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___________________________ 

### P ETER 

### A RNOLD



### - B ROOKS 

### G RAF 

### , A ppellant

V 

### . T HE 

### S TATE OF 

### T EXAS2 O n Appeal from t he 78th District Court Wichita County, Texas Trial Court No s . 60,152

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Before Bassel, W omack, and Walk er, JJ. M emorandum Opinion by Justice Walker3 MEMORANDUM OPINION Appellant Peter Arnold

- Brooks Graf raises seven is sues on appeal from h is twelve convictions : (1) one count of aggravated sexual assault of a child; (2) two
count s of indecenc y with a child by conta ct; and (3) nine counts of possession of child p ornograp hy with the intent to promote

. See T e x. Penal Code Ann. § § 21.11 (a) , 22.021(a)(1)(B) , (2)(B) , 43.26 (e)

. The jury assessed the maximum confinement fo r each offense: l ife impri so nment for the aggravated sexual assault ; twenty year s ’ confinement for each of the indecency co unts ; and t wenty years ’ confin emen t for each of the nine chi ld

- pornography

- possession counts. See id. §§ 12.32

– .33. The trial
court ordered that all twelve senten ces be served c onsecutively. W e reverse one of the indecency convictions and ren der a jud gment of acquittal for that c ount, a nd we modify the nine child

- pornography

- possession judgments so that the sentences are to be served conse cutively with each other but concurrent ly with the aggravated

- sexual assault count a nd con currently with the remain ing indecency count . W e affirm the remainder of the judgments. I. BACKGROUND In 2 016, a fter one o f the complainant s ( Complainant A )

–– who was then ten or eleven years old

–– made a n outcry against app ellant , police searched his home in Archer County , Te xas . As part of the search, officers s e ized his comp uter and searched it. Ap pellant ’ s computer contained thou sands of photographic ima ge s , including eight of Com plainant A and one of Com plainant B with their gen it als4

exposed ; officers determined that th e se photographs had be en taken in W ichit a County

. Officer s determined that other photogra phs stored on the computer had been taken in Archer Count y. In addition to the search , the investigation included for ensic inter views of C omplainant A and Complainant A ’ s childhoo d frien d, Complainant C. Both Com plainant s A and C rev ealed that when they were prepubescent children, appellant had subjected them to n umero us sexual acts

. Many of these acts took place at appellant ’ s home in Archer County

. But when appellant ’ s home bu rned down in December 201 2, he moved to Wichita County for several months

–– until sometime in August 201 3

. Investigators were able to de term ine that appellant took at least some of the photographs , and committed some of the sexual acts , in Wichita Co unty during that time

. Appell ant was charged in W ichita C ounty with aggrav ated sexua l assault and indecency with a child ( Comp lainant A ) , nine counts o f poss ession of child pornography with the intent to promote it (b oth Complainants A a nd B ) , and another count of indecency with a chi ld (C omplainan t C )

. A fter a jury trial at which appella nt and Co mplainant s A and C t estified, appellant was convicted o f all counts , and the jury assessed the maximum confinement for e ach of fen se. See id. § § 12.32(a), 12 .33(a).5 II . S UFFICIENCY In his th ird issue, 1 appell a nt challenges th e sufficie ncy o f t he evidence to suppo rt (1) the implied finding that the C ount Tw elve indecency offense ( Complainant C) o ccurred in Wichit a Cou nty, Texas , and (2) th e finding that he knowin gly or i ntentionally possesse d the nine im ag es wit h the intent to promote

. 2 A . I NDECENCY C OUNT T WELVE –– J URI SDICTIONAL E V IDENCE S UFFICIE NT Ap pellant contend s that the jury could not have r ationally conclu ded that the Count Twelve indecency offense

– – touching Complai nant C ’ s breasts

–– o c curred in Wich ita Co un ty because Complainant C testified about multipl e occurrences in A r cher County but had trouble re member ing certain details about the Wichit a County house, including how many nights she had stayed there as a child. 3 N everth eless, Com p lainant C testif

ied unequivocally that appellant had t ouched her breasts in Wichita County :

1 Fo r ease of discus sion, w e have re arranged the order in which we address appellant ’ s complaints

.

2 Appellant also challenges the sufficiency of the evidence to prove th e Coun t Two indecency offense (Complainant A). As we explain below, based on our dis position of that offense o n d ouble

- j eop ardy grounds, we need not address th is part of appel lant ’ s third issue

.

3 Appellant also argues, contra ry to the applicable standard of rev iew, t hat C ompl ainant C ’ s testi mony may have been influenced by t he f ore nsic interviewer ’ s bias , which he argues may have incurably t ainted Complainant C ’ s recolle ction of events .6

A.

. . . At the Wichita house, he really just touched me on

- - he really just touched me on my bre asts. It was

- - there was the time where we were w atching a m ovie on the couc h , and then I don ’ t really remember th e story. I ju st reme mber I was in a bathing suit and he did

- - and that ’ s really all I remember. Q. So you remember

- - was there a thing that happened on the couch at the Wichita h ouse? A. Yes. It wasn ’ t

- - h e didn ’ t touch me down there. It ’ s ju st like

- - Q. And by “ down there ” you mean you r priv at e vagina area; is that right? A. Yes , below my waist. It was just him with his hand like resting on my chest , like cupped aro und my breast. Q . And was that

