NUMBER 13-17-00127-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ROLANDO S. VILLEGAS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Longoria and Hinojosa Memorandum Opinion by Justice Hinojosa
Appellant Rolando Salazar Villegas appeals his convictions on four counts of
possession with intent to promote child pornography, each a second-degree felony. 1
1 In a consolidated trial, appellant was tried and convicted of eight counts of possession with intent
to promote child pornography, see TEX. PENAL CODE ANN. § 43.26(e) (West, Westlaw through 2017 1st C.S.), one count of sexual performance by a child, see id. § 43.25 (West, Westlaw through 2017 1st C.S.), and one count of indecency with a child by exposure. See id. § 21.11(a)(2) (West, Westlaw through 2017 1st C.S.). Appellant appeals only four of his convictions for possession with intent to promote child See TEX. PENAL CODE ANN. § 43.26(e) (West, Westlaw through 2017 1st C.S.). A jury
found appellant guilty and assessed punishment of twenty years’ imprisonment on each
count. The trial court sentenced appellant accordingly and ordered the sentences to run
concurrently. By one issue, appellant argues that there is legally insufficient evidence
that the images found on his phone depicted the lewd exhibition of a child’s genitals. We
affirm as modified.
I. BACKGROUND
A grand jury returned an indictment charging appellant with ten counts of
possession with intent to promote child pornography, see id., one count of sexual
performance by a child, see id. § 43.25 (West, Westlaw through 2017 1st C.S.), and one
count of indecency with a child by exposure. See id. § 21.11(a)(2) (West, Westlaw
through 2017 1st C.S.). A jury acquitted appellant of two counts of possession with intent
to promote child pornography but found appellant guilty on the remaining counts alleged
in the indictment. Appellant appeals his convictions for counts seven through ten, which
each alleged that appellant possessed separate images depicting the lewd exhibition of
a child’s genitals.
V.G., 2 who was eight years old during the relevant time period, testified that she
went to the beach in Port Lavaca, Texas with her family and her aunt’s family. Appellant,
who was then married to V.G.’s aunt, also attended. V.G. left the beach with her aunt,
pornography as alleged in counts seven through ten of the indictment.
2 We refer to the minor complainant by her initials to protect her privacy.
2 appellant, and her cousins. They travelled to her aunt’s house in Victoria, Texas, where
V.G. planned on staying overnight. Soon after they arrived, appellant pulled V.G. into
the restroom and closed the door. Appellant then removed V.G.’s bathing suit and
covered her head with a towel. V.G. saw red flashes through the towel. She believed
appellant was taking pictures because he was holding a phone in his hand. Appellant
then left the restroom, and V.G. got into the shower. V.G. later told her aunt what
happened. V.G.’s aunt immediately drove V.G. home, at which time V.G.’s mother
contacted law enforcement.
Wilmer McLeroy, an officer with the Victoria Police Department, testified that he
secured a search warrant to access the contents of appellant’s cellular phone. Officer
McLeroy performed a forensic analysis of the phone and detected twelve images “of
apparent child pornography.” The trial court admitted a forensic report showing multiple
images retrieved from appellant’s phone. The four images forming the basis for counts
seven through ten are close-up images of a female child’s genital region. Officer
McLeroy was able to determine from the images’ “metadata” that they were generated on
the same date V.G. was at her aunt’s house. Officer McLeroy showed the images to
V.G.’s mother, who confirmed that V.G. was the subject of the photographs.
The jury found appellant guilty of possession with intent to promote child
pornography as alleged in counts seven through ten of the indictment. This appeal
followed.
3 II. SUFFICIENCY OF THE EVIDENCE
By his sole issue, appellant argues that “[t]he photographs complained of in Counts
7-10 are legally insufficient to satisfy the element of ‘lewd exhibition of genitals.’”
A. Standard of Review
The standard for determining whether the evidence is legally sufficient to support
a conviction is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.
App. 2012) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Brooks v. State,
323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). The factfinder is the
exclusive judge of the credibility of witnesses and of the weight to be given to their
testimony. Brooks, 323 S.W.3d at 899; Lancon v. State, 253 S.W.3d 699, 707 (Tex.
Crim. App. 2008). Reconciliation of conflicts in the evidence is within the factfinder’s
exclusive province. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). We
resolve any inconsistencies in the testimony in favor of the verdict. Bynum v. State, 767
S.W.2d 769, 776 (Tex. Crim. App. 1989).
We measure the sufficiency of the evidence by the elements of the offense as
defined by a hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773
(Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997)). Such a 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
4 restrict the State’s theories of liability, and adequately describes the particular offense for
which the defendant was tried. Id.
B. Lewd Exhibition
It is a criminal offense in Texas to knowingly or intentionally promote, or possess
with intent to promote, “visual material” depicting a minor engaging in “sexual conduct.”
