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 possession of child 

pornography. After the jury found him guilty, the trial court assessed punishment at ten years in 

prison and a $250 fine for each offense. The trial court ordered the first five sentences to run 

consecutively and the last ten-year sentence (assessed for count 6) to run concurrent with the tenyear sentence assessed for count 5. In two issues, appellant claims the evidence is insufficient to 

support his convictions and the trial court erred by allowing an expert witness to testify. We 

affirm.

When fifteen-year-old S.H received a sexually explicit text and photograph on her cell 

phone, she told her father who immediately took the phone to the Dennison police. They 

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

nearly 400 sexually explicit images of people, about 100 of which were children. Appellant was 

then charged with possession of child pornography.

In his first issue, appellant claims the evidence is legally insufficient to support his 

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

under-age girls masturbating because they are still photographs which are “incapable of 

illustrating masturbation, since masturbation requires movement.” Likewise, he claims the State 

failed to prove the other four photographs (exhibits 6 through 9) were lewd.

In a legal sufficiency review, we view all the evidence in the light most favorable to the 

verdict and determine whether any rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt. Jackson 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 testimony and 

therefore, is free to accept or reject any or all evidence presented by either side. See Lancon v. 

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

the weight and credibility of the evidence but “determine whether the necessary inferences are 

reasonable based upon the combined and cumulative force of all the evidence when viewed in 

the light most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App.

2007).

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

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

at the time the image of the child was made and the child in the visual material is engaging in 

sexual conduct, including masturbation and lewd exhibition of the genitals. TEX. PENAL CODE 

ANN. §§ 43.25(a)(2), 43.26(a) (Vernon 2011 & Supp. 2014). In determining whether a visual 

depiction of a child is lewd, courts should consider whether (1) the focal point of the visual
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depiction is the child’s genitalia, (2) the place or pose of the child in the photograph is sexually 

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

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

willingness to engage in sexual activity, or (6) the visual depiction is intended or designed to 

elicit a sexual response in the viewer. See Alexander v. State, 906 S.W.2d 107, 110 (Tex. 

App.―Dallas 1995, no pet.). In determining whether a visual depiction of a child depicts 

masturbation, we rely on the plain meaning of the words used and consider whether the 

photograph depicts a child stimulating or manipulating genitals by manual or bodily contact 

exclusive of sexual intercourse. See Williams v. State, 270 S.W.3d 140, 146 (Tex. Crim. App.

2008) (when penal code does not define word, we “turn to the common, ordinary meaning of that 

word”); WEBSTER’S 3RD NEW INT’L DICTIONARY 1391 (1993).

The indictment stated and the jury charge provided that appellant intentionally and 

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

time the image was made engaging in sexual conduct, namely masturbation and actual lewd 

exhibition of genitals. With 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 directly into the camera. The image, taken from 

an area below her knees, focuses on her genitalia. Her right middle finger appears to be touching 

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

young female, also manipulating her genitals. The jury viewed these photographs and concluded 

they depicted young girls engaging in sexual conduct, specifically masturbation.

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

image is the young female’s genital area. None of these four photographs shows the child’s face. In

each image, the portion of the child visible in the photograph is nude. Each child is in an 
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unnatural or inappropriate pose, often squatting over a camera. The images are not artistic or 

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

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

sexual conduct, specifically the lewd exhibition of genitals.

We have reviewed the State’s exhibits 4 through 9 and considered appellant’s arguments 

on appeal. After doing so and after considering the applicable law, we conclude a rational jury 

could find that the six images are pornographic and that appellant is guilty of possession of child 

pornography as alleged in the indictment and set out in the jury charge. In reaching this 

conclusion, we reject appellant’s argument that the still photographs are incapable of depicting 

masturbation because such action “requires movement.” Photographs of race horses crossing the

finish line, swimmers competing in a swimming meet, or marathon runners during a race clearly 

depict movement although they are still photographs. We likewise reject appellant’s argument 

that the images are not lewd because the State failed to prove who took the photographs and 

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

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

genitalia. The jury considered this and necessarily concluded the photographs were intended or 

designed to elicit a sexual response in the viewer. We conclude appellant’s arguments lack 

merit. We overrule appellant’s first issue.

In his second issue, appellant contends the trial court erred by allowing the State’s expert 

witness, Catherine Strain, to testify that the children depicted in the six photographs were 

younger than eighteen years of age at the time the photographs were taken. He claims Strain’s 

testimony was irrelevant and could not have benefited the jury because he did not challenge the 

State’s assertion that the girls depicted in the six photographs were minors. This complaint 

differs from the one he raised at trial; after the State offered Strain as an expert witness, appellant
objected because Strain was “not qualified” and her opinions were “unreliable.” If a

party asserts a different complaint on appeal than was made by objection at trial, the issue is

waived. Rezac v. State, 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 complaint on appeal does

not comport with his objection below, he has waived this issue. We overrule appellant’s

second issue.

We affirm the trial court’s judgment.

Do Not Publish

TEX. R. APP. P. 47.2(b)

141310F.U05

/Molly Francis/

MOLLY FRANCIS

JUSTICE
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Court of Appeals

S

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.