394 S.W.3d 203
Tex. App.2012Background
- Perkins appeals convictions for improper visual recording and promotion of child pornography in Brazoria County.
- CT, 16, lived with Perkins and his wife after her mother recovered from surgery; CT stayed in their home and attended the same school.
- Perkins engaged in an affair with Gowan’s wife; CT moved out after an argument over the affair.
- Gowan gave two DVDs containing videos from Perkins’s bathroom vent showing CT nude; police later traced the videos to Perkins.
- Police found a small-lens camera and wiring in Perkins’s master bedroom; Perkins admitted placing the camera in the bathroom vent and later viewed the videos with Gowan and his wife; Perkins claimed others had access to the camera.
- The DVDs ended up with Perkins’s friend Gowan, who gave them to CT’s aunt and uncle, triggering the investigation and ultimately the two convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legal sufficiency of evidence to identify Perkins as videographer | Perkins owned/possessed camera; no direct testimony of recording | Ownership alone proves nothing; others had access | Sufficient circumstantial evidence supports recording by Perkins |
| Whether the videos constitute lewd exhibition under §43.26(e) | Images depict a lewd exhibition of genitals | Images not inherently lewd; private context matters | Rational jury could find lewdness based on voyeuristic context and circumstances |
| Whether Perkins promoted child pornography by giving DVDs to Gowan | There is no direct proof of delivery | Gowan possessed and later gave to CT’s relatives; evidence supports delivery | Rational jury could conclude Perkins promoted by giving DVDs to Gowan |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for legal sufficiency review in criminal cases)
- Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (defining sufficiency and standards of review for elements)
- Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) (aggregate evidence support standard; circumstantial evidence probative)
- Cooper v. State, 326 S.W.3d 757 (Tex. App.—Texarkana 2010) (circumstantial evidence can establish videography; ownership alone insufficient)
- Alexander v. State, 906 S.W.2d 107 (Tex. App.—Dallas 1995) (treats 'lewd' as common understanding; Dost framework adopted by Texas courts)