Bolles v. State, 512 S.W.3d 456

Background

On Feb. 14, 2014, Mark Bolles used a public library computer; library tech and an FBI agent observed him photographing images on the screen. Police forensics recovered several images from his phone, including a full Mapplethorpe photograph of a young girl ("Rosie") showing partial genital exposure and a close-up cropped photo of that region taken from the full image.
Bolles was indicted on three counts of possession of child pornography; the State abandoned one count and proceeded on two. The trial court convicted on Count 1 (relating to the full and cropped images) and acquitted on Count 2; Bolles appealed claiming insufficient evidence.
The statutory element at issue required proof that the image depicted a child "engaging in sexual conduct," here alleged as a "lewd exhibition of the genitals" under Tex. Penal Code §§ 43.25, 43.26.
The court adopted the federal Dost six-factor test as a non-exclusive tool for assessing whether an image is "lewd" (focal point, setting, pose, nudity, sexual coyness, intent to elicit sexual response).
Applying Dost and the record, the court held the full Mapplethorpe image was not lewd: genital exposure was minor and not focal, the setting was non-sexual, posture did not compellingly direct attention to genitals, and there was no contextual evidence of sexual intent.
The court also held the cropped image could not sustain conviction because it was created by Bolles in 2014 (when the subject was an adult), so it did not depict a person under 18 "at the time the image was made." The conviction on Count 1 was reversed and a judgment of acquittal rendered.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Bolles)	Held
Whether evidence suffices to prove a "lewd exhibition of the genitals" in the full Mapplethorpe photo	The full image is lewd (genital area is attention-grabbing; posture and selective exposure indicate sexual purpose)	The full image is artwork and not lewd; the cropped portion alone cannot make the full image lewd	Full image not lewd — insufficent evidence under Dost factors; reversal and acquittal
Whether the cropped image satisfies the statute's requirement that the depicted person be under 18 "at the time the image was made"	Cropped image should be treated as "made" in 1976 along with the original, so it depicts a minor	Cropped image was created by Bolles in 2014, when subject was an adult, so it cannot satisfy the statute	Cropped image was made in 2014; therefore it does not depict a minor at time made and cannot support conviction
Whether a presumption should apply that nudity of a minor equals lewdness	Courts should presume nudity of young children is lewd absent a reason for nudity shown	No special presumption; sufficiency must be decided on individual facts	Court declined to adopt a presumption; analyze each case on its facts
Whether trial court comments focusing on the cropped image control appellate sufficiency review	State: trial judge’s comments should be disregarded as findings; both images are part of the record	Bolles: trial court appeared to rely on the cropped image	Appellate court disregarded trial-court comments as findings; both images considered in sufficiency review

Key Cases Cited

McKay v. State, 474 S.W.3d 266 (Tex. Crim. App. 2015) (Jackson standard and credibility deference in sufficiency review)
Jackson v. Virginia, 443 U.S. 307 (Sup. Ct. 1979) (standard for sufficiency of evidence)
Anderson v. State, 416 S.W.3d 884 (Tex. Crim. App. 2013) (hypothetically correct jury charge for sufficiency analysis)
United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (Dost six-factor test for lascivious/lewd evaluation)
United States v. Steen, 634 F.3d 822 (5th Cir. 2011) (discussing Dost factors and lasciviousness)
New York v. Ferber, 458 U.S. 747 (Sup. Ct. 1982) (child pornography not protected by First Amendment principles requiring prurient-interest showing)
Rabb v. State, 434 S.W.3d 613 (Tex. Crim. App. 2014) (due-process requirement to reverse if reasonable doubt exists)