Affirmed and Memorandum Opinion filed July 16, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00321-CR

                           NOE AGUILAR, Appellant
                                           V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 208th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1552966

                          MEMORANDUM OPINION

      Appellant Noe Aguilar was found guilty by a jury of the offense of invasive
visual recording and was sentenced to confinement in state jail for eight months.
On appeal, appellant contends that the trial court erred by overruling appellant’s
objection to a police officer’s testimony concerning the actions that constitute the
charged offense. Appellant also contends that a statutory jury fee imposed on him
is facially unconstitutional. We affirm.
                                       BACKGROUND

       On October 7, 2016, a witness saw appellant taking an “upskirt” video of the
complainant while the complainant was shopping at a Lowe’s store in Tomball.
The complainant and the witness flagged down Officer Kenneth Yoho of the
Tomball Police Department in the store’s parking lot as appellant attempted to
leave the store. Officer Yoho, who was on duty at the time, questioned appellant.
With appellant’s consent, Officer Yoho also viewed the video on appellant’s
phone. Officer Yoho believed the video contained evidence of a crime.

       Appellant was charged with the offense of invasive visual recording. See
Tex. Penal Code § 21.15(b)(1).1 Consistent with the statute, the indictment alleged
that appellant “did then and there unlawfully, with the intent to invade the privacy
of [the complainant], and without the consent of [the complainant], record by
electronic means a visual image of an intimate area of [the complainant], namely,
the genitals, pubic area, anus and buttocks, and [the complainant] has a reasonable
expectation of privacy that said intimate area was not subject to public view.”

       The evidence at trial included the testimony of the complainant, a witness,
and Officer Yoho, and the video recording from appellant’s phone. Appellant does
not challenge the sufficiency of the evidence supporting his conviction.

       During deliberations, the jury asked to watch the video again and to review
the testimony of the officer and the witness. At one point, the jury foreman sent out
a note stating that they had a “hung jury” that was “split 7-5” and that “no one is


       1
         The Texas Penal Code provides that a person commits the offense of invasive visual
recording “if, without the other person’s consent and with intent to invade the privacy of the
other person, the person . . . photographs or by videotape or other electronic means records,
broadcasts or transmits a visual image of an intimate area of another person if the other person
has a reasonable expectation that the intimate area is not subject to public view.” Tex. Penal
Code § 21.15(b).

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going to change their mind after heated debate.” The trial court gave an Allen
charge urging the jury to continue deliberating. The jury ultimately found appellant
guilty.

I.    The Officer’s Testimony

      In his first issue, appellant contends that the trial court erred by overruling
his objection to Officer Yoho’s testimony concerning the elements of the offense.
Appellant argues that the error gave the trial court’s stamp of approval to an
unconstitutional interpretation of the law.

      On direct examination by the prosecutor, Officer Yoho testified that when he
watched the video on appellant’s phone, he saw a depiction of the complainant’s
intimate area, including her pubic area, anus, and buttocks. On cross-examination,
Yoho acknowledged that the complainant’s pubic area, anus, and buttocks were
covered by the complainant’s underwear or clothing. Appellant’s issue on appeal
focuses on the following exchange during the prosecutor’s redirect examination:

            Q.    [Prosecutor:] The defense asked you about the pubic area
      and the buttocks, and they asked you about it being covered by [the
      complainant’s] underwear. Is it still a crime for someone to video or
      record someone’s buttocks or anus or pubic area if it is covered by
      underwear?
             A.     [Officer Yoho:] Yes, it is.
             [Defense counsel:] Your Honor, we will object. That by itself is
      not a crime. There are a lot more elements than that for it to be a
      crime.
             THE COURT: Overruled. He can answer the question.
             A.     I am sorry. Can you ask the question again?
               Q.    [Prosecutor:] Is videoing and/or taking a recording of a
      complainant’s buttocks, private — excuse me — pubic area and anus,
      if it is covered by underwear, does that underwear covering it stopped
      [sic] that improper recording from being a crime?

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             A.    No, it does not.
             THE COURT: What is your objection?
             [Defense Counsel:] Your Honor, our objection is the video,
      itself — that in and of itself is not a crime. Intent has to be proven and
      privacy to the public has to be proven.
            THE COURT: Can you come up for just a second. I just need
      two people.
                           (At the bench, on the record)
            THE COURT: I am going to allow the question, but you left out
      the word unauthorized, but I will allow your question.
              [Defense Counsel:] Your Honor, since we are here, there are
      still other elements before it is a crime.
             THE COURT: Well, you can ask him that on re-cross, okay?
                            (Proceedings in open court)
             Q.    [Prosecutor:] Officer Yoho, let me get a little bit more
      specific.
                   If someone unlawfully with the intent to invade the
      privacy of a complainant without their consent, records them by an
      electronic means and records the genitals, pubic area, anus and
      buttocks of that complainant which the complainant has a reasonable
      expectation of that area, if that area is covered by underwear, does that
      make — does that prevent it from being a crime?
             A.    No, it does not.
            Q.   If someone does not consent to their private area being
      videoed or photographed, in your opinion, is that an invasion of
      privacy?
             A.    Yes.

