      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00345-CR



                                   Wesley Schaefer, Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
         NO. CR-10-0489, HONORABLE GARY L. STEEL, JUDGE PRESIDING



                            MEMORANDUM OPINION

               Appellant Wesley Schaefer was indicted on one count of continuous sexual abuse of

a child or children under fourteen years of age and 127 counts of possession of child pornography.

See Tex. Penal Code §§ 21.02, 43.26. The charges arose after Schaefer’s girlfriend discovered

hundreds of nude images of children on his computer, including photographs and videos taken on

Schaefer’s cell phone of his girlfriend’s six-year old daughter, seven-year old niece, and seven-year

old nephew and other unidentified children. Schaefer pleaded not guilty to the count of continuous

sexual abuse but pleaded guilty to all of the remaining child pornography charges. A jury convicted

him of all counts. The jury then assessed his punishment at life imprisonment for the continuous

sexual abuse of a child count and ten years’ imprisonment for each count of child pornography. The

trial court’s judgments of conviction ordered that the life-imprisonment sentence and ten of the

ten-year sentences for child pornography run consecutively, with the remaining child pornography

sentences to run concurrently.
               In two issues, Schaefer contends: (1) that the evidence is insufficient to support his

conviction for continuous sexual abuse of a child and (2) that the trial court’s cumulation order is

insufficient to cause consecutive sentencing. The parties are familiar with the facts, procedural

history, and applicable standards of review. Accordingly, we will not recite them here except as

necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App.

P. 47.4. We will affirm the trial court’s judgment.


                             SUFFICIENCY OF THE EVIDENCE

               A person commits the offense of continuous sexual abuse of a young child if, during

a period that is thirty days or more in duration, the person commits two or more acts of sexual abuse

against a child younger than fourteen years of age—regardless of whether the acts of sexual abuse

are committed against one or more victims. Tex. Penal Code § 21.02(b). Under the statute, an act

of sexual abuse is defined as including, among other acts, a sexual performance by a child under

Penal Code section 43.25. Id. § 21.02(c)(6). Here, the indictment alleged that Schaefer committed

the offense of continuous sexual abuse of a child by committing multiple offenses of sexual

performance by a child. A person commits the offense of sexual performance by a child “if knowing

the character and content thereof, he employs, authorizes, or induces a child . . . to engage in sexual

conduct or a sexual performance.” Id. § 43.25(b). Specifically, the indictment alleged that—over

the course of several months—he committed multiple offenses of sexual performance by a child by

inducing his girlfriend’s youngest daughter, her nephew, and/or an unknown child to engage in

multiple instances of sexual conduct by a lewd exhibition of the genitals or masturbation.




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                In his first issue on appeal, Schaefer contends there is insufficient evidence to support

his conviction because the State failed to prove that he induced the children to engage in the sexual

performances he recorded. Schaefer does not contest that he shot the photographs and videotapes

at issue in this case or that they depict a lewd exhibition of the children’s genitals or masturbation.

Rather, his sole argument is that he was taking “advantage of a situation which he did not curtail,”

and therefore, there is no evidence of inducement. We disagree.

                The evidence at trial consisted of multiple photographs and videos of nude children

taken on Schaefer’s cell phone and downloaded to his personal computer. The photos and videos

were taken over the course of several months. Schaefer’s girlfriend identified three of the children

in the photographs and videos as her youngest daughter—age six years old, her niece—age seven

years old, and her nephew—age seven years old. In some photographs, witnesses were not able to

identify the children because the images were only of the children’s genitalia. Witnesses, including

the State’s forensic investigator, testified that all of the children appeared to be younger than

fourteen. The forensic computer investigator further testified that the images were almost “identical

in content and character” to other pornographic images of children that Schaefer had downloaded

to his computer from the Internet. The majority of the photographs depicted the children in the

bathtub, including a photo of a nude girl in the bathtub with her legs spread and pushing her genitals

against the stream of water falling from the tub faucet. Several of the photos depict the girls’ vaginal

areas, and in some of these photos the girls’ legs are spread to such a degree that the inside of the

children’s vaginal openings are exhibited. The State also introduced similar photos that Schaefer

had hidden in his sock drawer depicting his own daughter nude, at the age of six, smiling at the



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camera while standing in the tub with one foot on the sill of the tub exhibiting her genitals.1

Several witnesses, including family members and police investigators, testified that the images

appeared posed.

