                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


  TIMMIE SOULES,                                  §
                                                                  No. 08-15-00384-CR
                               Appellant,         §
                                                                     Appeal from the
  v.                                              §
                                                                   171st District Court
                                                  §
  THE STATE OF TEXAS,                                           of El Paso County, Texas
                                                  §
                               Appellee.                           (TC# 20130D02079)
                                                  §


                                            OPINION

       Appellant, Timmie Soules, was convicted of nineteen counts of possession of child

pornography. Pursuant to a sentencing agreement, the trial court sentenced him to eight years in

prison. Here, Soules raises three issues: (1) whether the trial court erred when it granted the

State leave to amend the indictment to add an omitted element of the offense in counts Four-

Nineteen; (2) whether there was sufficient evidence establishing beyond a reasonable doubt that

the “visual material” referenced in the indictment was the “actual” visual material contained in the

photographs; and (3) whether there was sufficient evidence establishing beyond a reasonable doubt

that the individuals depicted in the visual materials were under 18 years of age. Finding no error,

we affirm the trial court judgment.
                                       BACKGROUND

       On February 25, 2013, Soules called police to obtain assistance with removing two

individuals, Ray Wilson and Dawn Jackson, from his apartment. When Officer John Paul Valles

arrived at Soules’ apartment, Soules told him that the apartment was leased to him; that neither

Wilson nor Jackson were on the lease; and that he wanted them to leave. After verifying the

information with the apartment building management, Officer Valles told Wilson and Jackson they

could no longer stay in the apartment. While they were gathering their belongings Wilson and

Jackson made statements in Officer Valles’ presence suggesting that Soules was in possession of

child pornography.

       After Officer Valles informed Soules that he had contacted a detective to investigate

Wilson’s and Jackson’s statements, Soules admitted to possessing pornography but claimed that

that the images were of young adults, not children. To prove it, Soules offered to show Valles

images contained on his cellphone, which he claimed were sent to him by a female acquaintance.

Valles looked at the images on Soules’ cellphone and concluded they were inconsistent with child

pornography.    Shortly thereafter, Detective Robert Hanner of the Internet Crimes Against

Children Unit arrived at the apartment to investigate Wilson’s and Jackson’s statements.

       Detective Hanner informed Soules he received a report that there was child pornography

in Soules’ bedroom. After obtaining written consent from Soules to search his bedroom for child

pornography, Detective Hanner seized a laptop, external hard drives, and several binders

containing CDs and DVDs that were found in Soules’ bedroom. During the search, Soules told

Detective Hanner that the disks marked with a black mark contained child pornography.

However, Soules said that a friend, who Soules claimed was “under suspicion” for possession of


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child pornography, had given the items to Soules before the friend left El Paso. Soules also

claimed that it was his intent to turn the disks over to police but had not gotten around to it. After

receiving additional written consent to search the electronic media in Soules’ possession including

the disks, Detective Hanner reviewed their contents and confirmed that several disks contained

child pornography.

       At trial, Detective Hanner testified to what he had discovered during his investigation,

including the admissions made by Soules.          The State introduced into evidence ten disks

containing the nineteen pornographic images that were seized from Soules’s bedroom.                 In

addition, Hanner described each image one at a time in detail. Following each of his descriptions,

the State asked him to confirm whether his description of the image was consistent with the

corresponding count alleged in the indictment. Each time, Hanner confirmed that the image

described was consistent with the allegations in the indictment. Hanner further testified that,

based on his experience having investigated child pornography cases and similar crimes for nine

years, each of the images depicted children under the age of eighteen engaging in sexual conduct.

       During Appellant’s case-in-chief, he called a single witness, a computer forensic expert

who testified that there was no data suggesting that Soules had opened the disks or viewed child

pornography on the laptop that was seized from his bedroom. On December 2, 2015, a jury found

Soules guilty of nineteen counts of possession of child pornography as alleged in the amended

indictment. This appeal followed.

                                              DISCUSSION

                                       Amended Indictment

       In his first issue, Appellant contends that the trial court erred when it permitted the State to


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amend Counts Four-Nineteen in the original indictment to include an omitted element of the

offense.

                                             Standard of Review

        We review the trial court’s decision to permit amendment to the indictment de novo.

Smith v. State, 309 S.W.3d 10, 13-14 (Tex.Crim.App. 2010); Cruz v. State, No. 11-17-00008-CR,

2019 WL 386537, at *4 (Tex.App.—Eastland Jan. 31, 2019, pet ref’d)(mem opn., not designated

for publication).

        A grand jury returned an original indictment that charged Soules with nineteen counts of

possession of child pornography. 1             The elements of the offense for possession of child

pornography are contained in Section 43.26 of the Texas Penal Code which states:

        (a) A person commits an offense if:

        (1)     the person knowingly or intentionally possesses, or knowingly or
        intentionally accesses with intent to view, 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, including a child who engages in sexual conduct as
        a victim of an offense under Section 20A.02(a)(5)(6), (7), and (8); and

        (2) the person knows that the material depicts the child as described by Subdivision
        (1).

