### IN THE TENTH COURT OF APPEALS
No. 10
- 22
- 00023
- CR No. 10
- 22
- 0002 4- CR

NICHOLAS DAVID HOYT , Appellant v. THE STATE OF TEXAS , Appellee

From the 13th District Court Navarro County, Texas Trial Court No s . D41235
- CR and D41237
- CR

MEMORANDUM OPINION
Nicholas David Hoyt was convicted of ten counts of possession with the intent to promote child pornography ( appellate case number 10-22-00023- CR / trial court case
number D41235- CR ) and ten counts of possession of child pornography (appellate case
number 10-22-00024- CR / trial court case number D41237- CR)

. Hoyt was sentenced to 11
years in pris on on Counts 1

- 10 in trial court case n umber D41235- CR, 5 years in prison onHoyt v. State Page 2 Counts 1

- 9 in trial court case n umber D41237

- CR , and 10 years in prison , probated for 10
years, on Count 10 in trial court case n umber D41237

- CR

. The trial c ourt cumulated those
sentences so that the 11

- year sentence s in the ten

- count indictment in D41235

- CR would run first, followed by the 5

- year sentence for Counts 1

- 9 in D41237

- CR, and then followed by the 10

- year - probated

- ten

- years sentence for Count 10 in D41237

- CR. Because jury charge error , related to the instruction regarding a presumption, in trial court case
number D41235

- CR was egregious, the trial court’s judgment in trial court case number
D41235

- CR is reversed and that case is remanded to the trial court . Because jury charge

er ror regarding unanimity, in both cases , was not egregious and because the trial court ’s oral pronouncement of sentence for both trial court cases was properly memorialized in the judgment, the trial court’s judgment in trial court case number D4123 7

- CR is affirmed.
B ACKGROUND Images of child pornography wer e flagged by cyber

- crime tip s to authorities in Collin County in March of 2016. A n investigation b y the National Center for Missing and Explo ited Children then b egan
. The tips linked the images flagged to an IP address
associated with a residence in Navarro County where Hoyt and others li ved. Email addresses, which included part or all of Hoyt’s name, were also linked to the tips. Search warrants were issued for the physical address , and Hoyt’s cell phone and desktop computer were seized. Images of child pornography were located on both the phone and the computer.Hoyt v. State Page 3 J URY - C HARGE E RROR
In his first two issues, Hoyt complains the tria l court committed errors in the jury charge. Specifically, Hoyt complains in his first issue that the trial court failed to include

a Texas Penal Code Section 2.05 instruction in the charge in appellate case number 10

- 22

- 00023

- CR/ trial court case number D41235

- CR on the use of a statu t ory presumption and complains in his second issue that the court’s charge allowed nonunanimous verdicts in
both case s . Hoyt did not object to either alleged error. The State concedes error as to both complaints but argues the errors were harmless

. Standard of Review In reviewing a jury

- charge issue, if error is found, the appellate court must analyze
that error for harm. Price v. State , 457 S.W.3d 437, 440 (Tex. Crim. App. 2015); Almanza v.
State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). If error was not preserved at trial by proper objection, a reversal will be granted only if the error presents egregious harm, meaning the defendant did not receive a fair and impartial trial. Almanza , 686
S.W.2d at 171. In examining the record for egregious harm, we consider 1) the complete jury charge, 2) the arguments of counsel, 3) the entirety of the evidence, including the contested issues and weight of the probative evidence, and 4) any o ther relevant factors revealed by the record as a whole. Hollander v. State , 414 S.W.3d 746, 749

- 50 (Tex. Crim. App. 2013). Jury charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Taylor v.
State , 332 S.W.3d 483, 490 (Tex. Crim. App. 2011).Hoyt v. State Page 4 

### Section 2.05 Instruction ( case n umber D41235
- CR/ 10
- 22
- 00023
- CR ) Hoyt was charged with and convicted of the second

- degree felony offense of possession with the intent to promote child pornography

. T EX

. P ENAL C ODE § 43.26(a)(1), (e), (g). A person commits the offense if the person knowingly or intentionally possess es with intent to promote “ visual material that visually depict s , ” and the pers on kn o w s the
material visually depict s , a child , younger than 18 years of age at the time the image of
the child was made, engaging in sexual conduc t. See id. A person is presumed to possess
the material with the intent to promote the material if the person possesses visual material that contains six or more identical visual depictions of a child as described by s ection 43.26(a)(1)

