Bill Boyd Kuhn v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00041-CR

Bill Boyd Kuhn, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT

NO. CR2010-047, HONORABLE GARY L. STEEL, JUDGE PRESIDING

OPINION

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.

BACKGROUND

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.

ANALYSIS

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).

1

We discuss M.K.’s testimony and Kuhn’s statement in more detail below as they are

relevant to Kuhn’s points of error.

3

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,

4

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 do with sex, you know. And like I said,

you know, it—I realize now that I probably should have drawn a line

on dirt a long time before now, from talking to my sister. That I

should have drawn that line and instead of saying her period, what I

should have said is when she started puberty.

[Lehman]: A period is a period. I mean, you can call it what you want to. I

mean, it—but, you know—and I mean talking—

[Kuhn]: No. See, my point is—

[Lehman]: Uh-huh.

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[Kuhn]: —is that she started developing a year ago.

[Lehman]: Okay.

[Kuhn]: And I should have drawn a line in the dirt back then. Not put—put the

line in the dirt here, when it should have been here, (indicating).

....

[Lehman]: Okay.

[Kuhn]: You know, I just figured, “Well, you know, her period is her period

and this is going to be a breakoff point.” From talking to Sis, the

breakoff point should have been over here, (indicating), you know. It

should have been over here, (indicating).

[Lehman]: Okay.

[Kuhn]: When she started developing.

Also during the interview, Kuhn told Lehman that his daughter had “just started” her period recently,

and he claimed that this was the point at which he had stopped his behavior. Thus, the jury could

have reasonably inferred from Kuhn’s statements that whatever behavior Kuhn had engaged in, it

had continued after December 2008, when M.K. had “started developing,” and lasted at least until

M.K. had started her period, which, the jury could have reasonably inferred from Kuhn’s statements,

had occurred in late 2009.

Kuhn also provided statements regarding the specific behaviors in which he had

engaged. These behaviors included an incident in which, he claimed, he had taught his daughter how

to masturbate, and an incident in which he had rubbed baby oil on her breasts.2 According to Kuhn,

2

Under section 21.02, the incident involving M.K.’s breasts is not considered an act of

sexual abuse for the purpose of the continuous-sexual-abuse statute. See Tex. Penal Code Ann.

§ 21.02(c)(2) (West 2011). However, the jury could consider this incident as circumstantial evidence

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the incident with M.K.’s breasts occurred approximately “six-to-eight months, a year” prior to the

masturbation incident.3 Kuhn told Lehman that he would rub oil on M.K.’s breasts while they were

“just sitting on the couch watching T.V.” or “standing up in a bathroom in front of the mirror” after

M.K. would “get out of the shower.” Kuhn also described the masturbation incident in detail,

claiming that it occurred “over a period of like three weeks of [M.K.] being relentless” in asking

Kuhn to explain masturbation to her. According to Kuhn, he “put baby oil on her hand” (which,

Kuhn claimed, M.K. “used to love” have “rubbed on her back . . . from when she was little bitty”),

take her hand, and then rub her hand on her genitals. Kuhn claimed that he was “trying to keep my

little girl from hurting herself.” Kuhn also admitted that when he and M.K. were sitting together on

the couch watching television, he would sometimes “rub her little back,” “rub her little butt,” and

“rub her leg.” Kuhn described this behavior as “petting” his daughter.

Although Kuhn did not provide specific dates regarding any of the above

incidents, the jury could have reasonably inferred that these and other incidents had occurred after

September 1, 2007, based in part on M.K.’s testimony during trial. During the trial, which occurred

in October 2010, M.K. testified that she was born on July 6, 1998, that she was twelve years old,

and that she was currently in the seventh grade. She also testified that last year, she was in the

sixth grade. Based on the date of the trial, the jury could have reasonably inferred that M.K. was in

the sixth grade during the late summer and fall of 2009, which was, according to Kuhn’s statements,

around the same time that M.K. started having her period.

that Kuhn had, after September 1, 2007, engaged in other conduct that could form the basis for his

conviction. See Martin v. State, 335 S.W.3d 867, 876 (Tex. App.—Austin 2011, pet. ref’d).

3

Assuming that the masturbation incident occurred at some point in 2009, which the

evidence suggests that it did, this would mean that the breast-rubbing incident, if it occurred when

Kuhn said it did, occurred at some point after September 1, 2007.

8

M.K. testified that around the time when she was in the sixth grade, her best friends

were S., B., and C., three girls who were approximately her age (although M.K. testified that C. was

younger than her, “somewhere between nine or eleven” years old). According to M.K., these friends

would often come over to her father’s house and spend the night there. M.K. testified that she and

her friends would also go swimming in the river on many occasions and that, when they returned to

her father’s house, they would sometimes take showers together. On more than one occasion, M.K.

testified, her father would “peek inside” the shower curtain and look at them. It was after one such

shower, M.K. explained, that her father “started teaching” her “how to masturbate.” According to

M.K., Kuhn first told her to take off her clothes, and then he “started touching [her]” on her “private

parts” with his hand. When asked if Kuhn had anything on his hand at the time, M.K. testified that

“he put Vasoline on.” M.K. also testified that her sixth-grade friends were present when this incident

had occurred.4

The other incidents of abuse that M.K. described were not associated with specific

dates. However, M.K. testified that they occurred more than ten times, and that they occurred in

both her father’s bedroom while he was making her sleep in his bed with him and in the living room

on the couch while they were watching television together. According to M.K., these incidents

involved Kuhn touching her breasts and her “private parts” with his hands on numerous occasions.5

4

On cross-examination, M.K. testified that she was friends with two of the girls for “about

a year,” and with the younger girl for “more than two years.” Thus, although the exact date when

this incident occurred was not specified, because all three of M.K.’s friends were present at the time

it occurred, the jury could have reasonably inferred that this particular incident must have occurred

after September 1, 2007.

5

M.K. also testified that Kuhn had touched her private parts with his mouth. According to

M.K., this happened “more than once. Sometimes in the summers. Sometimes the end of school.

It just happened all sorts of times.” This was uncharged conduct that could not form the basis for

Kuhn’s conviction for the offense of continuous sexual abuse of a child. Again, however, similar

9

M.K. testified that the incidents occurred “pretty much all [her] life” and “as long as [she] can

remember.” The jury could have reasonably inferred that at least some of the above incidents

occurred after September 1, 2007, based on Kuhn’s detailed statements to Lehman regarding his

behavior combined with M.K.’s testimony relating to her period and how the abuse had occurred

“before” she got her period:

Q. Do you remember when you got your period?

A. I know it was last year. I don’t know exactly when.

Q. Okay. [M.K.], did your dad ever touch your private parts before your period?

A. Yes.

Q. Did he ever touch your breasts before you got your period?

A. Yes.

Q. Did he ever touch your backside before you got your period?

A. Yes.

Q. Was it one time or more than one time?

A. More than once. We’re talking about like a time period before or right

before?

