## IN THE COURT OF CRIMINA L A PPEA LS OF TEXA S
NO. PD-0456-21
CARLOS ROMO, JR., Appellant

v. THE STATE OF TEX AS ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS

WEBB COUNTY

K E L L E R 

### , P .J., delivered t he opinion of the Court in w hich H E R V E Y 

### , R I C H A R D S O N 

### , Y E A R Y 

### , K E E L 

### , S L A U G H T E R A N D 

### M C 

### C L U R E 

### , JJ., joined. W A L K E R , J., f iled a concurring opinion. N E W E L L , J., concurred.

F or his possession of a video that represented itself a s a F rench nudist d o c u m e n t ary , Appellant was convicted of possession o f c h i l d p ornog raphy

. The issue before u s is whether the video is child pornog raphy

. The court of appeals co ncluded that the evidence w as leg ally insufficient to support Appellant’s conviction. B ut the c ourt of a ppeals focused too heavily on the lack of sex ual activity in the video and n eg lected to consider the video holistically

. We h old t h a t t h e v ideoROMO–2

constitutes child p ornog raphy because the jury could rationally conclude bey ond a r easonable doubt that the video contained a lewd e x hibition of c hild g enitalia. We reverse the judg ment of the court of appeals. I. BACK G ROUND A. F acts F ollowing an investig ation into alleg ations that Appellant was sex ually abusing his daug h t e r, Appellant w as arrested. A DVD titled “Nudist HDV” was later discovered in his office. This DVD, entirely in F rench with no E ng lish subtitles, is labeled “100 p e r c e n t g enuine, fully -leg al nudist documentary , Miss J r. Teen B eauty Competition.” The open i ng screen of the video has the f o l l o wing statements: “Portray s Nudist L ife in Simplicity ; Violates No F ederal L a ws!!; Fr o m European Camps, Clubs and Areas; Depicts Entire F a milies; I s Not Sex ually Oriented or Adult in Nature; Documentary a n d Ed u cational Material.” Another screen say s, “ Get Many Hours of Downloadable F o otag e (W MV-HD Online) W ith a Sing le Membership.” I n t h e backg round of these opening messag es, we see the apparent winner of the beauty competition with a sash across her chest as she is handed a bouquet of flowers. The video nex t shows a naked woman ly i n g o n a towel beside two naked g irls. 1 I t then

z o o ms out, showing a n aked man standing o ver the g irls, while what looks like naked boy s stand in
t h e distance. The scene briefly chang es to a g roup of n aked adults sitting around a table be fo r e switching back to the same y oung er g irl. The nex t scene shows two slig htly o l d e r gi rls with towels wrapped around them. They

remove the towels, revealing o n e n a ked and the o ther wearing only underwear. T h e naked g irl’s

1 Every o ne in the video is wearing shoes.ROMO–3

pubic hair is partially shaved. T he camera then focuses o n both g irls walking away before switching ang les to show them from the front. A naked man pats one of them on the shoulder. As both g irls approach the camera, they perform a spin and place their hands on their hips before g rabbing their towels ag a in. A later scene shows four of the y o ung g irls and one o l d e r gi rl s t anding in a line holding numbered placards. As the c amera z ooms out, th e ge n i t a l s o f f o ur of the g irls are included in the frame. Most of the g irls look nervous and uncomfortable. The g irl who later wins the competition holds her placard in front of her g enitals. The nex t scene shows slig htly older, partially shaved n a k e d g i rls holding sashes a

nd bouquets of flowers. The camera then focuses on three of the y oung er g irls’ bodies and faces while they are talking to each other. The video then shows the five g irls in the beauty p a ge a n t holding their numbered placards. At one p oint, the camera ang le lowers slig htly to c ut off the tops of the g irls’ heads and include their g enitals. The video concludes by showing the f ive g irls standing and holding their numbered placards, with their g enitals ex posed. Some look uncomfortable, and two are biting their nails. The g irl who appears to b e the y oung est–the o ne with no sig ns whatsoever that she has entered puberty

–wins the competition.

