Opinion issued August 16, 2012




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                  NOS. 01-11-00581-CR & 01-11-00582-CR
                           ———————————
                       WINSTON PERKINS, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 23rd District Court
                         Brazoria County, Texas
                        Trial Court Case No. 63092



                                 OPINION

      Appellant Winston Perkins appeals from judgments of conviction on two

separate criminal offenses. A jury convicted him of improper visual recording and

sentenced him to two years in jail for that offense.    TEX. PENAL CODE ANN.
§ 21.15(b) (West 2011).    The jury also convicted him of promotion of child

pornography and sentenced him to imprisonment for nine years. TEX. PENAL CODE

ANN. § 43.26(e) (West 2011). Perkins challenges both convictions on the grounds

of sufficiency of the evidence. We affirm.

                                  Background

      C.T. was 16 years old and living with her mother in Freeport as her junior

year of high school approached. Her mother needed surgery around the start of the

school year, which prompted them to seek out another home where C.T. could stay

so she could continue attending the same school. The Perkins household arose as a

possible place for C.T. to stay because C.T.’s mother and Perkins’s wife were both

employed at the same local department store.        C.T.’s mother introduced her

daughter to Perkins and his wife, and then she decided to have C.T. live with the

couple and their two children while she recuperated from surgery. C.T. had her

own room in the Perkinses’ house. On school days, Perkins routinely woke C.T.

and the other children in the morning, and then C.T. would take a shower.

Perkins’s wife drove the children to school before heading to work.

      Perkins’s best friend of many years was Karl Gowan. They and their wives

often socialized together. Gowan and his wife temporarily lived at the Perkinses’

house during the summer before C.T. came to live there. During the period that




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C.T. lived with the Perkins family, Perkins was having an affair with Gowan’s

wife. Perkins believed at that time that his wife was also having an affair.

      In late October, Perkins revealed his affair during an argument with his wife.

During that argument, Perkins went into C.T.’s room and lashed out at her for not

telling him that his wife was also having an affair. Feeling hurt, C.T. immediately

called her mother, who arranged for C.T. to leave the house that same night to live

with someone else. Perkins and his wife together went to Gowan to tell him about

the affair between Perkins and Gowan’s wife.            Gowan was upset by this

information.

      A couple of weeks later, Gowan gave two DVDs to C.T.’s aunt and uncle

who, coincidentally, lived in his neighborhood. Gowan, who looked nervous, said

that he was in the process of packing his car to leave town.             One DVD,

subsequently labeled “sink,” had videorecordings that were made from a hole

drilled into the cabinet underneath a bathroom sink in the Perkins home. The hole

faced the shower. The other DVD, subsequently labeled “vent,” had videos that

were made from a vent located above the shower. The videos on both DVDs

showed C.T. in the nude while shaving her legs and showering. The “sink” videos

showed C.T. only from the waist down. The “vent” videos showed C.T. as she

dressed and undressed.




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        After handing the DVDs to C.T.’s aunt and uncle, Gowan returned home.

C.T.’s uncle called the police, who arrived at Gowan’s house as he was packing his

car. Gowan told the police that he had given the DVDs to C.T.’s aunt and uncle

because he wanted to take revenge against Perkins for the affair.

        The police obtained a search warrant for Perkins’s house. They found a

small-lens camera and digital switch box in the master bedroom. They also found

cables running through the attic. When the police initially interviewed Perkins, he

denied that he ever put a camera in the bathroom, recorded videos of C.T., or

watched such videos.      Over the course of the interviews, Perkins eventually

admitted that he put a camera in the bathroom vent, explaining that he wanted to

capture evidence of his wife’s affair, but he maintained that he never installed a

camera beneath the sink. He blamed Gowan for recording the videos of C.T.

Perkins admitted to police that he viewed the “vent” videos at Gowan’s house with

Gowan and his wife, but he said that he told the Gowans that it was “wrong” and

he left. At some point in the interview with police, Perkins stated that his life was

over.

        Perkins was charged with improper visual recording and promotion of child

pornography. The jury convicted him of both counts, and it sentenced him to two

years in jail for improper visual recording and nine years in prison for promotion

of child pornography. Perkins appeals from both judgments.