. T EX

. P ENAL C ODE § 43.26(f). W hen a presumption such as in section 43.26(f )
is submitted to the jury, s ection 2.05 of the Texas Penal Code requires the trial court to instruct the jury that : (1) the facts giving rise to the presumption must be proven beyond a reasonable doubt; (2) if so proven, the jury may find the presumed element exists, but is not bound to do so; (3) the State must prove beyond a reasonable doubt each other element of the offense; and (4) if the jury has a reasonable doubt as to existence of the facts giving rise to the presumption, it fails and is not to be cons idered for any purpose.
T EX

. P EN

. C ODE § 2.05 (a). Hoyt complains the trial court failed to include the required

s ection 2.05 instruction in the court’s charge to the jury . B ecause Hoyt concedes he failed to object to the erro r, he therefore argues that to obtain reversal, the trial court’s failure caused him egregious harm

. Trial Court Error Texas statutory presumptions that benefit the State , like the one in section 43.26(f)Hoyt v. State Page 5 of the Texas Penal Cod e, are saved from being unconstitutional mandatory presumption s only when the language in s ection 2.05 of the Texas Penal Code is included in the jury
instructions. Hollander v. State , 414 S.W.3d 746, 754 (Tex. Crim. App. 2013) (Cochran, J., concurring)

. See Willis v. State , 790 S.W.2d 307, 310 (Tex. Crim. App. 1990)

. T he trial court instructed the jury that " [a] person who possesses visual material that contains six or more identical visual depiction [s] of a child that would constitute an offense under this section is presumed to possess the material with the intent to promote the material. " See
T EX

. P EN AL C ODE § 43.26(f). However, the jury charge did not include the required s ection
2.05 instruction

. Without the instruction, the charge contains an unconstitutional, mandatory presumption. See Willis v. State , 790 S.W.2d at 3 09

- 3 10

. The State concedes, and we agree with the concession, that the trial court erred in failing to include a section 2.05 instruction in t he jury charge . Thus, we review the record
to determine if the error caused egregious harm under the four

- factor test set out previously

. See Hollander v. State , 414 S.W.3d 746, 749

- 50 (Tex. Crim. App. 2013). Egregious Har m — t he Jury Charge The jury charge d oes not i nform the jurors that the facts underlying the presumption of intent to promote were required to be proved beyond a reasonable doubt
before the jury could rely on the presumption to convict Hoyt

. It properly instruct s the jury regarding the State's general burden to prove all the essential elements of the offense beyond a reasonable doubt ; b ut s uch a general instruction fails to educate the jurors that
the facts underlying the presumption must be proved beyond a reasonable doubt beforeHoyt v. State Page 6 they may rely on the presumption to convict. See Hollander v. State , 414 S.W.3d 746, 750 (Tex. Crim. App. 2013)

.

— Arguments of Counsel
C ounsels’ comments and arguments did not remedy t he error in the charge

. See
id

. T he State specifically informed the panel about the presumption during voir dire , but
neither side m ention ed the burden of proof with respect to the presumption; the State and defense counsel simp ly asserted that the State must prove Hoyt 's guilt beyond a
reasonable doubt. During opening statements, neither side mentioned the burden of proof regarding the presumption , and only the defense reminde d the jury that the State generally carrie d the burden of proof. Further, n either party's argument s expressed the
burden of proof with respect to the presumption. D uring the State’s clos ing argument , however, t he State reminded the jury about the presumption but did not inform them of
the State’s burden to prove that presumption or what had to happen before the jury could use the presumption to find Hoyt guilty

. The State’s argument improperly suggested that mere possession of six or more images of child pornography were sufficient to use
the presumption.

