Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-24-00713-CR
Jacob Daniel PULLEN,
Appellant
v.
The STATE of Texas,
Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 20-0296-CR-B
Honorable William D. Old III, Judge Presiding
Opinion by: Velia J. Meza, Justice
Dissenting Opinion by: Adrian A. Spears II, Justice
Sitting: Lori Massey Brissette, Justice
Adrian A. Spears II, Justice
Velia J. Meza, Justice
Delivered and Filed: July 1, 2026
VACATED IN PART; AFFIRMED IN PART AS MODIFIED
Jacob Pullen visited a webpage containing seven thumbnail images depicting children
being sexually abused. The State charged and convicted Pullen on seven counts of accessing with
intent to view visual material depicting a child who is engaging in sexual conduct—one count for
each thumbnail. See TEX. PENAL CODE ANN. § 43.26 (West 2019). This appeal presents a question
of first impression: what is the allowable unit of prosecution under section 43.26 for “accesses
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with intent to view”? Pullen also challenges the sufficiency of the evidence regarding the
remaining conviction and his bona fide educational purpose defense, the denial of his speedy-trial
motion, the admission of a federal agent’s remote testimony, the admission of magnified thumbnail
images, the propriety of the State’s closing argument, and certain recitations in the judgment.
Although we find the evidence legally sufficient to support Pullen’s conviction on one
count, we hold that the statute is genuinely ambiguous as to whether seven images on a single
webpage constitute one offense or seven. Thus, we apply the rule of lenity, vacate the convictions
on counts two through seven, modify the remaining judgment to reflect that the jury assessed
punishment, and otherwise affirm.
BACKGROUND
Jacob Pullen was an internal affairs lieutenant with the New Braunfels Police Department.
On the evening of July 2, 2019, Pullen used his personal iPad and a special internet browser (the
“Tor” browser) to access the dark web from the comfort of his living room. According to Pullen,
in an attempt to learn how the dark web worked, he clicked through a series of links on the “Hidden
Wiki.” 1
In any event, he navigated to a site entitled “DeepThroat,” which purported to sell
compilations of “teen porn.” The page advertised two memberships—a “Basic” tier for 0.005 BTC
and a “Premium” tier for 0.008 BTC 2—for “the largest collection of teen porn user-submitted
videos and photos.” Below the membership information, the site displayed a collage of child sexual
1
According to a defense expert, the Hidden Wiki “is a collection of information, sites, and links to different areas on the dark web.”
2
“BTC” is an abbreviation for bitcoin, a decentralized digital currency that is commonly used on dark-web marketplaces because its peer-to-peer transfer mechanism allows payments to be made without traditional banking intermediaries.
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abuse material (CSAM) 3 in the form of seven thumbnail images. Pullen ultimately sent 0.008 BTC
to the bitcoin address displayed on the site.
Six days later, a federal task force dedicated to dark-web and cryptocurrency crimes
accessed the DeepThroat page. Using blockchain analysis on the bitcoin wallet address displayed
on the page, Special Agent Krista Garcia with Homeland Security Investigations (HSI) traced the
0.008 BTC transaction back to the Coinbase wallet associated with Pullen’s IP and email address.
Subpoenas to various companies, BitPay, AT&T, Valve, Newegg, IPVanish, and ExpressVPN,
confirmed that the IP address, the Coinbase account, and the underlying ProtonMail account
belonged to Pullen.
Upon confirming that a Texas police officer was involved, the federal investigation was
transferred to the Texas Rangers. On December 9, 2019, Ranger Joseph Evans interviewed Pullen
and executed search warrants on Pullen’s home, devices, and cloud accounts. No saved CSAM
files were recovered from any of Pullen’s devices, and only his iPhone and iPad contained the Tor
browser. Forensic analyses of these devices showed that, on the night of July 2, 2019, Pullen
opened the Tor browser and sent the bitcoin payment. Ranger Evans arrested Pullen the same day
as the interview.
A Guadalupe County grand jury returned a seven-count indictment. Each count alleged
that Pullen intentionally and knowingly accessed with intent to view one of the seven thumbnail
3
Where possible we use the phrase “child sexual abuse material” rather than “child pornography.” The term “pornography” describes material in which individuals consensually engage in recorded sex acts which are distributed to the public for their sexual pleasure; using this term to describe recorded sex acts involving children risks implying consent of the child and trivializing the harmful nature of the material. See Susanna Greijer & Jaap Doek, Interagency Working Group on Sexual Exploitation of Children, Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse 39 (2016), https://www.ohchr.org/sites/default/files/TerminologyGuidelines_en.pdf [https://perma.cc/H7B8-R3D7] (last visited June 3, 2026). “Child sexual abuse material” more accurately describes the recorded sexual abuse of a child and reflects the harm that the very existence of the images inflicts on the depicted child. Id. at 38–40. This terminology has been increasingly adopted by courts and legislatures across the country. E.g., In re Elhindi, 704 S.W.3d 425, 426 (Tex. 2024) (orig. proceeding); 34 U.S.C. § 20942(a)(1).