- - where was that at the rental hous e? A. On their couc h in the living room. Although Complainant C might not have remem bered all t he details about what happened, she testified un equivocally that appel lant t ouched her brea sts at a hom e located in Wichit a County. The jur y was entitled to resolve any c on f licts in her testimony, such as her recall of certain details over others, and to conclude that she remembered accurately that app el lant ha d touched her brea sts in Wi chita Coun ty. See , e.g. , Braughton v. State , 5 69 S.W.3d 592, 608 (Tex. Crim. App. 2018)

. W e ove rrule this part of his third issue.7 B . E VIDENCE OF I NTENT TO P ROMOTE S UFFICIENT Appellant ’ s ch allenge to the evidence ’ s su fficiency to support the child

porno graphy conv

iction i s base d on unobjected

- to evidence 4 an d v oir

- dire ques tion ing that he claims incurably “ mi schara cterized the requ isite men s rea . ” A ppellant contends t hat the jury was led to believe tha t the promot ion element of the offense could be proven merely by s howin g that he had “ acquired ” the photographs. Whe n perfo rming a sufficiency review, we must consider all of the evidenc e admitted at trial, even if it was improperly admitted. Jenkins v. State , 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Moff v. State , 131 S .W.3d 485, 489

– 90 (Tex. Crim. App. 2004). But we can not consider a matter that is no t evidence

. See , e.g. , Cary v. State , 507 S.W.3d 750, 755 (Tex. Crim. App. 2016) (noting that because argument is not evid ence , it is “o f no consequence in a sufficiency analysis ” ). A ll nine possession counts charged app ella nt with intentionally or kno wingly pos sessing child po r nogr aphy with the intent to promote it. In the possession statute, promote mea ns “to procure, m anufacture, issue, sell, give , provide, lend, ma il, deliver, transfer, transmit, pub lish, distribute, circulate, dis seminate, present, exhibit, or advertise or to offer or agree to do any of these.” Tex. Penal Code Ann.

4 Appellant also relies on matter in cluded in the appen dix of his bri ef tha t was not admitte d i nto evidence and not seen by the ju ry. We cannot consider this evidence in our sufficiency revi ew. Delgado v. State , 635 S.W.3d 730, 745 (Tex. App.

— Dallas 2021, pet. ref’d) (noting that sufficiency review “ cannot inclu de evidenc e not ad mitt ed ” ).8

§§ 43.25(a)(5) (em phasis ad ded); see id

. 43.26(b)(i)

. The charge included this def inition of promote verbatim. 5 A jury may infer inte nt from any facts that tend to prove its existence, including the acts, words, and conduct of the accused, and the method o f committing the cri me and from the nature of wounds inflicted on the victi ms. Manrique v. State , 9 94 S.W.2d 640, 649 (Tex. Crim. A pp. 1999)

. The ju ry heard, witho ut objec tion, that possessi ng similar , serial

- but

- distinct images of the same child stored i n different location s on a comp uter is c ommon ly

seen “in the promotio n o f child pornograph y ” and tha t photographs of Co mplainant A s tored in this manner we re f ound on appellant ’s computer

. 6 The jury also heard

–– again, without objection

–– that an investigating officer used a law

- enforcement database of shared ch ild por nography to deter mine that a series of pho tograph s of Complainant A had been found in t he possession of “so mebo dy in another

5 The charge also correctly instructed the jury on the meanings of intentional and knowing conduct

. The charge did no t de fin e any of the words compr ising the definition o f promote

. See Green v. S t ate , 476 S.W.3d 440, 445 (Tex. Crim. App . 2015 ) ( “ As a general matter, definitions for terms that are not statutorily defined a re no t considere d to be the ‘ applicable law ’ under Article 36.14, and it is thus generally impermissible for the trial court to define those terms in the jury instructio ns . ” ).

6 Th e jury did not have to believe appellant ’s te sti mony that other people had access to this c omputer and that it was not passw ord protected. The detective who searc hed appellant ’ s computer testified that there was no evidence that the computer w as sha red a n d th a t appellant appeared to be the e xc lusive user ; how ever, he did not know wheth er the device was p assword protected because he thought that the analytical progr ams he uses by pass es passwords. Co mplainant A testified that appellant ’ s compu t er was passw ord protected.9

jurisdiction somewhere else, maybe even in another cou ntry. ” The jury did not have to believe appellant ’ s testimony that he never intended t o promo te the photograp hs and that the p hoto graphs were n o t in tende d to be lew d

. N or did it have to believe appellant ’ s testimony that when he heard the detective testif y that Dropbox can be used to share photographs , he r emembered that his e x - wife

–– who he claim ed used his computer re gularly

–– had a Dropbox account and used it fre quently. Finally

–– and imp ortantly

–– a ppellant testified that he intended to keep the photographs to later give to the complainants so that , in his words, “ When these girls become mo thers , th ey can go back and say . . . this is me. Thi s is what I was. And they’re for the children’ s eyes only.” 7 Evidence that one of the photographs had been shared at least on ce, that the photographs were store d on appellan t ’ s computer in a w ay t hat is c o mmonly used to share such photographs , 8 and that appel lant intended to give them to the compl ainants someday is sufficient evidence of an in tent to promote. See Per kins v.

7 Complainan t C testified that , i n Wichita Falls, appella n t h ad showed her nude p hotographs of Compl ainants A and B in t he bathtub, posed photographs of Co mplainants A and B, and other photo gr a phs with nude women in them. He ru b bed he r h ip s and thigh while doing so. She did not identify any specific ph otograph, however.

