Affirmed and Opinion Filed June 2, 2015 

# S

In The



## Court of Appeals

Fifth District of Texas at Dallas

No. 05

- 14

- 01310

- CR

JACOB LANE ROWAN , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 397th Judicial District Court

Grayson County, Texas

Trial Court Cause No. 063943



### MEMORANDUM OPINION

Before Justices Francis, Lang

- Miers, and Whitehill

Opinion by Justice Francis

Jacob Lane Rowan appeals his convictions for six counts of pos s ession of child

pornograph y

. After t h e jury found him guilty, t h e t r ial court assessed p u nish m ent at ten years in

prison and a $250 fine f or each off e nse. The trial court ordered the first five sentences to run

consecutively and the last ten

- year sentence (assess e d for count 6) to run concurrent with the ten

year sentence assessed f or count 5. In two issues, appellant clai m s the evidence is insufficient to

support his convictions and the tri a l court erred by allowing an e xpert witness to testify. W e

aff i r m

.

When fifteen

- year

- old S .H recei v ed a sexually explicit text and photograph on her cell

phone, she told her father who im m ediately took the phone to the Dennison police. They

obtained a search warrant and deter m ined the phone belonged to appellant’s stepmother but was– 2 used by appellant. After appellant’s arrest, a forensic examination of his cell phone revealed

nearly 400 sexually explicit i m ages of people, about 100 of which were children. Appellant was

then charged with poss e ssion of child pornography.

In his first issue, appellant clai m s the e v idence is legally insufficient to support his

convictions. Under this issue, appellant argues the State failed to prove exhibits 4 and 5 depicted

under

- a g e girls m astur b ating beca u se they are still phot o graphs which are “incapable of

illu s t r ating m asturbati o n, since m asturb a tion r e quires mo ve men t .” Likewise, he clai m s the State

failed to prove the other four photogr a phs (exhibits 6 through 9) were lewd.

In a legal s u fficiency review, we view all the e vidence in the lig h t m ost f avora b le to the

verdict and deter m ine whether any rational trier of fact could have found the essential ele m ents

of the cri m e beyond a reasonable doubt. Jack s on v. Virginia

, 443 U.S. 307, 319 ( 1979). The

jury is the sole judge of the witnesses’ credibility and the weight to be given their testi m ony and

therefore, is free to accept or reject any or all evide n ce p re s ented by either si d e. See Lancon v.

State , 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). W e do not engage in a second evaluation of

the weight and credibility of the evidence but “deter m i ne whether the n ecess a ry inferences are

reasonable based upon the co m bined and cu m u lative force of all the evidence when viewed in

the light m o st f avorable to the v e rdi c t.” Hooper v. State

, 214 S. W .3d 9, 16

– 17 (Tex. Cri m . App.

2007).

A person commits an offense if he intentionally or knowingly possesses visual m aterial

that visually depicts, and he knows it visually depicts, a child younger than eighteen years of age

at the ti m e the i m age of the child was m ade and the child in the visual m aterial is e ngaging in

sexual conduct, inc l uding m asturbation and lewd e xhibition of the genitals. T E X

. P ENAL C ODE

A NN

. §§ 43.25(a)(2), 43.26(a) (Vernon 2011 & Supp. 2014). In det e rmining whether a visual

depiction of a child is lewd, c ourts should consider whether (1) the focal point of the visual– 3 depiction is the child’s genitali a

, (2) the place or pose of the child in the photograph is sexually

suggestive, (3) the child is depicted in an unnat u ral pose or inappropriate attire, (4) the child is

fully or partially clothed or nude, (5) the visual depiction suggests sexual coyness or a

willing n ess to engage in sexual activity, or (6) t h e visual depiction is intended or designed to

eli c it a s e x ual respo ns e in the v i ew er. See Alexander v. State

, 906 S. W .2d 107, 110 (Tex.

App.―Dallas 1995, no pet.). In deter m ining wheth e r a visual depiction of a child depicts

m asturbation, we rely on the plain m eaning of the words used a n d consider whether the

photograph depicts a child sti m ulating or m an i pulating genitals by manual or bodily contact

exclusive of sexual intercourse. See Williams v. Stat e

, 270 S. W .3d 140, 146 (Tex. Cri m

. App.

2008) (when penal code does not de f i ne word, w e “turn to the com m on, ord i nary m e aning of that

word”); W E B STE R ’ S 3 RD N E W I N T ’ L D ICTION A RY 1391 (1993).