Q. How about describe to me how long—

A. I’m not sure, but I was talking about a time period before.

to the breast-rubbing incident discussed above, the jury could consider this conduct as circumstantial

evidence that Kuhn had engaged in other conduct that could form the basis for his conviction. See

Martin, 335 S.W.3d at 867.

10

Although M.K. did not provide specific date references in her testimony, based on Kuhn’s statements

that he had continued “checking” on his daughter in the shower after she had “started developing,”

and also based on M.K.’s testimony that her father had taught her to masturbate in the presence of

her sixth-grade friends, the jury could have reasonably inferred that M.K. was referring in her

testimony to events that occurred before she got her period in 2009 but after she had “started

developing” in December 2008. Accordingly, the jury could have reasonably inferred from the

totality of all the evidence in this case, both direct and circumstantial, that Kuhn had committed

two or more acts of abuse during a period that was 30 days or more in duration, and that those acts

occurred after September 1, 2007.

We also observe that the specific issue relevant to the charge error in this case, i.e.,

whether the abuse had occurred before or after September 1, 2007, was not a heavily contested issue

during trial.6 Kuhn’s defensive theory at trial was not that some of the abuse had occurred prior to

the effective date of the statute and thus could not form the basis for his conviction. Rather, Kuhn

denied that he had committed any of the charged offenses, including the continuous-sexual-abuse-of-

a-child offense, because he lacked the requisite intent and because M.K. was either lying or had

been manipulated by others. If Kuhn had contested the issue of whether the abuse had occurred

before or after the effective date of the statute, perhaps the State would have spent more time

developing M.K.’s testimony regarding the specific dates when the abuse had occurred. But the

record reflects that Kuhn focused his defense not on the timing of the incidents but on attacking the

6

In a motion for directed verdict that Kuhn urged after the State had rested its case, Kuhn

briefly asserted that the State failed to show “when things happened” for purposes of the continuous-

sexual-abuse statute. However, Kuhn did not elaborate further on this point, the district court denied

the motion, and, in Kuhn’s closing argument, he did not address the timing issue. Nor did he address

the timing issue in his opening statement.

11

credibility of the victim. The fact that the timing issue did not “vitally affect a defensive theory” also

weighs against a finding of egregious harm. See Kucha v. State, 686 S.W.2d 154, 156 (Tex. Crim.

App. 1985); see also Williams v. State, 851 S.W.2d 282, 289 (Tex. Crim. App. 1993) (no egregious

harm where charge error affected issue that “was not a hotly-contested issue at trial” and thus “had

minimal impact on appellant’s trial”).

Finally on this point, we observe that the weight of the probative evidence in this

case is substantial. M.K. testified to numerous acts of sexual misconduct that Kuhn had committed

against her throughout the course of her life, and Kuhn admitted to committing at least one such

criminal act (the masturbation incident) and also admitted to other conduct (the breast-rubbing

incident) that, although not considered criminal under section 21.02, is considered criminal under

another statute, see Tex. Penal Code Ann. § 21.11, and is, at the very least, circumstantial evidence

that Kuhn had engaged in other conduct that was criminal under the statute. See Martin, 335 S.W.3d

at 876. While some of the events that M.K. described likely occurred before September 1, 2007, we

cannot conclude on this record that the jury would be unable to infer that at least two acts of abuse

occurred after that date simply because the State did not elicit more detailed testimony from the child

victim. See Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990) (“[W]e cannot expect

the child victims of violent crimes to testify with the same clarity and ability as is expected of mature

and capable adults.”); Newby v. State, 252 S.W.3d 431, 436 (Tex. App.—Houston [14th Dist.] 2008,

pet. ref’d) (“Courts give wide latitude to testimony given by child victims of sexual abuse.”);

see also Williams v. State, 305 S.W.3d 886, 890 & n.7 (Tex. App.—Texarkana 2010, no pet.)

(suggesting that inability of child victims of abuse to articulate specific times when abuse occurred

is “[a]rguably . . . precisely the kind of situation the Legislature considered when enacting

12

Section 21.02 of the Texas Penal Code”). The state of the evidence in this case weighs heavily

against a finding that Kuhn was denied a fair and impartial trial.

The entirety of the jury charge

The first paragraph of the jury charge correctly instructed the jury that

The Defendant, BILL BOYD KUHN, stands charged by Count 1 of the indictment

in Cause No. CR2010-047, with the offense of Continuous Sexual Abuse of a Young

Child, alleged to have been committed on or about the 1st day of September, 2007,

through on or about the 16th day of December, 2009, in Comal County, Texas.

Thus, the opening paragraph in the charge expressly reminded the jury of the relevant time period

in the case. Moreover, the erroneous abstract portion of the charge was immediately followed by

an application paragraph that correctly instructed the jury that in order to convict Kuhn, the jury

must find beyond a reasonable doubt that Kuhn, “on or about the 1st day of September, 2007,

through on or about the 16th day of December, 2009, in the County of Comal and State of Texas,

did then and there, during a period that was 30 days or more in duration, commit two or more acts

of sexual abuse against [M.K.].” The application paragraph is that portion of the charge which

authorizes the jury to act. Hutch, 922 S.W.2d at 172 (citing Jones v. State, 815 S.W.2d 667, 669

(Tex. Crim. App. 1991)). In different contexts, Texas courts have repeatedly held that where the

application paragraph of the charge correctly instructs the jury on the law applicable to the case,

this mitigates against a finding that any error in the abstract portion of the charge was egregious.

See, e.g., Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); Patrick v. State, 906 S.W.2d

481, 492-93 (Tex. Crim. App. 1995); Hughes v. State, 897 S.W.2d 285, 296-97 (Tex. Crim.

App. 1994); Toler v. State, 546 S.W.2d 290, 293-94 (Tex. Crim. App. 1977); Bazanes v. State,

13

310 S.W.3d 32, 39 (Tex. App.—Fort Worth 2010, pet. ref’d); Williams v. State, 226 S.W.3d 611,

618 (Tex. App.—Houston [1st Dist.] 2007, no pet.). While the application paragraph does not make

the abstract portion of the charge any less erroneous, see Martin, 335 S.W.3d at 874, on the facts of

this case, the correct statement of the law in the application paragraph mitigates against a finding of

egregious harm.