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                                       Analysis

        In his sole issue, Perkins argues that the evidence was legally insufficient to

support the judgments on the counts of improper visual recording and promotion of

child pornography. On the count of improper visual recording, he challenges the

sufficiency of the evidence that he was the videographer.           On the count of

promotion of child pornography, his legal-sufficiency challenge goes to whether

the images were “lewd,” and to whether there was sufficient evidence that he gave

the visual material to Gowan.

   I.      Standard of review

        In reviewing the legal sufficiency of the evidence to support a criminal

conviction, a court of appeals will determine “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.” Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We measure the

evidence “by the elements of the offense as defined by the hypothetically correct

jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). As the exclusive judge of the facts, the jury may believe or disbelieve all or

any part of a witness’s testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex.

Crim. App. 1991). We presume that the fact finder resolved any conflicting

inferences in favor of the verdict, and we defer to that resolution. See Jackson, 443

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U.S. at 326, 99 S. Ct. at 2793. On appeal we may not reevaluate the weight and

credibility of the record evidence and thereby substitute our own judgment for that

of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

In reviewing the evidence, circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor, and circumstantial evidence alone can

be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007).      Accordingly, we determine whether the necessary inferences to

support the verdict are reasonable based upon the combined and cumulative force

of all the evidence viewed in the light most favorable to the verdict. Id. at 16–17.

   II.      Improper visual recording

         With respect to the improper visual recording offense, Perkins contends that

the evidence was legally insufficient to identify him as the person who recorded

the videos. He points out that the videos themselves do not show who recorded

them and that no one testified to having seen him make the recordings. The mere

fact that he owned and sometimes possessed the camera, he argues, does not prove

his involvement in recording the videos, given that testimony elicited at trial

established that others had access to the camera.

         The State points out that Perkins admitted to police that he placed the

camera in the bathroom vent and that one of the videos captured the sound of

Perkins’s voice.      In response to Perkins’s attempt to blame Gowan for the

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recordings, the State contends that the evidence showed that the videos were made

in the mornings when Gowan did not have access to the house.

      In Cooper v. State, 326 S.W.3d 757 (Tex. App.—Texarkana 2010, pet.

granted and ref’d*), Cooper was convicted of creating an improper visual recording

of women as they walked down the sidewalk. See Cooper, 326 S.W.3d at 758–59.

No one testified at trial that they saw Cooper record the videos, but two witnesses

testified that they identified him on the videos themselves. Id. at 760–61. The

court of appeals reviewed the videos and did not see any part of the videographer’s

body. Id. at 762. The court also considered the circumstantial evidence that

Cooper was the videographer, but it rejected the legal sufficiency of that evidence,

explaining:

      Ownership of the camera proves ownership. Without more, it cannot
      prove beyond a reasonable doubt that the camera was used at a
      particular time by a particular person. There is no evidence that
      Cooper had sole possession of the location from which the videos
      were made. The evidence shows to the contrary. The uncontroverted
      evidence shows that at least several other people had access to both
      locations over an extended period of time.




*
      The Court of Criminal Appeals granted the State’s petition on an issue
      related to the timing of the issuance of mandates by the court of appeals.
      See Cooper v. State, No. PD-0035-11, 2011 WL 2583519, at *1 (Tex. Crim.
      App. June 29, 2011) (per curiam, not designated for publication). The
      State’s remaining grounds were refused. See id.

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Id. at 762–63. The court concluded that a rational jury could not find beyond a

reasonable doubt from this evidence that Cooper recorded the videos, and it

reversed the conviction. Id. at 763.

      As in Cooper, there is no direct evidence in this case that Perkins recorded

the videos. However, the facts that Perkins owned the camera and had access to

the location in which the videos were recorded are not the only circumstantial

evidence indicating that he was the videographer. One police officer testified that

Perkins admitted placing the camera in the same bathroom vent from which the

“vent” videos were recorded. C.T. testified that Perkins was the only adult male

living in the house during the period that she lived there. She also testified that she

routinely took showers in the mornings, that one of the videos bears a time stamp

of 6:32 a.m., and that, in accordance with the usual school-day routine, she heard

Perkins’s voice on one of the videos waking her up. The time of day is significant

because C.T. stated that she never saw Gowan in the house in the morning on a

school day.    Also, Perkins’s wife testified that her husband pawned a DVD

recorder around the time that C.T. stopped living at their house. It is undisputed

that DVDs bearing the improper visual recordings ended up in the possession of

Perkins’s best friend, Gowan. In an interview with police, Perkins admitted that he

had viewed at least one of the videos with Gowan and his wife.