8 E viden ce of appellant ’ s pr oclivity for viewing and s haring pornography was presented . For exampl e, C ompla inant A c aught hi m watching p orn ography when she wa s six o r sev en . Additionally, appellant downloaded porn ography to Compl ai n ant A ’ s i P od a nd told her to l ook at it later when s he was in bed

. He then asked her if she liked the vi deos.10

State , 394 S.W .3d 203, 210 (Tex. App

. – – Houston [1 st Dist.] 2012, pet. ref ’ d) (ho ldi ng that evidence of promot

ion was sufficient when evidence showed appellant made vi deo , which ended up in his friend ’ s possession

–– even t hough no evidence showed how friend came into possession of video )

. Addit ionally, other evidence showed t hat appellant attempted to entice Comp lainant A with p ornography and Complainant C with nude pho tographs of the other co mplainants. We overrule appe llant ’ s thi rd issue as to all counts but the Count Two ind ecency offense , which we discuss in Section I V below

. III . WHETHER PHOTOGRAPHS LEW D –– AS APPLIED CHALLENGE In his seve nth issue , appellant argues that th e term “ lewd ” as used in the child

pornogr aphy

- possession offe nse is unconstitutionally overbr oad as app lied to him “ in its prohi bition of t he exhibition of t he g enitalia of children unde r the age of 17, sweeping innocent family p hotographs and artwork into its criminal definition. ” Appellant did not raise a sufficiency challen ge to the “ lewd exhibition ” elem ent of the
statut e. In his motion for new trial, Appell ant argued that “the language of ” the statutes under which he was convicted

–– Te xas Pen al Code Sections 22.021(a)(1)(B) , (2)(B) , 21.11 (a) , an d 43.26 (e) 9

––

was applied to h is conduct so as to violate his fre e - speech and a rtis tic

- expression rights ; this argume nt was premised on his clai m that the

9 Appellant ’ s complai nt on appeal is limited to the child

- pornography co u nts .11

allegations against him were fabricated as a resu lt of a contentious divorce and that he had “a well

- established h istory of engaging i n ph otogr aphy for artistic purp o ses. ”

“ An ‘ as ap plied ’ challenge to the constituti onality of a statute ass erts that [the] statute, although generally constitutional, operate s unconstitutionally as to the claimant because of his particular circumstances. ” Faust v. State , 491 S.W.3d 733, 743 (Tex. Crim. App. 2015). In considering an as

- applied challenge, we pr esume that the statute is valid and that the Texas L egislature acte d reasonably w hen enacting it. I d. at 743

– 44. “ Because a statute may be valid as applied to one s et of facts and invalid as appli ed to another, it i s incumbent upo n the challenger to firs t show that, in its operation, the statute is unconstitutional as t o him in his situation; that it may be unconstitutional as to othe rs is not suffic ient. ” State ex rel. Lykos v. Fine , 330 S.W.3d 9 04, 916 (Tex. Crim. A pp. 2011) (or ig. proceeding). The T exas Court of Criminal Appe als recentl y examined in the sufficiency
context how co urts can determine whether photogr aphs depict lewd exhibition o f the gen itals : The Tex as Legislature has not statuto rily defined “lewd exhibition of the genitals.” The mean ing of the phrase is a matter of law that we review de novo. So, when determining whether any rational trier of fact could have foun d [an a] ppellant guilty beyond a reasonable doubt, we conduct a de novo re view to determine whether the [material ] const itu tes child pornography.12 Although we are not bound by them, we can consider the Do st [ 10 ] factors as guidance to determine whether depi ctions of naked children are “le w d” for purposes of child pornography. Th e Dost court listed six f actors that may be used to evaluate whether a visual depiction constitutes child pornograp hy: 1) whether the focal point of the visual depiction is on the c hild ’ s genitalia or pubic area; 2) whether the setting of the visual depi ction is sexually suggest ive, i.e., in a place or pose generally associated with sexual activity; 3) whether the chil d is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child ; 4) whether the child is fully or partia lly clothed , or nude; 5) whether the visual depi c tion suggests sexual coyness or a willingness to engage in sexual acti vity; 6) whether the visual depiction is intended or designed to elicit a sexual response in t he viewer. Whether an image constitutes child porno graphy under Texas law is determined o n a case by case basis, and no single factor is dispositive. This determination is made based on the overall content of the visual depi ction, while also considerin g the minor ’ s age. The focus is on whether the depiction

–– not the minor

–– brings forth the gen itals or pubic area to excite or stimulate. A child does not have to be engaging in sexual activity in order for the visual depiction to be considered a “lewd exhibit ion of genitals. ” Romo v. State , 663 S .W.3d 716, 719

– 20 (Tex. Crim. Ap p. 202 2) (c itations omitted)

.

10 Un ited States v. Dost

, 636 F. Supp. 828 (S.D. Cal. 1986), aff ’ d su b nom. United States v. Wiegand

, 812 F.2d 1239 (9th Cir. 1987), and aff ’ d , 813 F.2d 1231 (9th Cir. 1987)

.13

Here, Complainant A is nude or wearing a sheer garment in all of the photographs ; Complai nant B ’ s bottom is exposed in the photograph t ake n of her

. A lth ough th e photographs are not focused solel y on the prepubescent c hildren ’s genitalia, it is expose d , and in most of the photogr aphs o f Compl ainant A , she appears to be posed so as to br ing attention to that area

. Compl ain an t B was photographed from behind while crawling onto furniture, but in a way that fo cused on her uncovered behind. The photographs o f Complainant A do not depict natural poses or attire for a child that a ge, even for intimate photographs tak en by a parent or pa rent

- like figure

. 11 Although there is no suggestion of sexual coyness or willingness to engage in

sexu al activity

–– in fact, th e photographs appear to highlight the child ren ’ s innocence in exposing the ir genitals

