Fourth Court of Appeals
San Antonio, Texas
DISSENTING OPINION
No. 04-19-00772-CR
Carlos ROMO, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 111th Judicial District Court, Webb County, Texas
Trial Court No. 2018-CRF-001456-D2
Honorable Monica Z. Notzon, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Dissenting Opinion by: Patricia O. Alvarez, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Patricia O. Alvarez, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: May 26, 2021
I agree with the majority on the issues of waiver regarding the admission of Romo’s Nudist
HDV video, legal sufficiency of Counts I and II (Continuous Sexual Abuse of a Child Younger
Than Fourteen Years of Age and Indecency with a Child), and the legality of the fine imposed
against Romo at sentencing. I disagree with the majority, however, on the issue of legal
insufficiency regarding Count III (Possession of Child Pornography). For this reason, I dissent in
part.
I begin my dissent by describing the video at issue.
Dissenting Opinion 04-20-00155-CR
NUDIST HDV VIDEO
The very first element of the video that helps us know we are looking at child pornography
is the label on the DVD labeled “100 percent genuine, fully-legal nudist documentary, Miss Jr.
Teen Beauty Competition,” which reads like a suspiciously over-enthusiastic guarantee for an
educational documentary. The second indication is the opening screen of the video, which is a
dog whistle for likeminded pedophiles:
NUDIST-HDV.COM NUDIST VIDEOS
Portrays Nudist Life in Simplicity Violates No Federal Laws!!
From European Camps, Clubs and Areas Depicts Entire Families
Is Not Sexually Oriented or Adult in Nature Documentary and Educational Material
The video then opens on a naked woman with bikini tan lines and gold jewelry who is
lounging on a towel talking to a nude young girl who is resting on her stomach. The girl wears a
bandana headband with a kanji character on it. Next to them, a naked teen girl lounges back on
her elbows with her breasts exposed. A naked man stands over them, and his penis is visible. The
adult subjects are completely shaved, the teen is mostly shaved, and the young girl is prepubescent.
Near them sits a young man in a polo shirt with no pants.
The shot cuts briefly away to several naked adults sitting around a table, but then returns
to the girls. The naked teen continues to lounge back on her elbows, and the cameraman keeps
her body framed in the shot. The cameraman gets the teen girl to smile, then focuses for a moment
on the girl in the bandana headband sitting next to her.
The shot cuts to two teen girls who have entered the scene wrapped in towels. The
cameraman talks to the girls in French as the girls unwrap their towels. Both girls have bikini tan
lines. One has shaved some of her pubic hair. The other girl chooses to leave her underwear on.
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Dissenting Opinion 04-20-00155-CR
Behind them in the background is another cameraman wearing a tank top with no pants. He films
a scene next to them. His penis is visible. The girls parade for the camera, and the man in the polo
shirt gives a little smile to the cameraman. A woman appears to tease the girls. The girl in the
underwear rewraps herself in her towel before sitting on the blanket near the man in the polo shirt.
The shot cuts back to the young girl in the bandana headband and simply rests on her face, her hair
slightly blowing in the wind, before panning out to include her teen friend. The shot then zooms
back again on the girl in the bandana headband. She sits cross-legged, and her bare chest is in
view.
The next shot focuses on three young naked girls together, including the young girl with
the bandana headband. The shot pans out to show five girls together, one of whom has reached
puberty. She wears braces and has shaved some of her pubic hair. The shot frames the naked girls
together and then cuts to three teen girls holding flowers and sashes in the gray, windy weather,
apparently in preparation for the beauty pageant. They all have tan lines and partially shaved pubic
hair. A naked man with a camera stands behind them. The shot focuses on the naked teens and
then shifts back to the naked girls who are waiting with number placards. Sometimes the shot cuts
off the tops of the girls’ heads in favor of their naked bodies. One of the girls appears to object,
and the cameraman appears to reassure her. All the girls walk over to an above-ground pool where
they stand casually in line chatting with each other, waiting to be judged. The shot rests on the
naked girls and ends with a male voice talking through a microphone.
LEGAL SUFFICIENCY AND THE DOST FACTORS
“In reviewing the legal sufficiency of the evidence to support a criminal conviction, a court
of appeals will determine ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
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Dissenting Opinion 04-20-00155-CR
a reasonable doubt.’” Perkins v. State, 394 S.W.3d 203, 206 (Tex. App.—Houston [1st Dist.]
2012, pet. ref’d) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
“Several federal courts have recognized that a photograph is lascivious when ‘the
photographer array[s] it to suit his particular lust,’ noting that ‘lasciviousness is not a characteristic
of the child photographed but of the exhibition which the photographer sets up for an audience that
consists of himself or likeminded pedophiles.’” Alexander v. State, 906 S.W.2d 107, 110 (Tex.