The indict m ent stated and the j u ry charge provided that appell a nt intentionally and

knowingly possessed visual m aterial that visually depicted a child younger than 18 years at the

ti m e the i m age was m a de engaging in sexual c onduct, namely m asturbation and actual lewd

exhibition of genitals. W ith regard to the State’s exhibit 4 and 5, the first color photograph

depicts a young girl from her head to her knees. In the photograph, the girl is nude except for a

bead bracelet and cloth necklace, and she looks dir e ctly into the ca m era. The i m age, taken from

an area below her knees, focuses on her genitalia. Her right m i ddle fing e r appears to be touching

her clitoris. The second color photograph is a close up photograph depicting the hands of a

young f e m a l e, also m anipulating her genitals. The jury viewed these photographs and concluded

they depicted young girls engaging in sexual conduct, specif i cally m asturbation.

The State’s exhibits 6 through 9 are also color photographs. The fo c al point of each

i m age is the young f e m ale’s genital area. None of these four photographs s hows the child’s face. In

e a ch i m age, the po r tion of the c hild v i si b l e in the photograph is n ude. Each child is in an– 4 unnatural or inappropriate pose, o f ten squatting over a ca m e ra. T h e images are not artistic or

inadvertent; rather, they are clearly intended or d e signed to elicit a sexual response in the viewer.

After viewing these photographs, the jury concluded they depicted young girls engaging in

sexual con d uct, spe c i f i c ally t h e le w d exhibition of genitals.

We have reviewed t h e State’s ex hi bits 4 th ro u gh 9 and c o nsidered a p pella n t ’s ar g u m ents

on appeal. After doing so and after conside r ing the ap p li c a b le law, we c onclude a r a tion a l j u ry

could find that the six i m ages are pornographic a nd that appellant is guilty of possession of child

pornography as alleged in the indict m ent and set out in the jury cha r ge. In reaching this

conclusion, we reject appellant’s argu m ent that the still photogr a phs are incapable of depicting

m asturbati o n becau s e s u ch action “requires m ove m en t .” Photographs of race horses crossing t h e

finish line, sw i m m ers competing in a swim m i ng m eet, or m a rathon runn e rs during a race clearly

depict m ove m ent although they are still photographs. W e likewise reject appellant’s argu m ent

that t h e i m a ges are not lewd because the S t ate failed to prove who took the photographs and

what the person’s intent was. The four i m ages contained in the State’s exhibits 6 through 9

depict nude children, in unnatural poses, and the focal point of the each i m age is the child’s

genitalia. The jury considered this and necessarily concluded t h e photographs were intended or

designed to elicit a sexual re s ponse in the viewer. W e c onclude appellant’s argu m ents lack

m erit. W e overrule app e lla n t ’s f i r st issue.

In his seco n d issue, ap p ella n t contends the t r ial court e rred by allowing the State’s expert

witness, Catherine Strain, to testi f y that the chil d ren depicted in the six photographs were

younger than eighteen years of age at the ti m e the photographs were taken. He clai m s Strain’s

testi m ony was irrelevant and could n ot have be n e f ited t h e j u ry because h e did not c h allen g e the

State’s assertion that the girls depicted in t h e six photographs were m i nors. This co mplaint

di ff ers f rom the one he r aised a t trial; a f ter the S t ate offered S t rain as an expert witne s s, appellantobjected because Strain was “not qualified” and her opinions were “unreliable.” If a

party asserts a different co m p lai n t on appeal than was ma de by objection at trial, the issue is

waived. Rezac v. S t a t e

, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990); Jones v. State

, 111

S. W .3d 600,

604 (Tex. App.―Dallas 2003, pet. ref’d). Because appellant’s co m plaint on ap p eal does

not co mport wi t h his objection below, he has waived this issue. W e overrule appellant’s

second issue.

We affi r m t he trial court’s judg m ent.

Do Not Publish

T E X

. R. A PP

. P. 47.2(b)

141310F.U05 /Molly Francis/

MOLLY FRANCIS

JUSTICE– 2

– 

# S

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

JACOB LANE ROWAN, Appellant

No. 05

- 14

- 01310

- CR V.

THE STATE OF TEXAS, Appellee On Appeal from the 397th Judicial District

Court, Grayson County, Texas

Trial Court Cause No. 063943.

Opinion delivered by Justice Francis,

Justices Lang

- Miers and Whitehill

participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED

.

Judgment entered this 2nd day of June, 2015.