Additionally, the district court included a detailed limiting instruction in the jury

charge. The instruction informed the jury that the State had introduced evidence of other offenses

or bad acts committed by Kuhn other than the offense charged in the indictment and that the jury

could consider such evidence only for the purpose of aiding it in determining whether Kuhn, “on or

about the 1st day of September, 2007, through on or about the 16th day of December, 2009, in

Comal County, Texas, did then and there during a period that was 30 days or more in duration,

commit two or more acts of sexual abuse against [M.K.].” This instruction reduced the risk that the

jury would use any uncharged acts of abuse that occurred prior to September 1, 2007, to convict

Kuhn of the charged offense. Thus, the limiting instruction in the charge weighs against a finding

that Kuhn was denied a fair and impartial trial.

Arguments of counsel and other relevant information

During its closing argument, the State explained to the jury the specific requirements

for convicting Kuhn under the continuous-sexual-abuse statute:

A fairly new law is what they call continuous sexual abuse of a child. It was put into

the law September 1st, 19—or 2007. That’s why those dates are actually used in

the indictment. That’s when that law went into effect and that’s why that’s the date

I picked. That law didn’t exist before that time.

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And basically what they said—they made it a little different, but it says if we can

show that you committed two acts of sexual abuse against a child younger than

14 years of age and the period is over 30 days—so you have to have kind of an

ongoing sexual abuse of a child for a period over 30 days, then that is continuous

sexual abuse of a young child.

This argument correctly informed the jury that the law “went into effect” on September 1, 2007, that

the law “didn’t exist before that time,” and that this was the reason why “those dates are actually

used in the indictment.” Thus, this argument directed the jury’s attention to the effective date of the

statute and reminded the jury of the significance of the dates alleged in the indictment.

Later, the State also argued the following:

That’s the application period—paragraph, (indicating). There’s no question that this

took place between September 1st of 2007. Yes, it took place before then, but you

know what? He’s getting a break and that’s okay. But it is sure clear that more than

two times he sexually abused his daughter between September 1, 2007 and between

December 16th, 2009.

This argument drew the jury’s attention specifically to the application paragraph of the

charge—which contained a correct statement of the law applicable to the case—and reminded

the jury of the specific dates between which it must find that Kuhn committed two or more acts of

sexual abuse. Thus, the State’s closing argument weighs against a finding of egregious harm.

Additionally, at the beginning of trial, the State read the indictment to the jury,

and the indictment, similar to the application paragraph, contained a correct recitation of the law

applicable to the case. At that time, the jury was informed that Kuhn was charged with committing,

“on or about the 1st day of September 1, 2007, through on or about the 16th day of December 2009,

during a period that was 30 days or more in duration . . . two or more acts of sexual abuse against

15

[M.K.].” Thus, before the parties presented their opening arguments, the jury was made aware of

the relevant time period in the case.

On the other hand, throughout the course of the trial, including during opening and

closing arguments, the State emphasized the long-term nature of the sexual abuse and did not draw

a distinction between the acts of abuse that occurred before the effective date of the statute and the

acts of abuse that occurred after the effective date of the statute. Thus, this weighs in favor of a

finding of harm. However, because the abuse that occurred prior to the effective date of the statute

could permissibly be considered by the jury as circumstantial evidence of the abuse that occurred

after the effective date of the statute, see Martin, 335 S.W.3d at 876, and because the jury charge

contained a limiting instruction prohibiting the jury from considering the uncharged abuse for

impermissible purposes, this factor does not weigh heavily in favor of such a finding.

Conclusion regarding harm

Considering the above factors in their totality, particularly the state of the evidence

in this case, we cannot conclude that the charge error in this case deprived Kuhn of a fair and

impartial trial. We overrule Kuhn’s first point of error.

Predicate acts of abuse

In his second point of error, Kuhn contends that the court’s charge authorized a

conviction for the continuous-sexual-abuse offense based on predicate acts of abuse which,

according to Kuhn, could not constitute the underlying offenses of aggravated sexual assault or

indecency with a child. Specifically, Kuhn asserts that the allegation that he had intentionally or

knowingly caused the penetration of the female sexual organ of M.K. using M.K.’s hands or fingers

16

could not form the basis for an aggravated-sexual-assault conviction, and that the allegations that he

had engaged in sexual contact with M.K. by touching M.K.’s genitals using M.K.’s hands or fingers

to gratify M.K.’s sexual desire could not form the basis for an indecency-with-a-child conviction.

In other words, in Kuhn’s view, he could not validly be convicted based on allegations that M.K. had

penetrated or gratified herself, and the charge was erroneous in allowing the jury to convict him on

such a theory.

We disagree. The predicate acts of sexual abuse under the continuous-sexual-abuse

statute include the offenses of aggravated sexual assault of a child and indecency with a child

by contact. See Tex. Penal Code Ann. § 21.02(c)(2), (3). These predicate offenses, as defined in

the penal code, encompass the conduct charged in this case. A person commits the offense of

aggravated sexual assault if he intentionally or knowingly “causes the penetration of the anus or

sexual organ of a child by any means.” Id. § 22.021(a)(1)(B)(i) (West Supp. 2012) (emphasis

added). We are aware of no authority, and Kuhn cites to none, holding that the conduct element

of this offense cannot include using the child’s own hands or fingers to cause the penetration.

Accordingly, Kuhn could validly be convicted of the predicate offense of aggravated sexual assault

based on evidence that he had caused the penetration of M.K.’s sexual organ by using M.K.’s

own hands or fingers, and the charge was not erroneous in authorizing the jury to convict him on

such a theory.

Similarly, a person commits the offense of indecency with a child if he “engages in

sexual contact with the child or causes the child to engage in sexual contact.” Id. § 21.11(a)(1)

(emphasis added). “Sexual contact” means “any touching by a person . . . of . . . any part of the

genitals of a child,” “if committed with the intent to arouse or gratify the sexual desire of

17

any person.” Id. (emphasis added). Thus, by the plain terms of the statute, Kuhn could validly be

convicted of the offense of indecency with a child by contact based on evidence that he had caused

M.K. to touch her own genitals with the intent to arouse or gratify either his own sexual desire or

M.K.’s sexual desire, and the charge was not erroneous in authorizing the jury to convict him on

such a theory. We overrule Kuhn’s second point of error.

“Medical care”

During the charge conference, Kuhn requested an instruction on the defense of

medical care. See id. § 22.011(d) (West 2011); § 22.021(d). The district court denied the request.

In his third point of error, Kuhn asserts that he was entitled to the instruction and that the

district court erred by not including it in the charge.

