Opinion
No. 05-19-00674-CR
08-14-2020
DAVID SCOTT KILGORE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 219th Judicial District Court Collin County, Texas
Trial Court Cause No. 219-80638-2019
MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Reichek
Opinion by Justice Myers
A jury convicted appellant David Scott Kilgore of one count of continuous sexual abuse of a child, one count of indecency with a child by contact, and two counts of sexual assault of a child under 17 years of age. The jury assessed punishment of 45 years in prison on the continuous sexual abuse count (count one); 11 years on the indecency count (count two); and 20 years on both the sexual assault counts (counts four and five). All the sentences were ordered to run concurrently. Appellant brings three issues on appeal, arguing the trial court erred by denying his motion for continuance; the conviction on count four violated the Double Jeopardy Clause; and the court's charge violated the Ex Post Facto Clause. We affirm.
The indictment originally contained five counts but count three was not submitted to the jury.
DISCUSSION
I. Denial of Continuance
In his first issue, appellant argues the trial court erred in denying his motion for continuance. Appellant sought the continuance so he could secure the appearance of the complainant's sister.
The denial of a motion for continuance is within the sound discretion of the trial court, and we review a denial for an abuse of discretion. See Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006); see also Gutierrez v. State, 446 S.W.3d 36, 38 (Tex. App.—Waco 2014, pet. ref'd). To establish reversible error on the denial of a pretrial motion for continuance, an appellant must show the trial court erred in denying his motion for continuance and that, as a result, he suffered actual harm. Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010).
A motion for continuance based on the unavailability of a witness is governed by statute. Id.; see TEX. CODE CRIM. PROC. ANN. art. 29.06. Article 29.06 provides that, if a continuance is sought because of the absence of a witness, the motion must state (1) the name and residence of the witness; (2) the diligence used to procure the witness's attendance; (3) the material facts expected to be proved by the witness; (4) that the witness is not absent by the procurement or consent of the defendant; (5) that the motion is not made for delay; and (6) that there is no reasonable expectation that attendance of the witness can be secured during the present term of court by a postponement of the trial to some future day of said term. TEX. CODE CRIM. PROC. ANN. art. 29.06. Mere conclusions and general averments will not establish materiality. Harrison v. State, 187 S.W.3d 429, 434 (Tex. Crim. App. 2005); Nelson v. State, 297 S.W.3d 424, 432 (Tex. App.—Amarillo 2009, pet. ref d). Moreover, the Court of Criminal Appeals has interpreted the diligence requirement "to mean not only diligence in procuring the presence of the witness, but also diligence as reflected in the timeliness with which the motion for continuance was presented." Dewberry v. State, 4 S.W.3d 735, 756 (Tex. Crim. App. 1999). A motion for continuance based on the absence of witnesses which is filed on the day the trial is set to commence will typically not show the diligence required to support the motion. See id.; see also Stevenson v. State, No. 05-15-01348-CR, 2017 WL 474464, at *4 (Tex. App.—Dallas Feb. 6, 2017, no pet.) (mem. op., not designated for publication). And when a defendant has failed to demonstrate the necessary diligence, a trial court does not abuse its discretion in denying a motion for continuance on that ground alone. See Gonzales, 304 S.W.3d at 844.
The record shows that the indictment against appellant was filed on February 21, 2019. Defense counsel filed his notice of appearance on February 28, 2019. Appellant's case was scheduled for trial on May 13, 2019. On May 2, 2019, defense counsel requested a subpoena for the complainant's older sister, and it issued the following day, according to the court's docket sheet.