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images depicted on the DeepThroat site. At trial, the State called federal investigators, Ranger
Evans, an HSI forensic examiner, and a crime-scene supervisor as witnesses. Special Agent Garcia
testified by videoconference pursuant to a Touhy letter. 4
Pullen testified in his own defense. He admitted to accessing the site and sending the
payment. However, he insisted he had not sought out CSAM and did not recall viewing the
thumbnail collage. He claimed he sent the bitcoin to see whether the “awaiting payment” status on
the page would update, explaining that his conduct was part of self-directed education and that he
was investigating illegal activity that he could refer to the San Antonio cybercrimes task force.
The jury was instructed on all seven counts of the indictment and two affirmative defenses
requested by Pullen: that his conduct was for a bona fide educational purpose, and that it was for
a bona fide law-enforcement purpose. See TEX. PENAL CODE ANN. §§ 43.26(c), 43.25(f)(3) (West
2019). The jury returned guilty verdicts on all seven counts. Pullen elected for punishment to be
assessed by the jury. The jury assessed Pullen’s punishment for each count at six years’
confinement, no fine, and recommended community supervision. The trial court ordered Pullen’s
punishment to run concurrently and placed Pullen on eight years’ community supervision. This
appeal followed.
DISCUSSION
Pullen raises seven issues: (1) the legal sufficiency of the evidence supporting each
conviction under section 43.26; (2) the legal and factual sufficiency supporting his bona fide
educational purpose defense; (3) the denial of his speedy trial motion; (4) the admission of Special
Agent Garcia’s videoconference testimony in light of his Confrontation Clause objection; (5) the
4
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) is a United States Supreme Court case that “is part of an unbroken line of authority which [holds] that a federal employee may not be compelled to obey a subpoena contrary to his federal employer’s instructions under valid agency regulations.” Boron Oil Co. v. Downie, 873 F.2d 67, 69–70 (4th Cir. 1989).
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admission of a magnified version of the seven charged images; (6) his overruled objection to a
portion of the State’s closing argument; and (7) the judgment’s recitation that the trial court
assessed punishment, rather than the jury.
1 Legal sufficiency of convictions
Pullen’s initial issue consists of two distinct questions. The first is whether the evidence
supports any conviction at all. If so, then the second is whether Pullen’s conduct supports seven
convictions or only one.
We review sufficiency of the evidence under the standard set out in Jackson v. Virginia,
asking whether, viewing all the evidence in the light most favorable to the verdict, any rational
trier of fact could have found all essential elements of the offense beyond a reasonable doubt. 443
U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895, 912 (Tex. Crim. App. 2010). Statutory
construction—including determining the “allowable unit of prosecution”—is a question of law we
review de novo. Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim. App. 2011).
1.1 Possession of, and access to, CSAM
Section 43.26, as in effect in 2019, provides that a person commits an offense if the person
“knowingly or intentionally accesses with intent to view” visual material that visually depicts a
child engaging in sexual conduct, knowing the material depicts a child. TEX. PENAL CODE ANN. §
43.26(a) (West 2019). The Legislature added the “accesses with intent to view” alternative in 2013,
creating a new mode of commission distinct from the existing “possession” offense. See Act of
May 23, 2013, 83rd Leg., R.S., ch. 1252, § 20, 2013 Tex. Gen. Law 3167, 3171 (amending section
43.26 of the Texas Penal Code). No Texas appellate court has yet construed the access language.
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When interpreting statutes, we focus on the literal text to effectuate the collective intent of
the Legislature. State v. Robinson, 498 S.W.3d 914, 920 (Tex. Crim. App. 2016). Statutes must be
read as a whole and, where possible, each provision construed to give effect to all others. See TEX.
GOV’T CODE § 311.021(2); Bays v. State, 396 S.W.3d 580, 584–85 (Tex. Crim. App. 2013). We
begin by contrasting the two distinct actus rei the Legislature proscribed under section 43.26(a):
“possession” and “access.”
“Possession” is expressly defined and requires proof of “actual care, custody, control, or
management.” TEX. PENAL CODE § 1.07(a)(39). In the context of our digital age, images stored on
a computer rarely lie within a defendant’s exclusive control. Thus, possession is established by the
“cumulative force of all the evidence”—direct and circumstantial—linking the defendant to the
images and showing both knowledge of their nature and the ability to exercise control over them.