“It is well settled that a defendant has a right to an instruction on any defensive issue

raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and

regardless of what the trial court may think about the credibility of the evidence.” Cocke v. State,

201 S.W.3d 744, 747 (Tex. Crim. App. 2006) (citing Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim.

App. 1999)); Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996); Miller v. State,

815 S.W.2d 582, 585 (Tex. Crim. App. 1991) (op. on reh’g). “This rule is designed to ensure that

the jury, not the judge, decides the credibility of the evidence.” Miller, 815 S.W.2d at 585; see also

Woodfox v. State, 742 S.W.2d 408, 410 (Tex. Crim. App. 1987) (“When a judge refuses to give an

instruction on a defensive issue because the evidence supporting it is weak or unbelievable, he

effectively substitutes his judgment on the weight of the evidence for that of the jury.”).

However, “[t]he issue of the existence of a defense is not submitted to the jury

unless evidence is admitted supporting the defense.” Tex. Penal Code Ann. § 2.03(c) (West 2011).

18

Therefore, if the evidence, when viewed in the light most favorable to the defendant, does not

establish the defense, the defendant is not entitled to an instruction on the issue. See Ferrel v. State,

55 S.W.3d 586, 591 (Tex. Crim. App. 2001); Granger, 3 S.W.3d at 38; Dyson v. State, 672 S.W.2d

460, 463 (Tex. Crim. App. 1984). “[T]he evidence must be such that it will support a rational jury

finding as to each element of the defense.” Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim.

App. 2007). In determining whether a defense is supported by the evidence, “a court must rely on

its own judgment, formed in the light of its own common sense and experience, as to the limits of

rational inference from the facts proven.” Id.

It is a defense to prosecution for the offense of aggravated sexual assault of a child

that the offending conduct “consisted of medical care for the child and did not include any contact

between the anus or sexual organ of the child and the mouth, anus, or sexual organ of the actor or

a third party.” Tex. Penal Code Ann. §§ 22.011(d); 22.021(d). Kuhn asserts that the defense of

medical care was raised by various statements he had made to Detective Lehman explaining how

M.K.’s genitals were “raw” from what Kuhn claimed to be excessive masturbation and describing

how he had taught M.K. to masturbate so that she would not continue to “hurt herself.” Specifically,

the following statements were made:

[Lehman]: When—let me—let me go backwards just a little bit on the

masturbation issue. Did she ever talk to you or tell you that she had

been masturbating?

[Kuhn]: Oh, yeah.

[Lehman]: Okay.

[Kuhn]: That’s what I’m saying. She’s relentless.

[Lehman]: Okay.

19

[Kuhn]: You know, she would come and her little polly would just be raw.

[Lehman]: What’s a polly?

[Kuhn]: Her—her privates.

[Lehman]: Okay.

[Kuhn]: Her vagina—

[Lehman]: All right.

[Kuhn]: —would just be raw.

[Lehman]: Okay.

[Kuhn]: And I said, “[M.K.], it’s not a tom-tom. You don’t beat on it. You

know what? What”—you know. So, I mean, that’s what I’m saying.

It’s just a progression of just—she just didn’t let that one go.

[Lehman]: Okay. Well, when you say it was beat up, what did you tell her? I

mean, did you direct her or show her how—

[Kuhn]: Yeah.

[Lehman]: —to do it differently? Or—

[Kuhn]: Yeah, I told her. I mean, that’s what started the whole big thing, I’m

sure. I said, “[M.K], it’s—you know, it’s not a tom-tom. You don’t

beat on it and you don’t, you know—you—you’re being too rough.”

[Lehman]: How did she correct it or did she?

[Kuhn]: Well, I introduced her to—to baby—baby oil.

[Lehman]: Okay.

[Kuhn]: “Baby, put some baby oil on your fingers. You know, don’t—it’s not

a tom—don’t be so damn rough. I mean, you know, it’s not a

tom-tom,” you know.

....

20

[Lehman]: Well, when you introduced her to baby oil, how did you introduce her

to baby oil? Tell me about that.

[Kuhn]: I put baby oil on her hand.

....

[Lehman]: Did you tell her where to touch—

[Kuhn]: Yeah—no.

[Lehman]: —or did you show her where to touch?

[Kuhn]: You know what? Yes.

[Lehman]: “Yes” what?

[Kuhn]: Yes, to both questions.

[Lehman]: Okay.

[Kuhn]: I took her little hand and I put it on her. I said, “Baby, here. Don’t be

rough. Look at—you’re raw. You’re hurting yourself”—

[Lehman]: Okay.

[Kuhn]: —you know. It was not sexual. You need to understand, it was

not—it had nothing to do with sex. It had to do with her hurting

herself—

....

[Lehman]: When you put the baby oil on her hands or on her fingers, did you—

you showed her where to touch. Did you actually touch her or did

you just tell her to put her hand there or what? How—tell me what

she—what happened.

[Kuhn]: Give me your hand.

(Mr. Kuhn takes Detective Lehman’s hand)

[Kuhn]: I’m not going to do anything. (Indicating). I’m going to say,

“[M.K.], right there. You don’t beat on it. You don’t bang on it.”

21

[Lehman]: Okay.

[Kuhn]: It’s—it’s tender.

[Lehman]: Okay.

[Kuhn]: You know, just don’t.

[Lehman]: All right. Where was “right there”?

[Kuhn]: Her polly. On her little—on her little clit.

[Lehman]: On her clit. Okay. All right. And what did she do when you showed

her that? Did she understand?

[Kuhn]: Uh-huh.

[Lehman]: Okay.

[Kuhn]: . . . . You know, you’re just not there for the whole thing. And my

frustration, you know. And now—I mean, at the time—I’m trying to

keep my little girl from hurting herself.

Later during the interview, Lehman returned to this subject and Kuhn made additional statements

concerning his conduct:

[Lehman]: [Earlier,] you explained that you were rubbing her fingers or causing

her fingers—

[Kuhn]: Yes. Yes.

[Lehman]: —to rub on her clitoris, the purpose of that was to teach her how to

masturbate so that she wasn’t harming herself.

[Kuhn]: Right.

[Lehman]: Okay.

[Kuhn]: To teach her—it’s not necessarily to teach her how to masturbate.

You’re—there again, you’re out of context. The—the deal is to teach

her not to hurt herself—

22

[Lehman]: Okay.

[Kuhn]: —while—what you have—while she’s masturbating.

[Lehman]: Okay.

[Kuhn]: Yes. Yes. In that context, yes. What you have to understand is that

she’s hurting herself.

[Lehman]: Okay.

[Kuhn]: And I don’t want her to hurt herself. I can’t stop this from happening.

You know, you can’t be in her room. You can’t watch her 24 hours

a day. You cannot control them. All you can do is guide them as best

you can.

....

[Lehman]: Okay.

