Tovar v. State

• Citation: 165 S.W.3d 785
• Decision Date: 20 April 2005
• Docket Number: No. 04-03-00588-CR.,04-03-00588-CR.
• Parties: Benito TOVAR, Appellant, v. The STATE of Texas, Appellee.
• Court: Supreme Court of Texas

165 S.W.3d 785

Benito TOVAR, Appellant, v. The STATE of Texas, Appellee.

No. 04-03-00588-CR.

Court of Appeals of Texas, San Antonio.

April 20, 2005.

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David A. Cuellar, Law Office of David A. Cuellar, San Antonio, for appellant.

Kevin P. Yeary, Asst. Criminal Dist. Atty., San Antonio, for appellee.

Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.

OPINION

Opinion by KAREN ANGELINI, Justice.

Benito Tovar was convicted of (1) producing and promoting a sexual performance by a child and (2) possession of child pornography. The trial court sentenced him to five years imprisonment. On appeal, Tovar brings six issues. We overrule all six issues and affirm the judgment of the trial court.

BACKGROUND

Tovar met fifteen-year-old T.J. on a public bus; Tovar handed T.J. his business card, which provided the name of his photography business, "Studio Phoenix Photography," his phone number, and his email address. After their initial meeting, T.J. contacted Tovar by email and saw Tovar again on the public bus. T.J. was interested in Tovar's photography business because T.J. wished to work in the modeling industry. T.J. told Tovar that he was fifteen years old.

At around 9:00 a.m. on November 3, 2001, T.J. met Tovar at the River Center Mall food court. Tovar showed T.J. some pictures that he had taken. The pictures in Tovar's portfolio were of both men and women and depicted both fully clothed subjects and nude subjects. T.J. and Tovar then began walking around the mall, talking about scenery. Tovar then stopped walking and started taking pictures of T.J.

T.J. was wearing black pants and a shirt. Tovar asked T.J. to remove his shirt and took some pictures of him shirtless. They then moved to an area with a stairwell. Tovar then asked T.J. to remove his pants. T.J. complied, and Tovar began taking nude pictures of T.J. T.J. testified at trial that although he had never had nude pictures taken of himself before, he had told Tovar that he had posed for nude pictures in the past.

Because Tovar and T.J. were in a public space, they began to attract attention. Juan Hernandez, an employee of the City of San Antonio Parks and Recreation Department, called the Park Rangers. The Park Rangers arrived and stopped Tovar and T.J. as they were attempting to leave. Both were arrested. Tovar gave a written statement to the police that was later admitted at trial. In his statement, he admitted that he took nude pictures of T.J. and that he knew that T.J. was fifteen years old. However, he did not believe that he was doing anything against the law:

All I can say is that I don't feel I was doing anything wrong. What I was doing was to advance my photography to obtain a new client. It was never my intent to get [T.J.] into trouble. The plan was to show the pictures to his mom, and if she did not like them, they would keep the pictures. Now I know that despite what anyone would tell me, not to take their word for it. I mean anything that a sixteen year old would tell me about their past experience. I would not take their word for it any longer. I was not aware of the law that prohibits me from taking nude pictures of anyone under 18 until now that you have shown me the law from the blue book (Penal Code).

PHOTOGRAPHS

In his first two issues, Tovar argues the following:

(i) Are the photographs in this case child pornography and was the appellant denied due process by lack of instruction regarding a definition of lewd; and

(ii) Should the trial court have granted the appellant's motion for directed verdict based on [the appellant]'s assertion that no evidence proving "lewd exhibition of the genitals" was provided by the State.

Although Tovar argues that the trial court should have granted his motion for directed verdict, "[w]e treat a point of error complaining about a trial court's failure to grant a motion for directed verdict as a challenge to the legal sufficiency of the evidence." Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App.1996). Thus, we must decide whether the trial court should have given an instruction regarding the definition of "lewd" and whether there was legally sufficient evidence that the child in the photographs was lewdly exhibiting his genitals.

