                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-13-00103-CR


                           RICK ALAN KAINZ, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 121st District Court
                                    Terry County, Texas
                 Trial Court No. 6379, Honorable Kelly G. Moore, Presiding

                                    January 20, 2015

                            MEMORANDUM OPINION
                   Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant Rick Alan Kainz appeals his conviction for the offense of sexual assault

and resulting sentence of ten years’ imprisonment and $10,000 fine.1 Through three

issues appellant argues the trial court abused its discretion by denying his motion for




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         TEX. PENAL CODE ANN. § 22.011(a)(1)(A) (West 2011). The offense as charged
is a felony of the second degree, Id. § 22.011(f), punishable by a term of confinement in
prison for a term of not more than twenty years or less than two years and a fine not to
exceed $10,000. TEX. PENAL CODE ANN. § 12.33 (West 2011).
continuance, his trial counsel rendered ineffective assistance, and the evidence was

insufficient to support his conviction. We will affirm the judgment of the trial court.


                                        Background


       The complainant is appellant’s stepdaughter. She was twenty-four at the time of

trial in 2013. She has a brother, M.C., who is four or five years younger.


       The complainant testified that when she was a high school freshman, appellant

began sleeping in her bed with her about twice a week. She thought he slept in her bed

after fights with her mother. “So he needed some where (sic) else to sleep.” By the

time the complainant moved from the family home in 2012, appellant was sleeping with

her in her bed about five times a week. She testified appellant occasionally placed his

arm around her waist in bed, which made her uncomfortable.


       The sleeping arrangements continued after the complainant graduated from high

school in 2008. On one occasion, she recalled, appellant French kissed her, and on

another occasion, inserted his fingers into her vagina, both without her consent. On two

other occasions she discovered “bruises” on her neck, and she said appellant

sometimes masturbated as he lay beside her.


       The complainant was unable to pinpoint the date of appellant’s digital

penetration, saying only it happened between her high school graduation in May 2008

and her move to another address in 2012. She said appellant made her take “allergy

pills,” leaving her groggy. On the occasion of the digital penetration, she said, she took

the allergy medication before going to bed and was too groggy to remain awake after



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realizing what happened. She told no one at the time because she was taught “what

happens in the family stays in the family.”


       The complainant decided to reveal appellant’s conduct after a family friend told

her appellant sexually assaulted M.C., who is a person with learning disabilities.


       The State’s evidence also included a written statement appellant gave a

Department of Public Safety examiner. In the brief narrative appellant stated:


       I fell asleep on [the complainant’s] bed in 2010. I must have been
       dreaming because when [the complainant] yelled my name I woke up. I
       went into the other room and smoked. I dreamed I was making out with
       my wife and stuck my finger in her vagina. Im (sic) truely (sic) sorry about
       doing this to my daughter, by putting my finger in her vagina.

       Appellant did not testify, but the evidence of his relationship with the complainant

included her description it was “very close.” After she graduated from high school, she

acquired a tattoo that included the wording “Daddy’s girl.”


       After his conviction, appellant did not file a motion for new trial but timely pursued

this appeal.


                                          Analysis


       In his first issue, appellant complains the trial court abused its discretion by

denying his motion for continuance. As a result, he argues, he was unable to cross-

examine the State’s expert witness, the complainant’s counselor Cecelia Kern, and was

unable to obtain a rebuttal expert.


       The complainant began therapy with Kern in August 2012. In November 2012,

counsel for appellant filed a discovery motion. Among other things, the motion sought

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“all reports . . . of experts and the name and address of each such person who made

such report . . . including but not limited to reports pertaining to any evidence to be

introduced by the State.” The trial court granted appellant’s motion. Before trial, the

State filed an amended witness list that included Kern. She was not designated an

expert.


       On the Monday morning of trial, counsel for appellant filed a motion for

continuance. According to counsel, he initially learned of the State’s intention to present

Kern as an expert witness late in the day the preceding Friday when he received her

curriculum vitae. Apart from her curriculum vitae, he claimed not to have received any

reports or information related to Kern as an expert. In the opinion of counsel, he was

unable to adequately prepare to cross-examine Kern unless trial was delayed.             In

response, the State pointed out that appellant did not request a witness list or

designation of experts.    Nevertheless, the State voluntarily filed a witness list that

included Kern. Concerning the witness list, appellant’s counsel explained he “assumed

[Kern] was some fact witness that [he] didn’t know about.” The court denied the motion

from the bench and memorialized its rendition in a written order.


       Through her testimony, Kern offered opinions explaining why, among other

things, the complainant remained in the home after being penetrated, why she

continued taking the allergy medication, and why she was unable to narrow down the

date of penetration. Appellant’s counsel asked no questions of Kern.


