Kuhn v. State
| Decision Date | 31 January 2013 |
| Docket Number | NO. 03-11-00041-CR,03-11-00041-CR |
| Parties | Bill Boyd Kuhn, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
Bill Boyd Kuhn, Appellant
v.
The State of Texas, Appellee
NO. 03-11-00041-CR
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
Filed: January 31, 2013
A jury convicted appellant Bill Boyd Kuhn of one count of the offense of continuous sexual abuse of a young child and twelve counts of the offense of indecency with a child. See Tex. Penal Code Ann. §§ 21.02, 21.11(a)(1) (West 2011). Punishment was assessed at life imprisonment for the continuous-sexual-abuse offense and twenty years' imprisonment for each count of the indecency offense, with the sentences to run concurrently. In five points of error on appeal, Kuhn complains of various errors in the jury charge, asserts that defense counsel rendered ineffective assistance by failing to object to certain statements made by the prosecutor during closing arguments, and claims that there is a statutory bar to his convictions for the offense of indecency with a child. We will affirm the judgments of conviction.
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In count one of the indictment, Kuhn was charged with committing two or more acts of sexual abuse against his biological daughter, M.K. The underlying acts of sexual abuse that Kuhn was alleged to have committed against his daughter were:
• intentionally or knowingly causing the penetration of the female sexual organ of M.K. with Kuhn's hands or fingers (aggravated sexual assault);
• intentionally or knowingly causing the penetration of the female sexual organ of M.K. with M.K.'s hands or fingers (aggravated sexual assault);
• engaging in sexual contact with M.K. by touching the genitals or parts of the genitals of M.K. with Kuhn's hands or fingers with the intent to arouse or gratify his sexual desire (indecency with a child);
• engaging in sexual contact with M.K. by touching the genitals or parts of the genitals of M.K. with M.K.'s hands or fingers with the intent to arouse or gratify his sexual desire (indecency with a child);
• engaging in sexual contact with M.K. by touching the genitals or parts of the genitals of M.K. with M.K.'s hands or fingers with the intent to arouse or gratify M.K.'s sexual desire (indecency with a child).
In counts two through thirteen of the indictment, Kuhn was charged with committing the offense of indecency with a child by contact on or about the first day of each month from January through December 2009. Specifically, in each count, Kuhn was charged with touching M.K.'s breasts with his hands.
M.K., who was twelve years old at the time of trial, testified during trial that Kuhn had touched her breasts, her "backside," and her "private parts" on multiple occasions "as long as [she could] remember" and "pretty much all [her] life." In addition to M.K.'s testimony, the jury also considered Kuhn's videotaped statement to Detective Wayne Lehman of the Comal County
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Sheriff's Office. In the statement, a copy of which was transcribed and admitted into evidence, Kuhn admitted to committing some of the alleged acts but denied others.1 Three witnesses testified for the defense, each of whom claimed that they did not believe Kuhn was capable of committing the acts of which he had been accused. The jury found Kuhn guilty of all counts as charged. Punishment was before the district court, and the district court assessed punishment as noted above. This appeal followed.
Charge error
In his first three points of error, Kuhn complains of various errors in the jury charge. We review claims of jury charge error under the two-pronged test set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g); see Swearingen v. State, 270 S.W.3d 804, 808 (Tex. App.—Austin 2008, pet. ref'd). We first determine whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Swearingen, 270 S.W.3d at 808. If error exists, we then evaluate the harm caused by the error. Ngo, 175 S.W.3d at 743; Swearingen, 270 S.W.3d at 808. The degree of harm required for reversal depends on whether that error was preserved in the trial court. When error is preserved in the trial court by timely objection, the record must show only "some harm." Almanza, 686 S.W.2d at 171; Swearingen, 270 S.W.3d at 808. By contrast, unobjected-to charge error requires reversal only if it resulted in "egregious harm." See Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008).
