AFFIRMED; Opinion Filed November 13, 2014.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-13-00723-CR

                        AARON HOWARD KLOEPFER, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the 296th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 296-81623-2012

                             MEMORANDUM OPINION
                            Before Justices Bridges, Lang, and Evans
                                    Opinion by Justice Evans
       Appellant Aaron Howard Kloepfer appeals from the judgments adjudicating him guilty of

two offenses: (1) continuous sexual abuse of a young child with a sentence of thirty-seven years

imprisonment; and (2) indecency with a child by contact with a sentence of ten years

imprisonment. Appellant asserts two points of error: (1) the trial court erred in submitting a

charge that allowed the jury to find appellant guilty of an additional offense committed within

the same time frame as the acts comprising the continuous sexual abuse in violation of the

double jeopardy clause; and (2) appellant was not afforded effective assistance of counsel.

Finding no merit in appellant’s arguments, we affirm the trial court’s judgment.




                                         BACKGROUND
       On May 23, 2012, a high school resource officer made a report to police that a student,

M.R., was the potential victim of sexual abuse. Following this report, a forensic interview with

M.R. was conducted by the Children’s Advocacy Center. Appellant was subsequently charged

with two offenses in the indictment—continuous sexual abuse of a young child and indecency

with a child by contact. Count one, continuous sexual abuse of a young child, was alleged in the

indictment as follows:

       during a period that was 30 days or more in duration, committed two or more acts of
       sexual abuse against [M.R.], said acts of sexual abuse having been violations of one or
       more of the following penal laws, including:

       aggravated sexual assault of a child, intentionally and knowingly cause the penetration
       of the female sexual organ of [M.R.], a child then younger than fourteen (14) years of
       age and not the spouse of the defendant by means of defendant's male sexual organ;

                                            AND/OR

       aggravated sexual assault of a child, intentionally and knowingly cause the female
       sexual organ of [M.R.], a child then younger than fourteen (14) years of age, and not
       the spouse of the defendant, to contact the male sexual organ of the defendant;

                                            AND/OR

       aggravated sexual assault of a child, intentionally and knowingly cause the penetration
       of the female sexual organ of [M.R.], a child then younger than fourteen (14) years of
       age and not the spouse of the defendant by means of defendant's finger;

                                            AND/OR

       indecency with a child, by intentionally and knowingly, with the intent to arouse and
       gratify the sexual desire of any person, engage in sexual contact by touching part of
       the genitals of [M.R.], a child younger than seventeen (17) years of age and not the
       spouse of the defendant, by means of defendant's hand;

                                            AND/OR

       aggravated sexual assault of a child, intentionally and knowingly cause the
       penetration of the mouth of [M.R.], a child then younger than fourteen (14) years of
       age and not the spouse of the defendant by means of defendant's male sexual organ;




                                               –2–
                                              AND/OR

        aggravated sexual assault of a child, intentionally and knowingly cause the female
        sexual organ of [M.R.], a child then younger than fourteen (14) years of age, and not
        the spouse of the defendant, to contact the mouth of the defendant;

                                              AND/OR

        aggravated sexual assault of a child, intentionally and knowingly cause the anus of
        [M.R.], a child then younger than fourteen (14) years of age, and not the spouse of the
        defendant, to contact the male sexual organ of the defendant; and each of the
        aforementioned acts of sexual abuse were committed on more than one occasion and,
        at the time of the commission of each of the acts of sexual abuse, the defendant was
        seventeen ( 17) years of age or older and [M.R.] was a child younger than fourteen
        (14) years of age.

Count two, indecency with a child by contact, was alleged in the indictment as “intentionally and

knowingly, with the intent to arouse and gratify the sexual desire of any person, engage in sexual

contact by touching the breast of [M.R.], a child younger than seventeen ( 17) years of age and not

the spouse of the defendant, by means of defendant's hand.”

        Appellant pled not guilty to the two offenses and his trial commenced in May 2013.

During trial the State offered the DVD of the forensic interview between M.R. and the

Children’s Advocacy Center. The trial court admitted the DVD testimony and appellant’s

attorney did not object to its admission based on his trial strategy. In regard to this issue, the trial

court, appellant’s attorney (Mr. Edgett) and the State’s attorney (Ms. Cook) had the following

exchange:

        THE COURT:              The State intends to offer the forensic interview as a result of trial
                                strategy based on our informal conversation. As a result of trial
                                strategy, Defense has elected not to object; is that correct?

        MR. EDGETT:             That’s correct, Your Honor.

        MS. COOK:               I–

        THE COURT:              Yes, go ahead.