       An appellate court reviews a trial court’s ruling on a motion for continuance for

abuse of discretion.   Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007);



                                             4
Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996) (per curiam).           To

demonstrate the trial court reversibly erred by denying a motion for continuance an

appellant must show the trial court committed an abuse of discretion resulting in actual

harm. Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010); Janecka, 937

S.W.2d at 468; see also Rogers v. State, No. 14-12-00546-CR, 2013 Tex. App. LEXIS

5451, at *9 (Tex. App.—Houston [14th Dist.] May 2, 2013, no pet.) (mem. op., not

designated for publication). A trial court abuses its discretion in denying a motion for

continuance when “the case made for delay was so convincing that no reasonable trial

judge could conclude that scheduling and other considerations as well as fairness to the

State outweighed the defendant’s interest in delay of the trial.” Gonzales, 304 S.W.3d

at 843 (quoting George E. Dix & Robert O. Dawson, 42 Tex. Prac. Series: Criminal

Practice and Procedure § 28.56 (2d ed. 2001)).


      Harm requires proof of actual, rather than theoretical, prejudice. Janecka, 937

S.W.2d at 468; Heiselbetz v. State, 906 S.W.2d 500, 511-12 (Tex. Crim. App. 1995).

How the defendant “was harmed by the absence of more preparation time” must appear

in the record “with considerable specificity.” Gonzales, 304 S.W.3d at 842 (quoting Dix

& Dawson, at § 28.56). “This showing can ordinarily be made only at a hearing on a

motion for new trial, because almost always only at that time will the defendant be able

to produce evidence as to what additional information, evidence or witnesses the

defense would have had available if the motion for delay had been granted.” Gonzales,

304 S.W.3d at 842-43 (quoting Dix & Dawson, at § 28.56).


      Here a motion for new trial was not filed. Thus we have no record establishing

actual harm to appellant because the trial court denied the requested continuance.

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Accordingly, we are unable to say that the trial court abused its discretion by denying

appellant’s pretrial motion for continuance. But even had we so found, nothing in the

record establishes any resulting harm. Appellant’s first issue is overruled.


       By his second issue, appellant asserts his trial counsel rendered ineffective

assistance.


       The seminal case of Strickland v. Washington directs our analysis of an

ineffective assistance of counsel claim. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984).   Our review of counsel’s performance is highly deferential and a strong

presumption exists that counsel’s conduct fell within a wide range of reasonable

professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); see

Strickland, 466 U.S. at 689 (noting there are countless ways to provide effective

assistance in any given case).         To overcome the presumption of reasonable

professional assistance, any allegation of ineffectiveness must be firmly rooted in the

record. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). Through the

hearing on a motion for new trial, a defendant may develop a record satisfying his

burden of proof on the two Strickland prongs. Guidry v. State, 2003 Tex. App. LEXIS

1481, at *4 (Tex. App.—Corpus Christi Feb. 13, 2003, no pet.) (citing Jackson v. State,

877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994); Bohnet v. State, 938 S.W.2d 532, 536

(Tex. App.—Austin 1997, pet. refused)). In most instances, a silent record is insufficient

to overcome the presumption.       Strickland, 466 U.S. at 688; Stafford v. State, 813

S.W.2d 503, 506 (Tex. Crim. App. 1991). Absent evidence of counsel’s reasons for the

challenged conduct, we will not conclude the challenged conduct constituted deficient



                                            6
performance unless the conduct was so outrageous that no competent attorney would

have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).


       The Court in Strickland established a two-pronged test for analyzing a claim of

ineffective assistance of counsel.     Reversal requires an appellant to demonstrate

counsel’s representation fell below an objective standard of reasonableness and the

deficient performance prejudiced the appellant. 466 U.S. at 687; see Hernandez v.

State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986) (applying Strickland standards

under Texas Constitution).


       The first prong of the Strickland test requires an appellant to prove that counsel

made such serious errors that he did not function as the “counsel” guaranteed by the

Sixth Amendment. Strickland, 466 U.S. at 687. Appellant must show that counsel’s

performance was unreasonable under prevailing professional norms and that the

challenged action was not sound trial strategy. Id. at 689-90.


       Under the second prong, an appellant must show that the deficient performance

prejudiced the defense. Strickland, 466 U.S. at 687. The standard for judging prejudice

requires an appellant “show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.           A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694.


       As for the claimed deficiencies of trial counsel, appellant points out counsel did

not request an expert witness list; did not cross-examine Kern or offer evidence

rebutting her testimony; did not investigate Kern after receiving the State’s witness list;


                                             7
did not object “when the State qualified Kern as an expert”; and did not object to Kern’s

testimony on the ground that her presentation as an expert violated the discovery order.

