OPINION
Opinion by
Appellant Mark Edward Bolles challenges his conviction for one count of possession of child pornography. See Tex. Penal Code Ann. § 43.26(a) (West, West-law through 2015 R.S.). We reverse and render.
I. Background
A. Factual Background
On February 14, 2014, appellant entered the Corpus Christi Library and used one of the computers available to library patrons to browse the internet. Alex Hatley, the library’s technology manager, noticed appellant viewing images of “what looked like partially clothed individuals.” Hatley testified that he told a secretary to contact law enforcement because the images appeared to him to depict children.
Agent Brian Johnson of the Federal Bureau of Investigation arrived at the library in response to the call. At trial, Agent Johnson testified that he observed appellant from a distance and confirmed that he appeared to be viewing “what looked like nude children to me, and he was also holding a cell phone up to the screen and taking photographs of the screen.” Agent Johnson briefly detained appellant and spoke to him. After appellant executed a written release consenting to a search of his phone, Agent Johnson released appellant and turned the phone over to the Corpus Christi Police Department’s computer forensic division. The forensics division later recovered from the phone sever
B. Legal Background
Appellant was indicted for three counts of possession of child pornography related to several of the images found on his phone. At the beginning of the bench trial, the State abandoned Count 3 and proceeded on Counts 1 and 2. Count 1 related to two images. The first— 0214041031.jpg — is a complete reproduction of a photograph entitled Rosie by the nationally-known photographer Robert Mapplethorpe. Rosie depicts a young female child seated on a stone bench. She sits with her left leg drawn inwards towards her body while her right leg is vertical and bent at the knee. She touches the side of the bench with her right arm while her left arm reaches down in the direction of her left foot. She wears a dress but no underwear. As a result, her vagina is visible in a small part of the extreme lower portion of the image. The parties stipulated in writing that Mapplethorpe created the photograph in 1976 and that the original photograph is in the collection of the Guggenheim Museum in New York City. For clarity, we will refer to 0214041031.jpg as the “full image” and the minor depicted in it as “Rosie.”
The second image — 0214041031a.jpg—is a close-up of the full image which depicts only the vagina and a small portion of the edge of Rosie’s dress. Appellant apparently created 0214041031a.jpg by using the zoom function on his camera phone to take a picture of that portion of the full image. We will refer to 0214041031a.jpg as the “cropped image.”
The trial court convicted appellant of Count l,
II. Discussion
Appellant asserts in a single issue that the evidence is insufficient to support his conviction. He reasons that the cropped image cannot be lewd because it is only a portion of the full image, which is a work of art and not lewd. The State responds that the full image is lewd and sufficient to support appellant’s conviction. The State argues in the alternative that the cropped image is lewd even if the full image is not.
A. Standard of Review and Applicable Law
When reviewing the sufficiency of the evidence, we consider all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found that the State proved all the essential elements of the offense beyond a reasonable doubt. McKay v. State,
We measure the sufficiency of the evidence against the essential elements of the offense defined by the hypothetically correct jury charge for the case. Anderson v. State,
Under a hypothetically correct jury charge, appellant is guilty of possession of child pornography if he knowingly or intentionally possessed visual material which visually depicts “a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct,” and he knew the material depicts the child in this manner. Tex. Penal Code Ann. § 43.26(a). Section 43.26 incorporates the definition of “sexual conduct” in section 43.25, which criminalizes sexual performance by a child. See id. § 43.26(b)(2). Section 43.25 defines “sexual conduct” to include a variety of behaviors, but the indictment listed only one: “lewd exhibition of the genitals.” See id. § 43.25(a)(2) (West, Westlaw through 2015 R.S.). Thus, under the hypothetically correct jury charge for the case, the State was required to prove that appellant possessed an image of a minor engaging in lewd exhibition of the genitals and that he knew the image depicted the child in that manner. See Thomas v. State,
B. Analysis
1. The Trial Judge’s Comments
We first address the effect on our sufficiency analysis of the trial court’s comments when announcing its verdict. When announcing its verdict on Count 1, the trial court judge appeared to refer only to the cropped image:
[Appellant] has altered the image and almost created a different image by blowing it up and changing it, and I know you have to take the image as a whole but when you create a different image then you can only take that image as a whole so I’m going to find him guilty on Count 1.
It was suggested in the briefs and at oral argument that the trial court’s focus on the cropped image constituted an implied conclusion of law that the full image was not lewd. The State responds that we must disregard the trial court’s comments to the extent it intended them as findings or conclusions.
We agree with the State. When reviewing the sufficiency of the evidence that supports a conviction “an appellate court should disregard a trial court’s findings of fact and conclusions of law in their entirety, even when they support the trial court’s judgment.” Robinson v. State, 466 5.W.3d 166, 173 (Tex.Crim.App.2015). Regardless of whether the State proceeded on both images, each image was admitted into evidence, and so each is part of our
2. The Meaning of “Lewd”
Texas courts have recognized that “lewd” has a common meaning which juries are presumed to know and apply. E.g. Tovar v. State,
To assist us in determining whether an image rises to the level of a “lewd” exhibition, both parties suggest that we adopt the six-factor test developed by the federal district court in United States v. Dost.