      Appellant argues that taking a picture or video of another person’s clothed
intimate area is not a criminal offense per se, and therefore the officer’s testimony
that it is a crime to make a videotape of the clothed intimate area of another person
was a gross misstatement of the law. Appellant asserts that by overruling
appellant’s objection to the testimony, the trial court stamped its approval on the

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officer’s improper and highly inaccurate statement of the law. Appellant further
suggests that in light of the jury’s “heated debate” during deliberations, the trial
court’s erroneous ruling could have influenced some jurors to change their verdict
from “not guilty” to “guilty” after the trial court gave the Allen charge.

      We disagree that the officer’s testimony in this case constituted a gross
misstatement of the law. The Penal Code expressly provides that the invasive
visual recording of an intimate area is a crime even when the intimate area
recorded is clothed. See Tex. Penal Code § 21.15(a)(2) (defining “intimate area”
for purposes of the invasive visual recording statute to include “the naked or
clothed genitals, pubic area, anus, buttocks, or female breast of a person”)
(emphasis added). Viewed in context, it is apparent that the prosecutor’s question
was limited to rebutting any impression left by the defense that no crime is
committed if the intimate area is covered by clothing, and the officer’s testimony
in response to the question was consistent with the law. See id. Our conclusion is
reinforced by the prosecutor’s closing argument, in which the prosecutor twice
reminded the jury that the charge reflects that offense is committed whether the
intimate area is naked or clothed.

      Moreover, any error was harmless because the prosecutor immediately
addressed defense counsel’s objection by asking the same question in a way that
incorporated all of the elements of the offense. Defense counsel declined to
question the officer further concerning the elements of the offense despite the trial
court’s suggestion that he could do so. And, in closing argument, defense counsel
argued that it was not enough for the State to prove that “there is a video of a
private area” and emphasized that the State also had to prove that appellant
intended to invade the complainant’s privacy and that the intimate area was not
subject to public view. The State did not argue otherwise.

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       In addition, the application paragraph of the trial court’s charge substantially
tracked the allegations in the indictment, which included all the elements of the
offense. See Tex. Penal Code § 21.15(b)(1). The charge also instructed the jury that
if it found beyond a reasonable doubt that appellant committed the alleged offense,
then it was to find appellant guilty. Absent evidence to the contrary, we presume
the jury understood the jury charge and found appellant guilty based on a
unanimous finding that appellant committed all of the elements of the charged
offense. See Miles v. State, 204 S.W.3d 822, 827–28 (Tex. Crim. App. 2006).

       On this record, we conclude beyond a reasonable doubt that any error by the
trial court did not materially affect the jury’s deliberations to appellant’s detriment
or contribute to the verdict obtained. See id. (holding that trial court committed
constitutional error in overruling objection to prosecutor’s misstatement of law
concerning presumption of innocence but concluding that error was harmless).2 We
overrule appellant’s first issue.

II.    The Constitutionality of the Statutory Jury Fee

       In his second issue, appellant contends that Texas Code of Criminal
Procedure article 102.004(a) is facially unconstitutional. Article 102.004 provides
in relevant part that “[a] defendant convicted by a jury in a county court, a county
court at law, or a district court shall pay a jury fee of $40.” See Tex. Code Crim.
Proc. art. 102.004(a). Appellant argues that the statute is unconstitutional because
it does not direct how this fee is to be used.

       After appellant’s brief was filed, however, this court addressed a similar

       2
           Although appellant complains that the trial court erred by approving               an
“unconstitutional interpretation of the law,” appellant makes no argument concerning         the
appropriate standard for review of the alleged harm. For purposes of resolving the appeal,   we
will assume without deciding that the alleged error in this case is subject to review        for
constitutional error. See Tex. R. App. P. 44.2(a).

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complaint and held that article 102.004(a) is constitutional. See Johnson v. State,
562 S.W.3d 168, 174–80 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d)
(rejecting appellant’s complaint that Texas Code of Criminal Procedure article
102.004 is facially unconstitutional and holding that the statute does not violate the
separation-of-powers clause). We decline to revisit the issue and overrule
appellant’s second issue.

                                   CONCLUSION

      We overrule appellant’s issues and affirm the trial court’s judgment.




                                       /s/       Ken Wise
                                                 Justice



Panel consists of Justices Wise, Zimmerer, and Spain.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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