663 S.W.3d 716
Tex. Crim. App.2022Background
- Appellant Carlos Romo Jr. was arrested after an investigation into alleged sexual abuse; a French-language DVD titled “Nudist HDV” was found in his office.
- The DVD is presented as a “fully-legal nudist documentary” and depicts a children’s beauty competition with multiple naked girls (some partially shaved), occasional framing that includes their genitals, and a winner who appears prepubescent.
- Several girls appear nervous or uncomfortable during filming; the video contains no explicit sexual acts and includes opening text disclaimers about legality and documentary intent.
- Romo was convicted of possession of child pornography; he appealed, arguing the DVD did not show a “lewd exhibition of the genitals.”
- The court of appeals applied the Dost factors and found the evidence legally insufficient; a dissent argued the film’s arrangement was designed for a pedophile audience.
- The Texas Court of Criminal Appeals reversed the court of appeals, applying Dost guidance and holding the DVD could be viewed as a lewd exhibition intended to elicit a sexual response; the conviction and sentence were reinstated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the “Nudist HDV” DVD constitutes a "lewd exhibition of the genitals" (child pornography) under Texas law | State: overall presentation, nudity including visible genitals, pageant context, and framing were designed to elicit sexual response from viewers seeking young, naked girls | Romo: lack of sexual activity, no close‑ups or explicit focus on genitals, documentary disclaimers — evidence insufficient | Court: Video is child pornography; a rational juror could find a lewd exhibition designed to elicit sexual response; reversal of court of appeals and reinstatement of conviction |
Key Cases Cited
- United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (six-factor framework for assessing whether depictions of nude children are lascivious)
- State v. Bolles, 541 S.W.3d 128 (Tex. Crim. App. 2017) (magnified/cropped image of child’s genitals held lascivious; Dost factors applied)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for assessing sufficiency of the evidence)
- Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) (restating Jackson standard in Texas criminal sufficiency review)
- United States v. McCall, 833 F.3d 560 (5th Cir. 2016) (noting focus on whether the depiction, not the child, is intended to excite or stimulate)