See Wise v. State, 364 S.W.3d 900, 903–05 (Tex. Crim. App. 2012) (describing approaches to
proving possession of digital CSAM). Typical linking evidence includes showing the defendant
saved copies in intentionally named folders, showing the defendant transferred files to an external
drive, presenting file viewing or modification history, and establishing the defendant’s technical
sophistication. See Krause v. State, 243 S.W.3d 95, 110–12 (Tex. App.—Houston [1st Dist.] 2007,
pet. ref’d); Ballard v. State, 537 S.W.3d 517, 523–24 (Tex. App.—Houston [1st Dist.] 2017, pet.
ref’d)
“Access,” however, is not about the defendant’s custody or control. The term is undefined
as it relates to this statute; we therefore construe it “as ordinary usage allows.” Dunham v. State,
666 S.W.3d 477, 484 (Tex. Crim. App. 2023) (citation modified). Chapter 33 of the Penal Code,
which concerns computer crimes, defines the term as meaning “to approach, instruct, communicate
with, store data in, retrieve or intercept data from, alter data or computer software in, or otherwise
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make use of any resource of a computer.” TEX. PENAL CODE § 33.01(1). Merriam-Webster defines
the verb form of “access” as “to be able to use, enter, or get near (something)” and “to open or
load (a computer file, an Internet site, etc.).” Access, MERRIAM-WEBSTER, https://www.merriamwebster.com/dictionary/access [https://perma.cc/S8KQ-LERJ] (last visited May 27, 2026). These
definitions suggest that the Legislature chose a term describing the initial, preliminary act of
retrieval, loading, or approach.
Federal courts have construed nearly identical language in the same way. 5 The federal
statute punishes access with intent to view “any book, magazine, periodical, film, videotape,
computer disk, or any other material that contains an image of child pornography.” 18 U.S.C. §
2252A(a)(5). 6 Federal courts of appeals considering this language have uniformly held that it
criminalizes access to “a website that contains child pornography” when the person “intends to
view that illegal content, even if he never actually does so.” United States v. Tagg, 886 F.3d 579,
587–90 (6th Cir. 2018); accord United States v. Croghan, 973 F.3d 809, 828 (8th Cir. 2020);
United States v. Mercer, 772 F. App’x 631, 636 (10th Cir. 2019) (following Tagg); United States
v. Rivenbark, 748 F. App’x 948, 956–57 (11th Cir. 2018) (contrasting “possession” with “access
with intent to view” and holding the latter does not require viewing the CSAM itself).
Under the federal framework, the act of “access” is treated as attempted possession.
Liability is triggered “when a person intentionally searches for images of child pornography, finds
them, but then stops short of viewing the images themselves.” Tagg, 886 F.3d at 588 (quoting
5
Although federal decisions do not bind us, they are persuasive where, as here, they have repeatedly addressed the precise question we now face and have reached a uniform answer.
6
This federal statute was amended in 2008 to add the phrase “accesses with intent to view.” Enhancing the Effective Prosecution of Child Pornography Act of 2007, Pub. L. No. 110–358, § 203(b), 122 Stat. 4001, 4003–04 (2008). A Senate report explained that the amendment “fills a gap in existing law that has led some courts to overturn convictions of possessors of child pornography.” S. REP. No. 110–332, at 5 (2008). The amendment was intended to “fix[] another loophole that allowed Internet users to get around the laws against possessing child pornography simply by not downloading or saving the images.” 154 CONG. REC. H9888 (daily ed. Sept. 25, 2008) (statement of Rep. Lofgren).
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United States v. Ramos, 685 F.3d 120, 132 (2d Cir. 2012)) (citation modified). The crime is
complete “the moment the elements of access and intent coincide.” Tagg, 886 F.3d at 587. “The
person who completes the circle and views the image has, instead, committed the actus reus of
possession.” Id. (citing Ramos, 685 F.3d at 130–32). The text of section 43.26(a), the contrast with
the “possession” alternative, and the converging federal authority, all point to the same
understanding of “access.”
Applying this construction to the evidence before us, we conclude the evidence is legally
sufficient to support at least one conviction. Pullen admitted that he navigated to the DeepThroat
page; that he read the splash page advertising “teen porn”; and that he understood the page to be
“hinting” at illegal material. He then sent 0.008 BTC—worth approximately $90 at the time—to
the bitcoin address displayed on the page, paying for a “Premium” subscription. Six days later,
two federal investigators independently accessed the same page, observed the same advertisement,
and observed a collage of seven thumbnails depicting children engaged in sexual conduct beneath
that advertisement. Ranger Evans testified that the website was a known destination for CSAM
and that the site contained the same material both before and after Pullen’s visit.
