Jose Guevara-Molina v. the State of Texas

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION

No. 04-24-00512-CR

Jose GUEVARA-MOLINA,
Appellant

v.

The STATE of Texas,
Appellee

From the 218th Judicial District Court, Atascosa County, Texas
Trial Court No. 24-06-0163-CRA
Honorable Jennifer Dillingham, Judge Presiding

Opinion by: H. Todd McCray, Justice

Sitting: Rebeca C. Martinez, Chief Justice
H. Todd McCray, Justice
Velia J. Meza, Justice

Delivered and Filed: March 25, 2026

AFFIRMED

Jose Guevara-Molina appeals the judgment convicting him of six counts of possession of

child pornography and sentencing him to sixty-eight years’ confinement on each count. Because

we find the evidence legally sufficient to support Molina’s conviction and conclude that he waived

his evidentiary argument, we affirm the judgment of the trial court.
04-24-00512-CR

FACTUAL BACKGROUND

Molina and Elidia Calvillo were in a romantic relationship for many years. This case

revolves around several sexually explicit photos of Elidia’s youngest daughter that were found on

Molina’s cell phone. The case began after a family member discovered disturbing communications

between Elidia and Molina on Elidia’s cell phone. Many of the text messages seemed to indicate

that Elidia and Molina were engaging in sexual “role play,” with Elidia pretending to be her

youngest daughter. Officers began an investigation, during which they obtained a search warrant

for Molina’s cell phone. Investigators seized Molina’s phone and conducted a forensic extraction

of the device. The extraction recovered several images of a child that were sexual in nature.

During an investigative interview, Molina acknowledged that the phone in question

belonged to him and stated that he had possessed the phone for approximately one year. When

investigators questioned him about the images recovered from the device, Molina acknowledged

the images depicted Elidia’s ten-year-old daughter and identified her by name.

A jury eventually found Molina guilty of six counts of possession of child pornography.

The trial court entered judgment on the verdict and assessed punishment at sixty-eight years’

confinement on each count.

SUFFICIENCY OF THE EVIDENCE

Molina challenges the legal sufficiency of the evidence supporting his conviction. He

contends that the State failed to prove he knowingly possessed the images recovered from his

phone. Our review is governed by the standard establish in Jackson v. Virgina, 443 U.S. 307

(1979). Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (stating that “the Jackson v.

Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in

determining whether the evidence is sufficient to support each element of a criminal offense that

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the State is required to prove beyond a reasonable doubt”). We therefore view all the evidence in

the light most favorable to the prosecution and determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at

319. The jury is the sole judge of the credibility of the witnesses and the weight to be given their

testimony and may resolve conflicts and draw reasonable inferences from the evidence. Id.

To support a conviction for possession of child pornography, the State was required to

show that Molina intentionally or knowingly possessed visual material depicting a child engaged

in sexual conduct. See TEX. PENAL CODE ANN. § 43.26. Possession may be established through

direct or circumstantial evidence showing the defendant exercised actual care, custody, control, or

management over the material and knew its character and content. See Wise v. State, 364 S.W.3d

900, 903 (Tex. Crim. App. 2012).

The State presented evidence linking the images in question directly to appellant’s personal

cellular telephone. Investigators seized the cell phone directly from Molina’s person. During his

interview with law enforcement, Molina acknowledged the phone belonged to him, recited the

phone number associated with the device, and stated he had possessed it for approximately one

year. From this evidence, the jury could reasonably conclude the phone and its contents were under

Molina’s custody and control.

A forensic examination of the device revealed seven images depicting sexual conduct

involving a child. The forensic examiner testified that the images were recovered from the phone’s

file structure and could also be viewed directly in the device’s photo gallery. The images were also

located in a separate Samsung “private folder” accessible only to the phone’s user. Evidence that

the images appeared in more than one location on the device permitted the jury to reasonably infer

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the images had been retained or stored by the phone’s user rather than appearing inadvertently or

without the user’s knowledge.