TEX.PENAL CODE ANN. § 43.26(a).

        Counts One-Three of the original indictment returned by the grand jury alleged that Soules:

        [I]ntentionally and knowingly possess[ed] visual material that visually depicts a
        child younger than 18 years of age at the time the image was made engaging in
        sexual conduct . . . and the said defendant knew the material depicted said child
        engaging in sexual conduct.

Counts Four-Nineteen of the original indictment used identical language, but omitted the language


1
   The Grand Jury also indicted Soules for one count of promotion of child pornography, but he was acquitted of
that charge at trial.
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that Soules “knew the material depicted said child engaging in sexual conduct.”                   On

December 22, 2014, approximately one year before trial, the State sought leave to amend Counts

Four-Nineteen contained in the indictment to add the omitted language and to replace specific

descriptions with general descriptions of markings written within the visual material. On July 10,

2015, the trial court granted the State leave to amend in a written order and the amendments were

interlineated in hand-written form directly onto the original indictment.

       On July 20, 2015, Soules filed a written objection to the State’s amendments and moved to

strike them, asserting that by “adding a different or additional offense and by surplusage,” the State

had violated his substantial rights under Article 28.10(c) of the Texas Code of Criminal Procedure.

He further asserted the amendments violated his right to a grand-jury indictment. At the hearing

to consider his motion, the State argued that the amendments were proper because they only added

a missing mens rea element and did not allege a different or new statutory offense. The trial court

overruled Soules’s objection and denied his motion to strike in a written order on July 29, 2015.

                                              Analysis

       The Texas Constitution requires that the accused be charged by indictment for felony

offenses. TEX.CONST. art. I, § 10; see also Riney v. State, 28 S.W.3d 561, 564 (Tex.Crim.App.

2000). The presentment of a valid indictment vests the district court with jurisdiction of the cause.

TEX.CONST. art. V, § 12(b); Studer v. State, 799 S.W.2d 263, 268 (Tex.Crim.App. 1990); Garcia

v. Dial, 596 S.W.2d 524, 527 (Tex.Crim.App. 1980). The requisites of a valid indictment are

controlled by statute. See TEX.CONST. art. V, § 12(b)(“The practice and procedures relating to

the use of indictments and informations, including their contents, amendment, sufficiency, and

requisites, are as provided by law.”); Studer, 799 S.W.2d at 272 (“[R]equirements of an indictment


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are not mandated by the constitution, but rather only by statute.”).

       The absence of an element in an indictment does not divest the trial court of its jurisdiction,

nor does it automatically render the indictment invalid. See Studer, 799 S.W.2d at 271 (“By its

express terms, Art. 28.10 clearly allows for the amendment of any matter of form or substance in

an indictment . . . [consequently] an indictment (or information) is still an indictment (or

information) . . . though it be flawed by matters of substance such as the absence of an element.”).

As long as “the district court and the defendant determine, from the face of the indictment, that

the indictment intends to charge a felony or other offense for which a district court has

jurisdiction,” the indictment remains valid. [Emphasis added]. Teal v. State, 230 S.W.3d 172,

181 (Tex.Crim.App. 2007).

       After a grand jury returns an indictment, amendments thereto are controlled by Article

28.10 of the Texas Code of Criminal Procedure. Studer, 799 S.W.2d at 271. The relevant

portion of Article 28.10 states:

       (a) After notice to the defendant, a matter of form or substance in an indictment . . .
           may be amended at any time before the date of trial on the merits commences.

                                   .              .               .

       (c) An indictment . . . may not be amended over the defendant’s objection as to
       form or substance if the amended indictment . . . charges the defendant with an
       additional or different offense or if the substantial rights of the defendant are
       prejudiced.

TEX.CODE CRIM.PROC.ANN. art. 28.10(a), (c).

       Here, Appellant contends that because an essential element, i.e., that he knew the visual

material depicted a child engaging in sexual conduct, was omitted from Counts Four-Nineteen in

the original indictment, he was not charged with an offense in those counts at all. Consequently,


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he claims the amendments had the effect of charging him with an additional or different offense.

If that is the case, Article 28.10(c) prohibited the State from amending the indictment over his

objection and the State was required to return to the grand jury to cure the defect.

       Appellant’s argument is unpersuasive.          Each of the nineteen counts in the original

indictment is labeled “Possession of Child Pornography,” which is defined by Section 43.26 of the

Texas Penal Code. Except for the one element that was omitted in Counts Four-Nineteen, the

indictment language tracks the language contained in Section 43.26. Consequently, the record

reflects a clear intent by the grand jury to charge Appellant in its original indictment with nineteen

counts of possession of child pornography, which is the same statutory offense with which he was

charged after the amendments. Because Appellant fails to establish the offense in the original

indictment was a different statutory offense than the offense for which he was charged after the

indictment was amended, his claim fails. See State v. Loera, No. 08-11-00338-CR, 2013 WL

5657964, at *5 (Tex.App.—El Paso Oct. 16, 2013, no pet.)(not designated for publication)(“For

purposes of Article 28.10(c), a ‘different offense’ means a different statutory offense.”)(citing

Flowers v. State, 815 S.W.2d 724, 728-29 (Tex.Crim.App. 1991).