“For computer-pornography cases, like all criminal cases, a court must assess whether the
inferences necessary to establish guilt are reasonable based upon the cumulative force of all the
evidence considered in the light most favorable to the verdict.” Wise, 364 S.W.3d at 905. Pullen
argues that he did not see the thumbnails on the webpage and that the State could not prove the
thumbnails were on the page at the moment he accessed it, suggesting that the page might have
changed after he visited the site. We “presume that the factfinder resolved any conflicts in favor
of the prosecution” and defer to that determination. Jackson, 443 U.S. at 326 (citation modified).
The jury was entitled to credit Ranger Evans’s testimony, together with Pullen’s admissions about
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what he read and what he paid for, in concluding that he accessed visual material depicting children
engaging in sexual conduct, with the intent to view that material, and with knowledge of its
character. The jury was free to disbelieve Pullen’s testimony that he did not see CSAM on the
webpage and, instead, draw the rational inference that Pullen, reading the page’s advertising and
paying for a “Premium” subscription, accessed the page with the intent to view CSAM.
Pullen also argues the evidence was legally insufficient to establish that the thumbnail
images depicted children. The Penal Code does not define what makes a depiction “lewd” or fix a
single method for determining the age of a person shown in an image. Texas courts have looked,
instead, to the six nonexclusive factors articulated in United States v. Dost, 636 F. Supp. 828, 832
(S.D. Cal. 1986): (1) whether the focal point of the depiction is on the child’s genitalia or pubic
area; (2) whether the setting is sexually suggestive; (3) whether the child is shown in an unnatural
pose or in inappropriate attire for the child’s age; (4) whether the child is fully or partially clothed,
or nude; (5) whether the depiction suggests sexual coyness or a willingness to engage in sexual
activity; and (6) whether the depiction is designed to elicit a sexual response in the viewer. See
State v. Bolles, 541 S.W.3d 128, 140–42 (Tex. Crim. App. 2017) (applying the Dost factors and
noting their usefulness in assessing the sufficiency of evidence of a lewd exhibition). The factors
are “simply guideposts or a starting point,” and a depiction need not satisfy all six to qualify as
lewd. Bolles, 541 S.W.3d at 141.
We have reviewed the seven thumbnail images contained in the sealed exhibits offered by
the State. Each image contains children who are visibly prepubescent or pubescent, the focal points
are on their nude bodies, and the acts depicted are clearly sexual. Each shows a child engaged in
sexual conduct or in a lewd exhibition of the genitals or pubic area within the meaning of section
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43.26. The jury could have rationally concluded, on the face of the images, that each depicted a
child under eighteen engaged in sexual conduct and that Pullen knew the images depicted children.
The evidence is therefore legally sufficient to support a conviction under section 43.26. We
next consider how many convictions the evidence supports.
1.2 What is the allowable unit of prosecution?
Pullen contends his act of accessing the DeepThroat website cannot support seven separate
convictions and that, properly construed, section 43.26 authorizes only one conviction here. The
State insists that each individual thumbnail image should allow an independent conviction.
Here, because Pullen was charged with multiple offenses under a single statutory provision,
the dispositive question is: what unit of prosecution did the Legislature authorize under section
43.26? See Sanabria v. United States, 437 U.S. 54, 69–70 (1978) (“Whether a particular course of
conduct involves one or more distinct ‘offenses’ under the statute depends on . . . congressional
choice.”); Ex parte Hawkins, 6 S.W.3d 554, 556 (Tex. Crim. App. 1999) (adopting Sanabria and
holding that the legislature defines the “allowable unit of prosecution”).
The State relies on a holding announced in Vineyard v. State, where the Court of Criminal
Appeals held that, under the then-existing version of section 43.26, “possession of each item of
child pornography” is an “allowable unit of prosecution.” Vineyard v. State, 958 S.W.2d 834, 840
(Tex. Crim. App. 1998). That holding, however, was grounded in statutory text materially different
from the text at issue here. The version of section 43.26 before the Vineyard court provided that a
person committed an offense if the person “knowingly or intentionally possesses material
containing a film image that visually depicts a child” engaging in sexual conduct, where “film
image” was defined to “include[] a photograph, slide, negative, film, or videotape, or a
reproduction of any of these.” Id. at 841 (Meyers, J., concurring) (emphasis added) (quoting the
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1985 enactment). The defendant in Vineyard simultaneously possessed two discrete items—a
videotape and a photograph—and was separately prosecuted for each. Id. at 835. The court held
that, given the singular phrasing of “material containing a film image” and consistent with its
earlier decisions in Ex parte Rathmell, 717 S.W.2d 33 (Tex. Crim. App. 1986), and Iglehart v.
