IN THE

TENTH COURT OF APPEALS

No. 10-22-00023-CR

No. 10-22-00024-CR

NICHOLAS DAVID HOYT, 

Appellant

v.

THE STATE OF TEXAS, 

 Appellee

From the 13th District Court

Navarro County, Texas

Trial Court Nos. 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 prison on Counts 1-10 in trial court case number D41235-CR, 5 years in prison on 
Hoyt v. State Page 2

Counts 1-9 in trial court case number D41237-CR, and 10 years in prison, probated for 10 

years, on Count 10 in trial court case number D41237-CR. The trial court cumulated those 

sentences so that the 11-year sentences 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 

error 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 D41237-CR is affirmed.

BACKGROUND

Images of child pornography were flagged by cyber-crime tips to authorities in 

Collin County in March of 2016. An investigation by the National Center for Missing and 

Exploited Children then began. The tips linked the images flagged to an IP address 

associated with a residence in Navarro County where Hoyt and others lived. 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

JURY-CHARGE ERROR

In his first two issues, Hoyt complains the trial 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 statutory presumption and 

complains in his second issue that the court’s charge allowed nonunanimous verdicts in 

both cases. 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 other 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 number 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. TEX. PENAL CODE § 43.26(a)(1), 

(e), (g). A person commits the offense if the person knowingly or intentionally possesses

with intent to promote “visual material that visually depicts,” and the person knows the 

material visually depicts, a child, younger than 18 years of age at the time the image of 

the child was made, engaging in sexual conduct. 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 section 

43.26(a)(1). TEX. PENAL CODE § 43.26(f). When a presumption such as in section 43.26(f)

is submitted to the jury, section 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 considered for any purpose. 

TEX. PEN. CODE § 2.05(a). Hoyt complains the trial court failed to include the required

section 2.05 instruction in the court’s charge to the jury. Because Hoyt concedes he failed 

to object to the error, 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 Code, are saved from being unconstitutional mandatory presumptions

only when the language in section 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). The 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

TEX.PENAL CODE § 43.26(f). However, the jury charge did not include the required section

2.05 instruction. Without the instruction, the charge contains an unconstitutional, 

mandatory presumption. See Willis v. State, 790 S.W.2d at 309-310.

The State concedes, and we agree with the concession, that the trial court erred in 

failing to include a section 2.05 instruction in the 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 Harm—the Jury Charge

The jury charge does not inform 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 instructs the 

jury regarding the State's general burden to prove all the essential elements of the offense 

beyond a reasonable doubt; but such a general instruction fails to educate the jurors that 

the facts underlying the presumption must be proved beyond a reasonable doubt before 
Hoyt 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

Counsels’ comments and arguments did not remedy the error in the charge. See 

id. The State specifically informed the panel about the presumption during voir dire, but 

neither side mentioned the burden of proof with respect to the presumption; the State

and defense counsel simply 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 reminded the jury that the State 

generally carried the burden of proof. Further, neither party's arguments expressed the 

burden of proof with respect to the presumption. During the State’s closing argument,

however, the 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 have 
Hoyt v. State Page 7

found the facts giving rise to the presumption beyond a reasonable doubt. See id.

Here, the 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. But there was no testimony explaining that images uploaded showed an 

intent to promote the images.1 The State only concluded in its closing argument that 

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 possessed visual

material containing six or more identical visual depictions of a child. At one point in the 

trial, the State pointed to “a photograph image 200420069” in State’s Exhibit 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 acknowledged that the image on the desktop appeared to be the 

same image that was on the cell 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 child 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 State concedes that the jury did not have sufficient evidence to find that Hoyt possessed six or more

identical visual depictions of child pornography. At most, the State admits, Hoyt possessed three identical 

images between 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. 

The 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 the 
Hoyt v. State Page 9

presumption when it was not properly instructed on its use.

—Conclusion

After considering the necessary factors and the entire record, we hold that the 

error in the jury charge affected the very basis of the case and deprived 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 pediatrician testified that, in her opinion, at least 36 of those photographs 

depicted 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 photographs that were 

introduced into evidence; for example, which photographs could be considered, whether 

the photographs could be considered in both cases, or whether the jury had to 

unanimously find individual photographs for each count as described in the indictments

to determine guilt. And because Hoyt did not object to that omission in the charge, he 

argues, as he must to prevail, that the error caused 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 nonunanimous 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 which 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, each 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 that 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—the Jury Charge

The 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 this 
Hoyt 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 parties 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 mentioned, 

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 error in the 

jury charge affects the very basis of the case, deprives the defendant of a valuable right, 

or vitally affects 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. App. 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 State proved its case: “If you all agree the State failed to 

prove....”
Hoyt v. State Page 12

Here, the 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 another 36 of the same type of

exhibits without notations of a corresponding count or offense. A testifying pediatrician 

confirmed that many of these 56 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 pornography4 or 

whether there were enough images to support each count individually. Rather, his 

defense was solely about possession: someone 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 that 20 of the photograph exhibits 

were labeled with the corresponding count and offense and that Hoyt only contested 

possession, 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 photographs could be considered. The jury sent out the following 

note:

Does our finding have to be based on the photos in the envelopes labled 

[sic] w/ the charge containing photos also labeled w/counts

[undecipherable]---can all photos admitted as evidence be considered.

Unclear about what the jury was requesting, the trial court responded, “All evidence 

admitted can be considered in all charges.” 

Some of the photographic evidence in this case was contained in two manilla 

envelopes. Some had the corresponding counts/offenses written on them. Some had no 

notations and did not come in any envelopes. All the photographic evidence was, 

however, admitted without limitation, and the State was not requested to make an 

election. Thus, the response by the trial court was not incorrect. Further, the implication

of the question is not, necessarily, that the jury wanted to use some of the same 

photographs for different counts or different offenses. Rather, it 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 an image of a child and wanted to know if they 

could consider the other photographs as evidence necessary to find Hoyt’s guilt as to 

those counts. 

—Conclusion

After considering 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 right
Hoyt v. State Page 14

and thus, did not cause egregious harm. Hoyt’s second issue is overruled.

PRONOUNCEMENT OF SENTENCE

In his third issue, Hoyt contends that the oral pronouncements 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 must 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 pronouncement controls. Id.; Freeman v. State, 554 S.W.3d 

816, 817 (Tex. App.—Waco 2018, no pet.).

The 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, the trial court reflected on Hoyt’s character and behavior and 

clarified the State’s confusion as to what the sentence would be. The trial court then asked 

if there was any reason why the sentence should not be pronounced, to which Hoyt’s 

counsel replied, “No, sir.” After this, the trial court stated:

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 appropriate 
Hoyt 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 Institutional 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 terms 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.

CONCLUSION

Having sustained Hoyt’s first issue, we reverse the trial court’s judgment in 

appellate case number 10-22-00023-CR/trial court case 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 D41237-CR.

TOM GRAY

Chief Justice

Before Chief Justice Gray, 

Justice Johnson, and 

Justice Smith 

Reversed and remanded

Affirmed

Opinion delivered and filed April 19, 2023

Do not publish 

[CR25]