— the Evidence In an egregious

- harm analysis, the question is not simply whether, when viewed in the light most favorable to the verdict, the jury could rationally have found the facts giving rise to the presumption beyond a reasonable doubt. See Hollander v. State , 414 S.W.3d 746, 751 (Tex. Crim. App. 2013)

. Rather , a reviewing court must evaluate the likelihood, considering the record as a whole, that a properly instructed jury would haveHoyt v. State Page 7 found the facts giving rise to the presumption beyond a reasonable doubt

. Se e i d

. Here, t he State made little, if any, effort to establish Hoyt 's guilt independently of
the section 43.26(f ) presumption . There was testimony that images were uploaded to a Google account , and there was testimony that an upload occurs when something is sent
to the internet. B ut there was no testimony explaining that images uploaded showed an intent to promote the images. 1 T he State only c onclude d in its closing argument tha t uploading to the internet meant promoting

. Further, it proffered no evidence , that we
could discern , of facts giving rise to the presumption ; that is, that Hoyt possesse d visual
material contain ing six or more identical visual depictions of a child

. At one point in the trial, the State pointed to “ a photograph imag e 200420069 ” in S t ate’s E xhibit 98 and asked

a witness if he had “seen those before.” The witness replied that “these” came off of Hoyt’s cell phone. The witness was then directed to an image in State’s Exhibit 97 and
asked where “that image came off of.” The witness replied that it came from the seized desktop computer and a cknowledged that the image on the desktop appeared to be the

same image that was on the ce ll phone

. It is unclear from the testimony how many images were the same and where these images were within the voluminous State’s Exhibits 97
and 98 . No other attempts were made to prove to the jury that six or more identical visual depictions of a chil d were possessed by Hoyt. 2

1 The word, promotion, was defined in the charge as: “... to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any type of child pornography.”

2 The Stat e conce d es that the jury did not have sufficient evidence to find that Hoyt possessed six or more identical visual depictions of child pornography. A t most, the State admits, Hoyt possessed three identical images b etween his cell phone, a computer, and Google account

.Hoyt v. State Page 8 The State contends , however, that Hoyt did not contest the intent to promote
element and thus, no egregious harm is shown. We disagree with the State . Hoyt’s entire
defense was centered on the assertion that he was not the one who possessed the images. That defense necessarily includes the assertion that if he did not possess them, he did not promote them. Consequently, after reviewing the record, the likelihood that a properly instructed jury would have found the facts giving rise to the presumption beyond a
reasonable doubt is low.

— Other Relevant Factors Revealed
Another item relevant to our consideration is a jury note about the definition of promotion . The jury note stated : Clear definitions [sic] of "promote" is requested. Do all aspects have to be met, or is it at any aspect of the definition? There is language that is not clear in this definition. The trial court responded, "You have all the law before you. " The State asserts that this question by the jury shows it did not rely on the presumption and thus, any harm in the failure to provide a section 2.05 instruction is
theoretical and not egregious. Hoyt could not be actually harmed by an omitted
instruction , the State continues , if the jury did not indulge in the presumption at all. Again, we disagree with the State.
Th e jury was never told that if the State did not prove the facts giving rise to the presumption , the jury could not use the presumption. This was part of the required
section 2.05 instruction which the jury did not have. Simply because the jury did not understand the definition of promotion does not mean the jury did not use theHoyt v. State Page 9 pr esumption when it was not properly instructed on its use
.

— Conclusion
After c onsidering the necessary factors and the entire record , we hold that the error in the jury charge affect ed the very basis of the case and deprive d Hoyt of a valuable right

. Thus , the error caused egregious harm

. Hoyt’s first issue is sustained

. 

### Unanimity (both case numbers ) Hoyt was charged with 10 counts of possession of child pornography with the intent to promote the child pornography and 10 counts of possession of child pornography. Fifty

- six separate photographs of alleged pornography were admitted into
evidence. A ped iatrician testified that, in her opinion, at least 3 6 of those photo graph s depict ed children. In his second issue, Hoyt complains the trial court erred in failing to instruct the jury as to the unanimity of its verdict for each count for both offenses

. Specifically, Hoyt contends the jury was not instructed as to how to use the photo graphs that were introduced into evidence; for example , which photographs could be considered, whether the photo graphs could be considered in both cases , or whether the jury had to unanimously find individual photo graphs for each count as described in the indictment s to determin e guilt. And because Hoyt did not object to that omission in the charge, he argues, as he must to prevail, that the error cause d egregious harm.
Texas law requires that a jury reach a unanimous verdict about the specific crime
the defendant committed. Cosio v. State , 353 S.W.3d 766, 771 (Crim. App. 2011)

. This means that every juror must agree that “the defendant committed the same, single,Hoyt v. State Page 10 specific criminal act.” Ngo v. State , 175 S.W.3d 738, 745 (Tex. Crim. App. 2005). A non

unanimous verdict may occur when the State charges an offense and presents evidence
that the defendant committed the charged offense on multiple but separate occasions. See
Cosio , 353 S.W.3d at 772. Each of the multiple occasions individually establishes a different offense or unit of prosecution

. Id

. In child pornography cases, the possession of each item of child pornography constitutes a separate offense or “ unit of prosecution. ” See Vineyard v. State , 958 S.W.2d 834, 838 (Crim. App. 1998)

. In other words, each item of child pornography found in a defendant's possession constitutes a separate offense for w hich the defendant may be prosecuted. Witt v. State , 237 S.W.3d 394, 397 ( Tex. App.