        MS. COOK:               I want to say that the victim is here. [M.R.] is here and has been
                                sworn in and is available to testify if needed also.

                                                  –3–
        THE COURT:         Having heard the evidence at this point and having observed, I do
                           find that this is sound trial strategy.
        On May 8, 2013, the jury found appellant guilty of both offenses. The trial court set

punishment at thirty-seven years for continuous sexual abuse of a young child and ten years for

indecency with a child by contact. After the trial court denied appellant’s motion for a new trial,

he filed this appeal.

                                             ANALYSIS

        I.      The Double Jeopardy Clause

        Appellant contends that the trial court erred in submitting a jury charge that allowed the

jury to find appellant guilty of an additional offense committed within the same time frame as the

acts comprising the continuous sexual abuse charge.

                A.      Standard of Review

        The Fifth Amendment’s double jeopardy clause states that no person shall “be subject for

the same offence to be twice put in jeopardy of life or limb.” U.S. CONST. amend. V. The

double jeopardy clause protects an accused against a second prosecution for the same offense

after acquittal, a second prosecution for the same offense after conviction, and multiple

punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977).

        To determine if an accused has been charged with multiple punishments for the same

offense, as appellant alleges here, courts use the “same elements” or “Blockburger test.” See

Blockburger v. U.S., 284 U.S. 299 (1932). The Blockburger test provides that, where the same

act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied

to determine whether there are two offenses or only one, is whether each provision requires proof

of an element which the other does not. Id. at 304.




                                                 –4–
               B.      No Violation of the Double Jeopardy Clause

       In his first issue, appellant argues that he should not have been punished for both

continuous sexual assault and indecency with a child because it results in double jeopardy. We

disagree for the reasons set forth below.

       Section 21.02 of the Texas Penal Code sets out the offense of continuous sexual abuse:

       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.

TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2014). An “act of sexual abuse” described in

section 21.02(a) means any act that is a violation of one or more of the following penal laws:

       (1) aggravated kidnapping under Section 20.04(a)(4), if the actor committed the
       offense with the intent to violate or abuse the victim sexually;

       (2) indecency with a child under Section 21.11(a)(1), if the actor committed the
       offense in a manner other than by touching, including touching through clothing,
       the breast of a child;

       (3) sexual assault under Section 22.011;

       (4) aggravated sexual assault under Section 22.021;

       (5) burglary under Section 30.02, if the offense is punishable under Subsection (d)
       of that section and the actor committed the offense with the intent to commit an
       offense listed in Subdivisions (1)-(4);

       (6) sexual performance by a child under Section 43.25;

       (7) trafficking of persons under Section 20A.02(a)(7) or (8); and

       (8) compelling prostitution under Section 43.05(a)(2).




                                               –5–
Id. § 21.02(c) (emphasis added). Within section 21.02, there is also language regarding multiple

punishments for continuous sexual abuse:

         A defendant may not be convicted in the same criminal action of an offense listed
         under Subsection (c) the victim of which is the same victim as a victim of the
         offense alleged under Subsection (b) unless the offense listed in Subsection (c):

         (1) is charged in the alternative;

         (2) occurred outside the period in which the offense alleged under Subsection (b)
         was committed; or

         (3) is considered by the trier of fact to be a lesser included offense of the offense
         alleged under Subsection (b).

Id. § 21.02(e).

         As the statute provides above, a defendant cannot be convicted of continuous sexual

assault and aggravated sexual assault of the same child if the aggravated sexual assault and the

continuous sexual abuse occurred within the same time periods. In this instance, however,

appellant was convicted of indecency with a child and continuous sexual abuse. The conviction

of indecency with a child was based upon appellant’s touching of M.R.’s breast. The act of

touching a breast was expressly excluded from the “acts of sexual abuse” described in section

21.02(a) and was not included in the acts of aggravated sexual assault described in section

22.021. 1 Although section 21.02(c) does provide that indecency with a child, if committed in a

manner other than by touching the breast of a child, is an act of sexual abuse for purposes of

continuous sexual abuse, that was not the basis of appellant’s conviction. Here, appellant was

convicted of the offense of indecency with a child for touching M.R.’s breast. This act was


1
  A person commits aggravated sexual assault if the person intentionally or knowingly: (i) causes the penetration of
the anus or sexual organ of a child by any means; (ii) causes the penetration of the mouth of a child by the sexual
organ of the actor; (iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of
another person, including the actor; (iv) causes the anus of a child to contact the mouth, anus, or sexual organ of
another person, including the actor; or (v) causes the mouth of a child to contact the anus or sexual organ of another
person, including the actor. TEX. PENAL CODE ANN. § 22.021(a)(1)(B) (West Supp. 2014).