–– they do appear voyeuri stic

. 12 The photographs were tak e n in doors , with the children alone and Complainant A posed , as if o nly for the p h ot ographe r ’ s vie w . Taken in cont ext and viewed in light of the remaining factors, the photographs do not appear t o be the result of ei ther an artistic expression or t h e natural expression of intimacy between a child and a close, trusted person . R ather,

11 One of the investigating detectives testi fied t hat some p eople creating t heir ow n chi ld

- pornography images will “ often start phot ographing the child in normal situation s, kind of a grooming process where the child beco mes less and less clothed until the y ’ re posed in different posi tions that end u p with lewd exhibition of the ge nitals or th eir breasts exposed. ”

12 In o n e of the photographs o f Complainant A , she appears to be posed more like an adult woman

.14

the y appear to be designed to elic it a sexual response to viewing the expos ed genitals of prepubescent girls. Applying th e Dost factors , we conclude that sufficient e vi den ce exists that the photo graphs depict lew d exhibition of the g en itals such that the app lication of Section 4 3.26(e) to appellant is not so overb road that it vi olate s his rights to free speech and artistic e xpression. We over rule his seventh issue.

I V . D O UB LE J EOPARDY In part of his first issue, a ppellant raises d ouble

- j eopardy challenges t o his Cou nt Two indecency convi ction and the ni ne child

- porno graphy

- possession counts

. Specifically, he contends that (1) t he Cou nt Two supporting act i s s ubsumed w i thin the Count One aggravat e d sexual ass ault and , thus, he has been subjected to multiple punishments for the same offens e and (2) that the nine child

- pornogr aphy

- posses sion convictions possibly subjected him to mu l tiple punish men ts because “ t he charging language is duplicative on its face ” and the jury could have convicted him multiple times f or possessing the same photogra ph

. Appellant did not raise double

- jeopardy complaints in the trial court. Thus, he ha s forfeited the m un less “ the undisputed facts show the double jeopardy violation [s are] clearly apparent on the face of the record and

. . . enforcement of [the] usua l rules of procedural def

ault serves no legitima te state interests.” Gonzale z v. State , 8 S.W.3d 640, 643 (T ex. Crim. App. 2000) ; see also Langs v. State , 183 S.W.3d 680, 686

– 87 (Tex.15

Crim. App. 2006)

. A dou ble

- jeopardy claim is apparent on the face of t he trial record if resolv ing the claim does not require further proceedings t o introduce additional eviden ce supporting the claim. Ex parte Denton , 399 S.W.3d 540, 544 (Tex. Crim. App. 2013); Gonzalez

, 8 S.W. 3d at 643. We thus exa min e the record to deter mine if it shows a double

- jeopardy violation on its face.

A . I NDECENCY C OUNT T WO S UBSUMED IN C OUNT O NE Ap pel lant contends that the evide nce of the act supporting Count Two (touching Complainant A ’ s genitals) shows that it was subsumed within the aggravate d sexual assault charged in Count One (penetrating C omplainan t A ’ s sexual org an by tongue , mouth, or both)

. “ When both contact and penetration occur in a single sexual act, involving a single orifi ce, contact is s ubsumed by penetration. ” 13 French v. State , 563 S.W.3d 228, 235 (Tex. Crim. App. 2018)

. “ But when the offen ses are not predicated on the sa me act, each discrete prohibited act is a separate unit of prosecution. ” Id.

13 A multiple

- punishm ents double

- jeop ardy violation may arise in two situations: (1) the lesser

- included

- offense context, wh en the same conduct is punished twice (once for the basic conduct, and a second time for that same conduct plus more); and (2) when multiple punishments are imposed for the s ame criminal act under two distinct statutes when the legislature intended that th e condu ct be punishe d only once. Langs , 183 S.W.3d at 685 . The ultimate question is whether the legislature intended to allow for mu ltiple punishments. Id. at 688

. The Court of Criminal Appeal s has determined that in t he subsumpti on conte xt (i .e ., contact be i ng subsumed w ithin a penetration), the Legi slature inten ded for only one punishment. See Aekins v. State , 447 S.W.3d 270, 272 (Tex. Crim. App. 2014) ( “[W] hen a single exposure or contact offense is ‘ incident to and subsumed by ’ a pene tration offense, the offenses are the
‘ same ’ for double

- jeopardy purposes . ”).16

Because the evidence i ncluded sexual acts that occurre d in both Ar cher Cou nty

an d W ichita County, we look for evidence as to whether appellant com mitted two dist inct sexual ac ts against Complainant A in Wichita County. Complainant A testified that in Wichita County, appellant ’ s tongue “ ma [d] e contact with ” her vagina. Afte r he “ ma [ d

] e contact , ” she pushed him away. When asked if he touched her

an ywhere with hi s ha nds, she said, “ No, I don ’ t remem b er. ” When asked whether

–– i n the house in W ichita Coun ty

–– app ellant touched he r in other ways that made her feel uncomf

or table , she said, “ [

N ] o. ” The other touching incident s she testified to occurred i n A r cher County. 14 A lthough Complain ant A did not remember telling a forensic intervie wer that in W ichita County appellan t h ad asked if he could touch her genitals , she said that she

remem be re d a lot more then than what sh e remembered at trial and tha t w hat she had said in her interview was truthful

. Neverth eless, there was no evidence that s he had said in her forensi c interv iew that appellant had made additional sexual contact with her in W ic hita Count y. T he on ly evidence of appella n t ’ s to uch ing Complainant A ’ s genitals while in W ichita County was when he p enetrated her vagina with his tong u e ; thus, this one act

c an support only one conviction: that of the aggravated s exual assault. See Ae kins ,

