Bolles v. State
| Decision Date | 23 June 2016 |
| Docket Number | NUMBER 13–14–00649–CR |
| Citation | 512 S.W.3d 456 |
| Parties | Mark Edward BOLLES, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Adam P. Rodriguez, Attorney at Law, Corpus Christi, TX, for Appellant
Mark Skurka, District Attorney, Douglas K. Norman, Asst. District Attorney, Corpus Christi, TX, for Appellee
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Appellant Mark Edward Bolles challenges his conviction for one count of possession of child pornography. See TEX. PENAL CODE ANN. § 43.26(a) (West, Westlaw through 2015 R.S.). We reverse and render.
On February 14, 2014, appellant entered the Corpus Christi Library and used one of the computers available to library patrons to browse the internet. Alex Hatley, the library's technology manager, noticed appellant viewing images of "what looked like partially clothed individuals." Hatley testified that he told a secretary to contact law enforcement because the images appeared to him to depict children.
Agent Brian Johnson of the Federal Bureau of Investigation arrived at the library in response to the call. At trial, Agent Johnson testified that he observed appellant from a distance and confirmed that he appeared to be viewing "what looked like nude children to me, and he was also holding a cell phone up to the screen and taking photographs of the screen." Agent Johnson briefly detained appellant and spoke to him. After appellant executed a written release consenting to a search of his phone, Agent Johnson released appellant and turned the phone over to the Corpus Christi Police Department's computer forensic division. The forensics division later recovered from the phone several photos of nude or partially nude females and one image of appellant's face and penis.1
Appellant was indicted for three counts of possession of child pornography related to several of the images found on his phone. At the beginning of the bench trial, the State abandoned Count 3 and proceeded on Counts 1 and 2. Count 1 related to two images. The first—0214041031.jpg—is a complete reproduction of a photograph entitled Rosie by the nationally-known photographer Robert Mapplethorpe. Rosie depicts a young female child seated on a stone bench. She sits with her left leg drawn inwards towards her body while her right leg is vertical and bent at the knee. She touches the side of the bench with her right arm while her left arm reaches down in the direction of her left foot. She wears a dress but no underwear. As a result, her vagina is visible in a small part of the extreme lower portion of the image. The parties stipulated in writing that Mapplethorpe created the photograph in 1976 and that the original photograph is in the collection of the Guggenheim Museum in New York City. For clarity, we will refer to 0214041031.jpg as the "full image" and the minor depicted in it as "Rosie."
The second image—0214041031a.jpg—is a close-up of the full image which depicts only the vagina and a small portion of the edge of Rosie's dress. Appellant apparently created 0214041031a.jpg by using the zoom function on his camera phone to take a picture of that portion of the full image. We will refer to 0214041031a.jpg as the "cropped image."
The trial court convicted appellant of Count 1,2 acquitted him of Count 2, and assessed a sentence of two years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice. This appeal followed.
Appellant asserts in a single issue that the evidence is insufficient to support his conviction. He reasons that the cropped image cannot be lewd because it is only a portion of the full image, which is a work of art and not lewd. The State responds that the full image is lewd and sufficient to support appellant's conviction. The State argues in the alternative that the cropped image is lewd even if the full image is not.
When reviewing the sufficiency of the evidence, we consider all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found that the State proved all the essential elements of the offense beyond a reasonable doubt. McKay v. State, 474 S.W.3d 266, 269 (Tex.Crim.App.2015) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). In this review, the jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Id. Our role is limited to ensuring that the State presented sufficient evidence supporting each element of the charged offense. Id. at 269–70. If the record supports conflicting inferences, we presume that the jury resolved the conflict in favor of its verdict and defer to that determination. Whatley v. State, 445 S.W.3d 159, 166 (Tex.Crim.App.2014).
Nevertheless, the due-process guarantee that requires proof of every element beyond a reasonable doubt "demands that we reverse and order a judgment of acquittal if a rational trier of fact would entertain a reasonable doubt as to the defendant's guilt." Rabb v. State, 434 S.W.3d 613, 616 (Tex.Crim.App.2014).
We measure the sufficiency of the evidence against the essential elements of the offense defined by the hypothetically correct jury charge for the case. Anderson v. State, 416 S.W.3d 884, 889 (Tex.Crim.App.2013). The hypothetically correct jury charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict its theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997) ).
