                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00083-CR
        ______________________________


       WILLIAM ALLEN COOPER, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 102nd Judicial District Court
              Red River County, Texas
              Trial Court No. CR01517




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Carter
                                              OPINION

           In the 50s, before the advent of video cameras and cell phone videos, a popular song

advised us that standing on the corner and watching females pass by was acceptable conduct and

that ―you can’t go to jail for what you’re thinking.‖1 Watching may still be acceptable conduct,

but recording that parade may violate the law in Texas today.

           William Allen Cooper was convicted by a jury of an offense entitled Improper

Photography or Visual Recording. The offense is a state jail felony, and on two counts, he was

sentenced to the maximum punishment: two years in a state jail facility on each prosecution and a

$10,000.00 fine. See TEX. PENAL CODE ANN. § 21.15 (Vernon Supp. 2010).

I.         Issues on Appeal

           Cooper raises several issues on appeal, including a Batson 2 claim, issues about the

unsupported assessment of costs against him, and issues concerning the harm caused by

improperly admitted evidence and an improper opening statement by the prosecutor—that

attempted to convince the jury to convict based not on the evidence, but on evidence that it could

not see until punishment (when the rest of the story would be revealed). We need not address

those issues, as we reverse both convictions based on insufficiency of the evidence.




1
 ―Standing on the Corner‖ from the show ―The Most Happy Fella‖ (1956) (Frank Loesser) Recorded by The Four
Lads, Dean Martin, and The King Brothers.
2
    Batson v. Kentucky, 476 U.S. 79 (1986).

                                                    2
           As applied to this prosecution, the statute criminalizes the act of photographing/recording a

visual image of another at a location not a bathroom or private dressing room without that person’s

consent, and with intent to arouse or gratify the sexual desire of any person.3

II.        Facts

           Cooper was convicted for making video recordings (shot through a window) of females

walking down the sidewalk, or down the street, in front of either his home or business. The

3
    Section 21.15.   Improper Photography or Visual Recording

                     (a)      In this section, ―promote‖ has the meaning assigned by Section 43.21.

                     (b)      A person commits an offense if the person:

                              (1)       photographs or by videotape or other electronic means records,
                     broadcasts, or transmits a visual image of another at a location that is not a bathroom or
                     private dressing room:
                                        (A)      without the other person’s consent; and
                                        (B)      with intent to arouse or gratify the sexual desire of any person;
                              (2)       photographs or by videotape or other electronic means records,
                     broadcasts, or transmits a visual image of another at a location that is a bathroom or private
                     dressing room:
                                        (A)      without the other person’s consent; and
                                        (B)      with intent to:
                                                 (i)      invade the privacy of the other person; or
                                                 (ii)     arouse or gratify the sexual desire of any person; or
                              (3)       knowing the character and content of the photograph, recording,
                     broadcast, or transmission, promotes a photograph, recording, broadcast, or transmission
                     described by Subdivision (1) or (2).

                     (c)      An offense under this section is a state jail felony.

                   (d)       If conduct that constitutes an offense under this section also constitutes an offense
           under any other law, the actor may be prosecuted under this section or the other law.

                    (e)       For purposes of Subsection (b)(2), a sign or signs posted indicating that the person
           is being photographed or that a visual image of the person is being recorded, broadcast, or
           transmitted is not sufficient to establish the person’s consent under that subdivision.


                                                              3
subjects were fully clad and were not in a private area. We have duplicates made by the State of

the only two tapes involved, containing several hours of video, which the State edited into a short

―best of‖ video for the jury’s perusal. All of these were introduced into evidence and made

available to the jury. The videographer used the zoom function on the camera at various times to

obtain close-ups of specific parts of female anatomy. Those close-ups are what the State relies

upon to prove intent—the statute requires the video to have been made with the intent to arouse or

gratify the sexual desire of a person. The State argues that this choice of subject matter would

allow a jury to find the requisite intent, and counsel does not argue to the contrary.

III.       Sufficiency of the Evidence

           The critical issue in this review is whether the evidence is sufficient to allow a rational jury

to decide that the State had proven, beyond a reasonable doubt, that Cooper was the videographer.