14 For example, a lthough she testified ab out numero us times that he ru bbed her vag ina with his fingers while watching pornography with her , he di d so while at his home in Archer C ounty .17

447 S.W.3d at 2 81, 283

. We sustain this par t o f appella nt ’ s first issue ; because he would not be entitled to g reat er relief , we need not address t he corresponding complaint in his third issue

. See T e x. R. App. P. 47.1. B . A LL N INE P HOTOGRAPHS AR E D I ST INCT AND S UPPORT N INE C ONVICTIONS In his do ubl e - j eopardy co mplaint abou t th e photographs, a ppellant acknowledges that the S t ate did not have to speci fy in the indictment whi ch p hoto graph supports which count

. See V ineyard v. State , 958 S. W. 2d 834, 8 3 8 (Tex. Crim. App. 199 8) ; Cha ire z v. State , No

. 05

- 22

- 967

- CR , 2023 WL 9693573, at * 10 ( Tex. App.

–– Dallas Dec. 6, 2023, pet. ref ’ d ) (mem. op. , not designated for publication) . B ut he argues that the photographs are so similar that the offenses could have be en fact ually the same : “ All nine co unt s of the indictment charge lewd exhibition of the genitals so it would be impossible to kno w which p hoto to rely on and whether the ph oto was a duplicate of another charged photo

. ” Thus, appellant claim s tha t the d ouble j eo pardy error w as present in the indic tment, bas ed on the e vidence admitted at trial: Unless the State is req uired to specifically allege which images it is relying on for the offense, then the risk of multiple punishments for the same o ffens e is im permissibly present. Thi s is espe cially true in this case because of summary exhibits like State’s Exhibits 25 and 2 6 which list multiple images which are visibly similar.18

Although t he State had to prove the same elements for each off ense, i t relie d

on di fferent pho tographs. 15 Under Section 43.26, p ossession of each item of child pornograph y is a n allowable unit o f prosecut ion and, thus, a se parate offense. Vi neyard , 958 S.W.2d at 83 8

. The trial court admitted an exhibit that showed a copy of each phot ograph und ern eath its corresponding indictment count ; the only photographs that ap pear to be the same are those c orresponding to Counts Five an d Nine. The othe rs are visibly diffe rent. A detective testifi ed at tri al that the photogra phs suppor ting Counts Five and Ni ne are actually di stinct photographs because alth ough found on the sam e computer , they have di fferent has h values ; t he detective ex plained that when s tored on a computer, each distinct photograp h has a separate hash value

. 16 And appe llant testif ied that he “ [n] ormally ” kept his camera on a mode “ where it fires every second
or two ” and up to “ ten shot s a second

. ”

15 B ased solel y on the descriptive language used in the indictment, C ounts F i ve and N i ne all eged different ph otograph s from C ounts Six through E ight , Ten , and Eleven

.

16 According to th e detective, this could occur if a person co pied or mani pulated a photo graph or took multiple photo graphs “ while the child ne ver moved. ” Appel lant testi fied that he had altered so me o f the ot h e r photo graph s found on his c omputer

–– for which he was not charge d

–– and he adm itted taking the pho to graph s charged in C ounts Five and Nine

. Appella nt also testified that he ha d not i ntended to take the two separate photo graph s i n Counts Fiv e an d Nine; the c omplainant had fallen down, and he was more concerned that she ha d hur t herself than about what h e was do ing with the camera .19

We conclude t hat n o d ouble

- jeopardy violation is show n on the face of the

recor d with respect to the nine distinct photog raphs for wh ich appellant was convicted b ecause his possession of each distinct photograph constitutes a different offense

. See Chaire z

, 2023 WL at 9693 573 , at *10 ; Eubanks v. State , 326 S.W .3d 231, 246 (Tex. App.

–– Houston [1 st Dist.] 2010, pet. re f ’ d ) ; s ee also Witt v . State , 237 S. W.3d 394, 397 (Tex. App.

––

Waco 2007, pet. ref

’ d) (holding same in conte xt of sufficie ncy analys is)

. We overrule t his part o f appe llant ’ s first issue. V . C HARGE In his fifth issue, appellant argues that he wa s egregiously har m ed by unobje cted

- to errors i n t he guilt

– innocence jury charge

. We must review “all alle ged jury

- char ge error . . . regardless of preservation in the tri al court.” Kirsch v. St ate , 357 S.W.3d 645, 649 (Tex. Cr im. App. 2012). In reviewing a jury charge, w e first dete rmi ne whether error occurred; if not, our analysis ends. Id. A . S ECTION 1 1 Ap pellant first complains of a paragraph in section 11 , which states: You are instructed that the State is not required to prove the exact date allege d in the indictme nt but may p rov e the offenses, if any, t o have been commit ted at any ti me prior to the presentment of the indictment. You are instructed that the Cour t has taken judicial notice that the date the indictment in this case was presented was June 7, 2018. T here is no p eri od of limitations for the of fenses charged in the indict ment in Counts 1, 2 and 12. The period of limitatio n for the offenses charged in20

C ounts 3, 4, 5, 6, 7, 8, 9, 10 and 11 [is] three years from the date of the commission of the offense. The jury is fu rther instructed that it may, but i s not re quired to, ac cept as conclusive the fact judicially noticed. According to appellant, this instruct ion is ambiguous as to how the jury should calculate the statute of limitations for the child

- po rno graphy coun t s in that it instructs the ju ry that limitations fo r those offense s are three y e ars from the date of the offense ’ s commission but simultaneously ins tructs the jury that the date alleged i n the indictment need not be exact

