Steve Kou v. State, 04-16-00346-CR

Background

Steve Kou lived with his son, daughter‑in‑law, granddaughter S.K., and others; S.K. was the alleged victim and was under 14 during the charged period (2011–2014).
S.K., before turning nine, disclosed to her grandmother Patricia and others that Kou had engaged in repeated oral, genital, and digital sexual contact; medical exam revealed lesions on S.K.’s labia.
A SANE nurse (Cynthia Garcia) examined S.K., collected a swab from lesions, and records later showed a lab test positive for HSV‑1; a child‑abuse pediatrician (Dr. Kissoon) opined the findings were consistent with sexual abuse.
Kou was indicted for continuous sexual abuse of a child (multiple acts over a period ≥30 days) and was convicted by a jury and sentenced to 60 years’ imprisonment.
On appeal Kou challenged (1) legal sufficiency of the evidence of "sexual abuse," (2) admission of outcry testimony (who was the first outcry witness), and (3) admission of expert testimony that S.K. tested positive for HSV‑1 on Confrontation Clause and reliability grounds.
The court affirmed: found S.K.’s consistent testimony and corroborating evidence legally sufficient; held the outcry testimony error (if any) harmless; concluded admission of experts’ testimony about the lab result violated the Confrontation Clause but that error was harmless beyond a reasonable doubt.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Kou)	Held
Legal sufficiency of "sexual abuse" element for continuous sexual abuse	S.K.’s testimony and corroborating details were sufficient to prove multiple acts over time	S.K.’s testimony was too vague to support conviction	Affirmed: viewing evidence in the light most favorable to verdict, a rational juror could find sexual abuse beyond a reasonable doubt
Admissibility of outcry testimony — who was first outcry witness under art. 38.072	Both Patricia (grandmother) and forensic interviewer Gallegos were presented; State argued both admissible	Kou argued Gallegos was not the first outcry and her testimony was inadmissible hearsay	Even assuming error in admitting Gallegos, admission was cumulative of unobjected testimony and did not affect substantial rights — harmless
Admission of experts’ testimony that lab test showed HSV‑1 (reliability/chain of custody)	Experts may testify about medical diagnosis and consistency with abuse; lab result bears on diagnosis	Kou argued lack of analyst testimony, chain of custody, and unreliability made the lab result inadmissible and that experts improperly introduced a non‑testifying analyst’s results	Trial court erred to admit experts’ testimony of the positive lab result (Confrontation Clause violation) but error was harmless beyond a reasonable doubt given other consistent eyewitness, medical, and expert testimony
Confrontation Clause — experts acting as surrogates for non‑testifying lab analyst	State argued testing was for diagnosis/treatment and not primarily for prosecution; experts’ reliance was permissible	Kou argued experts served as surrogates for a non‑testifying analyst and introduced testimonial lab results without opportunity for cross‑examination	Court: lab result was testimonial and admitting it through testifying experts violated Confrontation Clause (Paredes), but harmless in this record

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (legal sufficiency standard for criminal convictions)
Ohio v. Clark, 135 S. Ct. 2173 (test for whether statements are testimonial; primary purpose inquiry)
Paredes v. State, 462 S.W.3d 510 (Tex. Crim. App.) (testifying expert cannot be surrogate to introduce non‑testifying analyst’s lab report)
Scott v. State, 227 S.W.3d 670 (Tex. Crim. App.) (harmless‑error factors for Confrontation Clause violations)
Isassi v. State, 330 S.W.3d 633 (Tex. Crim. App.) (deference to jury on resolving witness credibility and drawing inferences)
De La Paz v. State, 273 S.W.3d 671 (Tex. Crim. App.) (proponent bears burden to show testimonial statements are admissible)