       Appellant also claims that his substantial rights were prejudiced because he was entitled to

a probable cause determination by a grand jury that he committed the offense. However, because

an indictment signed by a grand jury foreman charging him with nineteen counts of possession of

child pornography was in fact presented to the trial court, his right to be charged by a grand jury

was met. Appellant offers no other record evidence demonstrating prejudice to his substantial

rights. Indeed, the record reflects none. After giving Appellant notice, the State sought leave to

amend the indictment approximately one year before trial, leave was granted approximately five


                                                  7
months before trial, and the amendments were interlineated in the original indictment before trial.

       Because we disagree that the amendments charged Appellant with “additional and

different” offenses and because Appellant fails to demonstrate any prejudice to his substantial

rights resulting from the amendments, we overrule Appellants first issue on appeal.

                                   Sufficiency of the Evidence

       In his second and third issues, Appellant contends there was insufficient evidence: (1)

linking the “visual material” introduced into evidence to the “visual material” referenced in each

count of the indictment; and (2) establishing the individuals depicted in the images were under 18

years of age.

                                       Standard of Review

       We review claims of insufficiency of the evidence by viewing all the evidence in the light

most favorable to the prosecution to determine whether any rational trier of fact could have found

the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443

U.S. 307, 318 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.Crim.App. 2012). When the

record supports conflicting inferences, a reviewing court must presume that the factfinder resolved

the conflicts in favor of the prosecution and defer to that determination. Jackson, 443 U.S. at 326;

Wise, 364 S.W.3d at 903.

                                             Analysis

       As discussed above, a person commits an offense if 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 the person knows that the

material depicts the child engaging in sexual conduct. TEX.PENAL CODE ANN. § 43.26. In


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addition, “visual material” is defined as “any film, photograph, videotape, negative, or slide or any

photographic reproduction that contains or incorporates in any manner any film, photograph,

videotape, negative, or slide, or any disk, diskette, or other physical medium that allows an image

to be displayed on a computer or other video screen and any image transmitted to a computer or

other video screen by telephone line, cable, satellite transmission, or other method.” TEX.PENAL

CODE ANN. § 43.26(b)(3). The definition of visual material in the court’s charge tracked the

definition in Texas Penal Code § 43.26(b)(3). Moreover, the court’s charge contained the exact

language of each of the allegations in the nineteen counts contained in the amended indictment.

Finally, the State introduced into evidence the nineteen photographic images referenced in the

nineteen counts of the amended indictment. The jurors were therefore able to look at the actual

images themselves and compare them to the nineteen counts in the indictment while answering the

verdict forms. We can infer from this record that any rational trier of fact could have found

beyond a reasonable doubt that the images in the photographs were the same images referenced in

the indictment. We overrule Appellants second issue.

       Section 43.25(g) of the Texas Penal Code expressly authorizes a jury to make a

determination about whether a child who participated in sexual conduct was younger than 18 years

of age by: (1) personal inspection of the child; (2) inspection of the photograph that shows the

child engaging in sexual performance; (3) oral testimony by a witness to the sexual performance

as to the age of the child based on the child’s appearance at the time; (4) expert medical testimony

based on the appearance of the child engaging in the sexual performance; or ( 5) any other method

authorized by law or by the rules of evidence. TEX.PENAL CODE ANN. § 43.25(g)(1)-(5).

       Here, to prove the individuals depicted in the photographs were under 18 years of age, the


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State introduced the disks containing the pornographic images into evidence and offered the lay

opinion testimony of Detective Hanner, who opined that after reviewing the images, he believed

the individuals depicted in the pornographic images were under the age of 18. Each of these

methods of proof is authorized by law. See TEX.PENAL CODE ANN. § 43.25(g)(2),(5); see also

Whiddon v. State, No. 08-11-00188-CR, 2013 WL 772830, at *4 (Tex.App.—El Paso Feb. 27,

2013, pet. ref’d)(not designated for publication)(“It is well established that a lay witness can testify

under Rule 701 on many subjects including an estimate of age.”)(citing Denham v. State, 574

S.W.2d 129, 131 (Tex.Crim.App. 1978)). Because this evidence is sufficient to establish that the

individuals in the photographs were under 18, and Appellant does not point us to any evidence in

the record that might contradict the evidence much less conclusively establish that they were not

under 18, we overrule his third issue.

                                          CONCLUSION

       The trial court’s judgment is affirmed.



October 31, 2019
                                                YVONNE T. RODRIGUEZ, Justice

Before Rodriguez, J., Palafox, J., and McClure, Senior Judge
McClure, Senior Judge (Sitting by Assignment)

(Do Not Publish)




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