                 NUMBERS 13-12-00396-CR & 13-12-00397-CR

                                COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG

JOHN BOURROUS,                                                            Appellant,

                                            v.

THE STATE OF TEXAS,                                                        Appellee.


                     On appeal from the 130th District Court
                         of Matagorda County, Texas.


                         MEMORANDUM OPINION
            Before Justices Rodriguez, Benavides, and Longoria
                Memorandum Opinion by Justice Benavides
       By three issues, appellant, John Bourrous challenges his convictions for two

counts of aggravated sexual assault of a child, see TEX. PENAL CODE ANN. § 22.021

(West 2011), one count of attempted aggravated sexual assault of a child, a

second-degree felony, see id. § 15.01 (West 2011), and one count of indecency with a

child, a first-degree felony.   See id. § 21.11 (West 2011). We affirm.
                                  I.     BACKGROUND

       A Matagorda County grand jury indicted Bourrous on three counts of aggravated

sexual assault of K.P., a child younger than fourteen years of age (Cause No.

13-12-396-CR), and on one count of indecency with a child, K.P. (Cause No.

13-12-397-CR). Bourrous pleaded not guilty to the charges and was tried by a jury.

       The allegations against Bourrous stem from an outcry made by Bourrous’s

ex-girlfriend’s daughter, K.P., who was age eighteen at the time of trial. K.P. testified

that Bourrous’s assaults began in 2003, when she was ten years old.              After K.P.’s

mother, M.P., and father, A.P., divorced, M.P., K.P., and brother, S.P. moved into

Bourrous’s home in El Maton, Texas.

       K.P. recalled that the first incident of abuse began one day when K.P. went to talk

to Bourrous in his bedroom, after having “a really bad day.” K.P. stated that no one was

around the house and Bourrous was the only person with whom she could talk to.           K.P.

stated that she laid in bed with Bourrous to talk to him, when he began to touch her.

K.P. testified that Bourrous “lifted [her nightgown] up,” pulled her panties to the side, and

began touching her vagina.     K.P. stated that she “didn’t know what to think of it” and

after it happened, ran to her bedroom and hid in the closet.      K.P. recalled that at age

eleven, Bourrous forced her to sit on the toilet, while he stood in front of her, and she

performed oral sex on him.

       K.P. also stated that Bourrous would sometimes enter her bedroom before she

would nap or go to sleep for the night, lie in bed with her, and penetrate her vagina with

his fingers or force her to masturbate him. According to K.P., sometimes Bourrous

would ejaculate in front her, and other times he did not.    K.P. specifically recalled a trip


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that she and Bourrous took to Lufkin to visit his family.        K.P. stated that on that trip,

Bourrous made her masturbate him one day and perform oral sex on him the next day.

K.P. also related that during the Lufkin trip, Bourrous attempted to touch her vagina in

the swimming pool.

       K.P. recalled a final event that took place when she was fourteen. K.P. stated

that Bourrous attempted to play pornography in his bedroom for her, pushed her to the

bed, and attempted to take her clothes off. K.P. stated that Bourrous was naked during

the ordeal. K.P. stated that she kicked, screamed, and did everything possible to leave,

but could not. Eventually, Bourrous stopped and told her that his actions were “going to

teach [K.P.] to say ‘no’ to boys.” K.P. recalled that that was the final time Bourrous

assaulted her, but prior to that, K.P. stated that Bourrous’s assaults would be “almost

every day,” but sometimes three or four weeks would pass without any.

       The jury returned a verdict of guilty on two counts (Counts I and II) of aggravated

sexual assault, one count of attempted aggravated sexual assault (lesser-included

offense to Count III), and indecency with a child.           The jury assessed Bourrous’s

punishment at ninety-nine years’ imprisonment for the two aggravated sexual assault

charges, twenty years’ imprisonment for the attempted aggravated sexual assault

offense, and twenty years’ for the indecency with a child conviction. The trial court

ordered that these sentences run concurrently.       This appeal followed.

                          II.    PROSECUTOR’S ARGUMENTS

       By his first issue, Bourrous asserts that the prosecutor violated his federal and

state constitutional rights, as well as his statutory right to silence.

A.     Applicable Law and Standard of Review


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       Texas law states that any defendant in a criminal action shall be permitted to

testify on his own behalf therein, but the failure of any defendant to so testify shall not be

taken as a circumstance against him, nor shall the same be alluded to or commented on

by counsel in the cause.    TEX. CODE CRIM. PROC. ANN. art. 38.08 (West 2005); see Cruz

v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007) (“It is settled law that neither the

trial judge nor the prosecution may comment on the defendant's failure to testify, and that

any such comment violates the Fifth Amendment privilege against self-incrimination.”).