On Friday, May 10, 2019, three days before trial was set to begin, appellant filed his motion requesting a continuance of sixty days to locate and secure the appearance of the complainant's sister. On the day of trial, Monday, May 13, 2019, appellant filed an amended continuance motion. In the amended motion, appellant stated that the complainant's sister had written an exculpatory statement on December 26, 2018, and on or about May 2, 2019, he learned that she would not be testifying voluntarily. He requested a subpoena, which issued May 3, 2019, but she had eluded service of process. Defense counsel stated that he had made multiple, unsuccessful attempts between April 29 and May 8, 2019 to serve the complainant's sister or secure her voluntary appearance, but she had not been served. The motion also stated that the complainant's sister had lived with appellant and the complainant during the "relevant times reflected in the indictment," and she could "testify to facts which are exculpatory and detrimental to the State's accusation, including but not limited to, [the complainant's] mental state and actions." The motion added that appellant had nothing to do with the complainant's sister's avoidance of service.
The presiding judge held a hearing on the motion on the morning before trial was set to begin. During that hearing, defense counsel informed the court that, until about ten days earlier, he had thought the complainant's sister was going to appear voluntarily. When she stopped cooperating, counsel obtained a subpoena, but all attempts to serve her had failed. Counsel added that both he and the complainant's sister's mother and father had called her, but "she is not coming down here voluntarily." Regarding the content of the complainant's sister's testimony, defense counsel said she had "very good things to say about the case for the Defense."
In support of this assertion, defense counsel provided to the trial court and the State a copy of an email the complainant's sister had purportedly sent to appellant. The email is dated December 26, 2017, about a month and a half after appellant's arrest and over a year and a half before the start of trial, and it was admitted just before the start of trial as defense exhibit 1. It appears below in its entirety, including typographical and grammatical errors (except for the names that have been omitted):
My name is [complainant's sister], I am [appellant's] stepdaughter. I've known [appellant] since either late 2006, or early 2007. I lived with [appellant] from 2008 to 2011, and for about 3 months in 2014ish. [Appellant] and I have had our ups and downs early on throughout the years, but I've never had any reason to believe that he would engage in any inappropriate relationship with myself or my sister [complainant]. I've never seen anything concerning, nor has [complainant] ever come to me describing any inappropriate relations. [Complainant] has always enjoyed being around [appellant], and has never shown me any reason to believe there to be any issue amongst them. My Grandmother has continually asked [complainant] over the years, for as long as [appellant] has been around, whether he has touched her inappropriately, which I feel may have pushed her into creating a reality out of those thoughts, or suggestions. [Complainant] has always been troubled, for as long as I can remember. She's had sexual issues going back before elementary school with other children, and also during after school care once in elementary school. She has always constantly acted out for attention, whether positive or negative, and has never understood how to take responsibility for the things she does. She's always had issues with harming animals. She's murdered my cousins hamster, and been caught many many times torturing both Maya, and our late dog DJ. I've spent many years waiting for her to grow out of her troubled ways, but the older she has gotten, the more she has ventured into more mature mischief. The concerning thing is that she hasn't matured along with her years. In 2014 when I lived at the home
in Plano on Charter Oak, she came out of her room as everyone was getting ready for bed, just as excited as ever trying to get someone to come see what she had just done. I listened from inside my room and heard [appellant] go from curious to angrily concerned. [Complainant] had just urinated in the corner of her bedroom as if she were a dog. The actual act of an almost teenager soiling her carpet wasn't as concerning as the fact that she was absolutely excited and proud about it. [Complainant] is a young woman that seems as if there is nothing wrong with her, but for as long as I can remember, she has had something mentally off, and it is genuinely concerning.Both the original and the amended motion for continuance were verified, but neither motion referenced the contents of this email. During the hearing, defense counsel explained that he did not attach the email to his verified motions and "e-file it" because of the personal nature of the assertions against the complaining witness—to which the trial court responded, "That's fine."
Formally signed,
[complainant's sister's name] 12/26/2017
The State argued during the hearing that the complainant's sister did not participate in the investigation and had not returned the telephone calls of Detective Kristina McClain, the lead detective on this case. The State also argued that most of the abuse occurred after the complainant's sister had moved out of the family home and that some of the statements in the email concerned specific instances of conduct, which were inadmissible. Defense counsel responded that the complainant's sister did live with the family during part of the abuse and that the email was "just the tip of the iceberg" regarding the testimony she could provide.
