                                NUMBER 13-17-00127-CR

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI - EDINBURG


ROLANDO S. VILLEGAS,                                                                         Appellant,

                                                         v.

THE STATE OF TEXAS,                                                                          Appellee.


                         On appeal from the 24th District Court
                              of Victoria County, Texas.


                                MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Longoria and Hinojosa
              Memorandum Opinion by Justice Hinojosa

        Appellant Rolando Salazar Villegas appeals his convictions on four counts of

possession with intent to promote child pornography, each a second-degree felony. 1


        1 In a consolidated trial, appellant was tried and convicted of eight counts of possession with intent

to promote child pornography, see TEX. PENAL CODE ANN. § 43.26(e) (West, Westlaw through 2017 1st
C.S.), one count of sexual performance by a child, see id. § 43.25 (West, Westlaw through 2017 1st C.S.),
and one count of indecency with a child by exposure. See id. § 21.11(a)(2) (West, Westlaw through 2017
1st C.S.). Appellant appeals only four of his convictions for possession with intent to promote child
See TEX. PENAL CODE ANN. § 43.26(e) (West, Westlaw through 2017 1st C.S.). A jury

found appellant guilty and assessed punishment of twenty years’ imprisonment on each

count. The trial court sentenced appellant accordingly and ordered the sentences to run

concurrently. By one issue, appellant argues that there is legally insufficient evidence

that the images found on his phone depicted the lewd exhibition of a child’s genitals. We

affirm as modified.

                                            I.      BACKGROUND

        A grand jury returned an indictment charging appellant with ten counts of

possession with intent to promote child pornography, see id., one count of sexual

performance by a child, see id. § 43.25 (West, Westlaw through 2017 1st C.S.), and one

count of indecency with a child by exposure. See id. § 21.11(a)(2) (West, Westlaw

through 2017 1st C.S.). A jury acquitted appellant of two counts of possession with intent

to promote child pornography but found appellant guilty on the remaining counts alleged

in the indictment. Appellant appeals his convictions for counts seven through ten, which

each alleged that appellant possessed separate images depicting the lewd exhibition of

a child’s genitals.

        V.G., 2 who was eight years old during the relevant time period, testified that she

went to the beach in Port Lavaca, Texas with her family and her aunt’s family. Appellant,

who was then married to V.G.’s aunt, also attended. V.G. left the beach with her aunt,



pornography as alleged in counts seven through ten of the indictment.

        2   We refer to the minor complainant by her initials to protect her privacy.



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appellant, and her cousins. They travelled to her aunt’s house in Victoria, Texas, where

V.G. planned on staying overnight. Soon after they arrived, appellant pulled V.G. into

the restroom and closed the door. Appellant then removed V.G.’s bathing suit and

covered her head with a towel. V.G. saw red flashes through the towel. She believed

appellant was taking pictures because he was holding a phone in his hand. Appellant

then left the restroom, and V.G. got into the shower. V.G. later told her aunt what

happened.   V.G.’s aunt immediately drove V.G. home, at which time V.G.’s mother

contacted law enforcement.

      Wilmer McLeroy, an officer with the Victoria Police Department, testified that he

secured a search warrant to access the contents of appellant’s cellular phone. Officer

McLeroy performed a forensic analysis of the phone and detected twelve images “of

apparent child pornography.” The trial court admitted a forensic report showing multiple

images retrieved from appellant’s phone. The four images forming the basis for counts

seven through ten are close-up images of a female child’s genital region.        Officer

McLeroy was able to determine from the images’ “metadata” that they were generated on

the same date V.G. was at her aunt’s house. Officer McLeroy showed the images to

V.G.’s mother, who confirmed that V.G. was the subject of the photographs.

      The jury found appellant guilty of possession with intent to promote child

pornography as alleged in counts seven through ten of the indictment. This appeal

followed.




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                            II.    SUFFICIENCY OF THE EVIDENCE

       By his sole issue, appellant argues that “[t]he photographs complained of in Counts

7-10 are legally insufficient to satisfy the element of ‘lewd exhibition of genitals.’”

A.     Standard of Review

       The standard for determining whether the evidence is legally sufficient to support

a conviction 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. Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Brooks v. State,

323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). The factfinder is the

exclusive judge of the credibility of witnesses and of the weight to be given to their

testimony. Brooks, 323 S.W.3d at 899; Lancon v. State, 253 S.W.3d 699, 707 (Tex.