               In addition to the photos, the State introduced two videos that had been taken on

Schaefer’s cell phone and downloaded to his computer. The first video depicts the girlfriend’s

youngest daughter lying naked on Schaefer’s bed. The child is lying on her back looking into the

camera and has her legs pulled back behind her elbows and is clutching her feet, fully exhibiting her

vaginal opening and anus. While she is lying there, the child is doing different repetitive butterfly

movements with her legs and is counting each movement. She is also looking at and asking the

person off camera questions. At one point, the child asks whether the person off camera is filming

her. A man responds, “No, I’m texting.” The child answers, “You’re lying to me.” A witness

identified Schaefer’s voice on the tape. A police investigator testified that the child was “obviously

responding to something somebody was saying or had told her” based on the unnatural position that

she is lying in, her repetition, and her seeking approval from the person off camera. The child’s

mother testified that the contents of the video were “unusual for her household.” In the second

video, the same child is lying on her stomach naked on Schaefer’s bed again and her genitals are

exhibited from behind. An arm can be seen attempting to reposition the child’s legs. A witness also

identified Schaefer’s voice in this video.




       1
         The Legislature created the offense of continuous sexual abuse of a child in 2007. See Tex.
Penal Code § 21.02 (effective September 1, 2007). The photos of the Appellant’s daughter were
taken prior to the creation of the charged offense but were offered to show intent, plan, motive, and
opportunity. See Tex. R. Evid. 404(b).

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                None of the complainants identified in the photos or videos testified at trial. The

girlfriend’s two older daughters did testify as to their experiences and observations living with

Schaefer. The girls testified that their mother had three young daughters when she moved in with

Schaefer, including them and their youngest sister who is depicted in the videos and many photos.

Schaefer also had three young daughters living with him. In addition to the six young girls living

in the house, many young cousins frequently visited—two of whom were identified in the

photographs. The girls further testified that their mother worked two jobs and was frequently absent

from the home. While their mother was gone, she entrusted Schaefer with caring for her daughters

and the children had “to abide by his rules” because he was “the boss.” When they were home alone

with Schaefer, the girls testified that he would select one child to have “movie time” with him in his

room. The girls testified that he rarely had “movie time” with the older girls but would spend hours

with the younger girls in the house alone in his room with the door locked and would instruct the

other children to not disturb them. The girls further testified that their youngest sister started having

frequent pain in her vaginal area after they moved in with Schaefer and that he would spend hours

with her alone in his room “to check her private” for infection.

                With regard to bath time, the girls testified that Schaefer would enter the bathroom

when the girls were bathing—purportedly to use the toilet—and would stay in the bathroom “almost

the whole time” that they were in the tub and that this practice occurred “almost every single time”

the girls took a bath. The second youngest daughter testified that she would bathe with the other

girls with the shower curtain shut but that Schaefer would always strike up a conversation with them

while he was on the toilet and would then open the shower curtain—telling them that the curtain



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should be open “because it’s was rude not to see who you’re talking to.” During bath time, the girls

testified that Schaefer would always bring his cell phone with him into the bathroom and “was

always doing something on his phone.” The girls also testified that to their knowledge their youngest

sister always bathed with another child, but in some of the photos taken on Schaefer’s phone, she

appears to be the only child in the bathroom.

                The girls further testified that they noticed—shortly after moving in with Schaefer—

their youngest sister had started to frequently walk around the house naked after bath time. One

sister testified that Schaefer “didn’t specifically ask us” to walk around the house nude, but testified

that he would get “upset” with her for “telling [the younger girls] to get dressed.” The other sister

testified that when she told her youngest sister to wear clothes in the house, Schaefer “didn’t agree

. . . with me saying that she needs to go get dressed and . . . cannot walk around without clothes.”

She further testified that Schaefer’s “argument” for why her sister should not wear clothes was that

because she was “little,” she “doesn’t have anything to show . . . [and] doesn’t have anything

necessarily to be worried about walking around the house without anything on.” The girls also

testified that shortly after moving in with Schaefer they noticed a change in their youngest sister’s

demeanor as she became very jealous of Schaefer spending time with anyone else. She also became

“protective” of him and would be “very vicious” toward her sisters when they asked any questions

about her relationship with Schaefer.