The court reviewed the email and determined it was not exculpatory:
It is not exculpatory. It is almost a character witness saying I have no reason to believe; not that I was there, she told me she made it up. I mean, it is just really, hey, listen, I have no reason to believe [appellant], whoever—I guess that's [appellant], is—I didn't see it.The court also noted that appellant had announced ready for trial ten days earlier and that he could have subpoenaed the complainant's sister before May 3, 2019. The court further noted that a jury panel was ready and waiting. The court denied the motion but encouraged the defense to continue its efforts to serve the complainant's sister, and the court instructed the State to assist in that effort.
Later that morning, appellant presented the motion and the email to the visiting judge who presided over the trial, and he, too, denied the motion and ordered the trial to proceed as scheduled.
After his conviction by the jury, appellant filed a motion for new trial. In the motion, appellant challenged the trial court's refusal to continue the trial. Appellant relied on the previously admitted email and presented no additional evidence on the matter. The court denied the new trial motion in an order signed on June 6, 2019.
Assuming—without deciding the issue—that the appellant's claim regarding the denial of his motion for continuance was preserved, we note that, first, insofar as the email references specific incidents of misbehavior by the complainant, either sexual or otherwise, such testimony would have been inadmissible. See TEX. R. EVID. 404(b)(1) (barring admission of evidence of extraneous bad acts as proof of character); TEX. R. EVID. 412(a)(2) (barring admission of evidence of specific instances of a sexual assault victim's past sexual behavior).
Second, the email addresses issues—i.e., the complainant's sister never experienced, witnessed, or heard of any abuse, and that the complainant was an "attention" seeking individual, irresponsible and troubled—that were well developed at trial. The evidence showed that Plano Detective Kristina McClain tried to get in touch with the complainant's sister, but she never returned the detective's telephone calls and she did not participate in the investigation in any way. Amorcilla, appellant's wife and the mother of the complainant and her sister, testified for the defense that the complainant's sister had lived with Amorcilla, appellant, and the complainant for six months in their house in Plano, and never told Amorcilla about any abuse or alerted her to any inappropriate behavior by appellant. Appellant's niece, Callie Camp, testified for the defense that appellant had lived with her family when she was a young girl and he had never done anything to her that was inappropriate or sexual. Appellant's aunt and uncle, Richard and Nancy Amato, opined that the complainant was not a truthful person. Richard Amato described the complainant as an attention-seeking and troubled individual. The complainant's mother offered similar testimony, telling the jury that the complainant's sister had been treated for a painful back condition that required surgery at the Shriner's Hospital, and that after the complainant's sister was successfully treated, the complainant, too, started complaining about similar pain. Amorcilla explained that the doctors found nothing wrong with the complainant and recommended exercises to help with the pain. After the doctor's visit, however, the complainant failed to do the exercises, stopped complaining about any pain, and appeared to walk normally. In Amorcilla's opinion, the complainant's outcry was false and precipitated by Amorcilla's and her husband's threats to take the complainant out of her current school and to take away her computer and camera. Appellant (stepfather to the complainant and her sister) likewise testified that the complainant "always chose shock over substance or intrigue," loved attention, and "she didn't really care whether it was good attention or bad attention, but she just loved doing that."
We conclude appellant failed to show he suffered harm as a result of the trial court's denial of his motion for a continuance. And because appellant failed to carry his burden of showing actual harm, we need not determine whether the trial court erred in denying the motion for continuance. See Gonzales, 304 S.W.3d at 843; Humaran v. State, 478 S.W.3d 887, 902 (Tex. App.—Houston [14th Dist.] 2015, pet ref'd) ("We need not address the first prong of this test because appellant cannot show that she was actually prejudiced."). We overrule appellant's first issue.
II. Double Jeopardy
In his second issue, appellant contends his conviction on count four of the indictment violates the Double Jeopardy Clause.
