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 ten-

year 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
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 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

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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)                                /Molly Francis/
141310F.U05                                            MOLLY FRANCIS
                                                       JUSTICE




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

JACOB LANE ROWAN, Appellant                        On Appeal from the 397th Judicial District
                                                   Court, Grayson County, Texas
No. 05-14-01310-CR        V.                       Trial Court Cause No. 063943.
                                                   Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee                       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 June 2, 2015.




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