State v. Bolles

• Decision Date: 18 October 2017
• Docket Number: NO. PD-0791-16,PD-0791-16
• Parties: The STATE of Texas, Appellant v. Mark BOLLES
• Court: Texas Court of Criminal Appeals

541 S.W.3d 128

The STATE of Texas, Appellant

v.Mark BOLLES

NO. PD-0791-16

Court of Criminal Appeals of Texas.

DELIVERED: October 18, 2017

Douglas K. Norman, Assistant District Attorney, Corpus Christi, Stacey Soule, State's Attorney, Austin, for the State.

Adam Rodrigue, Corpus Christi, for Appellant.

OPINION

Richardson, J., delivered the opinion for a unanimous Court.

Appellant, Mark Bolles, was found guilty of the offense of possession of child pornography¹ and sentenced to two years in prison. The Thirteenth Court of Appeals reversed Appellant's conviction and rendered a judgment of acquittal, holding that the evidence—which consisted of two images taken by Appellant's cell phone—was insufficient to support his conviction.² We find that the court of appeals erred in holding that the evidence was insufficient. We reverse the judgment of the court of appeals and remand the case to the trial court with instructions to reinstate Appellant's conviction and his sentence.

BACKGROUND

According to witnesses who testified at Appellant's bench trial, on February 14, 2014, Appellant was seen using one of the Corpus Christi Library computers to browse the internet. Alex Hatley, the library's technology manager, noticed Appellant viewing images of what looked like "partially clothed" children. FBI agent Brian Johnson was asked by the library secretary to check on what Appellant was viewing on the library's computer. He observed Appellant viewing and taking cell phone pictures of a computer screen of "nude children." Agent Johnson approached Appellant and asked what he was looking at on the computer. Appellant accompanied Agent Johnson upstairs, chose not to speak to him or to the police, but allowed Agent Johnson to take his cell phone. Agent Johnson then released Appellant and turned the phone over to the Corpus Christi Police Department's computer forensic division.

Among the images discovered on Appellant's cell phone and admitted into evidence was one that he photographed from the computer screen of a famous portrait by photographer Robert Mapplethorpe. It is a portrait of a young girl of about three years old, sitting on a stone bench. The court of appeals's opinion accurately describes this image in detail:

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.

Another image taken from Appellant's cell phone and admitted into evidence is a zoomed-in cropped image of that same portrait (0214041031a.jpg). It appears that Appellant created this second image by using the zoom or magnification function on his camera. The cropped image is a close-up image of the child's genitals and part of her right leg. Part of her dress and part of her left hand are also visible.

The Appellant viewed other images of naked children while logged on to the library computer, and some were copied to his cell phone. Appellant also had several images of what appeared to be his own penis on his cell phone.

Appellant was indicted for three counts of possession of child pornography related to several of the images found on his phone. Count 3 was abandoned by the State before the trial began because, according to the record, the parties and the judge agreed that it was based on an image of a young adult woman. Count 2 alleged possession of an image depicting the lewd exhibition of a child's breast. After the trial, and upon reviewing the image of a young nude girl touching her breast, which was the basis for Count 2, the trial court found Appellant "not guilty" on Count 2.

This appeal involves only Count 1, which alleged that Appellant,

on or about February 18, 2014, in Nueces County, Texas, did then and there intentionally and knowingly possess visual material that visually depicted, and which the defendant knew visually depicted, a child who was younger than 18 years of age at the time the image of the child was made, engaging in sexual conduct, lewd exhibition of the genitals.

At trial, the State repeatedly emphasized that Count 1 was based only on Appellant's possession of the zoomed-in cropped image of the child's genitals. In fact, the prosecutor signed a "Stipulation of Evidence" clarifying that: "The image complained of in Count 1 of the indictment is a portion of a larger photograph entitled ‘Rosie’ taken by photographer, Robert Mapplethorpe in 1976, and can be viewed at the Guggenheim Museum in New York City."