TEX. PENAL CODE ANN. § 43.26 (a), (e). “Sexual conduct” includes the “lewd exhibition of
the genitals.” Id. §§ 43.25(a)(2), 43.26(b)(2). With respect to counts seven through ten,
the indictment charged appellant with “intentionally and knowingly possess[ing] with intent
to promote visual material that visually depicted . . . [the] lewd exhibition [of a child’s]
genitals.”
Appellant argues that the images do not depict the “lewd exhibition of genitals”
when applying the six-factor test articulated in United States v. Dost, 636 F.Supp. 828
(S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.
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NUMBER 13-17-00127-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ROLANDO S. VILLEGAS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Longoria and Hinojosa Memorandum Opinion by Justice Hinojosa
Appellant Rolando Salazar Villegas appeals his convictions on four counts of
possession with intent to promote child pornography, each a second-degree felony. 1
1 In a consolidated trial, appellant was tried and convicted of eight counts of possession with intent
to promote child pornography, see TEX. PENAL CODE ANN. § 43.26(e) (West, Westlaw through 2017 1st C.S.), one count of sexual performance by a child, see id. § 43.25 (West, Westlaw through 2017 1st C.S.), and one count of indecency with a child by exposure. See id. § 21.11(a)(2) (West, Westlaw through 2017 1st C.S.). Appellant appeals only four of his convictions for possession with intent to promote child See TEX. PENAL CODE ANN. § 43.26(e) (West, Westlaw through 2017 1st C.S.). A jury
found appellant guilty and assessed punishment of twenty years’ imprisonment on each
count. The trial court sentenced appellant accordingly and ordered the sentences to run
concurrently. By one issue, appellant argues that there is legally insufficient evidence
that the images found on his phone depicted the lewd exhibition of a child’s genitals. We
affirm as modified.
I. BACKGROUND
A grand jury returned an indictment charging appellant with ten counts of
possession with intent to promote child pornography, see id., one count of sexual
performance by a child, see id. § 43.25 (West, Westlaw through 2017 1st C.S.), and one
count of indecency with a child by exposure. See id. § 21.11(a)(2) (West, Westlaw
through 2017 1st C.S.). A jury acquitted appellant of two counts of possession with intent
to promote child pornography but found appellant guilty on the remaining counts alleged
in the indictment. Appellant appeals his convictions for counts seven through ten, which
each alleged that appellant possessed separate images depicting the lewd exhibition of
a child’s genitals.
V.G., 2 who was eight years old during the relevant time period, testified that she
went to the beach in Port Lavaca, Texas with her family and her aunt’s family. Appellant,
who was then married to V.G.’s aunt, also attended. V.G. left the beach with her aunt,
pornography as alleged in counts seven through ten of the indictment.
2 We refer to the minor complainant by her initials to protect her privacy.
2 appellant, and her cousins. They travelled to her aunt’s house in Victoria, Texas, where
V.G. planned on staying overnight. Soon after they arrived, appellant pulled V.G. into
the restroom and closed the door. Appellant then removed V.G.’s bathing suit and
covered her head with a towel. V.G. saw red flashes through the towel. She believed
appellant was taking pictures because he was holding a phone in his hand. Appellant
then left the restroom, and V.G. got into the shower. V.G. later told her aunt what
happened. V.G.’s aunt immediately drove V.G. home, at which time V.G.’s mother
contacted law enforcement.
Wilmer McLeroy, an officer with the Victoria Police Department, testified that he
secured a search warrant to access the contents of appellant’s cellular phone. Officer
McLeroy performed a forensic analysis of the phone and detected twelve images “of
apparent child pornography.” The trial court admitted a forensic report showing multiple
images retrieved from appellant’s phone. The four images forming the basis for counts
seven through ten are close-up images of a female child’s genital region. Officer
McLeroy was able to determine from the images’ “metadata” that they were generated on
the same date V.G. was at her aunt’s house. Officer McLeroy showed the images to
V.G.’s mother, who confirmed that V.G. was the subject of the photographs.
The jury found appellant guilty of possession with intent to promote child
pornography as alleged in counts seven through ten of the indictment. This appeal
followed.
3 II. SUFFICIENCY OF THE EVIDENCE
By his sole issue, appellant argues that “[t]he photographs complained of in Counts
7-10 are legally insufficient to satisfy the element of ‘lewd exhibition of genitals.’”
A. Standard of Review
The standard for determining whether the evidence is legally sufficient to support
a conviction is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.
App. 2012) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Brooks v. State,
323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). The factfinder is the
exclusive judge of the credibility of witnesses and of the weight to be given to their
testimony. Brooks, 323 S.W.3d at 899; Lancon v. State, 253 S.W.3d 699, 707 (Tex.
Crim. App. 2008). Reconciliation of conflicts in the evidence is within the factfinder’s
exclusive province. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). We
resolve any inconsistencies in the testimony in favor of the verdict. Bynum v. State, 767
S.W.2d 769, 776 (Tex. Crim. App. 1989).