In evaluating Cooper’s legal sufficiency challenge, we apply the Jackson standard as explained in

Brooks.

           The relevant question 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.

Jackson v. Virginia, 443 U.S. 307, 319 (1979).

           In the Brooks plurality opinion, the Texas Court of Criminal Appeals found ―no

meaningful distinction between the Jackson v. Virginia legal-sufficiency standard and the Clewis4

factual-sufficiency standard, and these two standards have become indistinguishable.‖ Brooks v.
4
    Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).

                                                          4
State, No. PD-0210-09, 2010 WL 3894613, at *8 (Tex. Crim. App. Oct. 6, 2010) (4-1-4 decision).

Further, a proper application of the Jackson v. Virginia legal sufficiency standard is as exacting a

standard as any factual sufficiency standard.                See id. at *11.        In a concurring opinion,

Judge Cochran pointed out that the United States Supreme Court has rejected a legal sufficiency

test that requires a finding that ―no evidence‖ supports the verdict because it affords inadequate

protection against potential misapplication of the ―reasonable doubt‖ standard in criminal cases.

Id. at *16 (Cochran, J., concurring). Rather than meeting a mere ―no evidence‖ test, legal

sufficiency is judged not by the quantity of evidence, but by the quality of the evidence and the

level of certainty it engenders in the fact-finder’s mind. Id. at *17.

        We thus examine legal sufficiency under the direction of the Brooks opinion, while giving

deference to the responsibility of the jury ―to fairly resolve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.‖ Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19). If we determine

that the evidence is legally insufficient to sustain a conviction, the proper remedy is to reverse the

case and order acquittal. See Tibbs v. Florida, 457 U.S. 31, 41–42 (1982); Taylor v. State, 626

S.W.2d 543, 545 (Tex. App.—Texarkana 1981, pet. ref’d).

        We measure the evidence ―by the elements of the offense as defined by the hypothetically

correct jury charge for the case.‖5 Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).


5
Malik controls ―even in the absence of alleged jury charge error.‖ Gollihar v. State, 46 S.W.3d 243, 255 (Tex. Crim.
App. 2001).

                                                         5
The hypothetically correct jury charge ―sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of

liability, and adequately describes the particular offense for which the defendant was tried.‖ Id.

       A.      Evidence of Cooper as the Recorder

       Certain matters are undisputed. The videos were taken from inside Cooper’s house and

from inside his business (a detail shop). They were taken with a camera that was found near his

residence and that had previously been in his residence. The tapes themselves were found inside

his house. The evidence also shows that Cooper did not have sole access to either his home or

business.   Cooper had teenage children who visited the house, Maria Gooden (Cooper’s

ex-girlfriend) had an eighteen-year-old son, and Cooper had employees at the business. There is

no testimony from any source that any individual saw Cooper using the video camera either while

taking these videos, or at any other time.

       The State relies on the location of the filming, the testimony of a police officer, Brandon

Harbison, and the testimony of Cooper’s ex-girlfriend as evidence that Cooper filmed the video.

       The police officer testified the ex-girlfriend (Gooden) had told him that Cooper made the

videos because she had seen him on the recording. The officer did not testify that Cooper made

the videos—only that he had been told by Gooden that Cooper had done so.

       Q.       Do you know whether or not Mr. Cooper was the one videotaping these
       girls, the one who was operating the camera?




                                                 6
         A.       I was told so by Maria Gooden.6

The language used by the officer in his nonresponsive answer to the question does not provide

direct testimony that Cooper made the video. It provides evidence that the ex-girlfriend told him

that Cooper made the video. Even if a portion of this evidence was admitted before the jury, since

the officer was merely quoting Gooden, the basis of the evidence must stand on the testimony of

Gooden.

         On redirect examination, the officer testified that ―he was in the video -- one of the videos,

and I don’t remember which tape it was on, for a very short time.‖

         Gooden testified that after she found the camera in the house, she thought Cooper was

operating the camera, because she had seen images of Cooper on it when she viewed the first tape.

