                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-15-00188-CR



        FRANKLIN COY KUHL, JR., Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 8th District Court
               Hopkins County, Texas
               Trial Court No. 1423952




      Before Morriss, C.J., Moseley and Burgess, JJ.
              Opinion by Justice Burgess
                                                OPINION
           On February 1, 2014, Franklin Coy Kuhl, Jr., drove C.S.,1 a fourteen-year-old girl, in his

red Chevrolet Cavalier from a house in Hopkins County to a motel in Greenville in Hunt County

and engaged in several sex acts with her. As a result, Kuhl was indicted for, and pled guilty to,

trafficking a child to engage in prohibited sexual conduct.2 Kuhl was sentenced to confinement

for life3 in the Texas Department of Criminal Justice Correctional Institutions Division in

accordance with the jury’s finding of guilt and its assessment of punishment. In this appeal, Kuhl

asserts that the trial court erred in denying his challenge to the constitutionality of Section

20A.02(a)(7)(C) of the Texas Penal Code, under which he was indicted and convicted. 4 Because

Kuhl has failed to establish that Section 20A.02(a)(7)(C) is unconstitutional, we will affirm the

judgment of the trial court.

           Kuhl asserts that Section 20A.02(a)(7)(C) is facially overbroad and vague in violation of

the Fourteenth Amendment to the United States Constitution and Article I, Sections 6 and 10 of




1
 The minor victim will be referred to as “C.S.” in accordance with Rule 9.10 of the Texas Rules of Appellate
Procedure. See TEX. R. APP. P. 9.10.
2
    See TEX. PENAL CODE ANN. § 20A.02(a)(7)(C) (West Supp. 2015).
3
    Kuhl’s range of punishment was enhanced when he pled “true” to two prior felony convictions.
4
 Kuhl filed a pretrial motion asserting that Section 20A.02 was unconstitutionally vague, which was denied by the
trial court.


                                                          2
the Texas Constitution.5 See U.S. CONST. amend. XIV; TEX. CONST. art. I, §§ 6, 10. Section

20A.02(a)(7)(C) provides,

                 (a)      A person commits an offense if the person knowingly:

                 ....

               (7)     traffics a child and by any means causes the trafficked child to
        engage in, or become the victim of, conduct prohibited by:

                 ....

                          (C)      Section 22.011 (Sexual Assault)

TEX. PENAL CODE ANN. § 20A.02(a)(7)(C).

        A “[c]hild” is defined as “a person younger than 18 years of age.” TEX. PENAL CODE ANN.

§ 20A.01(1) (West Supp. 2015). Further, “‘[t]raffic’ means to transport, entice, recruit, harbor,

provide, or otherwise obtain another person by any means.” TEX. PENAL CODE ANN. § 20A.01(4)

(West Supp. 2015).         Kuhl argues that the phrase “by any means” as used in subsection

20A.02(a)(7) and in the definition of “traffic” is overbroad and vague because it may, in some

instances, proscribe legal conduct.

        In determining whether a statute is constitutional, we presume that the statute is valid.

Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). The individual challenging the

statute has the burden to establish its unconstitutionality. Id. When a statute is alleged to be

overbroad and vague, we first determine whether the statute “reaches a substantial amount of


5
 Although Kuhl argues that the statute is vague and overbroad under both the United States and Texas Constitutions,
he does not argue that the Texas Constitution creates a different standard than the United States Constitution, but
instead makes one argument citing both federal cases and Texas cases interpreting the United States Constitution.
Therefore, we will analyze these points together under the federal standard. Sullivan v. State, 986 S.W.2d 708, 711
n.3 (Tex. App.—Dallas 1999, no pet.).
                                                        3
constitutionally protected conduct. If it does not, then the overbreadth challenge must fail.”

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982); see Briggs

v. State, 740 S.W.2d 803, 806 (Tex. Crim. App. 1987).

       In this case, Kuhl does not assert that any constitutionally protected conduct was implicated

by the statute. Even if such a situation could be imagined, “[a] statute will not be invalidated for

overbreadth merely because it is possible to imagine some unconstitutional applications.” State v.

Holcombe, 145 S.W.3d 246, 250 (Tex. App.—Fort Worth 2004), aff’d, 187 S.W.3d 496 (Tex.

Crim. App. 2006) (citing Village of Hoffman Estates, 455 U.S. at 494). Since Kuhl has not

demonstrated that the statute impacts a substantial amount of constitutionally protected conduct,

his overbreadth claim fails.

       In a facial vagueness challenge to a statute that does not implicate constitutionally protected

conduct, the challenge will be upheld only when the statute “is impermissibly vague in all of its

applications.” Village of Hoffman Estates, 455 U.S. at 494–95; see State ex rel. Lykos v. Fine, 330

S.W.3d 904, 908 (Tex. Crim. App. 2011); Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim.

App. 1992). Further, “it is incumbent upon a defendant to show that in its operation the statute is

unconstitutional to him in his situation; that it may be unconstitutional as to others is not

sufficient.” Briggs, 740 S.W.2d at 806 (citing Parent v. State, 621 S.W.2d 796, 797 (Tex. Crim.

App. [Panel Op.] 1981)); Vuong v. State, 830 S.W.2d 929, 941 (Tex. Crim. App. 1992). If the

defendant engages in conduct clearly proscribed by the statute, he may not complain of the

vagueness of the law as applied to others. Village of Hoffman Estates, 455 U.S. at 495; Watson v.

State, 369 S.W.3d 865, 871 (Tex. Crim. App. 2012).

                                                 4
       Kuhl does not contend and has made no showing that the statute is unconstitutional as

applied to him and his conduct. Further, the evidence clearly shows that he knowingly transported

C.S. and caused her to engage in the prohibited conduct. Since Kuhl has failed to show that Section

20A.02(a)(7)(C) is overbroad and has failed to show that it is unconstitutionally vague as to his

conduct, we overrule his point of error.

       We affirm the judgment of the trial court.




                                             Ralph K. Burgess
                                             Justice

Date Submitted:        April 11, 2016
Date Decided:          June 16, 2016

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