. We h old that there was no error in th is part of the j ury charge, which adequately instructed the jury that th e child

- pornogr aphy

- pos session offenses had to be brought within three years from the date they were committed and also be f ore June 7, 2018. T h at the trial court cor rectly instr ucted the jury that the Sta te was not required to prove the exact date alle ged in the indictment , see Kl ein v. State , 273 S.W.3d 297, 303 n.5 (Tex. Crim. App. 2008) , does not rende r the limitations

- ap p lication instructi ons unclea r . Cf. Mireles v. State , 9 01 S.W.2d 458, 461 (Tex. Crim. App. 1995) (holding that even if “ on or about ” language in indictment is arguably ambiguous in reference to limitations , charge is n ot necessarily erron eous when viewed i n the context of t he entire trial

). B . S ECTION 14 I n the second part o f his fifth issue , appellant contends that section 14 contains

a superf luous paragraph : “A person who possesses visual material that contains six or21

more i dentical visual depiction s of a child that w ould const itute an off

ens e under this section i s presumed to possess the material w ith the intent to promote the material.” Ap pellant contends that no e vidence showed th at he had six or more identi c al visual depictions of a child on his compu ter; thus, the presumption was not app licable to t he case and therefore should not have been included in the charge. The presumptive language in the jury charge was taken verbat im from the version of penal code section 43.26 in effec t at the time of the offense. See Act of May 2 9 , 1989 , 71 st Leg., R.S

. , ch. 968, 1989 Tex. Gen . Laws 4046, 4046 (repealed 2023 ). Assuming that it was error to include a presumption that w as statutorily correct but nevertheless in applicable , we conclude t hat appellant was not egregiously harmed

. See Taylor v. S tate , 332 S. W.3d 483, 490 (Tex. Crim. App. 2011) ( “ Errors which result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, vi tally affect the defensive t heory, or make a case for conviction clearly and signifi cantly more persuasive. ” ); Almanza v. State , 686 S.W.2d 157, 171

– 72 (Tex. Crim. App. 1985 ) ( op. on reh ’ g ) (exp laining parameters of egregious

- harm review)

. First, t he presu mption was included in the a bstract p ortion of the c harge and not repeat ed in the ap plication

. See Medina v. Stat e , 7 S.W.3d 633, 640 (Tex. Crim. App. 1999). Second , the instr uction does not compe l any conc lusion by the jury; it merely states when the pr esumption is applicable and thus is w orded in such a way that the jury w as free to d isregard it upon determining i t was not applicable

. Third ,22

although appellant asserts he was harme d because inten ding to promote child pornography is a second

- degr ee felon y while a conviction for mer e possess ion of child pornography is a third

- degree felo ny , a s we have concluded, other evidence

s upported the jury ’ s intent

- to

- promote finding. Consequently , w e hold that even if the trial court e rred by includ ing th is presumption in the char ge, a ppellant wa s not egregiously harmed

. C . S ECT ION 1 6 Appellant ’ s final complaint about the guilt

– innocence charge is that the application p aragraph s fo r Counts 6 and 8 17 and the application paragraphs for Counts 5 and 9 18 enco uraged multiple convictions f or the same offense ; thus, they should never have been presented t o the jury.

17 Although cont aine d in separate paragraph s, the language of both is substanti ally the sam e ; the Count 6 p aragraph read s as follows:

Now bearing in mind the foregoing instructions, if you b elieve from the evidence beyond a reasonable doubt, that the defendant,

. . . on or ab out the 31st day of August, 2013, in the County of Wichita and State of Texas, did then and there intentionally or knowingly possess with intent to promote visual ma teria l that visually depicted, and that the defend ant knew vis ually depicted, Pseudonym

- A

- 1 6

- 020511, a child who was younger than 18 years of age at t he time the image of the chi ld w as made, engaging in sexual conduct, to

- wit: actual lewd exhibition of th e gen itals, in that the color image depicts Pseudo nym
- A sittin g in a green chair with only one leg up and exposing her genitals, then you will find th e defendant guilty of the of fense of Possession with Intent to Promote Child Pornography, Count 6 as alleg ed in the indictment

. 18 As with t he p aragraphs for Co unts 6 and 8, the paragraphs for Counts 5 and 9 were substantially the same. The C ount 5 parag r aph read s as fo llows:23

As previously noted, the photographs relied on by t he State for Counts 6 an d 8

a re visibly different and support separate conviction s . During closing, t he Stat e expressly pointed the jury to the exhibit di splay ing the individ ual ph otographs with the correspo nding ind ictment count

. Because the recor d does not show either that the jury w as mi sled by the instructions or th at there was a danger of a n onunanimous verdict based on those instructions, we hold that even if the wording of the instruc tions was in error, appellant was not egregiously harmed. See Taylor , 332 S.W.3d a t 490 ; Almanza , 686 S.W.2d at 171

– 72

. H avin g dete rmined that appellant was no t egregiously harm ed by any error in the jur y charge, w e overrule his fifth issue.

V I . UNPRESER

VED COMPLAINTS I n the remaining part of his first issue, and in hi s second and fourth issues, appellant raises compla ints that were not preserved at trial

.