Objections were raised to her testimony, along with impassioned discussion before the judge (and

out of the hearing of the jury) by counsel, who stated that he had watched the DVD copies of the

tapes (which the State then reaffirmed were true and accurate copies of all of the tapes) and had

seen nothing with Cooper appearing.

         After the discussion at the bench, the trial court ruled as follows:

         THE COURT: Ladies and gentlemen, there was a question about a clip, and I
         have sustained the objection. The tape will speak for itself. And so you shall
         disregard any reference to the tape.

Accordingly, Gooden’s prior testimony about what she had seen on the tape was removed from the


6
 Counsel objected to the evidence as hearsay. His objection was sustained, but the court declined to instruct the jury
to disregard the evidence.

                                                          7
jury’s consideration.

       Despite this directive from the trial judge, the prosecutor attempted to obtain the same

testimony again:

       Q.      At one point I believe you testified you thought you saw him or you could
       identify --

       [Defense counsel]: Judge, we’re going to -- we’ll re-urge our motion -- objection.
       I’m sorry. I mean this -- I’m not sure this isn’t the same question just rephrased.

               ....

       THE COURT: Well, let’s get to playing the tapes so the tapes will speak for
       themselves. We don’t need the commentary as to what they are or whatever.

As a result of these proceedings, none of the testimony of Gooden about what she observed on the

video was placed before the jury during that exchange. The court quite reasonably concluded that

the jury could observe the videos and reach its own conclusions without her extraneous

explanation of what she believed she had seen on one of them—at some undefined and unspecified

point in the recording.

       Later, however, the State attempted to circumvent the trial court’s ruling, and to some

degree succeeded.

       The prosecutor asked Gooden:

       Q.      Do you know who was making these videotapes that you found?

       A.      William Cooper.

       Q.      And how do you know that?


                                               8
       A.     Because there’s a clip in one of them that he’s wearing his shirt that I used
       to wash, and I know his build and body and his favorite chair.

Then, on cross-examination, the following transpired:

       Q.      Now, you say he’s in one of these videos?

       A.      Yes.

       Q.      So if he’s in one, who took that picture?

       A.     He was holding the camera. You could see him holding the camera at this
       angle. Like that.

       Q.      How do you know that?

       A.      You can see it. It’s a quick clip. You can rewind it and watch it again.

IV.    Analysis of Sufficiency of the Evidence that Cooper Recorded the Videos

       A.      The Video Recordings

       The Texas Court of Criminal Appeals has very recently explained the test for legal

sufficiency of the evidence in Brooks. The sole hypothetical provided by the Texas Court of

Criminal Appeals for our elucidation is one that shows the court intends for review to be not just of

the quantity (―no evidence standard‖), but the quality of the evidence presented.               That

hypothetical is easily applicable to the situation before this Court in this case.

       The store clerk at trial identifies A as the robber. A properly authenticated
       surveillance videotape of the event clearly shows that B committed the robbery.
       But, the jury convicts A. It was within the jury’s prerogative to believe the
       convenience store clerk and disregard the video. But, based on all the evidence,
       the jury’s finding of guilt is not a rational finding.


                                                  9
Brooks, 2010 WL 3894613, at *11 (emphasis added). Under a pure ―no evidence‖ analysis, there

is obviously some evidence in the hypothetical to support conviction of robber A.7 The clerk

testified A did it. In Judge Cochran’s concurrence joined by Judge Womack, it is explained that

legally sufficient evidence is of such sufficient strength, character, and credibility to engender

certainty beyond a reasonable doubt in the reasonable fact-finder’s mind—evidence lacking that

strength is legally insufficient. Under this analysis, the above example is legally insufficient.8

         Just as in the example in Brooks, under a ―no evidence‖ or ―quantity‖ analysis, there is

some evidence to support conviction. Gooden testified that she saw Cooper in the videotape.

Harbison testified, albeit very briefly and in some conflict with his own prior testimony, that he

had seen Cooper in a very short clip in the videotape. The State has not attempted to identify

where such evidence may be found on the videos.