       To violate the right against self-incrimination, the offending language must
       be viewed from the jury's standpoint and the implication that the comment
       referred to the defendant's failure to testify must be clear. It is not
       sufficient that the language might be construed as an implied or indirect
       allusion. The test is whether the language used was manifestly intended
       or was of such a character that the jury would necessarily and naturally
       take it as a comment on the defendant's failure to testify. In applying this
       standard, the context in which the comment was made must be analyzed
       to determine whether the language used was of such character. Cruz,
       225 S.W.3d at 548 (citing Bustamante v. State, 48 S.W.3d 761, 765 (Tex.
       Crim. App. 2001)); see Cook v. State, 702 S.W.2d 597, 599 (Tex. Crim.
       App. 1984).

B.     Discussion

       The basis for Bourrous’s argument on this issue stems from the following

comments made by the State during closing arguments:

       STATE:        In the instructions it tells you that you are not to consider the
                     failure of the defendant to testify. What that means is that I
                     can’t get up here and tell you that because a person doesn’t
                     testify that it means that they’re guilty. I can’t tell you there’s
                     any meaning whatsoever to the lack of a person testifying.
                     And it is just as appropriate to tell you that when a person
                     doesn’t testify, that doesn’t mean they had anything
                     meaningful to say to start with. So, as defense counsel
                     stands up here and tries to bootstrap someone’s silence into,
                     well, perhaps the State didn’t have enough proof and, so,
                     there’s no reason for my defendant to testify, that is simply
                     wrong.


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                     The court’s charge tells you that you do not consider a
                     person’s failure to testify either for or against them. It is
                     meaningless. What you look at is the evidence you have.

       In order to preserve error in prosecutorial argument, a defendant must pursue to

an adverse ruling his objections to jury argument.   Archie v. State, 221 S.W.3d 695, 699

(Tex. Crim. App. 2007). Our review of the record shows no objection from Bourrous’s

counsel on this argument.    Accordingly, error was not preserved.

       Even assuming without deciding that error was preserved, we conclude that the

prosecutor’s comments were not manifestly intended or of such a character that the jury

would necessarily and naturally take it as a comment on the defendant's failure to testify.

See Cruz, 225 S.W.3d at 548.     Instead, the prosecutor’s comments were a response to

Bourrous’s counsel’s argument made during his closing argument:

       [DEFENSE COUNSEL]:          But how does a man defend himself when somebody
                                   says I did something?

                                   Did you hear one date, one date where Mr.—if you
                                   want—if he testified what would he testify to? He told
                                   the detective and he went down there with his lawyer
                                   and he said, “I didn’t do this. What evidence do you
                                   have against me?”

       Later, Bourrous’s counsel made this argument:

       [DEFENSE COUNSEL]:          I think there’s not a [sic] one of us now that would
                                   wonder why he doesn’t testify. Why should he? He
                                   doesn’t have to.

       Proper jury argument includes answering jury argument made by opposing

counsel during the argument itself.   Brown v. State, 270 S.W.3d 564, 571 (Tex. Crim.

App. 2008). In this case, the State was responding to defense counsel’s rhetorical

question about what Bourrous would have testified to had he testified, and why Bourrous

did not testify.   Accordingly, the State’s argument in response was appropriately

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allowed not erroneous.    See id.

       Bourrous’s first issue is overruled.

                          III.   INEFFECTIVE ASSISTANCE OF COUNSEL

       By his second issue, Bourrous asserts that his trial counsel rendered ineffective

assistance at the guilt-innocence phase of his trial.

A.     Applicable Law and Standard of Review

       In Strickland v. Washington, 466 U.S. 668, 694 (1984), the United States

Supreme Court articulated a two-prong test to be used when analyzing a claim of

ineffective assistance of counsel. To have his conviction reversed on the grounds of

ineffective assistance of counsel, a defendant must show that (1) counsel's

representation fell below an objective standard of reasonableness and (2) the deficient

performance prejudiced the appellant.         Id. at 687; see also Andrews v. State, 159

S.W.3d 98, 101 (Tex. Crim. App. 2005). Unless the appellant makes both showings, it

cannot be said that his conviction is rendered unreliable by a breakdown in the

adversarial process. Andrews, 159 S.W.3d at 101 (citing Strickland, 466 U.S. at 687).