Now bearing in mind the foregoing instructions, if you believe from the evid ence beyond a r easonable doubt, that the defendant,

. . . on or about th e 31 st day of August, 2013, i n the County of Wichita and State of Texas, did then and there intention ally or knowingly possess with intent to promote visual material that visually depi cted, and that the defendant knew visually depicted, a child , Pseudonym

- A

- 16

- 020511, a child who was younger than 18 years of age at the time the image of th e child was made , engaging in sexual conduct, to

- wit: actual lewd exhibition of the genitals, in th at the color im age depicts Pseudonym

- A ly ing face down on th e floor, wit h her legs spread and exposin g her genitals to the camera, then you will find the def endant guilty of the offense of Possession with Intent to Promote Child Pornography, Count 5 a s all eged in the ind ictment.24 A. S TATUT E OF L I MITATIONS According to appell ant , t he face of the indictment shows t h at the prose cution for the child

- pornograp hy possession was time

- barred. 19 Appellant was charged with all twelve counts in the s ame indictment, which used an “on or about” date of August 31, 2013, for each child

- pornography

- possession offense. Although a ckn owledging that “ [i] t is well settled that the ‘ on or about ’ language of an indictment allows the State to pr ove a date other than the one alleged in the indictment as lo ng as t he da te is anterior to the presentment of the in dictment and within the statu tor y limitat i on period , ” appellant conte nds that the grand jury could not indict him for the possessi on offense s if they occurred be fore June 7, 2015

–– three years before the indictment ’ s file

- stamp date

. See Tex. Code Crim. Proc. Ann. § 21.02(6) (

p rovidin g tha t an in dictment is sufficient if “ [t] he time mentioned [is] some date anter ior to th e presentment of the indictm ent, and not so remote that the prosecution of the offense is barred by limitation ” ). But a ppellant did not challenge the indi ct ment on li mitations gr ounds in the trial court

. As the Cou rt of Criminal Appeals has hel d, Under [ Article V, Section 12 of the Texa s constitution , ] an indictment is still an indictment even if it has a defect of substance. An app arent

19 A t the time the indictment was issu ed, the appl icable statute of limitations for possession of child porn ography with the intent to pr omote was three years

. See Act of May 19, 2 011, 82 nd L e g. , R.S., ch. 222, § 1 , 2011 Tex. Ge n. Laws 797, 79 8 (currently Tex. Code Crim. Proc . Ann. art. 12.01 (b) (3) (K) ( i mposi ng seve n
- yea r limitation on child

- pornography

- possession pro secution ) )

.25

limi tation bar i s a defect o f substance. But an apparently limitation

barred chargi ng instrument “ st ill confer s jurisdiction upon the trial court, such that the defendant must bring the defect to the attention of the trial court in order to preserve any error. ” Ex parte Edwards

, 66 3 S.W.3d 614 , 617 (Tex. Crim. App. 2022) (citation s omit ted) ; see Tex. C o de Crim. P roc. Ann. art. 1.14 (b) ( “ If the defendant does not object to a defect

. . . of form or substance in an indictment

. . . be fore the dat e on which the trial on the merits comm ences, he

. . . forfeits the right to ob j ect to th e defect,

. . . and he may not raise the objection on appeal

. . . . ” )

. In other words, a limitat ions complai nt “ is forfeited if not asserted at or before the guilt/innoce nce st age of trial. ” P roctor v. S tate , 967 S. W.2d 840, 844 (Tex. Crim. App. 1998)

. 20 Accordingly, we con clud e that appellant failed to pre s erve his statute

- of

- limitations complaint for appeal. See id. Appellant atte mpts to assert that li mitations is an ir repa rable defe ct, ci t ing Tita

v . S t ate , 267 S.W

. 3d 33 (Tex. Crim. App. 2008 ), and Ex parte Tam ez , 38 S. W.3d 159 (Tex. Crim. App. 2001). But in both of those cases, th e defendant had challenged li mitation s in the trial court; thus, their re p arable

- versus
- irrepara b le

- defect holdings do

no t apply here

. See Tita , 267 S.W

. 3d at 35 ; Tame z , 38 S.W.3d a t 160

. We overrule the part of appellan t ’ s fi rst issue challenging the indictment on limi tations grounds.

20 In 2011, t he Court of Criminal Appeals held that an “ absol ute statute

- of

limitations bar i s not for fe ite d by the failure to raise it in the trial court. ” Ph illips v. State , 362 S.W .3d 606 , 608 (Tex. Crim. A pp. 2011). But th at court subsequentl y overruled this holding in 2015. Ex parte Heilman , 456 S.W.3d 159, 163

– 64, 168

– 69 (Tex. C r im. Ap p . 2 015). Thu s, no legal basis remains for appellan t to argue that he need not have p r eser

ved his limitations co mplaint for appeal.26 B. E XTRANEOUS E VIDENCE In his second issue , appellant argues that the trial court sho uld have e xc luded
extraneous

- offense evidence under A r ticle 38.37 , section 3 of the Code of Crimi nal Procedure because the State did not gi ve him ti mely notice under that statute and that
t he extraneous

- offense ev idence was inadmissible under Ru le 403. Ap pellan t did not prese rve these com plaints at tr ial.

“ To preserve error regarding the State ’ s failure to provide reasonable notice of its intent to use ext raneous
- offense evidence, a defendant must request a c ontinuance to mitigate the effects of surprise

. ” Kni ght v . State , 457 S.W.3d 192, 203 (Tex. App.

— El Paso 2015, pet. re f’d) ; Martines v. St ate , 371 S.W .3d 232, 249 (Tex. App.

— Houston [1st Dis t.] 2011, n o pet.) ; Martin v. State , 176 S.W .3d 88 7 , 900 (Tex. Ap p.
–– Fort Worth 2005, n o pet.). Appellant did not req uest a continuance. Nor did he object to the a dmissio n o f th e extran eous
- of fen se evidence on the gr ound that the S t ate did not give him a dequate not ice

–– a fact which he concedes

. See Lovill v. State , 3 19 S.W.3d 687, 691

– 92 (Tex. Crim. App. 2009) ( “A comp laint will not be preserved if the legal basis of the complaint raised on ap pea l varies from the complaint made at trial.”)

