## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00010

- CR

KENDRICK LADELL STARLING , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 71st District Court Harrison County, Texas Trial Court No. 21

- 0357X

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice Rambin Concurrin g Opinion by Justice van Cleef2 

### ME MORANDUM OPINION

A Harrison County jury convicted Kendrick Ladell Starling of continuous sexual abuse of

a child. Aft er a punishment trial to th e bench, Star ling was sentenced to twenty

- five years ’
imprisonment. On appeal, Starling argues that the trial court erred (1) by overruling his
objections to the State’s improper remarks about his counsel during closing argument and (2) by

over ruling his motion for a m istrial.
Assuming without de ciding that the trial court should have sustained Starling’s objections

to the State ’ s remarks during closing argument , we conclude that Starling was not harmed by the

remarks. We also find that St arling failed to preser ve h is remaining complaint for our review.
As a result, we affirm the trial court’s judgment.

I. Starling Was Unharmed by Improper Closing Argument
In his first point of error, Starling argues that the trial court erre d by overru ling his
object ions to th e St ate’s closing argument. In support, Starling cites the following portion of the
transcript:
[BY THE STATE:] Now in law school, we learn certain tricks, and that ’ s that when the facts are in your favor, you argue th e facts. When the law is in your favor
, you argue the law. When neither are in your favor, you bang on the table, and that ’ s what defense did in this case.
[BY THE DEFENSE] : Your Honor, that

-- I ’ m going to object. That ’ s striking at the shoulder of c ounsel. That ’ s n ot a sum mation of t he e vidence.

THE COURT: Overruled. This is a closing argument

. . . . [BY THE DEFENSE] : But to talk about another attorney is inappropriate, Your Honor.

THE COURT: Overruled

. . . .3 [BY THE STATE] : And, like I s aid, that ’ s what [defens e counsel] did i n this case.
[BY THE DEFENSE] : Once again, striking at my shoulder, Your Honor.

THE COURT: Overruled

. . . . [BY THE STATE] : He tried to make noise out of nothing. He tried to make irrelevant, seemingly really nothing to do with these case s, seem l i ke bi g deals because he wanted to distract you from the facts, from the law, and that is his job, but that doesn ’ t focus on what truly matters. [ 1 ]

Sta rling argues that, because the State ’ s comments struck at him ove r the should e rs of hi s

defen se cou nsel, the trial court should have sustained his objections.

The standard of review is abuse of discretion

. “ Generally, the bounds of proper closing
argument are left to the sound discretion of the trial court. ” Milton v. State , 57 2 S .W.3d 234, 24 0
(Tex . Crim . App. 2019)

. However, rather than deciding whether the trial court’s rulings
constituted an abuse of discretion, we have the option of deciding the case on whether there was
any harm. See Gallo v. State , 239 S.W.3 d 757, 76 7 ( Tex. Crim . App. 2007) (“ Assu m ing, as the
trial court did, that the prosecutor ’ s comment was inappropriate, we next turn to the question of

harm. ”) ; s ee also Mosley v. State , 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (“ Assuming th at

the trial c ourt shou ld have sustained appella nt ’ s o bjection, we must determine whether the error

warrants reversal. ”). That is the option we take here.

1 “ Texas c ourts have held that in some circumstances , a d efend a nt is not required to constantly rep e at an objecti on.” Lampkin v. State , 47 0 S.W.3d 876, 901 (Tex. App.

— Texarkana 2015, pet. ref’d) (quo ting Cardenas v. S tate , 787 S.W.2d 160, 162 (Tex. App

. — Houston [1s t Dist.] 1990, pet. ref ’ d ) ). “One such ci rcums tance is when the objection would be futil e because the court has just overruled a v alid objection

. . . . ” Id

. (quoting Cardenas , 787 S.W.2d a t 162).4

“ I mproper

- argument error of this type is non

- constitutional in nature, and a non

constitutional e rror ‘ t hat do es not affec t s ubstantial rights must be di sregarded. ’ ” Freeman v.