Crim. App. 2008). Reconciliation of conflicts in the evidence is within the factfinder’s

exclusive province. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). We

resolve any inconsistencies in the testimony in favor of the verdict. Bynum v. State, 767

S.W.2d 769, 776 (Tex. Crim. App. 1989).

       We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773

(Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily




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restrict the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Id.

B.     Lewd Exhibition

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

with intent to promote, “visual material” depicting a minor engaging in “sexual conduct.”

TEX. PENAL CODE ANN. § 43.26 (a), (e). “Sexual conduct” includes the “lewd exhibition of

the genitals.” Id. §§ 43.25(a)(2), 43.26(b)(2). With respect to counts seven through ten,

the indictment charged appellant with “intentionally and knowingly possess[ing] with intent

to promote visual material that visually depicted . . . [the] lewd exhibition [of a child’s]

genitals.”

       Appellant argues that the images do not depict the “lewd exhibition of genitals”

when applying the six-factor test 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).” Id. 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;




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       (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;

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

Id. Texas courts are not bound by Dost when determining whether an image depicts a

“lewd exhibition.” State v. Bolles, 541 S.W.3d 128, 142 (Tex. Crim. App. 2017). Rather,

the Dost factors “serve only as a guide, and no single factor is dispositive.” Id. at 142–

143. Whether an image constitutes child pornography as defined by the penal code is a

question that must be answered on a case-by-case basis. Id. at 143. Because the Dost

factors aid Texas courts in assessing whether an image is lewd, we will consider the

factors in determining whether the images at issue depict the “lewd exhibition of the

genitals.” See id.; Perkins v. State, 394 S.W.3d 203, 208 (Tex. App.—Houston [1st Dist.]

2012, pet. ref’d).

       The four images at issue are similar in all relevant respects. The child appears to

be fully nude, and her genital area is not just the focal point of the images, it is the only

area of the child’s body depicted. In light of the images’ specific focus, they could be

viewed as unnatural and sexually suggestive. See Bolles, 541 S.W.3d at 143. For the

same reason, the images could be viewed as suggesting sexual coyness or a willingness

to engage in sexual activity. Finally, considering the close-up depiction of the genitals,

the images appear to have been intended or designed to elicit a sexual response in the



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viewer. See id. at 143 (explaining that it is the depiction, not the minor, that must bring

forth the genitals in such a way to excite or stimulate).

       Guided by the Dost factors, we conclude that a rational jury could have found

beyond a reasonable doubt that the subject images depicted the lewd exhibition of the

child’s genitals. See Johnson, 364 S.W.3d at 293–94; see also Bolles, 541 S.W.3d at

143–44 (holding that image manipulated and edited to display a close-up of a child’s

genital area constituted the lewd exhibition of a child’s genitals). We overrule appellant’s

sole issue.

                         III.   CLERICAL ERROR IN THE JUDGMENT

       We note that the judgment of conviction for the offense of indecency with a child

by exposure references penal code section 43.25; however, the correct penal code

provision for this offense is section 21.11.       See TEX. PENAL CODE ANN. § 21.11

(“Indecency With a Child”).

       An appellate court may “modify the trial court’s judgment and affirm it as modified.”

TEX. R. APP. P. 43.2(b). We have “the power to correct and reform a trial court judgment

‘to make the record speak the truth when [we] ha[ve] the necessary data and information

to do so.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no

pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, writ ref’d));

see also Bernard v. State, 401 S.W.3d 145, 150 (Tex. App.—Houston [14th Dist.] 2011,

pet. ref’d).




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       Based on the record, we modify the trial court’s judgment for the offense of

indecency with a child by exposure to reflect section 21.11 of the penal code as the statute

for the offense. See TEX. R. APP. P. 43.2(b).

                                        IV.     CONCLUSION

       We affirm the trial court’s judgments as modified. 3

                                                                       LETICIA HINOJOSA
                                                                       Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
15th day of November, 2018.




       3  There are separate judgments of conviction in this case for each count. See Morales v. State,
974 S.W.2d 191, 192 (Tex. App.—San Antonio 1998, no pet.) (explaining that multiple convictions arising
from a single proceeding may be memorialized in separate judgments); see also Sandoval v. State, No.
08-11-00283-CR, 2013 WL 5873296, at *16 (Tex. App.—El Paso Oct. 30, 2013, pet. ref’d) (mem. op., not
designated for publication) (same).



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