Molina’s own statements during the interview further support the inference that he was

aware of both the existence and the character of the images on his phone. When confronted with

the photographs recovered from the phone, Molina acknowledged that they depicted Elidia’s

youngest daughter and identified her by name and age. He did not seem surprised by the existence

of the photos and admitted that Elidia often sent him photographs of her daughters, including

pictures he described as showing the girls’ “ninis.” He also acknowledged text communications

with Elidia concerning the photos and stated that possessing the photos was “shitty.” The jury

could consider these statements in evaluating whether Molina knew of the images recovered from

his phone and understood their nature.

The jury also considered text messages between Molina and Elidia in which they engaged

in conversations referencing the child depicted in the photos and the body parts shown in the

images. At times, the messages suggested Elida was speaking as though she were the child herself.

These communications permitted the jury to infer that the images served as a reference point for

the conversations or that the communications provided a motive for Molina to retain the images

on his phone.

This combination of forensic evidence and Molina’s own admissions provided the jury

with ample circumstantial evidence from which it could conclude he knowingly possessed the

images. Molina nevertheless argues that the evidence is insufficient because the State did not prove

he created, saved, moved, or otherwise manipulated the files on the phone. However, the statute

does not require such proof. Section 43.26 requires proof that a defendant knowingly possessed

visual material depicting a child engaged in sexual conduct; it does not require proof that the

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defendant generated, edited, organized, or otherwise manipulated the material on the device. See

TEX. PENAL CODE ANN. § 43.26. Molina also argues the State failed to establish when the images

were accessed or viewed. But again, the offense criminalizes knowing possession of prohibited

visual material, not proof that a defendant viewed the images. Possession may be established

through circumstantial evidence demonstrating control over the device and awareness of the nature

of the material stored on it.

Molina frames his sufficiency challenge in terms of the absence of certain “Krause

factors.” See Krause v. State, 243 S.W.3d 95 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).

However, Krause does not establish a controlling multi-factor test for determining knowing

possession of digital images. Rather, it discusses examples of circumstantial evidence that support

knowledge in the particular facts of that case. Sufficiency review remains governed by Jackson v.

Virginia, which requires consideration of the combined force of all the evidence in the light most

favorable to the verdict. See Brooks, 323 S.W.3d at 895; Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007).

Even considering the types of circumstances discussed in Krause, the record here contains

comparable evidence supporting the jury’s inference of knowledge. The images were recovered

from Molina’s personal phone, were present in more than one location on the device, and Molina

acknowledged both ownership of the phone and the identity of the child depicted. Considering the

combined force of the evidence and reviewing the evidence in the light most favorable to the

verdict, we conclude that a rational jury could conclude beyond a reasonable doubt that Molina

knowingly possessed child pornography. See Gant v. State, 278 S.W.3d 836, 842 (Tex. App.—

Houston [14th Dist.] 2009, no pet.) (holding circumstantial evidence sufficient to support inference

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of knowing possession of child pornography stored on computer). Accordingly, the evidence is

sufficient to support the convictions.

ADMISSION OF EVIDENCE

We next address Molina’s contention that the trial court erred by admitting his text

messages with Elidia over his hearsay objections. In order to preserve a complaint for appellate

review, a party must make a timely objection, state the specific grounds for the objection, and

obtain a ruling. TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a)(1); Yazdchi v. State, 428 S.W.3d

831, 844 (Tex. Crim. App. 2014). An objection “must be specific enough so as to let the trial judge

know what he wants, why he thinks himself entitled to it, and do so clearly enough for the judge

to understand him at a time when the trial court is in a proper position to do something about it.”

Resendez v. State, 306 S.W.2d 308, 313 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827

S.W.2d 907, 909 (Tex. Crim. App.1992)).