The Double Jeopardy Clause protects a defendant from being punished more than once for the same offense in a single prosecution. Gonzales, 304 S.W.3d at 845. "In the multiple-punishments context, two offenses may be the same if one offense stands in relation to the other as a lesser-included offense, or if the two offenses are defined under distinct statutory provisions but the Legislature has made it clear that only one punishment is intended." Littrell v. State, 271 S.W.3d 273, 275-76 (Tex. Crim. App. 2008). "Sameness in this context is a matter of legislative intent." Id. at 276.
In count four of the indictment, appellant was charged with sexually assaulting the complainant, a child younger than 17 years of age, by causing her mouth to contact his sexual organ. In count one, the continuous sexual abuse of a child charge, one of the predicate acts alleged is that appellant caused the complainant's mouth to contact his male sexual organ when she was younger than 14.
Appellant argues there is no instruction in the charge requiring the jury to consider separate incidents for the predicate act of continuous sexual abuse and the sexual assault in count four. Moreover, he points out that the trial court instructed the jurors that they were not bound to find the offense occurred on any of the alleged dates so long as the jury concluded the offense occurred prior to February 21, 2019, the day the indictment was returned. Therefore, appellant argues the jury could have convicted him of both continuous sexual abuse in count one of the indictment, and sexual assault in count four, based on the same alleged conduct.
The statute prohibiting continuous sexual abuse of a child defines the offense as the commission of two or more acts of sexual abuse against a child under 14 years of age during a period of thirty days or longer, regardless of whether the acts are committed against one or more victims. TEX. PENAL CODE ANN. § 21.02(b). The statute lists sexual assault of a child under 17 years old as one of eight predicate offenses that constitute an act of sexual abuse. Id. at § 21.02(c)(3). The penal code addresses double jeopardy concerns by providing that, in the same criminal action, a defendant may not be convicted of both continuous sexual abuse and any predicate offense listed in subsection (c) when both involve the same victim—unless the predicate offense "occurred outside the period in which the offense alleged under Subsection (b) was committed." Id. § 21.02(e)(2). "Thus, the Legislature expressed its intent that a defendant may be convicted of both continuous sexual abuse of a child and an independent offense listed as a predicate offense in section 21.02(c) against the same child as long as they did not occur within the same time frame." Aguilar v. State, 547 S.W.3d 254, 262 (Tex. App.—San Antonio 2017, no pet.); see also Allen v. State, No. 05-17-00226-CR, 2018 WL 6065095, at *5 (Tex. App.—Dallas Nov. 20, 2018, no pet.) (mem. op., not designated for publication) (citing Aguilar, 547 S.W.3d at 262).
The indictment shows that the continuous sexual abuse charge in count one, and the sexual assault charge in count four, allege separate acts occurring during different time periods. More specifically, the State accused appellant of committing continuous sexual abuse of a child from on or about June 21, 2012 to December 21, 2015, and the State accused appellant of committing sexual assault under count four on or about September 1, 2017. Appellant's argument would require us to ignore the plain language of section 21.02(e)(2) and the presumption that the legislature did not act unreasonably or arbitrarily in enacting the statute. No double jeopardy claim is apparent on the face of this record. See Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000) (defendant may raise a double-jeopardy claim for the first time on appeal "when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of [the] usual rules of procedural default serves no legitimate state interests."); Aguilar, 547 S.W.3d at 263 ("We conclude that, on the face of the indictment, the independent indecency offenses alleged in Counts III, IV, and V are not the 'same offense' as the continuous sexual abuse offense for purposes of double jeopardy, and Aguilar may be convicted and punished for each count in a single prosecution."). We overrule appellant's second issue.
III. Ex Post Facto
In his third issue, appellant argues the trial court's jury instructions permitted the jury to rely on alleged predicate acts that occurred before the effective date of the continuing sexual abuse statute and, thus, violated the Ex Post Facto Clause.