                                          8
        Combined with the evidence of the circumstances of the recordings, the fact

that Perkins owned a DVD recorder during the time that C.T. was living with him

supports an inference that he recorded the images and made the DVDs himself.

We hold that when the cumulative force of this evidence is viewed in the light

most favorable to the verdict, a rational jury could conclude beyond a reasonable

doubt that Perkins was responsible for recording the videos of C.T. in the

bathroom. See Hooper, 214 S.W.3d at 16–17. Accordingly, we overrule Perkins’s

issue with respect to the count of improper visual recording.

   III.    Promotion of child pornography

        Perkins advances two arguments challenging the legal sufficiency of the

evidence establishing that he promoted child pornography. First, he argues that the

videos did not constitute child pornography because they did not depict a “lewd

exhibition of the genitals.” Second, he argues that no evidence was presented at

trial that he intentionally or knowingly possessed or promoted the videos.

   A.      Lewd exhibition

        It is a criminal offense in Texas to knowingly or intentionally promote, or

possess with intent to promote, “visual material” constituting child pornography.

TEX. PENAL CODE ANN. § 43.26(e). The statutory description of the illicit “visual

material” at issue includes images that depict “sexual conduct,” a term which is

statutorily defined to include “lewd exhibition of the genitals.” Id. §§ 43.25(a)(2),

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43.26(b)(2). The indictment charged Perkins with “intentionally or knowingly

promot[ing] by giving to another, namely, Karl Gowan, visual material that

visually depicted . . . actual lewd exhibition of [a child’s] genitals.”

      Perkins argues on appeal that the visual material at issue did not depict a

“lewd exhibition.” His specific arguments in this regard focus on whether the

images can be considered “lewd,” specifically referencing the six factors

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).” Dost, 636 F. Supp.

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;

             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;

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              6) whether the visual depiction is intended or designed to elicit
              a sexual response in the viewer.

Id. These factors have been adopted by many state courts for analyzing analogous

issues arising under state child pornography laws, including courts in Texas which

have treated the term “lascivious” as used in the federal statute as synonymous

with “lewd” as used in the Texas statute. See, e.g., Alexander v. State, 906 S.W.2d

107, 110 (Tex. App.—Dallas 1995, no pet.).

        Undefined statutory terms that have not acquired a technical meaning are

interpreted according to their common usage.        See, e.g., Kirsch v. State, 357

S.W.3d 645, 650 (Tex. Crim. App. 2012). “Lewd” has a “common meaning that

jurors can be fairly presumed to know and apply.” Tovar v. State, 165 S.W.3d 785,

790 (Tex. App.—San Antonio 2005, no pet.). If the visual depiction is intended or

designed to elicit a sexual response in the viewer, it is lewd. Alexander, 906

S.W.2d at 110 (citing Dost, 636 F. Supp. at 832). We agree with the other Texas

courts of appeals which have applied the Dost factors as a framework for analyzing

whether images could be considered “lewd” for purposes of the child pornography

laws.

        Perkins does not dispute that the images depict the exhibition of C.T.’s

genitals; the only issue he raises as to whether the “visual material” at issue falls

within the proscriptive scope of the Penal Code is whether the exhibition as

depicted in the videos was “lewd.” See TEX. PENAL CODE ANN. § 43.25(a)(2).

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Referencing the Dost factors, Perkins contends that C.T.’s genitals were not the

focus of the videos. He notes that C.T. was not inappropriately dressed, nor was

she posing unnaturally or in a sexually suggestive manner. He also argues that the

images contain no suggestion of sexual coyness or a willingness to engage in

sexual activity, and he asserts that they “do not appear to be intended or designed

to elicit a sexual response in the viewer.”