State , 340 S.W.3d 717, 728 (Tex. Crim. App. 2011) (citing T EX

. R. A PP

. P. 44.2(b )). In
addressing whether Starling was harmed by the prosecutor’s comments
, we “ look to [ the

f ol lowing ] three factors: ( 1) severity of the misc onduct (the magnitude of the prejudicial effect
of the prosecutor ’ s remarks)
, (2) measures adopted to cure the misconduct (the efficacy of any
cautionary instruction by the judge)
, and ( 3) the certai nty of convic tion absen t the mis co nduct
(the strength o f the ev idence supporting the conviction). ” Mosley , 983 S.W.2d at 259

. Because

the first part of the harm analysis is an assessment of the seriousness of any alleged improper
jury argume nt , we begin by r ev iewing the author ities on ju ry argument

. Id. ; Ha wk ins v. State , 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)

. Even closing argument has limits. “ Permissible jury argument falls into one of four

areas: (1) summation o f the evidence; (2) reasonable dedu ction f rom the evidence ; (3) an an swer to the argument of oppos ing counsel; or (4) a plea for law enforcement. ” Gallo , 239 S.W.3d at

767 (citing Cannady v. State , 11 S.W.3d 205, 213 (Tex. Crim. App. 2000) )

. “[A] prosecu tor
runs a risk of improperly strik ing at a defen dant over the shou ld er of counsel when th e argume nt

is made in terms of defense counsel personally and when the argument explicitly impugns

defense counsel ’ s character. ” Mosley , 983 S.W.2d at 259 (em phasis a dded). That said, the

Texas Court of Cr iminal Appeals h a s assumed e rror where the statements w er e not explicit, bu t ,
rather
, attacked defense counsel via intimation and innuendo. Id. Regarding such arguments ,5

Mosley found “ it is impossible to articulate a precise rule regarding ” where the line s hould b e

drawn

. Id.
Here, the State ’ s comments fa ll on the milder side of things

. The comments did “ n ot
directly accuse the defense attorney [] of lying, and

. . . do not suggest that any evidence was

manufactured. ” Id. at 260

. A lso, the y did “ not injec t new facts i nto the record, and the jury

[wa] s in a position to evaluate the truthfulness of the prosecutor ’ s assertion. ” Id. As a result,
while “[w]e do not condone the prosecutor ’ s actions,

. . . the s everity of the misconduc t [wa] s

r elative ly small. ” Id. B ecaus e the severity of the misconduct was mi l d, the first factor does not
favor Starling.

The second factor also does not favor Starling. “Instructi ons to the jury are generally

considered suffic ient to cure improprieti es that o ccur du ring tria l .” Gambo a v. State , 296 S.W.3d
574, 580 (Tex. Cri m. App. 2009). Here, the jury was instructed that “ [s] tatements made by the
lawyers are not evidence ” and that “[e] vidence consists of the testimony of the witnesses and

materials admitted into e vidence.” B ecause we p resume that the jury followed the tri al court ’ s

instructions
, we conclude that the second f actor weighs against a finding of harm

. See i d

. ; D e La

Fuente v. State , 432 S.W.3d 415, 425 (Te x. App.

— San Antonio 2014, pe t . ref ’ d) (f ind ing a

similar i nstruction “ sufficient to cure any error ” from p ro s ecutor’s improper comment).

The last factor

— certainty of conviction absent the misconduct

— requires us to examine
the strength of the evidence. S tarling argues that this fac t or ti ps the sc ale in his fa vo r because

t his was “ a classic ‘ he said/s he said ’ c a se.” We disagree.6

“ The testimony of a child victim alone is sufficient to support a conviction for

. . . [ continuous ] sexual assault. ” See All en v. Sta te , 4 36 S.W.3d 815, 820 (Tex. App.

— Texarkana

201 4, pet. ref ’ d ) ; T E X

. C ODE C RIM

. P ROC

. A NN

. art. 38 .0 7

. The child victim in this cas e,
Karmen, 2 was fifteen years old at the time of trial and testified that she was sexually abused by
Starling from the time she was nine years old

. Karmen testifie d tha t , wh en s he was nine, Starling
would touch her vagina w i th his fi ngers while she was sleepin g. When she was ten, Starling
showed her “porn videos of things he want ed to try” and “wo uld start putting his mouth on [her]

chest.” When she was “[a]round ten, goi ng int o 11,” Karmen said that Starling made her
perf o rm oral s ex on him and performed oral sex on her “[t]oo many [times] to count.” Karmen

testified th at , w hen she was “[e]leven, going on 12,” Starling began having sex with her
,
sometimes more th an on ce a week

. Whe n she was fourteen, Starling penetrated h er anus w ith his
fingers and penis. Karmen described Starling’s abuse in d etail for the jury.
Although S tar ling denied th e allegations, Karmen’s testimony was supported by Detri ece
Fisher, an eigh th

- gr ade counse l or at Marshall Junior High School, who t estifie d that Karmen said

she had been having sex with Starlin g

. Christie Glenn

- Moore, a Child ren ’ s Advo cacy Cen ter
(CAC) program director , testified that Karmen made the following statements during her C AC

in terv i e w:

She stated that she was raped by Ken d rick Starlin g.