State, 837 S.W.2d 122 (Tex. Crim. App. 1992), the Legislature intended each “item” of CSAM to
be a separately punishable unit. Vineyard, 958 S.W.2d at 838–40.
The Vineyard majority acknowledged a dissent in Iglehart, where Judge Clinton argued
that a theft statute was ambiguous “at best” regarding the unit of prosecution and that the rule of
lenity should be applied. Vineyard, 958 S.W.2d at 837–38 (discussing Iglehart, 837 S.W.2d at
133–34 (Clinton, J., dissenting)). The majority rejected Judge Clinton’s analysis because it
determined the statute was not ambiguous. See Vineyard, 958 S.W.2d at 838 & n.7.
Section 43.26 has changed substantially since Vineyard. First, the Legislature replaced the
object of the offense, “material containing a film image,” with the defined term “visual material.”
See Act of May 23, 1997, 75th Leg., R.S., ch. 933, § 1, 1997 Tex. Gen. Laws 2931, 2932 (amending
TEX. PENAL CODE § 43.26). This new term incorporates some of the old language but, critical here,
expressly brings digital storage and transmission within the ambit of the statute. Second, as
discussed above, the Legislature added the access-with-intent-to-view alternative. See Act of May
23, 2013, 83rd Leg., R.S., ch. 1252, § 20, 2013 Tex. Gen. Law 3167, 3171 (amending TEX. PENAL
CODE § 43.26).
Vineyard’s framework—that the unit-of-prosecution inquiry begins with the statute’s text
and focus—still guides our analysis. But its holding that “each item of child pornography” is the
unit of prosecution for possession of “material containing a film image” does not answer what the
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unit of prosecution is for access with intent to view “visual material.” That question is one of first
impression, and we approach it using the ordinary tools of statutory construction.
Applied to this case, the question becomes whether the act of accessing a webpage that
displays a thumbnail collage of seven depictions is one act of access or seven. The evidence shows
that Pullen accessed the DeepThroat website a single time. As to the images, the evidence showed
the seven charged depictions were components of a single graphic element on a single page of that
website—what was repeatedly described as a “collage.” And there is no evidence that Pullen
clicked on the images or interacted with them in any way.
Applying the statute to this set of facts is not simple. The digital-media prong of the “visual
material” definition joins two clauses with the conjunction “and”: a “disk, diskette, or other
physical medium that allows an image to be displayed on a computer or other video screen” and
“any image transmitted to a computer or other video screen by telephone line, cable, satellite
transmission, or other method.” TEX. PENAL CODE ANN. § 43.26(b)(3)(B) (West 2019). Thus,
“visual material” as defined by the statute can plausibly be read at least two ways, depending on
how “and” is interpreted. If read disjunctively, “visual material” would include each physical
medium or each transmitted image. If read conjunctively, “visual material” would be a single
integrated category—a physical medium containing any image transmitted over the internet.
The disjunctive reading was adopted by the Montana Supreme Court, interpreting a
Montana statute on which the Texas “visual material” definition was patterned. 7 In State v. Felde,
the Montana Supreme Court held that the definition was unambiguous and that the unit of
prosecution was “each image of child pornography that [the defendant] possessed.” 478 P.3d 825,
7
The Texas provision was modeled on the 1995 version of the Montana statute. See Hearing on Tex. S.B. 674 Before the S. Comm. on Crim. Juris., 75th Leg., R.S. (March 4, 1997) (statement of Sen. Brown, bill author) (available at https://tsl.access.preservica.com/uncategorized/IO_af6059f4-4cf6-4584-9a00-98b3055645a2) (statement begins at approx. 28 minutes, tape 0385, side 1).
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828–29 (Mont. 2021) (interpreting MONT. CODE ANN. § 45-5-625(5)(d)(ii) (West 2021) which
defined “visual medium” as “any disk, diskette, or other physical media that allows an image to
be displayed on a computer or other video screen and any image transmitted to a computer or other
video screen by telephone line, cable, satellite transmission, or other method”). While this
disjunctive reading adopted by Montana is plausible, given the State’s interest in deterring the
proliferation of child pornography, as we explain below: so is the conjunctive reading.
