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Click here for the full text of this decision FACTS:Benito Tovar met 15-year-old T.J. on a public bus and gave the boy his business card for “Studio Phoenix Photography.” Tovar and T.J. exchanged e-mails and saw each other again on the bus. T.J. said he was interested in modeling. He also told Tovar that he was 15. Tovar and T.J. met at the River Center Mall in November 2001. After looking through a portfolio, the two started walking around the mall. Tovar started taking pictures of T.J. The pair then moved to an empty stairwell, where Tovar continued to take pictures, asking T.J. to take off more and more clothing, until T.J. was fully nude. Tovar took several pictures of a nude T.J. from the front and from the back. One picture shot from the back depicted T.J. with the front of his body pressed up against a wall. In one picture shot from the front T.J. appeared to have an at least partially erect penis. Tovar and T.J. eventually attracted attention and Tovar was eventually arrested, though he repeatedly maintained that he did not think he had done anything wrong. Tovar was charged with producing and promoting a sexual performance by a child under Penal Code 43.25(d), and possession of child pornography under 43.26. Tovar questions whether the photos were properly considered child pornography, and if the statute under which he was convicted, which is cross-referenced to a section including the phrase, “lewd exhibition of the genitals,” was constitutionally deficient since it did not define “lewd.” HOLDING:Affirmed. Both 43.25(d) and 43.26 prohibit certain actions related to the “sexual conduct” of a minor. Section 43.25(a)(2), includes within its definition of “sexual conduct” the phrase “lewd exhibition of the genitals.” The court confirms that “lewd” is not defined by statute, yet it is an element of both offenses charged against Tovar. The court, however, finds that “lewd” is a word with a fairly common meaning, one that can be looked up in a dictionary, and that because of the word’s common meaning, the jurors could be fairly presumed to know and apply it without a jury charge specifically defining the term. The court sets out the six factors that should be considered when determining if photographs depict the lewd exhibition of genitals by a minor: 1. the focal point of the visual depiction is the child’s genitalia; 2. the place or pose of the child in the photograph is sexually suggestive; 3. the child is depicted in an unnatural pose or inappropriate attire; 4. the child is fully or partially clothed or nude; 5. the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; or 6. the visual depiction is intended or designed to elicit a sexual response in the viewer. After describing in detail each of the photos Tovar took of T.J., the court notes that the focal point of many of the visual depictions are the child’s genitalia; the child’s poses are sexually suggestive; the child is completely nude; many of the photos suggest sexual coyness or a willingness to engage in sexual activity; and, the photos appear to be intended or designed to elicit a sexual response in the viewer. Moreover, at trial, T.J. testified that Tovar directed him to remove his shirt and pants. The court confirms that the evidence used to convict Tovar was legally sufficient. The court next addresses Tovar’s assertion that the trial court should have instructed the jury on a lesser-included offense of disorderly conduct. To commit the offense of disorderly conduct, a person must intentionally or knowingly expose his anus or genitals in a public place and be reckless about whether another may be present who will be offended or alarmed by his act. In contrast, to commit the offense of sexual performance by a child, a person must, knowing the character and content of the material, produce or promote a performance that includes sexual conduct by a child younger than 18 years old. And, to commit the offense of possession of child pornography, a person must knowingly or intentionally possess visual material that visually depicts a child younger than 18 at the time the image was made who is engaging in sexual conduct and the person knows that the material depicts such a child. “In examining the statutory elements of the charged offenses as modified by the indictment against the elements of the claimed lesser-included offense of disorderly conduct, we conclude that the facts required to prove disorderly conduct and the facts required to prove the two charged offenses are not functionally equivalent. To prove disorderly conduct, the State would have had to present facts proving Tovar’s recklessness about whether another may have been present who would have been offended or alarmed by the act. In proving the two charged offenses, however, the State was not required to present facts of Tovar’s recklessness in this regard.” Finally, the court rejects Tovar’s argument the two charges should have been severed from one another. Even if Tovar is technically correct, there is no harm in the error, as the jury in both cases would have heard the same evidence. OPINION:Angelini, J.; Angelini, Marion and Speedlin, JJ.

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