       Review of counsel’s performance is highly deferential, and we must make every

effort to eliminate the distorting effects of hindsight.   See Strickland, 466 U.S. at 689;

Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). A strong presumption

exists that counsel’s conduct falls within a wide range of reasonable professional

assistance, and the defendant must overcome that presumption by a preponderance of

the evidence. See Strickland, 466 U.S. at 689; see Cannon v. State, 668 S.W.2d 401,

403 (Tex. Crim. App. 1984) (en banc).           Our assessment of a claim of ineffective

assistance must be made according to the facts of each case.         Thompson v. State, 9


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S.W.3d 808, 813 (Tex. Crim. App. 1999). Any allegation of ineffectiveness must be

firmly founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness.   Id. While the Texas Court of Criminal Appeals has been “hesitant” to

designate any error as per se ineffective assistance of counsel as a matter of law, it has

nevertheless concluded that a “single egregious error of omission or commission” by

counsel can constitute ineffective assistance.   See id.      Generally, trial counsel should

be afforded an opportunity to explain his or her actions before being denounced as

defective.   Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). 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.” Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

B.     Discussion

       Bourrous first argues that his trial counsel provided ineffective assistance by

failing to object to “numerous inadmissible extraneous offenses”—specifically,

allegations of abuse made by K.P. that were not stated in the indictment. The record is

silent on this issue was to why counsel chose not to object or failed to object to K.P.’s

purported extraneous offenses. Therefore, Bourrous failed to rebut the presumption

that counsel’s failure to object was a reasonable decision.    See Thompson, 9 S.W.3d at

814.   Furthermore, even had Bourrous’s counsel objected, the likelihood of success of

such an objection is unclear, since courts give wide latitude to testimony given by child

victims of sexual abuse.      See Ketchum v. State, 199 S.W.3d 581, 590 (Tex.

App.—Corpus Christi 2006, pet. ref’d) (citing Villalon v. State, 791 S.W.2d 130, 133–34

(Tex. Crim. App. 1990)).


                                            7
       Next, Bourrous argues that his trial counsel was ineffective in failing to force the

State to elect which instance of sexual misconduct it relied upon for a conviction.   See

Phillips v. State, 193 S.W.3d 904, 909 (Tex. Crim. App. 2006). Again, the record is

silent as to why counsel did not file a motion that required the State to elect which

instance it relied upon for a conviction. We also note that Bourrous filed a motion for

new trial and held a hearing, in which Bourrous’s trial counsel was called as a witness,

yet no record was developed as to this complaint.       “The reason an adequate record is

so important . . . is because in the absence of a record, the court will indulge strong

presumptions that counsel's performance was a part of trial strategy, and typically will

not second-guess a matter of trial strategy.”     Stone v. State, 17 S.W.3d 348, 350 (Tex.

App.—Corpus Christi 2000, pet. ref’d) (citing Young v. State, 991 S.W.2d 835, 837–38

(Tex. Crim. App. 1999) (en banc)).          Without more, we decline to second-guess

Bourrous’s trail counsel’s trial strategy here.

       Finally, Bourrous argues that trial counsel failed to object to numerous instances

of improper closing argument by the State. Once again, the record is silent as to why

counsel chose not to object or failed to object to the prosecutor’s purported improper

arguments.      Specifically, Bourrous takes issue with the following six arguments made

by the State:

       (1)    The world that we know exist [sic] is that stranger sexual assaults of
       children are—they make up no caseload in a prosecutor’s office. I’ve seen one
       in 18 years. The caseload that we have in our office is a caseload with this
       environment where the perpetrator is somebody who is in the home or has access
       to the children, and you are going to find an inattentive parent or parents.

       (2)   And the next thing we look for is grooming. Tell me what that is,
       grooming. Grooming means making a child—getting a child to the point where
       you can do these types of things to them and they’re not going to tell about it.
       They’re going to accept it. They’re going to allow you to do those types of things.

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       They’re not going to tell anybody about it either because they’re afraid or because
       there’s no else to tell. It comes in all different situations where maybe they’re
       given a present, maybe they’re scared into it, maybe because it’s just a child who
       under any circumstances wouldn’t be a child who would tell. But grooming is
       real big and going along with that is a child who won’t tell.

       (3)   All of that consistent with what he know about the grooming process and
       about kids who won’t tell.

       (4)     And one of the biggest things that we look for are the depth of the
       statements, one of the very biggest things. People who do this for a living and
       interview children for a living will tell you that’s one of the most critical things they
       look for when dealing with child sexual assault, and that is tell me about the depth
       of that.

       (5)     And then he continued with the grooming.