[Kuhn]: —you know. And that’s what you need to understand is that if you

take something that I say and you take it out of context, you know—

[Lehman]: But that’s what we’re talking about. I’m trying not to take it out of

context.

[Kuhn]: Well, don’t. I mean, don’t take this out of context. Don’t twist this.

Do I know it’s wrong? Yes, now I know that it’s wrong. In my mind,

I justify it. I’m just doctoring her.

We must determine whether the above statements, when viewed in the light most favorable to the

defendant, would support a rational jury finding that Kuhn’s conduct constituted “medical care.”

The statute itself does not define the term “medical care.” However, the court of

criminal appeals has recently construed the term and provided some guidance on the situations

in which it applies. See Cornet v. State, 359 S.W.3d 217 (Tex. Crim. App. 2012). In Cornet, the

defendant was charged with, among other things, digitally penetrating the genitals of his step-

daughter. Id. at 217-18. During Cornet’s interview with the police, he essentially admitted to

23

penetrating his stepdaughter on one occasion, but he claimed that he had done so only because he

suspected that his stepdaughter was a victim of sexual abuse by her brothers and thus wanted

to examine her for “any physical evidence of sexual contact or injury.” Id. at 218-19. During the

charge conference, Cornet requested that the jury be instructed on the medical-care defense, and the

trial court denied the request. Id. at 219-20. The intermediate appeals court agreed that Cornet was

not entitled to the instruction because, among other reasons, it did not believe the defense was meant

to apply to situations in which a parent suspects sexual abuse and proceeds to examine the child’s

genitals “without any medical education, training, or experience.” Id. at 220.

The court of criminal appeals disagreed. A majority of the court held that the

availability of the defense does not turn upon “the accused’s familiarity with the science of

medicine” and thus can be claimed by individuals who are not medical professionals. Id. at 221-22.

The court explained that “[t]he text of the statute makes it abundantly clear that it is the nature of the

‘conduct,’ not the occupation of the actor, that characterizes the availability of the defense” and that

“the defense should apply to all persons, health-care professional or not, who can otherwise validly

claim the defense based on their conduct.” Id. at 222.

Additionally, a plurality of the court addressed “the question of whether the defense

is available when the penetrative conduct consisted of a ‘mere’ medical inspection.” Id. at 222. The

plurality, construing the meaning of the term “medical care,” concluded that it did. The plurality

defined the modifier “medical” as “of, relating to, or concerned with physicians or the practice of

medicine” and further defined “medicine” as “the science and art dealing with the maintenance of

health and the prevention, alleviation, or cure of disease.” Id. at 222-23 (quoting Webster’s Third

New International Dictionary 1402 (2002)). Based on these definitions, the plurality reasoned

24

that “if indeed the Legislature intended to include examinations as protected conduct under the

defense, there is a strong inference, from the Legislature’s inclusion of the word ‘medical,’ that the

Legislature sought only to protect examinations insofar as they are medically relevant—that is,

relevant to the state of the child’s health and well-being.” Id. at 223.

The plurality then went on to consider the meaning of the term “care,” noting that

“we must be cautious” in limiting the term’s meaning “to definitions of the word that make sense

in the context of the phrase ‘medical care.’” Id. at 223. “To that end,” the plurality defined “care”

as “CHARGE, SUPERVISION, MANAGEMENT: responsibility for or attention to safety and

well-being <under a doctor’s ~>[.]” Id. (quoting Webster’s Third New International Dictionary

338). The plurality then concluded that “even the simple inspection of a child’s anatomy, if

conducted for medical purposes, is consistent with the ‘responsibility for or attention to the safety

and well-being’ of that child.” Id. The plurality explained:

Surely the Legislature meant for the medical-care defense to immunize from

prosecution medically trained professionals who examine victims of child sexual

assault for medically motivated purposes. A parent or other person in loco parentis

ordinarily assumes at least as great a responsibility for the safety and medical

well-being of his child. We think it would dishonor the legislative intent, expressed

in its very choice of words, to construe the phrase “medical care” so rigidly as to

exclude inspections, whether conducted by trained medical personnel, by a parent,

or by another adult acting in loco parentis, when those inspections are undertaken for

the medical benefit of the child.

Id. (emphasis added). The plurality also rejected the State’s contention that the defense should be

limited to “medical treatment.” Id. If the Legislature had intended such a limitation, the plurality

reasoned, “it would have expressly adopted the language of ‘medical treatment,’” which the

Legislature had used elsewhere in the penal code. Id.

25

Having determined that the medical-care defense applied to a parent’s medical

inspection of a child’s genitals, the plurality went on to find that the evidence presented at trial raised

this defense. Id. at 223-24. The plurality explained that in his written statement, the defendant

claimed that he had examined the child “‘to see if she had any physical evidence of sexual contact

or injury,’ and that the examination came to a halt once he ‘determined there was nothing wrong with

the child.’” Id. at 224. Also in his statement, the defendant indicated “that he had good reason to

suspect that the child had been abused before,” which, the plurality reasoned, made “an examination

of the area all the more likely to turn up signs of abuse.” Id. Additionally, at trial, the defendant

testified that in conducting his examination of the child’s genitals, he “wanted to find out that she

was okay,” and that he “just wanted to take a look to see if there was any swelling, any scarring, any

indication externally that she had been injured.” Id. The plurality concluded that “[t]his evidence,

if believed by the jury, would support a rational inference that the appellant’s touching of the child

was, in fact, an inspection for a medically relevant purpose.” Id.

The plurality further concluded that the doctrine of confession and avoidance

applied to the medical-care defense. Id. at 224. “A defense subject to the doctrine of confession and

avoidance is one in which ‘a defendant admits allegations but pleads additional facts that deprive

the admitted facts of an adverse legal effect.’” Id. (quoting Black’s Law Dictionary 339 (9th ed.

2009)). The plurality found that the defendant, in his statements, sufficiently admitted to penetrating

his step-daughter’s sex organ in order to entitle him to the defense. Id. at 226-28.

In this case, we similarly find that Kuhn, in his statements, admitted to penetrating

M.K.’s genitals. Specifically, he admitted to causing M.K.’s hand to touch her sex organ in order

to teach her how not to hurt herself while masturbating. Such touching constitutes penetration. See

26

id.; Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). Thus, Kuhn’s admission would

entitle him to the medical-care instruction if a jury could rationally infer from the evidence that his

admitted conduct constitutes “medical care” as the Legislature used the term in the statute.