She stated that there were different inc idences of his penis entering in her vagina. The re were incidences of his penis entering her mouth. There were instances of his penis in her an us. Th ere w e re instances of her being made to put

- - to do oral s ex , you know, which was her mouth to his peni s.

2 To prot ec t her identity, we use a pseudony m for the chi ld victim. See T EX

. R. A PP

. P. 9.10.7

According to Glenn

- Moore, Karmen tes tified that th e differ ent forms of sexual abuse occurred

more than once and “started when she was nine

. ” Su san Ca maz i ne, a sexual assault nurse

examiner (SA N E)
, also test if ied that Karmen said she was raped by Starling “more than 100

times s ince [she] was nine until 13 ” and testified about the details given to her by Karmen during

the SANE examination

. 3 Trac y Moore , a l icensed p rofessional counselor at the C A C, testified

about Karm en ’ s detail ed statements of sexual abuse by Starling and h er treatment plan.

Here, g iven the relati vely mild nature of the State ’ s remarks , the trial court’s c urative
instruction, a nd th e st r engt h of the State ’ s evidence
, we find t hat Starling d id n ot suffer non

constitutional harm

. See T EX

. R

. A PP

. P. 44.2(b). As a result, we ove rrule his first point of error.

II. Starling Failed to Preserve His Remaining Po int of Error

The reco rd in thi s cas e show s that one of the jurors, Terr i Sparks , remai ned in the jur y

room after a verdict was reached due to a medical issue. The trial court announced that the jury
had reached a verdict of guilt, which prompte d Starling t o request that the ju ry be po l led. All of
the jurors, except for Spa r k s, answered th at they had found Starling guilty o f the offense beyond

a reasonable doubt. As for Sparks, couns el agreed to allow the trial court to question h er in the
ju ry room and report her answ er in open cou rt

. Then, the fo llowing occurr ed:

THE COU R T: For the r ecord, the Court has questioned Ms. Sparks, and she is unable to respond at this ti me. She indicat es I can ’ t do this, so we have EMT ’ s checking on her health at this time.

We ’ ll be i n rec ess.

3 In supp ort of h is defense, Starling hired a n expe r t witness wh o had not met Karmen to c on t r adict Camazine’s methodology and SANE report.8 (Re ce s s taken.)

THE CO URT: All right. We a r e back on t he record.

Ms. S parks indicated that is not her verdict, and as such, we do not have a verdict in t his case, and so based on what the EMT ’ s have i ndicated, we will be recessing, and I wi ll al low her s om e time to recuperate, and then they will begin delib er ations again in this matter.

. . . . [BY THE DEFENSE]: Your Honor, I would ask the Cou rt to dec lare a mistrial. She

-- and I understan d they still need to deliberate; unfortunately, the medical i ss u e sh e is unable to contin ue.

You w ou l d be asking t hem to put

-- it could be days, hopefully not weeks, but it could be a significant amount of time b efore she may be able to participate again.

Th at would be

- - I do not believe that wou ld be fair and d u e proc ess, and so I ask the Co urt to de c lare a mist ri al based upon you would be ordering them to deliberate again and continue to deliberate, and she ca nnot do that.

THE COURT: Actually I think we ’ re

-- I ’ m goi ng to deny your motion for a mis trial, an d I ’ m goi ng to

-- I mean, I think we ’ re go i ng to start a gain Monday. I ’ ll give her through the weekend, and we ’ ll see how she ’ s doing at that time, and we ’ ll resume deliberations at that time.

The tri al court disc harged the jury with instru ction s to retu rn after the weekend. 4 Wh en the trial

rec o nvened, the t rial court ins tructed the jury to resume deliberation because its prior verdict was

not unanimous

. Following those deliberations, the jury returned a un animous verdict of guilt, as

indi cated by a sec on d jury pol l.