Tovar was charged with producing and promoting a sexual performance of a child in violation of section 43.25(d) of the Texas Penal Code and with possession of child pornography in violation of section 43.26. Specifically, Count I of the indictment charged Tovar with "intentionally and knowingly produc[ing] and promot[ing] a child younger than eighteen (18) years of age, namely [T.J.], to engage in sexual conduct, by photographing the said child lewdly exhibiting his genitals." (emphasis added). And, Count II charged Tovar with "intentionally and knowingly possess[ing] visual material containing an image that visually depicts a child younger than eighteen (18) years of age at the time the image of the child was made and said child is engaging in sexual conduct, namely: lewdly exhibiting his genitals, and the defendant knew that said visual material depicted said child engaging in sexual conduct." (emphasis added).

With regard to Count I, producing or promoting sexual performance by a child, section 43.25(d) provides that "[a] person commits an offense if, knowing the character and content of the material, he produces ... or promotes a performance that includes sexual conduct by a child younger than 18 years of age." Tex. Pen.Code Ann. § 43.25(d) (Vernon Supp.2004-05) (emphasis added). "Sexual conduct" is defined as "sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola." Tex. Pen.Code. Ann. § 43.25(a)(2) (Vernon Supp.2004-05).

With regard to Count II, possession of child pornography, section 43.26(a) provides,

A person commits an offense if: (1) the person knowingly or intentionally possesses 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).

Tex. Pen.Code Ann. § 43.26(a) (Vernon 2003). And, "sexual conduct has the same meaning assigned by section 43.25." Tex. Pen.Code Ann. § 43.26(b)(2) (Vernon 2003). Thus, both offenses as charged in the indictment require evidence of lewd exhibition of genitals by the child. "Lewd" is not defined by the penal code.

If a phrase, term, or word is statutorily defined, the trial court should submit the statutory definition to the jury. Roise v. State, 7 S.W.3d 225, 242 (Tex.App.-Austin 1999, pet. ref'd). The word "lewd" or the phrase "lewd exhibition of genitals" has not been statutorily defined by the legislature. Id. Words that are not statutorily defined are to be given their common, ordinary, or usual meaning. Martinez v. State, 924 S.W.2d 693, 698 (Tex.Crim.App.1996); Roise, 7 S.W.3d at 242. Thus, if the phrase or word is not statutorily defined, the trial court is not required to define the word or phrase to the jury. Andrews v. State, 652 S.W.2d 370, 375 (Tex.Crim.App.1983); Roise, 7 S.W.3d at 242. Only if the word or term does not have a common meaning that the jurors can be fairly presumed to know and apply, must a definition be supplied. Roise, 7 S.W.3d at 242. Normally, a trial court has broad discretion in submitting proper definitions and explanatory phrases to the jury. Id.; Macias v. State, 959 S.W.2d 332, 336 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd).

In Roise v. State, 7 S.W.3d 225, 242 (Tex.App.-Austin 1999, pet. ref'd), and Alexander v. State, 906 S.W.2d 107, 111 (Tex.App.-Dallas 1995, no pet.), both defendants complained that the trial court did not define the term "lewd exhibition of genitals." Recognizing that this term was not statutorily defined, both courts of appeals held that the trial court was not required to define the term in the jury charge. Roise, 7 S.W.3d at 242; Alexander, 906 S.W.2d at 111. We agree. Because the term "lewd" is not statutorily defined and because "lewd" has a common meaning that jurors can be fairly presumed to know and apply, the trial court was not required to define "lewd" in the jury charge. See Roise, 7 S.W.3d at 242.

We note that Tovar relies on Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990), for the proposition that the trial court's failure to instruct the jury on the definition of "lewdness" amounted to a violation of due process. Osborne, however, is distinguishable. In Osborne, the Ohio statute with which the defendant was charged provided that it was a crime for a person to "possess or view any material or performance that shows a minor who is not the person's child or ward in a state of nudity, unless one of the following applies ..." Id. at 106, 110 S.Ct. 1691 (emphasis added). The statute listed several exceptions, including material presented for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose. Id. Although the trial court noted that possession of nude photographs of children, without more, is constitutionally protected, it held, based on the statutorily-created exceptions, that the Ohio statute was not unconstitutionally overbroad because it applied only to depictions of nudity involving a lewd exhibition or graphic focus on a minor's genitals. Id. at 107, 110 S.Ct. 1691.

On appeal, the defense complained that despite its interpretation of the statute, the trial court had failed to instruct the jury that lewd exhibition and scienter were elements of the crime. Id. at 107, 123, 110 S.Ct. 1691. The defendant emphasized that a statute that criminalizes the possession of nude...