B. Court of

Appeal’s Decision On appeal, Appellant c l ai m e d the evidence was leg ally insufficient because the “Nudist H DV ” D V D d i d not constitute the “lewd ex hibition of the g enitals” required under the child pornog raphy statute. B ecause the leg islature has n ot statutorily defined “lewd e x h i b i t i o n of the g enitals,” the court o f appeals conducted a de n o vo review to determine whether the D VD constit utedROMO–4

child pornog r aphy

. 2 Rely ing o n factors announced in Unite d S t a t es v . Dost , 3 the court of appeals concluded that the evidence w as leg ally insufficient to support a f i n d i n g t hat the video depicted a lewd ex hibition of the g enitals. 4 J ustice Alvarez dissented. 5 She reasoned that the focus should be o n the “ex hibition which the photog rapher sets up for an audience that consists of himself or likeminded pedophiles,” rather than the lasciviousness of the c hild photog raphed. 6 J ustice Alvarez determined that a r ational juror could have conc l u d e d bey ond a reasonable doubt that Appellant’s video w as a lewd ex h ibition of child g enitalia. 7 II. ANALYSIS A. Law W h en assessing the sufficiency of the evidence to support a c riminal conviction, we consider all the evidence in the l i gh t m o s t favorable to the verdict a nd determine whether, based on the evidence a

nd reasonable inferences therefrom, a r ational juror coul d h a ve found the essential

2 Romo v. State , 629 S.W .3d 679, 684-85 (Tex

. App.–San Antonio 2021).

3 6 36 F

. Supp. 828 (S.D.Cal. 1986), a ff’d sub nom. United States v. W iegand , 812 F .2d 1239 (9 t h Cir. 1987), and aff’d , 813 F .2d 1231 (9 th Cir. 1987).

4 Romo , 629 S.W .3d at 687.

5 Id . at 691 (Alvarez , J ., dissenting ).

6 Id

. at 690 (quoting Alexander v. State , 906 S.W

. 2d 107, 1 10 (Tex

. App.–Dallas 1995, no pet.)); see also Perkins v. Sta t e , 3 94 S.W .3d 203, 2 09 (Tex

. App.–Houston [ 1st Dist.] 2012, pet. ref’d).

7 Romo , supra at 691 ( concluding that the purpose of the film was to show naked gi rls by taking advantag e of their “compliant natures to compile shots of them naked, placing the viewer in the p osition of judg e over the y oung g irls’ naked bodies, and thereby “intended or desig n ed to elicit a sex ual response in a viewer who is specifically looking for videos featuring y oung , naked g irls.”).ROMO–5

elements of the c ri m e b e y ond a reasonable doubt. 8 Appellant was charg e d with committing possession of child pornog raphy

. 9 A p erson commits the offense of possession of child pornog raphy if he knowing ly or intentionally p ossesses visual material that visually depicts a child y oung er than eig hteen y ears of ag e a t the time the imag e of the child was made who is eng ag ing in sex ual conduct and if the p erson knows that the material depicts such a child. 1 0 The sex u al conduct alleg ed here was “lewd ex hibition of the g enitals,” which is included in the definition of sex ual conduct. 1 1 T h e Tex as L eg islature has not statutorily defined “lewd ex hibition o f the g enital s . ” T h e meaning o f the phrase is a matter of law that we review de novo

. 1 2 So, when determining whether any rational trier of fact c ould have found Appellant g uilty b ey ond a reasonable doubt, we conduct

a de novo review to determine whether the “Nudist H DV ” DVD c onstitutes child pornog raphy

. 1 3 Althoug h we are not b o u n d by them, we can consider the Dost f actors a s g uidance to determine whether depictions of n aked children are “lewd” for p urposes of child pornog r aphy

. 1 4 The Dost court listed six factors that may be used to evaluate whether a visual depiction c onstitutes child pornog raphy :

8 Hooper v. State , 214 S.W

. 3d 9, 13 (Tex

. Crim. App. 2 007) (citing Jackson v . Virginia , 443 U.S. 307, 318–19 (1979)).