                Viewing the foregoing evidence in the light most favorable to the jury’s verdict, we

conclude that any rational trier of fact could have found that Schaefer induced—through his

persuasion or influence—young children living and visiting in his home to engage in sexual conduct



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by a lewd exhibition of their genitals. While the term “induce” is not defined by the Penal Code,

courts have interpreted the term using its commonly understood meaning of “to move and lead by

persuasion or influence” or “to persuade, prevail upon, or bring about.” See Bell v. State,

326 S.W.3d 716, 720 (Tex. App.—Dallas 2010, pet. ref’d, untimely filed); see also Dornbusch

v. State, 156 S.W.3d 859, 867 (Tex. App.—Corpus Christi 2005, pet. ref’d) (adopting common

definition of “induce,” which is “to move by persuasion or influence” or “to bring about by

influence”); Baker v. State, No. 10-11-00449-CR, 2012 WL 5458474, at *10 (Tex. App.—Waco

Nov. 8, 2012, no pet.) (mem. op., not designated for publication) (same); Dorval v. State,

No. 03-03-00570-CR, 2004 WL 1685442, at*1 (Tex. App.—Austin July 29, 2004, no pet.)

(mem. op., not designated for publication) (same). There is no requirement—either in the statute

or the common understanding of the word—that inducement be verbal and explicit or that the

defendant use force. Dornbusch, 156 S.W.3d at 867. Rather, there is sufficient evidence of

inducement where a defendant uses his position of authority to create a situation in which a child is

unable or afraid to refuse his sexual advances. See id.

               Here, Schaefer contends in his brief there is no evidence of inducement because the

sisters who did testify stated “that [he] did not persuade them to do anything and painted a picture

of one who took advantage of a situation he did nothing to dispel.” His argument, however, stands

in direct contradiction to the sisters’ actual testimony. The sisters testified that Schaefer was the

“boss” at their home and intentionally and methodically used his authority to bring about situations

where he could persuade or influence children living in the home to lewdly exhibit their

genitals—including checking their sister’s “private” for infection for hours behind a locked door,



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discouraging the children from wearing clothing in the home, and purposely invading the privacy

of their bath time. See Dornbusch, 156 S.W.3d at 868 (sufficient evidence of inducement where

defendant used position of authority to create situation where minor was afraid or unable to refuse

his sexual advances). Further, there was sufficient evidence for a rational trial of fact to conclude

beyond a reasonable doubt that Schaefer persuaded, prevailed upon, or brought about the sexual

conduct depicted in the photographs based on their sexual content, as well as the unnatural position

of the children in some of the photographs, the multitude of victims, and the similarity of the

photographs to the child pornography that Schaefer had downloaded from the Internet. See Garay

v. State, 954 S.W.2d 59, 62 (Tex. App.—San Antonio 1997, pet. ref’d) (evidence sufficient to

support conviction for sexual performance by child by inducement where defendant admitted taking

close-up photograph of five-year old’s genitalia while child had her legs spread and jury

rejected defense that pictures were taken to document sexual abuse); see also Garcia v. State,

367 S.W.3d 683, 687 (Tex. Crim. App. 2012) (jury may draw reasonable inferences supported

by evidence).

                Moreover, there was direct evidence on the videotapes that Schaefer induced the

filmed child to engage in sexual conduct. In one video, Schaefer was directly interacting with the

nude child who was aware that she was being filmed while butterflying her legs and lewdly

exhibiting her genitals. Further, there was sufficient evidence for the jury to infer that Schaefer had

induced the lewd exhibition, as the child’s mother testified that her daughter’s behavior was

“unusual” and the child is an unnatural position, appears to be counting her repetitive actions, and

knows Schaefer is filming her. Cf. Scott v. State, 173 S.W.3d 856, 863 (Tex. App.—Texarkana



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2005), rev’d in part on other grounds, 235 S.W.3d 255 (Tex. Crim. App. 2007) (no evidence

defendant induced boys to masturbate in shower when there was no evidence defendant encouraged

masturbation and boys were not aware they were being observed). In the other video, a hand

attempts to move the child’s legs to obtain a clearer view of the genitals. This evidence at trial

directly refutes Schaefer’s argument that he did not induce the children’s behavior and was merely

taking “advantage of a situation which he did not curtail.” Based on the foregoing, we conclude that

a rational trier of fact could have found that Schaefer induced these lewd exhibitions. We hold the

evidence is sufficient to support the conviction and overrule Schaefer’s first point of error.