The Texas Supreme Court recently confronted a closely analogous problem—how to read
a punitive statute that joined two requirements with “and.” In Malouf v. State ex rel. Ellis, the court
considered a civil-penalty provision that imposed liability on a Medicaid provider who submits a
claim and “knowingly fails to indicate the type of license . . . and the identification number of the
licensed health care provider who actually provided the service.” 694 S.W.3d 712, 716–17 (Tex.
2024). The State argued that “and” should be read disjunctively: a provider violated the statute by
failing either to indicate the license type or to indicate the identification number. Id. The defendant
argued “and” should instead be read conjunctively: both failures must occur to trigger liability. Id.
The Malouf court rejected the State’s reading. It held that “and” “ordinarily connotes the
conjunctive,” and that the conjunctive reading best fit the statute’s text, context, and purpose. Id.
at 718, 723. The court added, in the alternative, that “even if the State’s construction was
reasonable, the rule of lenity would require [it] to construe the statute in [the defendant]’s favor.”
Id. at 731.
Here, the State’s preferred reading of “visual material”—essentially that “and” means “or,”
so that each transmitted image stands alone as a separate unit of prosecution—is a disjunctive
reading the Malouf court rejected on grounds similar to the text at issue. While Malouf arose in the
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civil-penalty context, its reasoning carries even greater weight here, where a defendant’s liberty—
not merely his civil liability—turns on the meaning of “and.”
Syntax is not the only obstacle to the State’s position. Setting “and” aside, the statute
supplies no rule for counting images on a webpage. Must the State prove that each image rendered
before the page was closed? What if an image completely fails to load? Must the State prove that
the defendant’s browser window was large enough to show all images, or that the defendant
scrolled through them? Whether the relevant unit is “each item” or “each image,” the State’s
reading does not supply answers. And we hesitate to invent answers that would multiply a single
act of access into an indeterminate number of offenses based on the happenstance of how a
webpage is laid out. Cf. Yates v. United States, 574 U.S. 528, 547–48 (2015) (rejecting
interpretation that would yield harsh and incongruous results). The film-and-videotape analog
confirms this point: a film or videotape may contain many individual images of sexual abuse, but
the offense is counted per film or videotape, not per image within them. See Vineyard, 958 S.W.2d
at 836 (allowing successive prosecutions based on possession of a photograph and videotape, even
though both prosecutions “arose out of the same transaction”).
Regardless, the rule of lenity supplies the tiebreaker. It is a common law rule that
“ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”
Liparota v. United States, 471 U.S. 419, 427 (1985); accord Diruzzo v. State, 581 S.W.3d 788,
802 n.22 (Tex. Crim. App. 2019); Bell v. United States, 349 U.S. 81, 83 (1955) (“[W]hen Congress
leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should
be resolved in favor of lenity.”).
Where, as here, a statute is genuinely ambiguous on the question of how many offenses the
conduct at issue supports, the rule of lenity tips the balance against multiplying punishments.
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Diruzzo, 581 S.W.3d at 802 n.22; Bell, 349 U.S. at 83; see also Malouf, 694 S.W.3d at 720. While
the jury reasonably concluded that Pullen accessed a site containing seven images, the appropriate
unit of prosecution for “access” is each act of accessing the medium in which those depictions
reside—here, the webpage. 8 See Tagg, 886 F.3d at 588 (“Grammatically, the word ‘accesses’ (the
actus reus of the crime) is directed towards the repository containing child pornography, not the
child pornography itself.”); accord Vineyard, 958 S.W.2d at 838 (holding “each item of child
pornography” is the “allowable unit of prosecution”). The evidence therefore supports only one
conviction.
We acknowledge the grave interests that CSAM statutes exist to protect. They are not
merely directed at obscenity, they exist to deter the proliferation of material that normalizes the
sexual exploitation of children, supplies leverage for the extortion of child victims by means of
images of their abuse, and creates a permanent, recurrent record of that abuse. See Paroline v.
United States, 572 U.S. 434, 457 (2014) (recognizing that “[e]very viewing of child pornography
is a repetition of the victim’s abuse” and reinforces ongoing harm); Osborne v. Ohio, 495 U.S.
103, 109–11 (1990) (recognizing the State’s interest in “stamp[ing] out this vice at all levels in the
distribution chain”); New York v. Ferber, 458 U.S. 747, 758–60 & n.10 (1982) (categorically
excluding CSAM from First Amendment protection because production and distribution are
“intrinsically related” to the sexual abuse of children); see also Audrey Rogers, Child
Pornography’s Forgotten Victims, 28 Pace L. Rev. 847, 852–54 (2008) (discussing the continuing
harm to victims from circulation of images). The question we resolve is simply how many such
offenses one act of access supports, not whether the conduct may be punished at all. Pullen’s
8
Or, more accurately, the physical server on which that webpage is hosted.