7
 As mentioned earlier, Judge Cochran, in a concurring opinion, explained that the United States Supreme Court had
rejected a legal sufficiency test that requires a finding that ―no evidence‖ supports the verdict. Brooks, 2010 WL
3894613, at *16 (Cochran, J., concurring).
8
 Further supporting this reasoning is the source of the hypothetical: a dissent in Johnson v. State, 23 S.W.3d 1 (Tex.
Crim. App. 2000) (which two members of this plurality had joined). In that opinion, Presiding Judge McCormick
explained,

         A properly applied Jackson v. Virginia standard, therefore, is much more exacting than Clewis
         claims. Jackson v. Virginia requires the reviewing court to consider all the evidence in the ―light
         most favorable to the verdict,‖ and then it requires the reviewing court to decide whether the jury’s
         finding of guilt is ―rational.‖ A properly applied Jackson v. Virginia standard is essentially as
         exacting a standard as a ―factual sufficiency‖ standard which means that when the evidence meets
         the Jackson v. Virginia standard, it can never be ―factually insufficient‖ and when the evidence is
         ―factually insufficient,‖ it will always be insufficient under the Jackson v. Virginia standard.

Johnson v. State, 23 S.W.3d 1, 15–16 (Tex. Crim. App. 2000).

                                                         10
       This Court has the videos. We have reviewed them carefully. At various points, the

inside of the residence or business is visible and identifiable. There is a little red chair as

described by Gooden—but unoccupied. The video quality is very poor—there are four thick lines

of static running across the screen for their entirety. The focus of the camera is on females

walking up and down a public street. The zoom feature is used regularly to focus on particular

portions of their anatomy.

       What does not appear in any of these videos is the critical fact. There is no recording of

any portion of the videographer taking the pictures of the two complainants—or of any individual

taking any other videos of other females through the windows. At no point does the body of the

individual taking the pictures become visible, in any part. There is no picture of Cooper, or of any

shirt that could have been recognized by Gooden.

       In summary, there is no testimony that anyone saw Cooper filming the videos, but there is

testimony that they saw Cooper on the videotape. After a painstaking review of all of the

evidence, including the videos themselves, it is clear that the video recordings do not contain any

pictures of Cooper—or anyone else—that could reveal who was operating the camera when

making the recordings that are the subject of this prosecution.        It is, therefore, under the

explanations made in Brooks of sufficiency review and the hypothetical provided, and applying

the standard of Jackson as explained therein, not rational for a jury to conclude that Cooper took

the videos based upon the testimony of Gooden and Harbison.



                                                11
       B.         Circumstantial Evidence

       Is the remaining evidence sufficient to allow a rational jury to determine beyond a

reasonable doubt that Cooper was the videographer? 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 question as properly sent to the jury in its charge, consonant with the indictment, asked

whether it found

       from the evidence beyond a reasonable doubt that on or about the 2nd day of
       October, 2008, in Red River County, Texas, the defendant, WILLIAM ALLEN
       COOPER, did intentionally or knowingly commit the offense of Improper
       Photography or Visual Recording, by then and there, with intent to arouse or gratify
       the sexual desire of the defendant, record by videotape a visual image of another,
       namely, [Jane Doe] at a location that was not a bathroom or private dressing room,
       without the consent of the said [Jane Doe], then you shall find the Defendant
       guilty of improper visual recording as charged in the indictment.

       By analogy, in many controlled substance cases, the issue is whether one, not in exclusive

possession of the drug, has sufficient contact (links) to it to be jointly in possession. If that were

the only issue here, we would find no difficulty in affirming a jury finding that Cooper had

possession of the camera—it was found in his house, the camera was his, etc. But here, another

step is required—there must be evidence that Cooper recorded the images. Proving that he at one


                                                 12
time had possession of the video camera does not provide any evidence that he filmed the

particular recordings involved. Under the review of the evidence required by Brooks, even in the

light most favorable to the verdict, a rational jury could not conclude that this evidence is such as

to permit it to find beyond a reasonable doubt that Cooper recorded those visual images.

       We reverse the conviction and render a judgment of acquittal.



                                                      Jack Carter
                                                      Justice

Date Submitted:        October 20, 2010
Date Decided:          November 16, 2010

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