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 the effective date of the statute. See Gomez v. State, 459 S.W.3d 651, 660 (Tex. App.—Tyler 2015, pet. ref'd); Kuhn v. State, 393 S.W.3d 519, 524 (Tex. App.—Austin 2013, pet. ref'd). Also, the statute does not apply to an offense committed against a child fourteen years of age or older. See TEX. PENAL CODE ANN. § 21.02(b)(2); Gomez, 459 S.W.3d at 660.
The jury charge in this case did not instruct the jurors that they were permitted to convict appellant of continuous sexual abuse of a child under count one of the indictment based only on acts of sexual abuse committed on or after September 1, 2007. Appellant argues the charge was erroneous because it permitted his conviction based on acts that were not criminalized as continuous sexual abuse at the time of their commission, thereby violating the Ex Post Facto Clause. Appellant points out that the abstract portion of the charge instructed the jurors that they were not bound to find the offense occurred on the dates specifically alleged in the indictment—from on or about June 21, 2012 to December 21, 2015—so long as they found the offense occurred before the return of the indictment:
You are instructed that while the indictment alleges that the offenses were committed on or about the 21st day of June, 2012 through the 21st day of December, 2015, the 21st day of June, 2014, and the 1st day of September, 2017, respectively, you are not bound to find that the offense, if any, took place on those specific dates, so long as you find the offenses, if any, occurred prior to February 21, 2019, the date of the return of the indictment for said offenses in this case, and is not barred by the statute of limitations.
This is an issue of alleged jury charge error that requires us to follow 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 Gomez, 459 S.W.3d at 660; Kuhn, 393 S.W.3d at 524; Martin v. State, 335 S.W.3d 867, 874 (Tex. App.—Austin 2011, pet. ref'd). We first determine whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If there is error, we evaluate the harm caused by the error. See id. Because appellant did not object to the alleged charge error, we apply the egregious harm standard wherein 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 appellant was deprived of a fair and impartial trial, we review the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole. See Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011) (citing Almanza, 686 S.W.2d at 171).
Assuming—without deciding the issue—that there was charge error, appellant's defense at trial was based on the contention that the complainant was not credible and that no acts of sexual abuse occurred at any time, not on the timing of the alleged sexual acts. Appellant, though, argues we should find egregious harm because the State repeatedly suggested to the jury that one of the predicate acts may have occurred in 2006, before the effective date of the statute. Appellant calls our attention to a timeline the State offered to aid the jury in understanding the sequence of events (State's exhibit 6), pointing out that State's timeline begins by stating that appellant, the complainant, her sister, and their mother all moved into an apartment in 2006. In 2010, according to the timeline, the complainant's sister moved out of the apartment. Between the years 2006 and 2010, the timeline includes the following handwritten notations: "Defendant touched victim's vagina w/fingers"; "Defendant touched victim's breasts w/fingers." Appellant claims that, as shown in the timeline, appellant touched the complainant's vagina with his fingers (one of the predicate acts alleged in the continuous sexual abuse count of the indictment) between the years 2006 and 2010.
However, the State alleged two predicate offenses in the continuous sexual abuse of a child count of the indictment, indecency with a child by contact and aggravated sexual assault of a child, and appellant touching the complainant's vagina with his finger is only one of the sexual acts alleged. Count one alleged that appellant committed indecency with a child by contact by touching part of the complainant's genitals with his hand; causing the complainant's back to touch part of appellant's genitals; causing the complainant's buttocks to touch part of appellant's genitals; and causing the complainant's hand to touch part of appellant's genitals. The indictment alleged appellant committed aggravated sexual assault of a child under the age of fourteen by causing the penetration of the complainant's female sexual organ with appellant's finger and causing the complainant's mouth to contact appellant's male sexual organ. The State presented evidence of a variety of sexual acts as proof of continuous sexual abuse, and there is ample evidence in this record from which the jury could have found beyond a reasonable doubt that appellant committed two or more acts of sexual abuse against the complainant during a period of thirty or more days that began after the effective date of the statute.