Under a hypothetically correct jury charge, appellant is guilty of possession of child pornography if he knowingly or intentionally possessed visual material which visually depicts "a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct," and he knew the material depicts the child in this manner. TEX. PENAL CODE ANN. § 43.26(a). Section 43.26 incorporates the definition of "sexual conduct" in section 43.25, which criminalizes sexual performance by a child. See id. § 43.26(b)(2). Section 43.25 defines "sexual conduct" to include a variety of behaviors, but the indictment listed only one: "lewd exhibition of the genitals." See id. § 43.25(a)(2) (West, Westlaw through 2015 R.S.). Thus, under the hypothetically correct jury charge for the case, the State was required to prove that appellant possessed an image of a minor engaging in lewd exhibition of the genitals and that he knew the image depicted the child in that manner. See Thomas v. State, 444 S.W.3d 4, 8–9 (Tex.Crim.App.2014) ().
We first address the effect on our sufficiency analysis of the trial court's comments when announcing its verdict. When announcing its verdict on Count 1, the trial court judge appeared to refer only to the cropped image:
[Appellant] has altered the image and almost created a different image by blowing it up and changing it, and I know you have to take the image as a whole but when you create a different image then you can only take that image as a whole so I'm going to find him guilty on Count 1.
It was suggested in the briefs and at oral argument that the trial court's focus on the cropped image constituted an implied conclusion of law that the full image was not lewd. The State responds that we must disregard the trial court's comments to the extent it intended them as findings or conclusions.
We agree with the State. When reviewing the sufficiency of the evidence that supports a conviction "an appellate court should disregard a trial court's findings of fact and conclusions of law in their entirety, even when they support the trial court's judgment." Robinson v. State, 466 S.W.3d 166, 173 (Tex.Crim.App.2015). Regardless of whether the State proceeded on both images, each image was admitted into evidence, and so each is part of our sufficiency analysis.3 See Winfrey v. State, 393 S.W.3d 763, 767 (Tex.Crim.App.2013) (). We disregard the trial court's comments to the extent they were intended as findings of fact or conclusions of law. See Robinson, 466 S.W.3d at 173.
Texas courts have recognized that "lewd" has a common meaning which juries are presumed to know and apply. E.g. Tovar v. State, 165 S.W.3d 785, 790 (Tex.App.–San Antonio 2005, no pet.). The Texas Penal Code does not define the term. We interpret undefined statutory terms according to their common usage unless the term has acquired a particular or technical meaning. Kirsch v. State, 357 S.W.3d 645, 650 (Tex.Crim.App.2012). We first look to the dictionary definition of the word. See Clinton v. State, 354 S.W.3d 795, 800 (Tex.Crim.App.2011) (). Black's Law Dictionary defines "lewd" as "obscene or indecent, tending to moral impurity or wantonness." Lewd, BLACK'S LAW DICTIONARY (9th ed.2009). The Merriam Webster Collegiate Dictionary defines the term, as relevant here, as: "sexually unchaste or licentious." Lewd, MERRIAM WEBSTER COLLEGIATE DICTIONARY (10th ed.1996). These definitions are consistent with how the First Court of Appeals has defined a "lewd" image: "[i]f the visual depiction is intended or designed to elicit a sexual response in the viewer, it is lewd." Perkins v. State, 394 S.W.3d 203, 209 (Tex.App.–Houston [1st Dist.] 20...
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State v. Bolles
...in sexual conduct ...; and (2) the person knows that the material depicts the child as described by subdivision (1)."2 Bolles v. State , 512 S.W.3d 456, 466–67 (Tex. App.—Corpus Christi-Edinburg 2016).3 Bolles , 512 S.W.3d at 466–67.4 Tex. Penal Code § 43.26(a)(1), (2).5 Tex. Penal Code § 4......
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State v. Breedlove
...(2016); N.Y. Penal Law § 250.45(4) (2014) ; Tex. Penal Code Ann. § 21.15(b)(1) (2015).7 See Bolles v. State, 13–14–00649–CR, 512 S.W.3d 456, 465-66, 2016 WL 3548797, at *7 (Tex. App. June 23, 2016), petition granted (Oct. 5, 2016). ("We agree in theory that a rational factfinder could concl......