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conduct remains a felony, and a single conviction under section 43.26(a) carries substantial
punishment. See TEX. PENAL CODE ANN. § 43.26(d) (West 2019).
The power to affix the allowable units of prosecution rests solely with the Legislature. Cf.
Aekins v. State, 447 S.W.3d 270, 286 (Tex. Crim. App. 2014) (Keller, J., concurring). When a
defendant is convicted of more offenses than permitted and the sentences are identical, the
appropriate remedy is to affirm the conviction for each allowable count and vacate the remainder.
See generally Ex parte Cavazos, 203 S.W.3d 333, 337–39 (Tex. Crim. App. 2006) (discussing how
after a finding of double jeopardy, the “most serious” offense is retained while the other
convictions are set aside). We therefore vacate counts two through seven.
2 Bona fide educational purpose defense
Pullen next raises a legal and factual sufficiency challenge to the jury’s rejection of his
bona fide educational purpose defense.
A defendant bears the burden of proving an affirmative defense by a preponderance of the
evidence. TEX. PENAL CODE § 2.04(d); Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App.
2013). When a jury rejects an affirmative defense and a defendant assigns error to that finding on
appeal, we ask whether the evidence “conclusively proves [the] affirmative defense and ‘that no
reasonable jury was free to think otherwise.’” Id. at 670. For factual sufficiency, we may reverse
only if the verdict is so against the great weight and preponderance of the evidence as to be
manifestly unjust. Id. at 671.
Section 43.26(c), as in effect at time of the charged offenses, made the affirmative defenses
in § 43.25(f) applicable to a prosecution under § 43.26. Section 43.25(f), in turn, established a
defense to prosecution where “conduct was for a bona fide educational . . . purpose.” TEX. PENAL
CODE ANN. § 43.25(f)(3) (West 2019).
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Under the legal-sufficiency standard, the jury was entitled to conclude that Pullen’s
conduct was not for a bona fide educational purpose. See Matlock, 392 S.W.3d at 670. While some
evidence supports the defense—Pullen’s enrollment in a cybersecurity program and his attendance
at the FBI National Academy the prior year—it is far from conclusive. Nor, under the factualsufficiency standard, is the jury’s rejection of this defense so against the great weight and
preponderance of the evidence as to be manifestly unjust. Id. at 671. We overrule Pullen’s second
issue.
3 Speedy trial
Pullen contends the trial court erred in denying his speedy trial motion. We review a trial
court’s ruling on a motion for speedy trial for abuse of discretion. State v. Gabaldon, 727 S.W.3d
1, 14 (Tex. Crim. App. 2025); Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002).
“Dismissal of the charging instrument with prejudice is mandated only upon a finding that an
accused’s Sixth Amendment speedy-trial right was actually violated.” Cantu v. State, 253 S.W.3d
273, 281 (Tex. Crim. App. 2008). The trial court “must use a balancing test in which the conduct
of both the State and the defendant are weighed” in order to analyze such claims. Shaw v. State,
117 S.W.3d 883, 888 (Tex. Crim. App. 2003) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)).
The State must justify the length of delay while the defendant has the burden of showing assertion
of the right and demonstrating how the delay caused prejudice. Cantu, 253 S.W.3d at 280–81.
Each case must be analyzed “with common sense and sensitivity to ensure that charges are
dismissed only when the evidence shows that a defendant’s actual and asserted interest in a speedy
trial has been infringed.” Id. at 281.
The Barker factors are (1) the length of delay; (2) the reason for delay; (3) the defendant’s
timely assertion of his speedy trial right; and (4) the prejudice to the defendant resulting from
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delay. Barker, 407 U.S. at 530. “No single factor is necessary or sufficient to establish a violation
of the defendant’s right to a speedy trial.” Shaw, 117 S.W.3d at 889. “Rather, they are related
factors and must be considered together with such other circumstances as may be relevant.”
Barker, 407 U.S. at 533. This is because a dismissal resulting from “a wooden application of the
Barker factors would infringe upon ‘the societal interest in trying people accused of crime.’”
Cantu, 253 S.W.3d at 281.
Length of delay. Pullen was arrested on December 9, 2019, and trial began August 26,
2024—a delay of approximately four years and eight months. That delay is well past the one-year
threshold generally considered presumptively prejudicial. 9 Dragoo v. State, 96 S.W.3d 308, 314
(Tex. Crim. App. 2003); Doggett v. United States, 505 U.S. 647, 652 n.1 (1992). This factor weighs
against the State.