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Acts predating the continuous-sexual-abuse statute
The offense of continuous sexual abuse of a young child became effective on September 1, 2007, and the statute does not apply to acts of sexual abuse committed before that date. See Act of May 18, 2007, 80th Leg., R.S., ch. 593, §§ 1.17, 4.01(a), 2007 Tex. Gen. Laws 1120, 1127, 1148. In his first point of error, Kuhn contends that the jury charge was erroneous in potentially allowing jurors to convict him of that offense based on acts that he had committed prior to September 1, 2007. Specifically, in the abstract portion of the charge, the jury was instructed as follows:
The State is not bound by the specific date in the indictment that the offense is alleged to have been committed. A conviction may be had upon proof that the offense, if any, was committed at any time prior to the filing of the indictment that is within the period of limitations. The indictment in the instant case was filed on February 3, 2010. There is no period of limitations for the offenses [sic] of Continuous Sexual Abuse of a Child.
In a previous case, this Court found a similar instruction to be erroneous. See Martin v. State, 335 S.W.3d 867, 876 (Tex. App.—Austin 2011, pet. ref'd). At oral argument, the State essentially conceded that the charge in this case was erroneous for the reasons stated in Martin. See 335 S.W.3d at 875-76. Consequently, our disposition of Kuhn's complaint turns on whether harm exists.
Kuhn did not object to the form of the charge, so we apply the "egregious harm" standard—reversal is required only if the charge error was "so egregious and created such harm that the defendant 'has not had a fair and impartial trial.'" Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Almanza, 686 S.W.2d at 171). "In determining whether [a]ppellant was deprived of a fair and impartial trial, we review 'the entire jury charge, the state of the evidence,
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including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.'" Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011) (quoting Almanza, 686 S.W.2d at 171). "We will examine 'any . . . part of the record as a whole which may illuminate the actual, not just theoretical, harm to the accused.'" Id. at 489-90. "Errors which result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, vitally affect the defensive theory, or make a case for conviction clearly and significantly more persuasive." Id. at 490. "Egregious harm is a difficult standard to prove and such a determination must be done on a case-by-case basis." Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).
The evidence
Without evidence that Kuhn committed two or more acts of sexual abuse during a period that is thirty or more days in duration, and without evidence that those acts occurred after September 1, 2007, Kuhn could not validly be convicted of the offense of continuous sexual abuse of a child. See Tex. Penal Code Ann. § 21.02. Kuhn contends that the state of the evidence was such that there was no way for the jury to differentiate between the acts of abuse that Kuhn allegedly committed before the effective date of the statute and the acts of abuse that he committed after the effective date of the statute. Essentially, Kuhn contends that the evidence is insufficient to permit the jury to rationally infer that Kuhn had committed two or more of his acts of sexual abuse during a period of thirty days or more and after September 1, 2007.
However, when considering all of the evidence in its totality and in the light most favorable to the verdict, the jury could have reasonably inferred that Kuhn committed at least two acts of abuse after September 1, 2007. Kuhn was interrogated on December 30, 2009. During
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the interrogation, Kuhn told Detective Lehman that his daughter "started developing a year ago." From this evidence, the jury could have reasonably inferred that M.K. "started developing" in or around December 2008. The jury could have further inferred that December 2008 was the point at which Kuhn, according to what he had told Lehman, believed he should have stopped engaging in certain behaviors that Kuhn characterized as "checking" on his daughter, but did not stop. These behaviors included looking at his daughter while she was showering "to make sure that she's okay." Kuhn described this behavior as follows:
[Lehman]: How do you check her?...
[Kuhn]: But—visually.
[Lehman]: Okay.
. . . .
[Kuhn]: But not—I didn't examine her. I didn't throw her on a table and flip her over and—you know, it's not like that. I just made sure that she's not hurt and she's well.
[Lehman]: All right.
. . . . .
[Kuhn]: You know, it has nothing to
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