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Kou v. State

Court of Appeals of Texas, Fourth District, San Antonio

November 1, 2017

Steve KOU, Appellant
v.
The STATE of Texas, Appellee

         From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2014CR8622 Honorable Melisa C. Skinner, Judge Presiding

          Sitting: Karen Angelini, Justice Marialyn Barnard, Justice (concurring in the judgment only) Luz Elena D. Chapa, Justice

          OPINION ON REHEARING

          Luz Elena D. Chapa, Justice

         The State's motion for rehearing is denied. On our own motion, we withdraw our August 16, 2017 opinion and judgment and substitute this opinion and judgment in their stead. A jury convicted Steve Kou of continuous sexual abuse of a child. On appeal, Kou contends there is legally insufficient evidence of the "sexual abuse" element of the offense and the trial court erred by admitting inadmissible evidence. We affirm the trial court's judgment.

          Background

         Between 2011 and 2014, Kou lived in a house with his son, his son's wife Marcia, his granddaughter S.K., and his ex-wife Patricia. Kou's current wife Pheach lived in La Vernia, but stayed at the house on Mondays and Tuesdays. Kou owned a donut shop in Converse, Texas, at which S.K.'s parents worked with Kou. Patricia would work at the donut shop for about an hour in the morning when she went into work with Marcia.

         A few days before her ninth birthday, S.K. told Patricia that Kou would "kiss her down there" and "make her kiss him down there." S.K. also told her mother, Marcia, her private area was hurting, burning, and itching. Marcia discovered a red rash and what looked like pimples on S.K.'s labia. S.K. met with a Bexar County forensic interviewer, Lucy Gallegos, regarding her outcry. A sexual assault nurse examiner (SANE nurse), Cynthia Garcia, also interviewed S.K., conducted a physical examination, and found lesions on S.K.'s labia. Garcia took a swab from the lesions, and sent the sample to a laboratory to test for the herpes simplex virus (HSV).

         Kou was thereafter indicted for the continuous sexual abuse of S.K, alleged to have occurred from approximately June 1, 2011, to July 4, 2014. The indictment alleged that during this timeframe, Kou committed two or more acts of sexual abuse against S.K, namely:

1. the defendant did intentionally and knowingly cause the sexual organ of [S.K.] to contact or be penetrated by the sexual organ of the defendant;
2. the defendant did intentionally and knowingly cause the mouth of [S.K.] to contact or be penetrated by the sexual organ of the defendant;
3. the defendant did intentionally and knowingly cause the sexual organ of [S.K.] to contact or be penetrated by the mouth of the defendant; [and]
4. the defendant did intentionally and knowingly engage in sexual contact with [S.K.], a fem[a]le child who was not the spouse of the defendant, by touching part of the genitals of [S.K.] with the intent to arouse or gratify the sexual desire of any person.

         Kou pled not guilty, and the case proceeded to a jury trial. The jury found Kou guilty and assessed his punishment at sixty years in prison. After the trial court imposed Kou's sentence, Kou filed a timely notice of appeal.

         Legal Sufficiency

         In reviewing the legal sufficiency of the evidence, we ask whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); accord Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We review the evidence "in the light most favorable to the verdict." Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). "Our role on appeal is restricted to guarding against the rare occurrence when a factfinder does not act rationally, " and we must "defer to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (quotation marks and citations omitted).

         The essential elements of continuous sexual abuse of a child, as alleged in the indictment, are set out in section 21.02(b) of the Texas Penal Code. Tex. Penal Code Ann. § 21.02(b) (West Supp. 2016). Section 21.02(b) provides:

A person commits an offense if: (1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and (2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.

Id. (formatting modified). Kou challenges the sufficiency of the evidence only with regard to the "sexual abuse" element. An "act of sexual abuse" includes intentionally or knowingly "caus[ing] the penetration of the . . . sexual organ of a child by any means, " "caus[ing] the penetration of the mouth of a child by the sexual organ of the actor, " and "caus[ing] the sexual organ of a child to contact . . . the . . . sexual organ of another person, including the actor." Id. §§ 21.02(c)(3), 22.011(a)(2)(A)-(C) (West 2011 & Supp. 2016). An "act of sexual abuse" also includes touching any part of a child's genitals "with intent to arouse or gratify the sexual desire of any person." Id. §§ 21.01(2), 21.02(c)(2), 21.11(a)(1).

         S.K. testified Kou "put his mouth in [her] private area, " and she had "used [her] mouth on his private parts." She also testified Kou "put[] his private in [her] private." S.K. further testified she was "[a]round five" when Kou "started doing these things" to her, and these incidents occurred more than five times over a period of three years. Kou "acknowledges . . . [t]he testimony of a child victim, standing alone, may be sufficient evidence to support a conviction for continuous sexual abuse of a young child, " but argues S.K.'s testimony was too vague to support a rational finding of guilt. We disagree. In addition to the above-quoted testimony, S.K. provided consistent details about how Kou usually approached her before these incidents, Kou's penis and ejaculate, where Kou would wash himself afterward, and the usual time and location of these incidents. We hold a rational trier of fact could have found the "sexual abuse" element of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319.

         Evidentiary Rulings

         Kou contends the trial court committed reversible error by allowing two outcry witnesses to testify and allowing the State's expert witnesses to specifically testify the sample taken from S.K.'s labia tested positive for HSV-1 and S.K. had herpes. Generally, we review a trial court's admission of evidence under an abuse of discretion standard. Watson v. State, 421 S.W.3d 186, 189 (Tex. App.-San Antonio 2013, pet. ref'd). "The trial court does not abuse its discretion by admitting evidence unless the court's determination lies outside the zone of reasonable disagreement." Id.

         A. ...


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