Before MORRISS, C.J., CARTER and MOSELEY, JJ.
Opinion by Justice CARTER.
In the 50s, before the advent of video cameras and cell phone videos, a popular song advised us that standing on the corner and watching females pass by was acceptable conduct and that "you can't go to jail for what you're thinking." Watching may still be acceptable conduct, but recording that parade may violate the law in Texas today.
William Allen Cooper was convicted by a jury of an offense entitled Improper Photography or Visual Recording. The offense is a state jail felony, and on two counts, he was sentenced to the maximum punishment: two years in a state jail facility on each prosecution and a $10,000.00 fine. See TEX. PENAL CODE ANN. § 21.15 (Vernon Supp. 2010).
I. Issues on Appeal
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[T]he statute criminalizes the act of photographing/recording a visual image of another at a location not a bathroom or private dressing room without that person's consent, and with intent to arouse or gratify the sexual desire of any person.
Cooper was convicted for making video recordings (shot through a window) of females walking down the sidewalk, or down the street, in front of either his home or business. The subjects were fully clad and were not in a private area. We have duplicates made by the State of the only two tapes involved, containing several hours of video, which the State edited into a short "best of" video for the jury's perusal. All of these were introduced into evidence and made available to the jury. The videographer used the zoom function on the camera at various times to obtain close-ups of specific parts of female anatomy. Those close-ups are what the State relies upon to prove intent—the statute requires the video to have been made with the intent to arouse or gratify the sexual desire of a person. The State argues that this choice of subject matter would allow a jury to find the requisite intent, and counsel does not argue to the contrary.
Incredible. You can be convicted of photographing the opposite sex as they walk down the street in public.