       (6)    In the instructions it tells you that you are not to consider the failure of the
       defendant to testify. What that means is that I can’t get up here and tell you that
       because a person doesn’t testify that it means that they’re guilty. I can’t tell you
       there’s any meaning whatsoever to the lack of a person testifying. And it is just
       as appropriate to tell you that when a person doesn’t testify, that doesn’t mean
       they had anything meaningful to say to start with. So, as defense counsel stands
       up here and tries to bootstrap someone’s silence into, well, perhaps the State
       didn’t have enough proof and, so, there’s no reason for my defendant to testify,
       that is simply wrong. The court’s charge tells you that you do not consider a
       person’s failure to testify either for or against them. It is meaningless. What
       you look at is the evidence you have.

       Proper prosecutorial argument should generally fall within one of the following

categories:    (1) summation of the evidence, (2) reasonable deductions from the

evidence, (3) answer to argument of opposing counsel, and (4) pleas for law

enforcement. See Brown, 270 S.W.3d at 571; Cantu v. State, 944 S.W.2d 669, 671

(Tex. App.—Corpus Christi 1997, pet. ref’d). After examining the record, we conclude

that argument 1 is a reasonable deduction from the evidence, and argument 6 is an

answer to argument of opposing counsel. Arguments 2, 3, and 4 could potentially be

outside the scope of the four general categories of prosecutorial argument and amount

to error.    However, even assuming arguendo that those arguments were improper,

                                               9
Bourrous has failed to show how his trial counsel’s failure to object to those arguments

prejudiced him.   See Strickland, 466 U.S. at 687.

       Accordingly, based upon the facts of this case and the entire record, we conclude

that Bourrous failed to meet his burden to show that his trial counsel provided ineffective

assistance.   See Thompson, 9 S.W.3d at 813.      Bourrous’s second issue is overruled.

                              IV.    DOUBLE JEOPARDY

       By his final issue, Bourrous asserts that his conviction under Count II of his

indictment violates the Double Jeopardy clause of the United States Constitution

because it was incident to, or subsumed by, the aggravated sexual assault by

penetration offense as alleged in Count I of the indictment.

A.     Standard of Review

       The protections afforded by the Double Jeopardy Clause of the Fifth Amendment

were extended to state criminal prosecutions through the Due Process Clause of the

Fourteenth Amendment.      Ex parte Milner, 394 S.W.3d 502, 506 (Tex. Crim. App. 2013).

The Double Jeopardy Clause protects criminal defendants from three things: (1) a

second prosecution for the same offense after acquittal; (2) a second prosecution for the

same offense after conviction; and (3) multiple punishments for the same offense.       Id.

In our review, we must determine whether the defendant’s acts constitute a single

violation of the charged offense or two separate violations of the same criminal statute.

Id.   In order to determine if the Double Jeopardy Clause's prohibition against multiple

punishments for the same offense has been violated, we assess whether a defendant “is

convicted of more offenses than the legislature intended.”     Id.




                                            10
B.       Discussion

         The question of whether a defendant may be subjected to multiple prosecutions

under penal code section 22.021 was answered in Vick v. State. 991 S.W.2d 830,

832–34 (Tex. Crim. App. 1999). In Vick, the court of criminal appeals held that section

22.021 is a conduct-oriented offense in which the legislature criminalized very specific

conduct of several different types and intended that each separately described conduct

constitutes a separate statutory offense.   Id. at 832. Additionally, the statute expressly

and impliedly separates the sections by “or,” which is some indication that any one of the

proscribed conduct provisions constitutes an offense.    Id. at 832–33.   Furthermore,

         The statute criminalizes many types of sexually assaultive conduct with a
         child. Yet, each section usually entails different and separate acts to
         commit the various, prohibited conduct. This specificity reflects the
         legislature's intent to separately and distinctly criminalize any act which
         constitutes the proscribed conduct.

Id.
         In this case, different conduct was charged in each count of aggravated sexual

assault.     Under Count I, Bourrous was charged with penetration of K.P.’s mouth by his

sexual organ, see TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(ii); and under Count II,

Bourrous was charged with causing K.P.’s mouth to contact his sexual organ.      See id. §

22.021(a)(1)(B)(v). Therefore, Count II’s conduct constituted a separate and distinct

statutory offense from Count I and cannot have been incident to, or subsumed by Count

I.    See Vick, 991 S.W.2d at 833.    Accordingly, because we conclude that Count I and

Count II are alleged violations of separate and distinct statutory aggravated sexual

assault offenses and that those alleged offenses involved separate and distinct acts, our

inquiry for double jeopardy purposes ends.          See id.     Bourrous’s final issue is

overruled.

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                                  V.     CONCLUSION

       We affirm the trial court’s judgments.



                                                  __________________________
                                                  GINA M. BENAVIDES,
                                                  Justice

Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
5th day of September, 2013.




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