9 I n the same trial, Appellant was convicted of continuous sex u al a buse of a c hild y oung er than fourteen and of indecency with a child. These convictions are not before us.

1 0 T E X
. P E

N A L C O D E § 43.26(a).

1 1 See id . §§ 4 3.25(a)(2), 43.26(b)(2).

1 2 State v. Bolles , 541 S.W .3d 128, 134 (Tex . Crim. Ap. 2017).

1 3 Id

. 1 4 See id. at 140-42.ROMO–6 1) w h e t h e r t he focal point of the visual depiction is on the child’s g enitalia or pubic area; 2) whether the setting

of the visual depiction is sex ually sug g estive, i.e., in a place or pose g enerally associated with sex ual activity ; 3 ) w hether the child is depicted in an unnatural pose, o r in inappropriate attire, considering the ag e of the child; 4) whether the child is fully or partially clothed, or nude; 5) whether the visual depiction sug g e sts sex u al coy n e s s o r a willing ness to eng ag e in sex ual activity ; 6) whether th e v i s u a l depiction is intended or desig n ed to elicit a sex u al response in the viewer. 1 5 W h ether an imag e constitutes child pornog raphy under Tex as law is determined on a case by case basis, and no sing le factor is dispositive. 1 6 This determination is made based on the overall content

o f t h e v i s u a l d epiction, while also considering the minor’s ag e. 1 7 The focus is on whether the depiction–not the minor–bring s forth the g enitals or pubic area to ex c ite or stimulate. 1 8 A child does n ot have to be eng a g ing in sex ual a c t i v ity in order for the visual depiction to be c onsidered a “lewd ex hibition of g enitals.” 1 9 I n Bolles , the defendant w as arrested for taking a cell phone picture of a nude g irl from a famous p ainting on a library ’s computer screen and turning

1 5 Dost , 636 F . Supp. at 832.

1 6 Bolles , 541 S.W .3d at 142-43.

1 7 Dost , 636 F . Supp. at 832.

1 8 United States v . McCall , 833 F .3d 560, 563 n.4 (5th Cir. 2016); see also United States v. Steen , 634 F

. 3d 822, 826 (5th Cir. 2011).

1 9 Bolles , 541 S.W .3d at 140.ROMO–7

it into a z oomed-in cropped imag e o f the child’s g enitals. 2 0 Rely ing on the D ost factors as g uidance, this Court unanimously held that the mag nified and cropped imag e of the child’s g enitals constituted a lewd ex hibition of her g enitals. 2 1 B. Application of Dost

F actors 1. Focal Point The court of appeals found that the video “does not focus on the c hildren’s g enital or pubic area.” 2 2 There are multiple instances where the camera includes views of the g irls’ g e n i t a l s, and

s o m e in which the camera ang le shifts to cut off the tops of the heads to include the a view of t h e g irls’ g enitals, but it is accurate to say that the video does not focus specifically on the g enitals. 2. Sexually Suggestive Setting The court of appeals noted that the video takes place outdoors in a g rassy , picnic area, and there is n o sex ual activity depicted in the video. 2 3 I t is true that the setting of the video outside is not normally associated with sex ual activity and, ex cept for the two g irls twirling with the i r h a nds on their hips, the g irls’ poses do not sug g est sex ual activity

.

2 0 Id . at 130-31.

2 1 I d

. at 143-44 (reasoning that the child’s g enital area was t h e fo c a l point of the cropped imag e; it could be viewed as u nnatural and sex ually sug g estive b e c a u s e the imag e is of only the child’s g enital area; the imag e is of a child who was a t least partially nude; it could b e p resumed that the visual d epiction sug g ested sex u al coy ness or a willing ness to eng ag e in sex ual activity because the imag e w as manipulated; and the defendant’s manipulated imag e appeared to have been intended and desig n ed by

the defendant “to elicit a sex ual response in the viewer.”).

2 2 Romo , 629 S.W

. 3d at 686.