Trial counsel requested an expert report but did not seek a listing of experts from the

State. As noted, the State gratuitously provided a witness list. Its list did not, however,

designate witnesses as fact or expert witnesses. Having reviewed the record, including

the record of the hearing on the motion for continuance, we disagree with appellant’s

assertion the record here is sufficient to demonstrate counsel’s representation fell below

an objective standard of reasonableness.           Without hearing more regarding such

questions as why trial counsel chose to rely on his motion for discovery and the State’s

witness list rather than independent investigation of Kern, and why he did not pursue

cross-examination of Kern, we are not able to say the complained-of acts of counsel,

alone or collectively, were so egregious that appellant did not receive the “counsel”

guaranteed by the Sixth Amendment. See generally Goodspeed v. State, 187 S.W.3d

390, 392 (Tex. Crim. App. 2005) (stating “trial counsel should ordinarily be afforded an

opportunity to explain his actions before being denounced as ineffective. Absent such

an opportunity, an appellate court should not find deficient performance unless the

challenged conduct was so outrageous that no competent attorney would have engaged

in it” (citations and quotation marks omitted)).


       Even assuming the record sufficiently demonstrates trial counsel’s failure to

challenge Kern’s qualifications and the reliability and relevance of her opinions and to

cross-examine her rendered the representation deficient, the record must also satisfy

the prejudice prong of Strickland.




                                             8
       As with the performance prong, “the question of prejudice turns on the facts that

the record shows.”      Mitchell v. State, 68 S.W.3d 640, 643 (Tex. Crim. App. 2002).

Appellant has not demonstrated that a different treatment of counselor Kern’s testimony

by trial counsel would have overcome the complainant’s testimony he penetrated her

vagina, and appellant’s admission he did so, so as to lead to a different trial outcome.

Appellant’s second issue is overruled.


       Through his third issue, appellant asserts insufficient evidence supports the jury’s

verdict of conviction.       Appellant predicates this argument on four factors: the

complainant “might” have reported falsely because appellant disapproved of her

boyfriend; she “might” have falsely reported because she believed appellant molested

M.C.; she gave conflicting testimony of molestation and the circumstances surrounding

her claim were “questionable”; and appellant’s trial counsel did not rebut Kern’s

testimony.


       An appellate court evaluates the sufficiency of evidence presented in proof of a

criminal conviction under the standard set out by the United States Supreme Court in

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1970); see also

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Under this standard, we

defer to “the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 894, 899, 916. Considering all

the evidence in the light most favorable to the verdict, we determine whether the jury

was rationally justified in finding guilt beyond a reasonable doubt. Jackson, 443 U.S. at

319; Brooks, 323 S.W.3d at 899.

                                                9
      Relevant here, a person commits the offense of sexual assault of an adult when

he intentionally or knowingly causes the penetration of the sexual organ of another

person by any means, without that person’s consent.           TEX. PENAL CODE ANN. §

22.011(a)(1)(A) (West 2011).


      Reiterated, the complainant testified that while she slept appellant knelt beside

her bed and digitally penetrated her sex organ without her consent.           This act was

corroborated by appellant’s written statement. The jury was free to infer appellant’s

intent or knowledge from any facts in evidence tending to establish the requisite

culpable mental state. Bejar v. State, 14-12-00888-CR, 2013 Tex. App. LEXIS 13521,

at *6-7 (Tex. App.—Houston [14th Dist.] Oct. 31, 2013, no pet.) (mem. op., not

designated for publication) (citing Adams v. State, 222 S.W.3d 37, 49 (Tex. App.—

Austin 2005, pet. refused). As for any doubt cast by the facts composing appellant’s

factors one through three, the jury was the exclusive judge of witness credibility and the

weight assigned their testimony and was free to choose to believe all, some or none of

the evidence presented. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008).

Factors one through three are reasons why the jury might have disbelieved the

complainant’s testimony, but none of the factors required the jury to disbelieve her

testimony. Zambara v. State, No. 07-12-00125-CR, 2014 Tex. App. Lexis 2059, at *10

(Tex. App.—Amarillo Feb. 24. 2014, no pet.) (mem. op., not designated for publication).

As for appellant’s fourth reason, the fact his trial counsel did not cross-examine Kern

does not diminish the weight of the evidence supporting the jury’s verdict.


      Viewing all of the evidence in the light most favorable to the verdict, as we must,

we hold that a rational trier of fact could have determined beyond a reasonable doubt

                                            10
that appellant intentionally or knowingly caused the penetration of the complainant’s sex

organ without her consent. Appellant’s third issue is overruled.


                                        Conclusion


         Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.


                                                 James T. Campbell
                                                     Justice



Do not publish.




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