PD-0456-21 10/27/2021
“Did the Fourth Court of Appeals misapply the Brooks/Jackson standard for determining the legal sufficiency of the evidence by improperly reweighing the evidence and reassigning veracity in an erroneous attempt to follow the U.S. v. Dost factors?”
Romo was convicted of possession of child pornography for possessing a DVD—labeled “Nudist HDV”—that depicted the “lewd” exhibition of genitals of girls at a nudist camp. On appeal, he claimed that the evidence was insufficient to prove the images were “lewd.”
Recognizing that “lewd” is undefined and is therefore assessed according to the factors in U.S. v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), viewed favorably and applied in State v. Bolles, 541 S.W.3d 138 (Tex. Crim. App. 2017), the court of appeals majority held that the evidence was insufficient. The majority began by generally describing the video: it has an English disclaimer that it violates no federal laws and is a documentary; the audio is in French (only) and shows a nudist lifestyle of “naturism” that includes naked pubescent girls picnicking with adults and queuing for a preteen beauty “pageant.” As to the first Dost factor—whether the focal point was on the genitals or pubic area—the majority noted that the girls were shown sitting or walking while picnicking with nude adults and that their faces were the focal point during the pageant queuing. As to the second factor—whether the setting was sexually suggestive—the majority observed that the girls were not placed or posed in a way associated with sexual activity; they were shown in a nudist camp. On the third factor—whether the pose or attire was inappropriate for the child’s age—the majority concluded that none of the depictions are unnatural. Next, on the fourth factor—whether there was partial clothing or nudity—the majority determined the majority of the girls were nude. The fifth factor—whether there was sexual coyness or willingness to engage in sexual activity—the majority held those were nonexistent. Finally, on the sixth factor—whether a sexual response was intended—the majority pointed out that it contains a disclaimer and claimed educational purpose and that the foreign-language audio could not be understood.
Justice Alvarez dissented. She observed that the video’s own description is a “dog whistle for likeminded pedophiles.” After reviewing the Dost factors, she concluded that there “truly appears to be no purpose to the film except to show naked girls,” that the “artifice is apparent and not at all natural,” and it was “designed to elicit a sexual response[.]”
The State complains that the majority has legalized child pornography by calling it naturalism. It argues that the majority failed to view the evidence in a light most favorable to the verdict. “Instead, the court scoured the record for speculation about absent evidence and alternative inferences[.]” For example, the majority speculated that the English disclaimers would have been consistent with the French speech. T he State also takes issue with the majority’s account of the facts when considering the Dost factors and emphasizes the points made in dissent. There are in fact segments that depict only the girls’ genitals or pubic area, and the majority assigned no weight to the girls being “paraded around with no clothing.” The State also contends that the majority should have focused on the intent of the filmmaker, not the girls shown. The girls were uncomfortable and thus the “naturalism documentary” self-characterization is undermined.
