Bill Boyd Kuhn v. State
2013 Tex. App. LEXIS 1038
| Tex. App. | 2013Background
- Kuhn was convicted of one count of continuous sexual abuse of a young child and twelve counts of indecency with a child; punishment life for the abuse, and 20 years for each indecency count, run concurrently.
- Indictment charged multiple acts against Kuhn's biological daughter M.K., including penetration by Kuhn’s hands or fingers and various indecent-contact acts.
- M.K., age 12 at trial, testified to extensive touching and abuse by Kuhn, and Kuhn gave a videotaped statement admitting some acts but denying others.
- Three defense witnesses testified Kuhn was not capable of the acts; the jury nonetheless found Kuhn guilty on all counts.
- The central issues on appeal concern jury-charge errors (timing of acts), potential ineffective assistance of counsel for closing-argument objections, and whether a statutory bar barred indecency convictions under the continuous-sexual-abuse statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the jury charge error about dates was egregiously harmful | Kuhn contends the abstract date instruction allowed pre-2007 acts to support the continuous-abuse conviction | State conceded error; timing issue not hotly contested; intrinsic application paragraph mitigates harm | No egregious harm; application paragraph and limiting instruction offset error |
| Whether predicate acts could form the basis for continuous abuse convictions | Indecency with a child by contact and aggravated sexual assault acts could not underlie continuous-abuse | These predicate offenses are encompassed by §21.02(c)(2),(3) and valid as underlying offenses | Predicates valid; conviction upheld on this basis |
| Whether the court should have given the medical-care defense instruction | Defense evidence suggested medical-care justification | Evidence did not show medical-care purpose; record insufficient to support defense | Trial court rulings correct; no medical-care instruction required |
| Whether defense counsel was ineffective for not objecting to closing arguments | Seven prosecutorial remarks were improper or prejudicial | Counsel’s decisions could be strategic; no showing of prejudice beyond reasonable doubt | No ineffective-assistance error established; arguments not reversible error |
| Whether there was a statutory bar to indecency convictions under the continuous-sexual-abuse statute | Indecency counts formed the basis for continuous-abuse conviction; might be barred | Indecency by touching the breast is separate from indecency by contact with genitals; not barred | No statutory bar; convictions for indecency by contact upheld |
Key Cases Cited
- Almanza v. State, 686 S.W.2d 171 (Tex.Crim.App.1985) (two-step Almanza harm standards for preserved vs. unpreserved error)
- Ngo v. State, 175 S.W.3d 738 (Tex.Crim.App.2005) (harm analysis when charge error is unpreserved)
- Martin v. State, 335 S.W.3d 867 (Tex.App.-Austin 2011) (charges misstate timing; application vs abstract portions; circumstantial proof reliance)
- Hutch v. State, 922 S.W.2d 166 (Tex.Crim.App.1996) (egregious-harm standard for jury-charge errors)
- Taylor v. State, 332 S.W.3d 483 (Tex.Crim.App.2011) (review of entire jury-charge for harm; context matters)