Does the State have to produce any photos to convict someone of improper photography?

You can be convicted of improper photography in Texas, without any photographs.

 Everyone has a camera these days. Even crappy cell phones usually have an 8-megapixel HDR camera on board. Your Instagram feed is full of strange photographs, and some stuff you’d rather not see. But in Texas, some photographs are illegal.

What is improper photography in Texas?

It’s an invasive visual recording.

What is an invasive visual recording?
Great question. It’s what called an “upskirt” photo, which is as creepy as it sounds. It’s when you are surreptitiously taking pictures of someone’s underpants without their knowledge. Yes, that’s a thing now.

What are the elements of Invasive Visual Recording in Texas?

Texas Penal Code 21.15 Invasive Visual Recording

A person commits an offense if, without the other person’s consent and with intent to invade the privacy of the other person, the person: photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of an intimate area of another person if the other person has a reasonable expectation that the intimate area is not subject to public view;

How bad of a crime is it?
State Jail Felony. 6 months to 2 years in State Jail. That means no parole, day for day sentencing.

So wait a minute, you can be convicted without the State having any evidence of what photographs you took?

Yep. A recent case out of the 5th District Court of Appeals (Dallas) Abunido Rivera Vazquez v. the State of Texas, held as much. In that case a woman was shopping at a grocery store, wearing an “open-flared dress.” According to the woman’s testimony, the defendant opened his phone, knelt down, and took photos or a video of the women’s genital area. The woman told her daughter to call the police, and the man ran away. Police got a warrant and searched phone but found no photographs.

Nevertheless, the court here upheld the conviction for improper photography, without evidence of any photographs, based upon the following-

  • Victim testified that defendant was at the scene at the time of the offense
    • surveillance video placed the defendant in the store
    • when the victim told daughter to call the police the defendant ran away
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