— Waco 2007, pet. ref'd) ( citing Vineyard , 958 S.W.2d at 838)

. Thus, e ach separate offense must be subject to a single
unanimous verdict. See Cosio , 353 S.W.3d at 773

. To ensure unanimity in this instance , the court’s charge “ would need to instruct the jury that its verdict must be unanimous as to a single offense or unit of prosecution among those presented.” Cosio, 353 S.W.3d at
772. A general instruction that the jury must agree unanimously on each count is not sufficient to prevent a non - unanimous verdict. Id . at 773. The State concedes, and we agree with the concession, that the trial court erred in failing to instruct the jury tha t its verdict must be unanimous as to a single offense or unit of prosecution among those presented . Thus, we review the record for egregious harm. Egregious Harm
— t he Jury Charge
T he only actual instruction on unanimity was an instruction in the “verdict” section stating that “You may return a verdict only if all twelve of you agree on thisHoyt v. State Page 11 verdict.” 3 A general instruction such as this is inadequate to inform the jury of the specific unanimity requirement

. The jury may have believed that it had to be unanimous
about the verdict for each offense , but not about the specific image supporting each
offense

. See Cosio v. State , 353 S.W.3d 766, 774 (Tex. Crim. App. 2011)

.

— Arguments of Counsel Under this factor, we look to whether any statements made by the State, Hoyt , or the trial court during the trial exacerbated or ameliorated error in the charge. Arrington
v. State , 451 S.W.3d 834, 844 (Tex. Crim. App. 2015) . Neither the part ies nor the trial court said anything to the jury that the verdict as to each offense or the decision to use a specific photograph to support a conviction had to be unanimous . In fact, no one mention ed , other than what was in the charge, unanimity at all until the jury returned its verdicts
and the trial court confirmed the verdicts were unanimous.

— the Evidence
We look to the state of the evidence to determine whether the evidence made it more or less likely that the jury charge caused appellant actual harm. Arrington v. State , 451 S.W.3d 834, 841 (Tex. Crim. App. 2015)

. Actual harm occurs when the erro r in the jury charge affect s the very basis of the case, deprive s the defendant of a valuable right, or vitally affect s a defensive theory. See Cosio v. State , 353 S.W.3d 766, 777 (Tex. Crim. App. 2011) ; Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. A pp. 1985) (op. on reh'g))

.

3 In the application paragraphs for each case, the trial gave an implied unanimity instruction but only in the situation where the jury did not believe the S tate proved its case: “ If you all agree th e State failed to prove....”Hoyt v. State Page 12 Here, t he State introduced 10 pornographic photograph exhibits into evidence that corresponded to the 10 counts of possession of child pornography with the intent to promote and another 10 of the same type of exhibits that corresponded to the 10 counts of possession of child pornography. The State introduced a nother 3 6 of the same type of
exhibits without notations of a correspond ing count or offense. A testifying pediatrician
confirmed that m any of these 5 6 exhibits were photos of children , but some might not be

. Nevertheless, the parties told the jury that they could decide whether the exhibits were photographs of children ; and in his argument, Hoyt conceded the photographs were of
children. Hoyt did not contest that child pornography was found on his computer, his cell phone, or a Google account with his email address. His defense was not based on the
nature of the images ; he did not challenge whether they were child porn ography 4 or whether there were enough images to support each count individually . Rather, his
defense was solely about possession : s omeone else must have downloaded the images,
not him , because other people had access to his cell phone and computer. 5 This was an
all

- or - nothing defense which, by its verdicts, the jury rejected

. Thus , based on a review of the record , evidence th at 20 of the photo graph exhibits

were labeled with the corresponding count and offense and that Hoyt only contested
pos session , it appears less likely that the jury charge error caused Hoyt actual harm

.

4 Hoyt ’s counsel admitted in argument that the images were child pornography

.