      The State responds by emphasizing that the “sink” DVD had videos of C.T.

from the waist down, and they therefore depicted a lewd exhibition of the genitals.

The State contends that the videos had no other apparent subject matter than C.T.’s

nude or partially nude body. It further argues that the fact that Perkins watched the

videos with the Gowans demonstrates that the videos appeal to prurient,

voyeuristic interests.

      It is undisputed that the “sink” videos show C.T. in the shower from the

waist down and that the “vent” videos show her in the nude from the ceiling. It is

also undisputed that the videos depict C.T. as she undresses, showers, and shaves

in the bathroom, and that they have no other apparent subject matter.            The

arguments advanced by Perkins essentially emphasize the innocent circumstances

depicted, considered solely from the perspective of C.T. Certainly, there is nothing

inherently lewd about being nude while engaged in ordinary personal hygiene

under circumstances that are reasonably understood to be entirely private. But

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Perkins’s arguments entirely ignore the factors that make the images

objectionable—the invasion of personal privacy required to obtain the images and

the exploitation of an innocent child victim. Jurors are permitted to rely on their

common sense to conclude that these images of a teenage girl—who had undressed

in the belief that she had privacy in the bathroom—were created and preserved to

appeal to deviant and voyeuristic interests of the viewer, and thus the images are

intended or designed to elicit a sexual response. Cf. United States v. Wolf, 890

F.2d 241, 243, 247 (10th Cir. 1989) (holding that the image of partially nude

sleeping child could constitute a “lascivious exhibition” for the purposes of 18

U.S.C. § 2256); State v. Myers, 207 P.3d 1105, 1113 (N.M. 2009) (holding that

images of children’s genitals taken from a hidden camera as they used a toilet “had

a voyeuristic and deviant quality” such that fact finder could have found that they

were “lewd”); People v. Sven, 848 N.E.2d 228, 239 (Ill. App. Ct. 2006)

(concluding that video depicting nude teenage girl bathing infant put viewer into

“role of voyeur,” thus rendering the images lewd). Both the objective content of

the images and the circumstances of their creation contribute to their voyeuristic

quality, and a rational jury could have determined such images to be lewd.

      Moreover, the evidence adduced at trial supports an inference that Perkins

recognized the lewdness of the videos. Perkins told police that he viewed the

“vent” videos with Gowan and his wife at their house. He said that when he saw

                                        13
the videos, he told the Gowans that he does not “look at that stuff” and that it was

“wrong.” Regardless of whether this exchange actually occurred, the fact that

Perkins told police that he objected to the videos could indicate his understanding

that the images were intended or designed to elicit a sexual response in the

viewer—that is, they were lewd.

        We hold that a rational jury could conclude from this evidence that the

videos were made with the intent to arouse a sexual response in the viewer and

were therefore lewd. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.

   B.      Promotion

        Within the meaning of the Penal Code’s provision concerning promotion of

child pornography, to “promote” child pornography includes to “give” such

material to another person. TEX. PENAL CODE ANN. §§ 43.25(a)(5), 43.26(b)(2).

Perkins was charged with this form of promotion of child pornography.

        There is no direct evidence that Perkins gave the DVDs to Gowan.

However, as previously discussed, the evidence at trial was legally sufficient to

support the conclusion that Perkins recorded the videos. Moreover, undisputed

evidence at trial established that Gowan possessed the DVDs before giving them to

C.T.’s aunt and uncle. Having concluded that Perkins made the DVDs that ended

up in his best friend’s possession, the jury could rationally find that Perkins gave

him the DVDs. We hold that when the combined force of this evidence is viewed

                                        14
in the light most favorable to the verdict, a rational jury could conclude beyond a

reasonable doubt that Perkins gave the DVDs to Gowan. See Hooper, 214 S.W.3d

at 16–17.

      We overrule Perkins’s issue with respect to the offense of promotion of child

pornography.

                                    Conclusion

      We affirm the judgments of the trial court.




                                             Michael Massengale
                                             Justice

Panel consists of Justices Bland, Massengale, and Brown.

Publish. TEX. R. APP. P. 47.2(b).




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