However, even when viewed in the light most favorable to the defendant, we cannot

conclude that the evidence in this case would support a rational jury finding that Kuhn’s conduct

constituted “medical care.” Unlike in Cornet, Kuhn made no statements tending to show that he was

examining or inspecting his daughter’s genitals in order to determine if she had been abused or

injured. Although Kuhn repeatedly stated that he had observed M.K.’s genitals to be “raw,” he made

no statements tending to show that his conduct was for the purpose of diagnosing the cause of,

ascertaining the extent of, treating, or otherwise examining the rawness for signs of injury, disease,

or abuse. Instead, Kuhn claimed that he was teaching M.K. how to masturbate properly so that

she might not hurt herself in the future. And, despite Kuhn’s claim that he was “doctoring” M.K.,

he presented no evidence tending to show that teaching his daughter how to masturbate was for

a medically relevant purpose. Rather, Kuhn acknowledged in his statement that the purpose of

masturbation was “to please yourself” and to “self-gratify.” Whatever conduct “medical care” might

encompass in other contexts, we cannot conclude that the Legislature conceivably could have

intended to encompass coaching a child regarding masturbation techniques. See Cornet, 359 S.W.3d

at 223 (reasoning that Legislature sought only to protect conduct that is “medically” relevant

to child’s health and well-being and conduct that confers “medical” benefit on child). To hold

otherwise would imply a range of absurd consequences that the Legislature could not possibly

have intended. For example, a father could admit to digitally penetrating his daughter’s sex organ

but be entitled to the medical-care instruction if he claimed that he did so to teach his daughter

27

about a “safe” method of having sexual intercourse that would prevent her from becoming

pregnant or contracting sexually transmitted diseases. Accordingly, the district court did not err

in denying Kuhn’s request for the instruction. See Burleson v. State, 791 S.W.2d 334, 338-39

(Tex. App.—Austin 1990), pet. dism’d, improvidently granted, 819 S.W.2d 537 (Tex. Crim. App.

1991) (concluding that defendant was not entitled to medical-care instruction when defendant

admitted that he had committed sex acts with child in order to satisfy child’s “abnormal interest in

sex,” but there was no evidence tending to show that defendant thought he was providing medical

care to child); see also Lynch v. State, 952 S.W.2d 594, 598 (Tex. App.—Beaumont 1997, no pet.)

(adopting “a fact specific case-by-case approach” in determining what constitutes “medical care” and

concluding on facts of that case that defendant’s penetration of child’s sex organ was not performed

for medical purposes); cf. Cornet, 359 S.W.3d at 230 (Cochran, J., dissenting) (“[B]efore appellant

would be entitled to an instruction on the ‘medical care’ defense, the trial court, and any reviewing

court, must conclude that, if the defendant’s version of events is believed, he is entitled to an

acquittal.”). We overrule Kuhn’s third point of error.

Ineffective assistance of counsel

In his fourth point of error, Kuhn asserts that he was denied the effective assistance

of counsel at trial. Specifically, he contends that counsel was ineffective in failing to object to

seven instances of what Kuhn characterizes as improper jury argument by the State.

To establish that he received ineffective assistance of counsel, Kuhn must prove by

a preponderance of the evidence that (1) counsel’s performance fell below an objective standard

of reasonableness, and (2) there is a reasonable probability that, but for counsel’s deficient

performance, the result of the proceeding would have been different. See Strickland v. Washington,

28

466 U.S. 668, 687-88 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). Thus,

the “benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial cannot be relied on as

having produced a just result.” Strickland, 466 U.S. at 686.

To prove deficient performance, the defendant must show “that counsel made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment.” Strickland, 466 U.S. at 687; Perez v. State, 310 S.W.3d 890, 892-93

(Tex. Crim. App. 2010). “To satisfy this prong of the analysis, a defendant ‘must show that

counsel’s representation fell below an objective standard of reasonableness’ based upon ‘prevailing

professional norms.’” Perez, 310 S.W.3d at 893 (quoting Strickland, 466 U.S. at 688). “For this

performance inquiry we consider all of the circumstances, with ‘a strong presumption that counsel’s

conduct [fell] within the wide range of reasonable professional assistance.’” Id. (quoting Strickland,

466 U.S. at 688-89).

If the defendant proves that counsel’s performance was deficient, he must further

demonstrate that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687.

“This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable.” Id. Therefore, “[i]t is not enough for the defendant to show

that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather,

a defendant must show that there is a reasonable probability, meaning a probability sufficient to

undermine confidence in the outcome, that the result of the proceeding would have been different

but for the unprofessional errors of counsel. Id. at 687.

29

For a claim of ineffective assistance of counsel to succeed on appeal, the record must

demonstrate both deficient performance by counsel and prejudice suffered by the defendant.

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). An ineffective-assistance claim

must be “firmly founded in the record” and “the record must affirmatively demonstrate” the

meritorious nature of the claim. Id. (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999)). “Direct appeal is usually an inadequate vehicle for raising such a claim because

the record is generally undeveloped.” Id. This statement is true with regard to the “deficient

performance” prong of the inquiry, when counsel’s reasons for failing to do something do not

appear in the record. Id. Trial counsel “should ordinarily be afforded an opportunity to explain his

actions before being denounced as ineffective.” Id. (quoting Rylander v. State, 101 S.W.3d 107, 111

(Tex. Crim. App. 2003)). If trial counsel is not given that opportunity, then the appellate court

should not find deficient performance unless the challenged conduct was “so outrageous that

no competent attorney would have engaged in it.” Id. (quoting Garcia v. State, 57 S.W.3d 436, 440

(Tex. Crim. App. 2001)). In other words, in the absence of a record explaining the reasons for

counsel’s decisions, we will not find counsel’s performance deficient if any reasonably sound

strategic motivation can be imagined. See Garcia, 57 S.W.3d at 440.

Because Kuhn is arguing that counsel was ineffective in failing to object to improper

jury argument, he must first show that the argument was in fact improper. If a jury argument is

proper, counsel cannot be ineffective in failing to object to it.7 See Richards v. State, 912 S.W.2d

7

Proper jury argument generally falls within one of four areas: (1) summation of the

evidence, (2) reasonable deductions from the evidence, (3) answers to an argument of opposing

counsel, and (4) pleas for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim.

App. 2008); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973).

30

374, 379 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d). But even if an argument is improper,

Kuhn must further show that (1) the failure to object to the improper argument constituted deficient

performance; and (2) he was prejudiced by that failure. Richards, 912 S.W.2d at 379. We thus

proceed to examine each of the allegedly improper statements made by the State during its argument

and determine whether counsel’s decision to not object to those statements rises to the level of

ineffective assistance of counsel.

Prosecutor’s comment on her opinion of the victim’s truthfulness

Kuhn first contends that the following statement improperly expressed the

prosecutor’s opinion of the victim’s truthfulness:

We talked a lot of time [sic] about every time he touched her on her private part.