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;
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.
United States v. Steen,
The definition of “sexually explicit conduct” in the federal statute criminalizing child pornography refers to a “lascivious” exhibition of the genitals rather than the “lewd” exhibition in the Texas statute. See 18 U.S.C.A. § 2256(2)(A)(v) (West, Westlaw through P.L, 114-143). However, the original version of the statute referred to a “lewd” exhibition until statutory amendments replaced the term “lewd” with “lascivious.” See Protection of Children Against Sexual Exploitation Act of 1977, Pub.L. No. 95-225, § 2(a) 92 Stat. 8, 9 (1978) (current version codified at 18 U.S.C. § 2256(2)(A)(v)). In spite of the statutory amendments, the federal courts of appeals “have uniformly treated the terms ‘lewd’ and ‘lascivious’ as materially equivalent.” United States v. Frabizio,
4. The Full Image
We now turn to the question of whether the full image is lewd.
a. May We Presume the Full Image is Lewd?
The State proposes that we adopt a presumption that an image depicting a nude minor constitutes a lewd exhibition of the genitals unless a reason for the nudity appears in the picture. According to the State’s brief, this presumption would operate as “a sliding scale of protection, as in other areas of the law, based on the age of the subject” so that “the younger the subject [of the visual depiction] the more protection should be afforded and the less should be required to find that the exhibition of her genitals is lewd and unacceptable.” The State argues that if we apply this presumption we can presume that the full image is lewd because of Rosie’s age and the apparent lack of a reason for the nudity apparent within the image.
We decline to adopt the State’s presumption. While the absence of an appropriate reason for nudity within an image will logically be relevant in many cases, in a sufficiency review “each case must be analyzed on its own facts.” Wise v. State,
b. Is the Full Image Lewd Under the Dost Factors?
We next analyze the full image under the Dost factors. The State argues that Rosie’s vagina is essentially the focal point of the image even though it is not in the center of the frame because it is the most “attention-grabbing aspect.” The State admits that the setting of the image is not sexually suggestive, but also argues that it does not suggest an innocent reason for the nudity. Regarding Rosie’s posture, the State argues that it is not natural “but coached, as further evidenced by how intently she is staring at the photographer who is presumably telling her what to do.” On the degree of nudity, the State reasons that the “selective exposure of only the child’s genital region” is evidence that the image was intended to sexually excite or shock the viewer. In the State’s view, “[i]t seems evident that the purpose [of the full image] is either to excite or to shock and offend the viewer, or some combination thereof.” The State concludes its argument by asking us to consider the entire image and determine that a reasonable factfinder could conclude that Mapplethorpe
After considering all of the evidence, we conclude that the full image is insufficient to support appellant’s conviction because it is not lewd.
First, Rosie’s vagina is not the focal point of the image; it appears only at the very bottom of the frame. See United States v. Amirault,
Second, the setting of the image is a stone bench with what appears to be part of a plant towards the lower left area of the frame. Even though the exact location of the bench is not in the record, a stone bench is not a place traditionally associated with sexual activity. See Franz,
Third, we agree that Rosie’s posture does reveal her vagina and that she would be appropriately covered by her clothing if her posture was more conventional. However, even if we assume that Mapplethorpe posed her in this way, this factor suggests at most that he sought to take a picture which included her vagina. The posture does not emphasize the vagina, direct the viewer’s attention to it, or otherwise suggest sexual activity. Cf. Franz,
Fourth, the factor of nudity is present because Rosie’s vagina is visible. This factor is not sufficient by itself to enable a rational trier of fact to conclude the image is lewd because the statute requires more than nudity to reach that level. We must interpret a statute in a way that gives meaning to each word and phrase if reasonably possible. See Dobbs v. State,
Among the first five Dost factors, only the presence and degree of nudity could support a finding of lewdness. As we explained in greater detail above, a rational fact finder could not conclude that the image was lewd based on the nudity alone, but must have additional evidence that would enable it to conclude the full image was lewd. See Tovar,
The absence of indications of sexual display within an image is not necessarily fatal to the State’s case because we may also consider the circumstances surrounding the creation of the image. E.g. Perkins,
To sum up, there is only the factor of nudity within the full image to reflect Mapplethorpe’s intent, and we have no information of the context surrounding the creation of it. We may not uphold a verdict based on speculation regarding Mapplethorpe’s possible intentions. See Rabb,
5. The Cropped Image
We next consider the cropped image, which the State argues constitutes a lewd exhibition in its own right.