The evidence showed, for example, that the complainant's family lived first in an apartment in Richardson, then a townhome (also located in Richardson), and finally in a house in Plano. The complainant testified that, while they lived in the townhome, appellant (her stepfather) would tell the complainant to lie on her stomach and then get behind her, put his penis on her lower back and buttocks, and move it back and forth until he ejaculated onto the complainant's back. Appellant also tried to demonstrate sexual intercourse to the complainant by putting his fingers in her vagina and then telling her, referring to his penis, "This is where this would go." In addition, appellant "licked and sucked" the complainant's vagina and breasts. The abuse continued after they moved into the house in Plano, eventually progressing to sexual intercourse. The complainant described three separate occasions when appellant had sexual intercourse with her, and during each occasion his penis penetrated the complainant's vagina. Other testimony showed that the complainant's family lived in the Richardson townhome from 2011 to 2013, and they moved into the house in Plano in 2013. Such testimony alone is sufficient to support appellant's conviction under count one.
Moreover, the State never argued at trial that appellant sexually abused the complainant prior to September 1, 2007, the effective date of the statute, nor did the complainant testify that he did. The State asked the complainant, "[Y]ou said this abuse has been going on since you were how old?" She replied, "I do not remember the exact date, but I know it's been going on at least since I was nine," and she had testified earlier that she was born on June 21, 2002. In other words, the abuse had been occurring "at least since" June 21, 2011, when the complainant would have turned nine years of age—over three and a half years after the statute's effective date. She outcried to a school counselor in November of 2017, when she was fifteen years old. If the jurors believed the complainant's testimony, and it is clear from their verdict that they did, it is unlikely they believed that any abusive sexual acts that may have been committed by appellant between 2006 and 2007 stopped before September 1, 2007.
Appellant also points to the State's closing argument, where the prosecutor argued, referring to the timeline:
[T]he reason why we went over this timeline with y'all over and over and over again is because in order to prove continuous sexual abuse of a child, we've got to prove that there were at least two incidents of abuse that were at least 30 days apart.Later in his argument, the prosecutor stated, again referring to the timeline, "And it says on—underneath 2006, that the Defendant touched victim's vagina with the fingers, and touched victim's breasts with fingers." Appellant yet again argues that the State was suggesting one of the predicate acts may have occurred in 2006, before the statute's effective date. But when examined in context, the prosecutor's remark merely indicates that he was referring to where on the timeline the notations regarding touching of the complainant's vagina and breasts could be found—he was not suggesting the acts occurred in that year. Indeed, earlier in his argument he stated that appellant began "sexually abusing [the complainant] from when she was as young as eight or nine years old, all the way up until she was 15."
So the only reason why we did this for y'all is just so you could see where the abuse occurred, what year it was in, and at the top of that sheet it's got [the complainant's] date of birth as well so at least it will give you some reference that a lot of—most of these incidents were when she was under 14, which is what's required for continuous sexual abuse of a child.
Thus, the jurors could have lawfully convicted appellant of continuous sexual abuse of a young child even if they had been instructed not to base a conviction on his conduct prior to September 1, 2007. Additionally, the application paragraph of the charge under count one instructed the jurors that to convict appellant of continuous sexual abuse of a child they had to find beyond a reasonable doubt that, on or about June 21, 2012 through December 21, 2015, in Collin County, Texas, appellant, during a period that was thirty or more days in duration, committed two or more acts of sexual abuse against the complainant. The application paragraph further mitigates against a finding of egregious harm. Accordingly, we conclude the alleged charge error was not so egregiously harmful as to deny appellant a fair trial, and we overrule his third issue.
We affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
190674F.U05
JUDGMENT
On Appeal from the 219th Judicial District Court, Collin County, Texas
Trial Court Cause No. 219-80638-2019.
Opinion delivered by Justice Myers. Justices Partida-Kipness and Reichek participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 14th day of August, 2020.