She told you that it happened so much that “I can’t remember how many times.”

I believe her.

It is improper for the prosecutor to inject her opinion about the victim’s honesty and truthfulness into

closing arguments. See Menefee v. State, 614 S.W.2d 167 (Tex. Crim. App. 1981); Sanders v. State,

191 S.W.3d 272, 275 (Tex. App.—Waco 2006, pet. ref’d). Thus, it was improper for the prosecutor

to state that she “believed” the victim. However, “the decision to object to particular statements

uttered during closing argument is frequently a matter of legitimate trial strategy.” Evans v. State,

60 S.W.3d 269, 273 (Tex. App.—Amarillo 2001, pet. ref’d) (citing Hubbard v. State, 770 S.W.2d

31, 45 (Tex. App.—Dallas 1989, pet. ref’d)). “Thus, evidence of counsel’s strategy, if any, is crucial

to determining whether he was ineffective” in failing to object to such a statement. Id. But here,

there is no record of the reasons for counsel’s decision. Accordingly, we will not find counsel’s

performance deficient if any reasonably sound strategic motivation can be imagined. See Garcia,

31

57 S.W.3d at 440. One such reasonably sound strategic motivation could have been the desire to

avoid drawing additional attention to the prosecutor’s opinion. After stating that she “believed” the

victim, the prosecutor immediately moved on to other aspects of her argument. If, however, counsel

had objected to the statement, the prosecutor would have stopped her argument at that point to

respond to the objection, and the jury would have focused its attention on the statement. Thus, the

decision not to object could have been strategically motivated, and without a record demonstrating

otherwise, we cannot find that counsel’s decision constitutes deficient performance. Cf. Alberts

v. State, 302 S.W.3d 495, 506 n.7 (Tex. App.—Texarkana 2009, no pet.) (concluding that counsel’s

decision to withhold objection to testimony concerning victim’s truthfulness may have been tactical

decision to avoid calling jury’s attention to objectionable testimony). Moreover, even assuming that

counsel was deficient in failing to object to the statement, Kuhn has failed to show on this record that

there is a reasonable probability that, but for counsel’s failure to object, the result of the proceeding

would have been different. The prosecutor’s statement was brief, was made in the middle of her

closing argument, and was an isolated occurrence that was not repeated at any other point during the

argument.

Misstatements of law

Jury argument that misstates the law or that is contrary to the instructions in the

jury charge is improper. See Whiting v. State, 797 S.W.2d 45, 48 (Tex. Crim. App. 1990); Burke

v. State, 652 S.W.2d 788, 790 (Tex. Crim. App. 1983); Nzewi v. State, 359 S.W.3d 829, 841

(Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). “Defense counsel has a duty to correct

misstatements of law that are detrimental to his client.” Andrews v. State, 159 S.W.3d 98, 102

(Tex. Crim. App. 2005).

32

Kuhn contends that the following three statements made by the prosecutor either

misstated the law or contravened the jury charge:

• The minute he stuck his hands, baby oil or no baby oil, on her private parts

or her Polly as she likes to call it—at one point he refers to it as her clit. The

minute he did that, he penetrated.

• You heard her words: “As long as I can remember. For my entire life.” We

met that element.

• You’ve taken an oath to follow the law. Don’t add any elements that don’t

belong. I will submit to you there is a reason we don’t have to prove that it

was to arouse or gratify his sexual desires because there is no reason you’re

supposed to be touching a child or you’re supposed to be penetrating a child’s

private parts.

For the reasons that follow, we find that none of the above statements, when viewed in their

proper context, misstated the law or were contrary to the jury charge. See Drew v. State, 743 S.W.2d

207, 220 (Tex. Crim. App. 1987) (explaining that alleged misstatements “must be viewed in the

context of the entire argument” and that “isolated sentences taken out of context may take on a

meaning different from that understood by the jury”); Railsback v. State, 95 S.W.3d 473, 479

(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (“In reviewing complaints about comments

made during jury argument, the appellate courts review the comments within the context of the

entire argument.”).

Kuhn asserts that the first statement was inaccurate because it equated touching a

child’s sex organ with penetrating a child’s sex organ. However, touching can rise to the level of

penetration if the touching involves “tactile contact beneath the fold of complainant’s external

genitalia” or “pushing aside and reaching beneath a natural fold of skin into an area of the body not

usually exposed to view.” Cornet, 359 S.W.3d at 226; Vernon, 841 S.W.2d at 409. Here, the jury

33

could reasonably infer from the evidence presented that Kuhn’s touching rose to that level. Thus,

rather than misstating the law, the prosecutor was merely making a reasonable deduction from

the evidence. See Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997) (during argument,

parties are “allowed wide latitude in drawing inferences from the evidence so long as the inferences

drawn are reasonable and offered in good faith”).

Kuhn claims that the second statement, which referred to M.K.’s testimony that she

had been abused for her “entire life,” was improper because it allowed the jury to convict Kuhn

based on conduct that occurred before the effective date of the statute. However, when considering

the context in which the statement was made, it is apparent that the prosecutor was not arguing that

the jury could convict Kuhn based on conduct that occurred before the effective date of the statute.

Rather, the prosecutor was referring to the statutory requirement that the conduct occur “for a period

of 30 or more days in duration” and arguing that the State had met that particular element of the

offense through M.K.’s testimony that the abuse had been occurring for “as long as she could

remember.” See Tex. Penal Code Ann. § 21.02(b)(1). Thus, this was not a misstatement of the law

but a reasonable deduction from the evidence.

Finally, Kuhn contends that the prosecutor, by arguing that the State did not have to

prove that Kuhn’s intent “was to arouse or gratify his sexual desires,” misstated the elements of the

offense of indecency with a child. If the prosecutor had actually been referring to the offense of

indecency with a child, which does have such a requirement, see id. § 21.11(a)(2), this would have

been a misstatement. However, when considering the context in which the statement was made, it

is apparent that the prosecutor was instead referring to the offense of aggravated sexual assault of

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a child.8 That offense does not include an element of intent to arouse or gratify one’s sexual desire.

See id. § 22.021. Accordingly, the prosecutor’s comment was a correct statement of the law.

None of the above comments misstated the law or contravened the jury charge.

Accordingly, we cannot find counsel deficient for not objecting to them.

Outside the record

A prosecutor may not use closing arguments to present evidence that is outside the

record. Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011). Thus, it is improper for

a prosecutor to refer “to facts that are neither in evidence nor inferable from the evidence.” Id.

(citing Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990)). On the other hand, a prosecutor

is permitted “to draw from the facts in evidence all inferences which are reasonable, fair and

legitimate.” Borjan, 787 S.W.2d at 57.