. Thus, he di d not preserv e a complaint regard ing lack of ad equate notic e. A ltho ugh appellant file d a motio n in limine regardi ng the extra neous
- offense evidence

––

which the trial co urt granted

–– a m otion in limi ne does not preserve a complaint that evidence was improperly admitted

. Martinez v. State , 98 S.W.3d 189, 193 (Tex. Crim. App. 2003)

. A nd ap pellant did not make a Rule 403 objection a t trial.27

T hus, appellan t has also waived this c ompla int for our review. See Tex. R. App. P. 33.1(a)(1); Montelong o v. State , 623 S.W.3d 819, 822 (Tex. Crim. App. 2021)

. W e

overr ule his second issue

. C. J URY A RGUMENT In his fou r th issue, ap pellant arg u es that the pro secutor impro perly called him a liar during the guilt

- or
- innoce nce phase of tri al ; improperly implied at punishment that he was a liar by telling th e jury, “ You can ’ t trust him ” ; and improperl y refer red to facts not in evidence a t the punis h ment phase of trial

. 21 Appellant concedes that he did not object to th e s e argument s , bu t he argues that the “ prosecutor ’ s repeated impr oper jury arguments were of such frequency and magn itude that they rendered the jury argume nt ‘ fundamentally unfair ’ in v iolation of Due Process and Due Cour se of Law gu a r anteed by both Texas and U.S. constit utions. ” Absent an objection t o jury argument, nothing is presented for review. Hernandez v. State , 538 S.W.3d 619, 622

– 23 ( Tex. Crim. App. 2018)

. “Even incurably i mpro per jury argument is forfeita ble.” Id. at 62 3

. Although appellant asks this court to consi der the unobjected

- to ar gument as so fre quent and egregious as to overcome the systemic preservation requirement , he do es not cite auth ority for thi s con tention , and we decline to do so. See D ixon v. State , 5 95 S.W.3d 216, 223 (Te x. Crim. App.

21 Specifically, she opined that ap pellan t ’ s actions were the reas on Complainants A and C were kept apart and that t heir closene ss an d vuln erability as children wa s evi denced by their later joyful reunion.28

2020) ( “ [P] re servation of error is a systemic requirement that a first

- tier a ppellate court is obligated to address before reve rsi ng a conviction

. ” ). B ecause appellant d id not pr eserve his jury

- argument complain t s, we overrule his fourth is sue. VII . MODIFICATION OF JUDG MENT The State con cedes t he er ror complai ned of in appella nt ’ s sixth issue: that his sentences for C ounts Three thr ough Eleven are imp roperly cumulated w ith his
sentences for Counts One a nd Tw elve

. We agree that the trial court erred by

cu mulating t hose sentences

. Se e Oliva v. State , 548 S.W. 3d 518, 520 (Tex. Crim. App. 2018) (noting that appellat e court is not bound by concession ). Generally, whe n an a ccused i s found guilty o f more than one off ens e arising out of the sam e criminal e pisode and prosecuted in a single criminal act ion, the
sente nces f

or each conviction mu st run concurrently. Tex. Penal Code Ann. § 3.03(a)

. Sectio n 3.03(b) sets out e xcepti on s to the rule providing what type of sen t ence s may be cumulated to run conse cutively , but none of these apply to app ellant ’ s child

pornography

- possess ion convictions

. Se e i d. § 3.03( b). When appellant w as alleged to have committed the offenses ch arged in the indictmen t, S ection 3.03(b) did not allow the trial court to order cumulative sente nces from convictions for aggravated sexua l assault and child

- pornography possession

–– or fr om convic tions for indece ncy with a chil d and ch il d

- pornography posse ssion

– – ari si ng in the sam e criminal episode

. See Act of Apr. 7 , 201 1 , 82nd Leg., R.S., ch. 1, art. 6, § 6.01, 201 1 Tex. Gen . Laws 1 , 1429

( curr ent version at T ex. Penal Code Ann. § 3.03 )

. We there fore sustain app ellant ’ s

s ixth is sue and will modify the cha llenge d judg ment s accordin gly. VIII . CONCLUSION H aving sustained part of appellant ’ s first issue, w e reve r se his Count T wo conviction i n trial court cause number 60,152

- B

- 2 for indecency with a ch ild, and we rend er a ju dgment of acquitta l on that count only. Addit ionally , having susta ined his sixth iss ue, we modify the judgments in cause numb ers 60,152

- B

– 3 through 60,1 52

- B

11 (Counts T hree t hro ugh E leven) to show that the senten ces of confineme nt in each of them run consecutively with each other but con curren tly wi th the sen te nce in ca use number 60,152

- B

- 1 2 (the Count Tw el ve indecency) and co ncurrently with the

s entence in cause number 60,152

- B

- 1 (the Count One aggravated sexual assault of a chi ld)

. We a lso modify the sentence in cause number 60,152

- B

- 1 2 (Co u nt Twe lve ) to reflect t hat it is to be served consecutively only with t he sentence i n cause number 6 0,152

- B

– 1 (Count One) and concurrently with the sentences in c ause n umbers 60,152

- B

- 3

– 11

. W e affirm the remainder of the trial court ’ s judgments. /s/ Brian Walker Brian Walker Ju st ice Do Not Publish Tex. R. App. P. 47.2(b) De livered : Jun e 20, 2024