2 3 Id

.ROMO–8 3. Unnatural Pose/Inappropriate Attire The court of appeals said that none of the g irls’ positions were unnatural, but the court did not a ddress whether their attire was inappropriate considering the ag e of the children. 2 4 All of the g irls in the competition were naked. This is “inappropriate attire” considering that the g irls are all underag e but old enoug h to be aware that being clothed is the norm. 4. Clothed or Nude T he court of appeals acknowledg ed that the “majority of the g irls in the video a r e f u l l y nude.” 2 5 I t also noted that at least o ne g irl can be seen wearing bottoms and others sometimes used towels to cover themselves. 2 6 5. Sexual Coyness The court o f ap p e a l s w as correct in say ing that none of the g irls eng a g e in sex ual activity , they appear casual when talking to each other, and they appear shy o r u n c o m f o rt able when being interviewed by the cameraman. 2 7 Ex cept for the two g irls twirling for the camera, there is nothing that mig ht be considered sex ual coy ness. 6. Designed to Elicit Sexual Response in V iewer The court of a

ppeals noted the information and leg al warning s that appear at the beg inning

2 4 Id . at 687.

2 5 Id.

2 6 Id

. 2 7 Id

.ROMO–9

o f t h e v i deo. 2 8 I t said that none of the visual imag es or intonation o f the voices appear out of t h e ordinary . The court was not wrong about this. B u t what the c ourt did not take into account is the c ontex t o f the video. Dost pointed out that in d etermining whether the combined effect of the setting , attire, p ose, and emphasis on g enitals is desig ned to elicit a sex ual response in the viewer, the relevant viewer is “perhaps not the ‘averag e viewer,’ but perhaps the pedophile viewer.” 2 9 J ustice Alavarez made this point in her dissent. S ev e ral federal courts have recog niz e d that a photog raph is lascivious when “the photog rapher array [ s] i t t o suit h is particular lu s t , ” n o ting that ‘lasciviousness is not a characteristic of the c hild photog r aphed but of the ex hibition which the photog rapher sets up for an audience that c onsists of himself or likeminded p edophiles.’ 3 0 The lower court did not consider whether the video was desig n ed to elicit a sex ual response in a pedophile. The video is not w hat one would normally think of as child pornog raphy

. There are no sex acts o r close-ups of g enitals. I t is not overtly “nasty .” B ut the video’s ex hibition of naked g irls does appear to be desig ned to elicit a sex u al response in a viewer who is specifically looking for videos featuring y oung , naked g irls. And it is a “beauty competition.” Rig htly or wrong ly , beauty pag eants have sometimes been

seen as objectify ing women. B ut at least sometimes, character traits, talent, and such a re considered in combinati o n w i t h p h y sical beauty

. Not so h ere. There is no sug g estion that the g irls will be

2 8 Id

. 2 9 Dost , 636 F . Supp. at 832.

3 0 Romo , 6 2 9 S

. W

. 3 d at 690 (Alvarez , J ., dissenting ) (quoting Alexander v. S tate , 906 S.W

. 2d 107, 110 (Tex . App.—Dallas 1995, n o pet).ROMO–10

judg ed for talent, personality , o r any thing other than their naked bodies. And they are children. We do not know who they are o r where their parents are, b ut a t least in this country , they are too y oung to have made a voluntary choice to appear naked in front of adults. W e ag ree with J ustice Alavarez ’s summary

. [ The children] appear uncomfort a b le at times as p articipants who have b een v o l u n teered for a strang e, misplaced, sex ually uncanny p ag eant. T he artifi ce i s appar e n t and not at all natural. The ex hibition of y oung female f o rms in the video does in fact appear to be intended or desig ned to elicit a sex ual r e sponse in a viewer who is specifically looking for videos featuring y oung , naked g irls. 3 1 The evidence is sufficient to support Appellant’s conviction for possessi o n of child pornog r aphy

. III. CONCLUSION W e reverse the court of appeal’s judg ment and remand the case to the trial court to reinstate Appellant’s conviction and sentence for possession of child pornog raphy

. F iled: J une 15, 2022 Publish

3 1 Id.