Kuhn asserts that the following two statements constituted improper argument outside

the record:

• And, yes, we could have gone back and, yes, we could have reindicted this

man and added in all of the other sick and disgusting ways that he molested

his daughter. But you know what? This time we’re going to end it.

• So please convict this man only of what he did and only of what we charged.

We’re not even talking about all of the other stuff.

Kuhn contends that these statements urged the jury to convict him on the basis of uncharged conduct.

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The statement was made immediately following the prosecutor’s discussion of the element

of penetration, which is an element of the underlying offense of aggravated sexual assault. When

the prosecutor discussed the offense of indecency with a child, she did explain the requirement that

Kuhn must have an intent to arouse or gratify his sexual desire.

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We disagree. Although the prosecutor refers to uncharged conduct in the above

statements, at no point in her argument does the prosecutor urge the jury to convict Kuhn based on

that conduct. In fact, in the second statement, the prosecutor explicitly asks the jury to convict

Kuhn “only of what he did and only of what we charged.” At another point during her argument,

the prosecutor referred to the uncharged conduct and stated, “He’s getting a break and that’s okay.”

The prosecutor later added, when referring to the indecency-by-contact charges, “Even though she

told you that it happened her whole life, we’re asking you to hold him accountable for one year of

touching her breasts. One year.” Thus, the record reflects that the prosecutor argued on numerous

occasions that the jury should not convict Kuhn based on the uncharged conduct. Moreover, the

prosecutor was not arguing “outside the record” by referring to the uncharged conduct. On the

contrary, the record contains extraneous-offense evidence which was admitted for certain permissible

purposes, and at no point did the prosecutor argue to the jury that the extraneous-offense evidence

should be considered for impermissible purposes. See Tex. Code Crim. Proc. Ann. art. 38.37, § 2

(West Supp. 2011); Tex. R. Evid. 404(b). Accordingly, it was not improper for the prosecutor to

comment on the extraneous-offense evidence, and counsel was therefore not deficient in failing to

object to the prosecutor’s statements.

Alleged comment on Kuhn’s failure to testify

Finally, Kuhn asserts that the following statement was an improper comment on

Kuhn’s failure to testify:

[T]here is no reason you’re supposed [to] be touching a child or you’re supposed [to]

be penetrating a child’s private parts. There is no reason and he didn’t give you a

reason, either.

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A comment on a defendant’s failure to testify violates both state and federal law. See

Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011). “The test for determining whether

prosecutorial argument is a comment on a defendant’s failure to testify ‘is whether the language

used was manifestly intended or was of such a character that the jury would necessarily and naturally

take it as a comment on the defendant’s failure to testify.’” Busby v. State, 253 S.W.3d 661, 666

(Tex. Crim. App. 2008) (quoting Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007)). “It

is not sufficient that the language used might impliedly or indirectly be so construed.” Id. Rather,

“the implication that the State referred to the defendant’s failure to testify must be a clear

and necessary one.” Randolph, 353 S.W.3d at 891 (citing Bustamante v. State, 48 S.W.3d 761, 767

(Tex. Crim. App. 2001)). “In applying this standard, the context in which the comment was made

must be analyzed to determine whether the language used was of such character.” Id. We “must

view the State’s argument from the jury’s standpoint and resolve any ambiguities in the language in

favor of it being a permissible argument.” Id.

Here, the prosecutor’s comment was made immediately following the prosecutor’s

explanation of the requirements for proving the underlying offense of aggravated sexual assault of

a child. During this explanation, the prosecutor had summarized the evidence tending to show that

Kuhn had penetrated M.K., including Kuhn’s admission that he had touched her sex organ. In this

context, the prosecutor’s comment that appellant had failed to provide a “reason” for his conduct

could reasonably be construed as an argument that Kuhn’s purported explanation—that he was

teaching his daughter how to masturbate—was either not credible or was not a reasonable

justification for his behavior. In other words, rather than commenting on Kuhn’s failure to testify,

the prosecutor could have been merely attacking the credibility of Kuhn’s explanation for his

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conduct. Because we are to resolve any ambiguities in the language in favor of it being a permissible

argument, we cannot say that the language used was manifestly intended or was of such a character

that the jury would necessarily and naturally take it as a comment on the defendant’s failure to

testify. See id. at 891. Additionally, we observe that there may have been a strategic reason for not

objecting to the statement. Counsel could have reasonably concluded that objecting to a brief and

ambiguous remark concerning Kuhn’s failure to reasonably explain his conduct might have drawn

attention to the fact that Kuhn did not testify. Accordingly, we cannot say that counsel was deficient

in not objecting to the comment.

Conclusion on ineffective-assistance claims

On this record, we cannot conclude that any of counsel’s decisions not to object to

the prosecutor’s comments constituted deficient performance. Nor can we conclude on this

record that there is a reasonable probability that but for counsel’s allegedly deficient

performance, the result of the proceeding would have been different. Accordingly, Kuhn has failed

to prove by a preponderance of the evidence that counsel was ineffective. We overrule Kuhn’s

fourth point of error.

“Statutory bar” to indecency convictions

The continuous-sexual-abuse statute lists various underlying offenses that may form

the basis for a defendant’s conviction under the statute. See Tex. Penal Code Ann. § 21.02(c).

A defendant may not be convicted in the same criminal action of an underlying offense that forms

the basis for his conviction under the continuous-sexual-abuse statute. See id. § 21.02(e). In his

fifth point of error, Kuhn asserts that he could not validly be convicted for the offense of indecency

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with a child by contact because that offense formed the basis for his conviction under the continuous-

sexual-abuse statute.

We disagree. Kuhn was alleged to have committed the offense of indecency with a

child by touching M.K.’s breasts. Such conduct cannot form the basis for a conviction under the

continuous-sexual-abuse statute, see id. § 21.02(c)(2), and, in this case, it did not. Rather, in the

continuous-sexual-abuse charge, Kuhn was alleged to have committed the underlying offense of

indecency with a child by contact by touching M.K.’s genitals. Indecency by touching a child’s

genitals and indecency by touching a child’s breasts are separate offenses. See Pizzo v. State,

235 S.W.3d 711, 719 (Tex. Crim. App. 2007). Thus, the offense that formed the basis for Kuhn’s

conviction under the continuous-sexual-abuse statute was separate from the offense that formed

the basis for his conviction under the indecency statute. Accordingly, there was no statutory bar to

Kuhn’s twelve convictions for the offense of indecency with a child by contact. We overrule Kuhn’s

fifth point of error.

CONCLUSION

We affirm the judgments of the district court.

__________________________________________

Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Concurring and Dissenting Opinion by Chief Justice Jones

Affirmed

Filed: January 31, 2013

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