5 The State argued this as the SODDI defense: “some other dude did it.”Hoyt v. State Page 13 — Other Relevant Factors Revealed
The State raises a potential relevant factor revealed in the record : a note by the jury regarding which photo graph s could be co nsidered. The jury sen t out the following

note: Does our finding have to be based on the photos in the envelopes lab l ed [sic] w/ the char ge con taining photos also labeled w/counts [undecipherable]

--- can all photos admitted as evidence be considered.
Unclear about what the jury was requesting, t he trial court responded, “ All evidence admitted can be considered in all charges.”
Some of the photographic evidence in this case was contain ed in two manilla envelope s . S ome had the corresponding count s /offense s written on them. Some had no
notations and did not come in any envelopes

. All the photographic evidence was , however, admitted without limitation , a nd the State was not requested to make an
election. Thus, the response by the trial court was not incorr ect. Further, t he implication
of the question is not, necessarily , that the jury wanted to use some of the same photo gra ph s for different counts or different offenses

. Rather, i t is more probable that on
some of the counts within an offense , like the pediatrician, the jury could not determine
whether a supporting photograph was a n image of a child and wanted to know if they
could consider the other photograph s as evidence necessary to find Hoyt’s guilt as to
those counts

.

— Conclusion
After c onsidering the necessary factors and the entire record , we find the error in the jury charge did not affect the very basis of the case or deprive Hoyt of a valuable rightHoyt v. State Page 14 and thus , did not cause egregious harm. Hoyt’s second issue is overruled

. P RONOUNCEMENT OF S ENTENCE In his third issue, Hoyt contends that the oral pronouncement s of his sentences in both cases conflict with the written judgments in that there was no oral pronouncement of a cumulation order for both cases. Thus, his argument continues, the cumulation order in the judgments must be removed.
A defendant's sentence m ust be pronounced orally in his presence. Taylor v. State , 131 S.W.3d 497, 500 (Tex. Crim. App. 2004)

. The judgment, including the sentence assessed, is just the written declaration and embodiment of that oral pronouncement. Id

. When there is a conflict between the oral pronouncement of sentence and the sentence in the written judgment, the oral pronounce ment controls. Id .; Freeman v. State , 554 S.W.3d 816, 817 (Tex. App.

— Waco 2018, no pet.)

. T he statement by the trial court which Hoyt contends was the pronouncement of
his sentence and which he contends did not include a cumulation order of the two cases
was not the trial court’s official pronouncement of the sentence. What Hoyt relies on was simply a statement by the trial court as to what the court’s sentence would be for each

case
. After that statement , t he trial court reflected on Hoyt’s character and behavior and
clarified the State’s confusion as to what the sentence would be. T he trial court then asked if there was any reason why the sentence should not be pronounced , to which H oyt’s counsel replied, “No, sir.” After this, the trial c ourt s tated: In Cause No. D41235, sir, you are sentenced to 11 years in the Texas Department of Criminal Justice Institutional Division. You are remanded to the custody of the sheriff who will transport you to the appropriateHoyt v. State Page 15 facility to begin serving out this sentence. This sentence, these sentences on all ten counts begin today. You will be given credit on whatever time you have received awaiting trial. Upon completion of that, then the five years in the Texas Department of Criminal Justice Institutio nal Division will begin for Counts 1 through 9. At the end of that term then you'll be sentenced to ten years in the Texas Department of Criminal Justice Institutional Division probated for a period of ten years where you are ordered to comply with the te rms and conditions that the Court has previously stated on the record. Do you understand? Hoyt replied, “ Yes, sir. ” The judgments reflect this pronouncement. Accordingly, there is no conflict between the oral pronouncement of the sentences and the judgments. Hoyt’s third issue is overruled.
C ONCLUSION Having sustained Hoyt’s first issue, we reverse the trial court’s judgment in
appe l l ate case number 10

- 2 2

- 00023

- CR/trial court cas e number D41235

- CR and remand
this case to the trial court

. Having overruled Hoyt’s second and third issues, we affirm the trial court's judgment in appellate case number 10

- 22

- 00024

- CR/trial court case number D4123 7

- CR

.

TOM GRAY Chief Justice Before Chief Justice Gray, Justice Johnson, and Justice Smith Reversed and remanded Affirmed Opinion delivered and filed April 1 9 , 2023 Do not publish [CR25]