We measure the sufficiency of the evidence by the elements of the offense as
defined by a hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773
(Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997)). Such a 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
4 restrict the State’s theories of liability, and adequately describes the particular offense for
which the defendant was tried. Id.
B. Lewd Exhibition
It is a criminal offense in Texas to knowingly or intentionally promote, or possess
with intent to promote, “visual material” depicting a minor engaging in “sexual conduct.”
TEX. PENAL CODE ANN. § 43.26 (a), (e). “Sexual conduct” includes the “lewd exhibition of
the genitals.” Id. §§ 43.25(a)(2), 43.26(b)(2). With respect to counts seven through ten,
the indictment charged appellant with “intentionally and knowingly possess[ing] with intent
to promote visual material that visually depicted . . . [the] lewd exhibition [of a child’s]
genitals.”
Appellant argues that the images do not depict the “lewd exhibition of genitals”
when applying the six-factor test articulated in United States v. Dost, 636 F.Supp. 828
(S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987),
and aff’d, 813 F.2d 1231 (9th Cir. 1987). In Dost, the federal district court described
factors used to evaluate “whether a visual depiction of a minor constitutes a ‘lascivious
exhibition of the genitals or pubic area’ under [18 U.S.C.] § 2255(2)(E).” Id. at 832. The
court observed that the factfinder should consider the following factors, among others,
that may be relevant in the particular case:
(1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area;
(2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
5 (3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
(4) whether the child is fully or partially clothed, or nude;
(5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
(6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
Id. Texas courts are not bound by Dost when determining whether an image depicts a
“lewd exhibition.” State v. Bolles, 541 S.W.3d 128, 142 (Tex. Crim. App. 2017). Rather,
the Dost factors “serve only as a guide, and no single factor is dispositive.” Id. at 142–
143. Whether an image constitutes child pornography as defined by the penal code is a
question that must be answered on a case-by-case basis. Id. at 143. Because the Dost
factors aid Texas courts in assessing whether an image is lewd, we will consider the
factors in determining whether the images at issue depict the “lewd exhibition of the
genitals.” See id.; Perkins v. State, 394 S.W.3d 203, 208 (Tex. App.—Houston [1st Dist.]
2012, pet. ref’d).
The four images at issue are similar in all relevant respects. The child appears to
be fully nude, and her genital area is not just the focal point of the images, it is the only
area of the child’s body depicted. In light of the images’ specific focus, they could be
viewed as unnatural and sexually suggestive. See Bolles, 541 S.W.3d at 143. For the
same reason, the images could be viewed as suggesting sexual coyness or a willingness
to engage in sexual activity. Finally, considering the close-up depiction of the genitals,
the images appear to have been intended or designed to elicit a sexual response in the
6 viewer. See id. at 143 (explaining that it is the depiction, not the minor, that must bring
forth the genitals in such a way to excite or stimulate).
Guided by the Dost factors, we conclude that a rational jury could have found
beyond a reasonable doubt that the subject images depicted the lewd exhibition of the
child’s genitals. See Johnson, 364 S.W.3d at 293–94; see also Bolles, 541 S.W.3d at
143–44 (holding that image manipulated and edited to display a close-up of a child’s
genital area constituted the lewd exhibition of a child’s genitals). We overrule appellant’s
sole issue.
III. CLERICAL ERROR IN THE JUDGMENT
We note that the judgment of conviction for the offense of indecency with a child
by exposure references penal code section 43.25; however, the correct penal code
provision for this offense is section 21.11. See TEX. PENAL CODE ANN. § 21.11
(“Indecency With a Child”).
An appellate court may “modify the trial court’s judgment and affirm it as modified.”
TEX. R. APP. P. 43.2(b). We have “the power to correct and reform a trial court judgment
‘to make the record speak the truth when [we] ha[ve] the necessary data and information
to do so.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no
pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, writ ref’d));
see also Bernard v. State, 401 S.W.3d 145, 150 (Tex. App.—Houston [14th Dist.] 2011,
pet. ref’d).
7 Based on the record, we modify the trial court’s judgment for the offense of
indecency with a child by exposure to reflect section 21.11 of the penal code as the statute
for the offense. See TEX. R. APP. P. 43.2(b).
IV. CONCLUSION
We affirm the trial court’s judgments as modified. 3
LETICIA HINOJOSA Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 15th day of November, 2018.
3 There are separate judgments of conviction in this case for each count. See Morales v. State, 974 S.W.2d 191, 192 (Tex. App.—San Antonio 1998, no pet.) (explaining that multiple convictions arising from a single proceeding may be memorialized in separate judgments); see also Sandoval v. State, No. 08-11-00283-CR, 2013 WL 5873296, at *16 (Tex. App.—El Paso Oct. 30, 2013, pet. ref’d) (mem. op., not designated for publication) (same).