The legal basis of a complaint raised on appeal cannot vary from that raised at trial. See

Gibson v. State, 541 S.W.3d 164, 166 (Tex. Crim. App. 2017) (observing the need for the trial

objection to comport with the appellate argument); Bekendam v. State, 441 S.W.3d 295, 300 (Tex.

Crim. App. 2014) (stating “the point of error on appeal must comport with the objection made at

trial”). While Texas law does not require “magic words” to preserve appeal, the sufficiency of an

objection turns on whether the trial court was given a fair opportunity to rule on the specific legal

issue. See Bekendam, 441 S.W.3d at 300. Where the objection does not clearly reference the legal

basis for the complaint and that basis is not apparent from the context, error is not preserved. Pena

v. State, 285 S.W.3d 459, 463 (Tex. Crim. App. 2009).

At trial, the State introduced thirty-five photographs of Facebook Messenger conversations

between Molina and Elidia. Defense counsel objected to Elidia’s statements as follows: “I’m going

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to object to statements made by the mother, Elidia, because she could have been subpoenaed but

she’s not here. And, as such, I’m going to assert that they’re hearsay.” He made no objection as to

Molina’s own statements in the messages, nor did he object to the authentication of the messages.

However, on appeal, Molina asserts that the messages were inadmissible hearsay because Molina’s

statements were not properly authenticated as being authored by him or from a Facebook account

that was controlled by him. Because the record contains nothing to suggest that the trial court was

put on notice as to any issue with the authentication of the messages or appellant’s statements, we

conclude that Guevara Molina has not preserved this issue for appellate review. See TEX. R. APP.

P. 33.1(a).

Even assuming Molina preserved his complaint, the trial court did not abuse its discretion

in admitting the messages. There is sufficient circumstantial evidence to support authentication of

the messages as to appellant. Several witnesses testified that Molina was the sender/recipient in

the chats based on the use of his name, photos, and unique identifying information contained in

the messages. Molina’s admissions in both the message threads and custodial interview provided

a further connecting link. He admitted to sending and receiving such messages and described their

substance in a way that matches the content of the exhibits. Finally, forensic investigators tied

Molina’s phone to his Facebook accounts and photos and testified that file paths showed images

saved from Facebook Messenger into the device. These facts, taken as a whole, support a

conclusion that a jury could reasonably find the messages authentic. See Tienda v. State, 358

S.W.3d 633, 638 (Tex. Crim. App. 2012); Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App.

2007); see also Villarreal v. State, No. 04-13-00553-CR, 2015 WL 1939284, at *7-8 (Tex. App.—

San Antonio Apr. 29, 2015, no pet.) (mem. op., not designated for publication).

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To the extent Molina’s hearsay complaint concerns the statements he made in the

messages, the statements are admissions of a party opponent pursuant to Rule 801(e)(2)(A) and

are not hearsay. See TEX. R. EVID. 801(e)(2)(A); Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim.

App. 1999); see also Daniels v. State, No. 04-21-00471-CR, 2023 WL 4921927, at *3 (Tex.

App.—San Antonio Aug. 2, 2023, no pet.) (mem. op., not designated for publication). To the extent

Molina complains of Elidia’s statements in the messages, those statements were likewise

admissible. Texas courts have long recognized that statements of the other participant in a

conversation may be admitted, not for the truth of the matter asserted, but to place the defendant

statements in context and render them intelligible to the factfinder. See, e.g., Patterson v. State,

606 S.W.3d 3, 34 (Tex. App.—Corpus Christi–Edinburg 2020, pet. ref’d); Jones v. State, 466

S.W.3d 252, 266 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d); Kirk v. State, 199 S.W.3d 467,

479 (Tex. App.—Fort Worth 2006, pet. ref’d). Accordingly, the trial court did not abuse its

discretion in admitting the text messages.

Having overruled both of Molina’s issues, we affirm the trial court’s judgment.

H. Todd McCray, Justice

DO NOT PUBLISH

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