                                                         –6–
specifically excluded from acts that may constitute sexual abuse under section 21.02(c) and cannot

support a charge of continuous sexual abuse. In addition, the indecency with a child charge requires

proof of touching a child’s breast which is not required for a charge of continuous sexual abuse of a

child. Therefore, under the Blockburger test, there are two separate offenses and a violation of

the double jeopardy clause has not occurred. We overrule appellant’s first issue.

       II.     Effective Assistance of Counsel

       In his second issue, appellant contends that he was not afforded effective assistance of

counsel because his trial court counsel did not object to the admission of a videotaped statement

of the alleged victim.

               A.        Standard of Review

       Texas courts apply the two-pronged Strickland test to determine whether counsel’s

representation was so inadequate as to violate a defendant’s Sixth Amendment right to counsel.

Strickland v. Washington, 466 U.S. 668, 687 (U.S. 1984); Hernandez v. State, 726 S.W.2d 53, 57

(Tex. Crim. App. 1986) (adopting the Strickland two-prong test for criminal cases in Texas.).

Under this two-part test, appellant must establish that: (1) counsel’s performance was deficient

and that his assistance fell below an objective standard of reasonableness; and (2) but for

counsel’s unprofessional errors, the result of the proceeding would have been different.

Strickland, 466 U.S. at 687. Unless appellant can prove both prongs, an appellate court must not

find counsel’s representation to be ineffective. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim.

App. 2011). In order to satisfy the first prong, appellant bears the burden of proving by a

preponderance of the evidence that counsel was ineffective. Thompson v. State, 9 S.W.3d 808,

813 (Tex. Crim. App. 1999). Further, there is a strong presumption that counsel’s conduct fell

within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. To

prove the second prong, appellant must show that there is a reasonable probability, or a


                                                –7–
probability sufficient to undermine confidence in the outcome, that the result of the proceeding

would have been different. Lopez, 343 S.W.3d at 142.

       B.      Appellant Was Afforded Effective Assistance of Counsel

       Appellant contends that he failed to receive effective assistance of counsel because his

attorney did not object to the admission of M.R.’s videotaped interview. Appellant appears to

argue that trial counsel should have made a hearsay objection to disallow the videotaped

testimony. This argument is unpersuasive for several reasons.

       First, as stated above, counsel and the trial judge discussed this issue on the record and

appellant’s counsel stated that his decision not to object to the videotaped testimony was a

conscious decision and a “trial strategy.” This occurred although M.R., then seventeen years old,

was present in the courtroom and ready to testify before the jury. The trial court even noted that

counsel’s decision not to object was a “sound trial strategy” based on the evidence at issue. We

ordinarily will not declare trial counsel ineffective where there is no record showing counsel had

an opportunity to explain himself. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.

App. 2005). Without evidence of the strategy employed, we will presume sound trial strategy.

See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Texas procedure makes it

“virtually impossible” for appellate counsel to present an adequate ineffective assistance of trial

counsel claim on direct review. Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013). This is

because the inherent nature of most ineffective assistance of trial counsel claims means that the

trial court record “will often fail to ‘contai[n] the information necessary to substantiate’ the

claim.” Id. (quoting Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997) (en banc)).

       Further, we disagree with appellant’s argument that he would not have been found guilty

of continuous sexual abuse had the trial court sustained a hearsay objection to the videotaped

testimony. As stated above, appellant must demonstrate that but for counsel’s professional

                                               –8–
errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687.

Here, the State noted, on the record, that the alleged victim was present and available to testify if

needed. Therefore, even if the trial court had sustained the hearsay objection to the videotaped

testimony, the State would simply have called M.R. to testify. Accordingly, appellant is unable

to show there is a reasonable probability that the result of the proceeding would have been

different but for trial counsel’s alleged error. For these reasons, we resolve the second issue

against appellant.

                                           CONCLUSION

       We resolve appellant’s issues against him and affirm the trial court’s judgment.



                                                              / David Evans/
                                                              DAVID EVANS
                                                              JUSTICE


Do Not Publish
TEX. R. APP. P. 47
130723F.U05




                                                –9–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

AARON HOWARD KLOEPFER, Appellant                    On Appeal from the 296th Judicial District
                                                    Court, Collin County, Texas
No. 05-13-00723-CR        V.                        Trial Court Cause No. 296-81623-2012.
                                                    Opinion delivered by Justice Evans.
THE STATE OF TEXAS, Appellee                        Justices Bridges and Lang participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 13th day of November, 2014.




                                            –10–