App.—Dallas 1995, no pet.) (“[W]hether the content of a photograph constitutes a lewd or
lascivious exhibition of a child’s genitals depends on the intent of the photographer.”) (quoting
United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987)); see also Perkins, 394 S.W.3d at
209 (“If the visual depiction is intended or designed to elicit a sexual response in the viewer, it is
lewd.”) (citing Alexander, 906 S.W.2d at 110).
The majority is correct that the Dost factors are an important guide for evaluating whether
the video constitutes child pornography, United States v. Dost, 636 F. Supp. 828, 832–33 (S.D.
Cal. 1986), but focusing too heavily on whether the girls are posed unnaturally or whether they
exhibit a willingness to engage in sexual activity can cause the evaluator to miss this video for
what it is, which is lewd exhibition of child genitalia. See State v. Bolles, 541 S.W.3d 128, 142‒
43 (Tex. Crim. App. 2017) (noting that that “we are not bound by Dost when assessing whether
an image depicts a ‘lewd exhibition.’”).
In some cases, child pornography evidence has been confirmed to be lewd, not because
children were portrayed engaging in sex, but rather because the videos at issue were shot in a
voyeuristic style, which is considered exploitative. See Perkins, 394 S.W.3d at 209 (citing United
States v. Wolf, 890 F.2d 241, 243, 247 (10th Cir. 1989) (holding that the image of partially nude
sleeping child could constitute a “lascivious exhibition” for the purposes of 18 U.S.C. § 2256);
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Dissenting Opinion 04-20-00155-CR
State v. Myers, 207 P.3d 1105, 1113 (N.M. 2009) (holding that images of children’s genitals taken
from a hidden camera as they used a toilet “had a voyeuristic and deviant quality” such that fact
finder could have found that they were “lewd”); People v. Sven, 848 N.E.2d 228, 239 (Ill. App.
Ct. 2006) (concluding that video depicting nude teenage girl bathing infant put viewer into “role
of voyeur,” thus rendering the images lewd)).
The term “lewd exhibition” is capable of being interpreted by a trier
of fact using any meaning which is acceptable in common parlance.
Whether an image falls within the statutorily defined category of
child pornography under Texas state law is a question that must be
answered on a case by case basis. Thus, borrowing from what Justice
Stewart famously observed about pornography in his concurring
opinion in Jacobellis v. Ohio, we shall not attempt further to define
the kinds of material we understand to be child pornography; and
perhaps we could never succeed in intelligibly doing so. But we
know it when we see it.
Bolles, 541 S.W.3d at 143 (citing Jacobellis v. Ohio, 378 U.S. 184 (1964)). Even in Dost, the
factors set out for evaluating child pornography evidence are concluded with the following caveat:
“Of course, a visual depiction need not involve all of these factors to be a ‘lascivious exhibition of
the genitals or pubic area.’ The determination will have to be made based on the overall content
of the visual depiction, taking into account the age of the minor.” Dost, 636 F. Supp. at 832.
ANALYSIS
The video itself is legally sufficient evidence that prevents us from taking the verdict away
from the jury. This is so despite the fact that the actors are speaking in French, and that there is
no translation into the English language.
Through the lens of the jury, and contrary to the majority’s argument, after viewing the
video, a jury could have ignored the disclaimer or the words depicting the naturist lifestyle of the
film, or its “educational” or “documentary” purposes and seen the display as “lewd.” Similarly,
the jury could have decided that there was nothing remotely family-oriented or quotidian about a
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Dissenting Opinion 04-20-00155-CR
series of junior teen beauty pageants for which a subscriber can pay to watch hundreds of hours of
similar displays and decided that the display itself was lewd.
In applying the Dost factors, it is not clear from the video which camp or club or family is
being depicted. It is also not clear which simple life is being portrayed since the focus of the video
is on young girls’ bodies and their teen counterparts’ preparations for an unconvincing beauty
pageant that takes place on the dead grass in front of an above-ground pool. Furthermore, it is
unclear what should be educational about the film since the producer goes to no efforts to ensure
that the viewer can understand what is going on in the film. Presumably, the video is meant for an
American audience since the opening screen promises that the video violates no federal laws.
There truly appears to be no purpose to the film except to show naked girls. And while the
cameramen are not spying on the young girls, they are taking advantage of the girls’ compliant
natures to compile shots of them naked, placing the viewer in the position of judge over the young
girls’ naked bodies. The girls are made to be the object of the male cameraman’s gaze, and they
appear uncomfortable at times as participants who have been volunteered for a strange, misplaced,
sexually uncanny pageant. The artifice is apparent and not at all natural. The exhibition of young
female forms in the video does in fact appear to be intended or designed to elicit a sexual response
in a viewer who is specifically looking for videos featuring young, naked girls. Consequently, a
rational juror could have concluded beyond a reasonable doubt that Romo’s video was a lewd
exhibition of child genitalia.
CONCLUSION
For the reasons set forth above, I respectfully dissent in part and would affirm the trial
court’s judgment on Count III (Possession of Child Pornography).
Patricia O. Alvarez, Justice
PUBLISH
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Carlos Romo, Jr. v. the State of Texas
Combined Opinion