on
what “the result” meant, the reasons Kelli could have argued the
detective shouldn’t have been allowed to answer the question could have
included that the question (1) called for an answer that wasn’t rationally
based on the witness’s perception, (2) wasn’t helpful to a clear
understanding of the witness’s testimony, (3) wasn’t helpful to the jury’s
26Mosley v. State, 666 S.W.3d 670, 676 (Tex. Crim. App. 2023). 27Id. (cleaned up).
18 determining a fact in issue, or (4) called for an answer from a witness
who wasn’t qualified to answer as an expert by his knowledge, skill,
experience, training, or education. 28 Or instead of these four grounds,
Kelli’s 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. 29
We conclude that Kelli’s 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 prosecutor’s
28Id.; see Tex. R. Evid. 701, 702. 29Tex. R. Evid. 403.
19 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. 30 Because the complaint Kelli
raised in her sixth issue wasn’t properly preserved, issue six is
overruled. 31
II. The issue that assigns error to the admission of Charlene Deslatte’s 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 Charles’s home, she believed Charles would have come to the door if
he could have done so. During the trial Kelli objected to the prosecutor’s
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,
30Id. 31Tex. R. App. P. 33.1.
20 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 Charles’s 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 Deslatte’s opinion wasn’t 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. 32 On top of that, we note that at trial, Kelli never claimed
Deslatte’s testimony about her belief that Charles would have come to
32Tex. R. Evid. 403.
21 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 Kelli’s objection, the trial court couldn’t have
known if Kelli’s complaint about Deslatte’s testimony was that she wasn’t
qualified to testify to the opinion as a lay witness under Rule 701.33 On
the other hand, the objection possibly recognized that Deslatte’s
testimony was relevant, but perhaps Kelli’s 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 403.34
Because Kelli’s objection that the question called for “speculation”
didn’t put the trial court on notice of Kelli’s complaint—that is whether
her complaint was based on Rule 701, Rule 403, or some other Rule—we
hold that Kelli’s Rule 403 objection wasn’t properly preserved for our
review. 35
33Id. 701. 34Id. 403. 35Tex. 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 party’s 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 22 III. The issues that assign errors to the prosecutor’s closing argument
Three of Kelli’s issues, issues seven through nine, contend that
Kelli is entitled to a new trial because the prosecutor based his closing
argument on evidence that wasn’t admitted before the jury in the trial
and on arguments that injected the prosecutor’s 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 Alzheimer’s even
though there wasn’t 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. There’s no excuse for it.”
In issue nine, Kelli contends the prosecutor made an improper comment
on Kelli’s right to remain silent when he argued that only two people
know what happened on September 4th, and one of them won’t tell us.
against its prejudicial value (a Rule 403 analysis) or whether the party is asking the court to determine whether the witness doesn’t have the qualifications required to testify as a lay witness, an expert witness, and the reason or reasons why. 23 The record shows no objections were made to any of the prosecutor’s
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 Kelli’s attorney
didn’t object to the arguments, we hold that Kelli’s complaints about
them weren’t preserved for our review. 36 Issues seven through nine are
overruled.
IV. The ineffective assistance of counsel claim
In Kelli’s 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. 37 This right necessarily
36Id. 37U.S. CONST. amend. VI; Tex. Const. art. I, § 10.
24 includes the right to reasonably effective assistance of counsel.38 To
prevail on a claim of ineffective assistance, the record before the
reviewing court must show these two things: (1) the defendant’s 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. 39
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.” 40 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
38See Strickland v. Washington, 466 U.S. 668, 685-86 (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). 39See Strickland, 466 U.S. at 687-88; Hernandez, 726 S.W.2d at 55. 40Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)
(cleaned up). 25 sufficiently developed for the appellant to meet their burden to establish
their attorney provided ineffective assistance of counsel in the trial. 41 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. 42
Here, the record shows Kelli didn’t file any post-judgment motions,
including a motion for new trial. Kelli’s attorney also did not testify in
her trial, so we don’t have a record that shows whether a reasonable
explanation exists that might explain why her attorney didn’t object to
the matters that she has complained about for the first time in her
appeal. Thus, on this record, Kelli hasn’t met her burden to establish that
the assistance she received from her attorney violated the standards of
41Id. 42Id.
26 reasonable professional assistance. 43 For these reasons, we overrule
Kelli’s tenth issue.
Conclusion
Because Kelli’s issues are either unpreserved or lack merit, the trial
court’s judgment is
AFFIRMED.
HOLLIS HORTON Justice
Submitted on June 27, 2023 Opinion Delivered October 18, 2023 Publish
Before Horton, Johnson and Wright, JJ.
43SeeMenefield 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).