In finding Appellant guilty on Count 1, it was clear that the trial court judge agreed with the State's position that, by zooming in and cropping out an image of only the child's genitals, Appellant created an image that was distinct from the original photograph taken by Robert Mapplethorpe. The trial court convicted Appellant on Count 1 and assessed a sentence of two years' imprisonment.

The court of appeals reversed Appellant's conviction. It held that "the evidence was insufficient to support the conviction on Count 1 because (1) the full image does not depict a lewd exhibition of the genitals, and (2) the cropped image does not depict a person who was under the age of eighteen at the time the image was made."³ We granted the State's petition for discretionary review to review the holding of the court of appeals.

ANALYSIS

A. Section 43.26(a) —Possession of Child Pornography

Texas Penal Code section 43.26(a) provides that a person commits the offense of possession of child pornography if:

(1) the person knowingly or intentionally possesses, or knowingly or intentionally accesses with intent to view, visual material that 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

(2) the person knows that the material depicts the child as described by Subdivision (1).⁴

According to section 43.26(b)(2), the term "sexual conduct" has the meaning assigned by Penal Code section 43.25(a)(2), which defines the term as including, among other things, the "lewd exhibition of the genitals."⁵

B. On Direct Appeal

On direct appeal, Appellant asserted that the evidence was legally insufficient to sustain the trial court's guilty verdict that Appellant intentionally and knowingly possessed material that visually depicted, and which the Appellant knew visually depicted, a child who was younger than 18 years of age at the time the image of the child was made, engaging in sexual conduct, namely, the lewd exhibition of the genitals. Specifically, Appellant argued that the evidence was insufficient to prove that the cropped image is "lewd" because the original photograph taken by Robert Mapplethorpe is not "lewd." Appellant's position was that a portion of a "legal photograph cannot be considered illegal."

The State countered with the argument that the original full image of the child does involve the "lewd exhibition" of the child's genitals, and therefore, the cropped image of the child's genitals is also a "lewd exhibition of the genitals." The State claimed that, because the original full photograph was in Appellant's possession and was entered into evidence, that image alone was sufficient to support the present charge concerning possession of child pornography. We note that this was not the position taken by the prosecuting attorneys at trial.⁶ The State also advanced on direct appeal the argument that it made at trial—that the cropped image of the child's genitals is a separate and distinct image and a lewd exhibition in its own right.⁷

In addition, the State presented an argument on direct appeal anticipating an argument that was never presented by Appellant:

Although [Appellant] has failed to raise this issue, the State feels compelled, in candor to the Court, to note that the parties' stipulation that the photograph, from which the cropped image was created, was taken in 1976, [and] conclusively shows that the child of 1976 must have been much older than 18 at the time the image was manipulated or cropped by [Appellant] in 2014.⁸

The State theorized that Appellant could have argued "that the cropped image was ‘made’ when [Appellant] cropped it in 2014,"⁹ so even if the cropped image is "lewd," it is not an image of a child that was "made" when the child was under 18. After outlining this theoretical argument on behalf of Appellant (one the Appellant did not make), the State then rebutted it by urging that the cropped image was still "made" in 1976 when the photograph was taken and the child was clearly under 18. It is unclear why the State took the strategy of countering an argument that was not raised by Appellant.

In its memorandum opinion, the court of appeals stated that it was addressing the lewdness of both images (the original full image and the zoomed-in cropped image) as part of its sufficiency analysis—despite the State's clear representation at trial that Count 1 was based only on the cropped image, and notwithstanding the trial court's explanation that Appellant was guilty on Count 1 because he created a different image when he took a zoomed-in picture of the child's genitals: "Regardless of whether the State proceeded on both images, each image was admitted into evidence, and so each is part of our sufficiency analysis."¹⁰

The court of appeals reversed Appellant's conviction on Count 1, holding that the evidence was insufficient to support the conviction. As to the original full image of the...