4 “ The State and the defendant each have the right to have the ju ry polled, wh ich is done by calling separately the

name or i dentif

icat ion number of each juror and ask i ng the juror if the verdict is the ju ro r ’ s. ” T EX

. C ODE C RIM

. P ROC

. A NN

. art. 37.05(a) (Supp.) . “[I] f any jur or answe rs in the negative, the jury shall retire again to consider its verdict. ” Id.9

At trial, Starling sough t a mistrial o n the ground that a lengthy delay in the trial would be

unfair and could viola te his due process ri ghts. On appeal, Starling argues that th e trial court ’s
failure to grant a mistrial wa s an act t h at ha d a coercive effect on jury deliberation

. T he State

a rgues that Starling did not prese rve his appellate argument for our review, an d we agree.
A “point of error on appeal must comport with the objection ma de at trial.” Wilson v.

State , 7 1 S.W .3d 3 4 6, 34 9 (Tex. Crim. App. 2002); see Swain v. S t ate , 181 S. W. 3d 359, 368
(Tex. Crim. App. 2005 ). As stated in Resendez v. State , 306 S.W.3 d 308 (Tex. Crim. App

. 2009),
Rule 33.1(a) of the Texas Rules of Appellate Procedure provides that a complai nt is not p res er v ed for appeal unless it was made to the tri al court “ by a timely request, objection or motion” that “stated the grounds for the rul ing that the complain ing party sought from the trial court wit h sufficient specificity to make the trial cou rt aw are o f th e c omplaint, unless the specific grounds w e re apparent f rom the context.”

Id. at 312 (quoting T EX

. R. A PP

. P. 33.1 (a)(1)(A)).

“The purpose of requiring a specific objection in the trial court is twofold: (1) to inform

t he tr ial j udge of the basis of th e objection and give him t he opportunity to rule on it ; [and] (2) to
give opposing counsel the opportunity to respo nd to the complain t.” Id. As explained in

Resendez
, Although there are no te chnical consi derations or for ms of word s re quired to preserve a n error for appeal, a par ty must be spe c ific enough s o as to “let th e trial judge know what he wants, why he think s himself entitled to it, and do so clearly enough for the judge to understand him at a time when the trial court is i n a proper position to d o something about it.”

Id. at 312

– 13 (quoting La nk ston v. State , 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)).
Because Starling’s trial objection did not notify the trial court of any compla int regarding a10

coercive effe ct on jury del iberation, we find t hat Starling’s remaining appellate argu m ent is

unpr es erve d. As a result, we overrule it. 5

III. Disposition

We af firm the trial cou rt’s judgment.

Jeff Rambin Justice

CONCURRING OPINION

In S ection I of the major ity o pini on, w e assume that defense counsel’s objecti ons should

have been sustai ne d and turn to the question of harm. The majority then addres ses the three

Mose ly factors. I agree with the majority’s analysis of the firs t and third f actors. Regardi ng th e

se c ond facto r, I do not f i nd a curative instruction . The State ’ s c omment s, in sum, accused

defense counsel of misdirection , twice. T he re was no curative instruction from the trial court in
direct response to the State ’ s statements becaus e Starling ’ s object ions were overruled

. T h e later
,
standa rd instructions to the ju r y that “[s]tatements made by the lawyers are not evidence” an d
that “[e]vidence consists of the testimony of the w itnesses and materials admitted into evidence ”

did not addr ess t he i mprope r argument because that ar g ument had no thing to do with facts or

ev i dence

.

5 To the extent t h at St arling ’s b rief raises a challenge t o the t rial court’s denial of his mot io n for a mistri al, it is overruled because “[t] he trial court is not bound to decl are a mistrial at the first sign of jury impas se, and there is no set time for jury deliberation. ” Fry er v. Stat e , 580 S.W.3d 300, 306 (Tex. App

. — Houston [14th Dist.] 2019, n o pet.)

.11

Nonetheless, the majority correctly analyzes the firs t and third fact or s , and the third
factor weighs heav ily against A ppellant’s point of error. I therefore jo in in the majo rity’ s

conclusion

. I also join i n the balance of the majority opinion.

Charles van Cleef Justice

Date Submitted: August 29, 2023 Date Deci ded: August 3 0 , 2023

Do Not Publi sh