As a threshold matter, we address an issue raised by the State separate from appellant’s sufficiency challenge. A person commits the offense of possession of child pornography by possessing “visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct” and “the person knows the material depicts the child” in this manner. Tex. Penal Code Ann. § 43.26(a) (emphasis added). The State candidly points out that if we conclude that the full image is not lewd an issue arises regarding when the cropped image was “made.” The State concedes that the parties’ stipulation conclusively establishes that the full image was made in 1976 and so “[o]ne might argue that the cropped image was ‘made’ when [appellant] cropped it in 2014 to render it, if it was not already, lewd, offensive, and sexually suggestive, at least to the extent that he thereby created a new or newly pornography depiction of the child.” Nevertheless, the State insists that the better argument is that the cropped image was also “ ‘made’ in 1976 when the photograph was taken and the child was clearly under 18.” Put another way, the State’s argument is that the cropped image “was ‘made’ at the time the photograph was taken, regardless of the fact that it was later altered to further sexualize the conduct in question.”
The State provides no supporting case law for its argument, and we have found none interpreting this portion of section 43.26(a). Nevertheless, we disagree with the State’s argument regarding when the cropped image was made. The statute does not define what the Legislature meant by “at the time the image of the child was made,” but the ordinary meaning of the word “make” is “to cause (something) to exist.” Make, Black’s Law Dictionary (9th ed.2009). Thus, the ordinary meaning of the statutory language is that the minor depicted in the image must have been below the age of 18 when the image was created. We agree with the State that the stipulation established that the full image fulfills this requirement. But we have already held that the full image does not depict a lewd exhibition of the genitals. If we accept the State’s argument that the cropped image is distinct from the full image and thus has distinct content, the cropped image must have been made at a different time. The only evidence in the record regarding the cropped image is that it was made when appellant manipulated the full image in 2014 at the Corpus Christi library, and there is no dispute that Rosie was over the age of 18 at that time. Whether or not the cropped image depicts a lewd exhibition of the genitals — an issue we express no opinion on — a reasonable jury could not conclude that it depicts a person who was under the age of 18 “at the time the image was made.” See Tex Penal Code Ann. § 43.26(a)(1); see also Dobbs,
6. Summary
In sum, we hold that the evidence is insufficient to support the conviction on Count 1 because: (1) the full image does
III. Conclusion
We reverse the trial court’s judgment and render a judgment of acquittal on Count 1.
Notes
. The trial court admitted most of the images recovered from the phone as State’s Exhibit 4.
. The trial judge did not specify which image was the basis of his verdict. As we explain below in Part II.B.l, both images form part of our sufficiency analysis.
. Appellant mentions in his brief that the State did not allege at trial that the full image was lewd: “[t]he State’s argument throughout the trial was that when [appellant] zoomed in or cropped the [full image], that action resulted in a new image and that image was a lewd exhibition of the genitalia.” We express no opinion on whether the State actually proceeded on the full image at trial because appellant did not brief this matter as a separate issue. While there is a rule of due process which prohibits affirming a conviction on a theory which was not presented to the trier of fact, it is a distinct legal rule from the sufficiency of the evidence, see Adames v. State,
. The State cautions that the sexual response elicited in a viewer by an image “need not be limited to sexual arousal” and may also include "shock, disgust, or offense, so long as they relate to the sexual nature of the exhibition.” The State correctly points out that the United States Supreme Court has held that the First Amendment does not require that an image of a child must "appeal to the prurient interest of the average person” to be subject to prosecution as child pornography as images of adults must to be prosecuted as obscenity. See New York v. Ferber,
We agree with the State to the extent that the Legislature did not mean to impose an "appeals to the prurient interest” component in the definition of “sexual conduct” in penal code section 43.25. Compare Tex. Penal Code Ann. § 43.21(a)(1)(A) (defining one of the elements of obscenity as material or a performance that "the average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex”) (West, Westlaw through 2015 R.S.) with id. § 43.25 (defining "sexual conduct” without a similar requirement) (West, Westlaw through 2015 R.S.). But the absence of a "prurient interest” requirement
. We note that the State does not argue that appellant is the creator of the full image.
. Dicta from the Texas Court of Criminal Appeals supports our conclusion. See Savery v. State,
. The State raises the possibility that holding for appellant regarding the cropped image would allow other persons who possess child pornography to essentially immunize themselves from prosecution by taking photographs of the material while making insubstantial changes to the image. We stress that our holding regarding the cropped image is dictated by our holding that the full image is not lewd. On the facts of this case, the cropped image must have been made at a different time than the full image, and the only evidence in the record reflected that appellant made the cropped image in 2014. Nothing in the opinion addresses whether a person commits an offense under section 43.26 by duplicating a photograph which itself qualifies as child pornography while making changes to the resulting image.
. Even though we decided this case based on Texas law, we note that we are not the first court to struggle with the question of whether an image created by Robert Mapplethorpe qualifies as pornography. See Osborne,