                                          SENTENCING

                The jury convicted Schaefer of one count of continuous sexual abuse of a child

(Count I) and 127 counts of child pornography (Counts II–CXXVIII). The jury then assessed

punishment at life imprisonment for the count of continuous sexual abuse and ten years’

imprisonment for each count of child pornography. The State requested that the court order the

sentences to run consecutively. The trial court agreed to stack the life sentence for Count I with the

sentences for the counts of child pornography arising from the photographs taken on Schaefer’s

phone—Counts 72, 120, 121, 122, 123, 124, 125, 126, 127 and 128—but did not stack the sentences

for the counts of child pornography that Schaefer had downloaded from the Internet. Below is the

trial court’s oral pronouncement at sentencing:


       Court:          I will stack 72, 120, 121, 122, 123, 124, 125, 126, 127 and 128. The
                       intention of the Court is to stack those which came from the cell phone,
                       which were pictures of children that he was to be in charge of.



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       Prosecutor:     So that’s ten counts that the Court is stacking, total, by my count.

       Court:          72, plus - - actually, I think it’s - -it’s Count I and then it’s Count 72 and then
                       it’s 120 through 128.

       Prosecutor:     Right.

       Court:          So it’s a total of ten counts: Nine of the 10 years, one of life. That is the
                       ruling of the Court.


The trial court’s written judgment provides:


       The following counts shall run consecutively: Count I, Count 72, Count 120, Count
       121, Count 122, Count 123, Count 124, Count 125, Count 126, Count 127, Count
       128. The rest of the counts are concurrent. The Defendant is sentenced to life
       without parole, plus ten consecutive ten-year sentences.


                Schaefer does not challenge the trial court’s decision to stack the sentences. Rather,

he contends only that the oral pronouncement and the written judgment are “hopelessly ambiguous”

as to which sentences are to be served consecutively and in what order they are to be served. A

defendant’s sentence must be orally pronounced in his presence. Taylor v. State, 131 S.W.3d 497,

500 (Tex. Crim. App. 2004). The judgment, including the sentence assessed, is merely the written

declaration and embodiment of that oral pronouncement. Id. When there is a conflict between the

oral pronouncement of the sentence and the sentence in the written judgment, the oral

pronouncement controls. Id. But if the oral pronouncement is merely ambiguous, the jury’s

punishment verdict, the court’s pronouncement, and the written judgment should be read together

in an effort to resolve the ambiguity. Aguilar v. State, 202 S.W.3d 840, 843 (Tex. App.—Waco




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2006, pet. ref’d). Moreover, the context of the court’s utterances should be considered. See Hill

v. State, 213 S.W.3d 533, 536 (Tex. App.—Texarkana 2007, no pet.).

                Here, when the trial court’s entire explanation is considered in context, it is clear the

court intended that the ten 10-year sentences for Counts 72, 120, 121, 122, 123, 124, 125, 126, 127,

and 128 would run consecutive to the life sentence. Thus, the trial court listed eleven total counts

that it intended to run consecutively—the life sentence plus the ten 10-year sentences for child

pornography. We note, however, that the trial court later stated that it intended to stack only “ten

counts: Nine of the 10 years, one of life.” To the extent there is any ambiguity as to whether the trial

court intended to stack nine or ten of the ten-year child pornography sentences, it is clear that the

parties understood that the trial court’s intent was to stack all of the child pornography sentences

from photos taken on Schaefer’s cell phone. Further, this intent is memorialized in the written

judgment, which provides that all ten of these sentences are to run consecutively.

                Considering that the trial court announced its intent to stack the life sentence and all

of the sentences from the child pornography taken on Schaefer’s phone and that this intent is

reflected in the written judgment, we conclude any potential ambiguity in the stacking order is

resolved.   “The content of the oral pronouncement makes clear that all understood the

pronouncement to be what was ultimately incorporated into the written order.” See Hill, 213 S.W.3d

at 536–37. Accordingly, we overrule Schaefer’s second issue on appeal.


                                           CONCLUSION

                For the foregoing reasons, we affirm the judgments of conviction of the trial court.




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                                              ____________________________________________

                                              Melissa Goodwin, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed

Filed: July 10, 2014

Do Not Publish




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