Reason for delay. The record reflects a mix of causes for the nearly five-year delay. A
substantial portion of the early delay is attributable to the COVID-19 pandemic and the
corresponding suspension of jury trials under emergency orders of the Supreme Court of Texas.
Pandemic-driven institutional delay falls within the broad category of “more neutral reason[s]”
that, under Barker, weigh only lightly against the State. Barker, 407 U.S. at 531. Additional delay
was caused by Pullen’s expert who needed time to obtain a software license to perform an
independent forensic extraction of devices seized by the Texas Rangers. The State sought one
continuance, granted October 31, 2023, on the ground that two material witnesses were
unavailable: one located in Georgia was on a military assignment until December, and a second in
New York was likewise unavailable. Pullen changed counsel in late 2023 and tabled his speedytrial motion at that setting so new counsel could come “up to speed.” The case was reset to January
9
“Presumptive prejudice simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry.” Gabaldon, 727 S.W.3d at 17 (citation modified).
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29, 2024, then to July 23, 2024, then to August 26, 2024. Setting the pandemic-era delay aside, the
bulk of the remaining delay was the product of routine resets, witness-availability issues, and
Pullen’s own continuance and change of counsel—not deliberate prosecutorial dilatoriness. Cf.
Zamorano, 84 S.W.3d at 649 (delay caused by routine docket congestion and ordinary witnessavailability issues weighs less heavily against the State than delay attributable to bad-faith or
strategic prosecutorial conduct).
Assertion of the right. A defendant’s lack of persistence in pressing his demand may
weaken the assertion factor. Cantu, 253 S.W.3d at 282–83 (stating a defendant’s assertion of, or
failure to assert, their right to a speedy trial “is entitled to strong evidentiary weight in determining
whether” the right is violated). Pullen filed his motion for speedy trial on September 8, 2022—
roughly thirty-three months after his arrest—and filed a sworn motion to dismiss on January 31,
2024. He did not, however, press either motion at intermediate settings and agreed to table the
issue at an October 2023 hearing to allow his newly-hired counsel to prepare.
Prejudice. Prejudice is assessed in light of three interests that the speedy-trial right
protects: preventing oppressive pretrial incarceration, minimizing anxiety, and limiting
impairment of the defense. Barker, 407 U.S. at 532. Pullen was released on bond and was not in
pretrial custody. He identifies no specific witness who became unavailable, no evidence that was
lost, and no specific impairment of his ability to mount his defense. His asserted prejudice is
generalized anxiety and reputational harm flowing from the pendency of the charges. Although
excessive delay can give rise to a presumption of prejudice that the State must rebut, Doggett, 505
U.S. at 655–58, that presumption is at its weakest where, as here, the defendant remains on bond
and identifies no concrete impairment to his defense.
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Weighing the Barker factors, we cannot say the trial court abused its discretion in denying
Pullen’s speedy-trial motion. Although the length of delay was substantial, the reasons for delay
were largely neutral and in some instances attributable to the defense. Pullen was not persistent in
pressing his demand and the only prejudice shown is generalized anxiety. We overrule Pullen’s
third issue.
4 Confrontation Clause
Pullen contends that the admission of Special Agent Krista Garcia’s testimony by
videoconference violated the Confrontation Clause. U.S. CONST. amend. VI. The State responds
that Agent Garcia’s appearance by videoconference was justified by public policy and necessity
findings supported by a Touhy letter limiting Agent Garcia’s ability to testify. See 5 U.S.C. § 301;
Touhy, 340 U.S. at 467–68.
“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.” U.S. CONST. amend. VI. The right to confront witnesses face to face
lies at “the core of the values furthered by the Confrontation Clause.” Coy v. Iowa, 487 U.S. 1012,
1017 (1988) (citation modified). But the right is not absolute and may give way to other important
public-policy interests. Id. at 1020–21. Face-to-face confrontation may be dispensed with only if
the trial court hears evidence and makes a case-specific necessity finding. Maryland v. Craig, 497
U.S. 836, 855 (1990).
The importance of a public-policy interest used to justify a necessity finding is a question
of law we review de novo. McCumber v. State, 690 S.W.3d 686, 691–92 (Tex. Crim. App. 2024)
(noting that Maryland v. Craig also requires that “the reliability of the testimony is otherwise
assured”). The need for remote testimony to further that public-policy interest is a mixed question
that requires an application of law to fact. Id. at 691. We afford “almost total deference” to the trial
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court’s determinations of mixed questions supported by the record when the resolution of those
questions turns on an evaluation of credibility or demeanor. Id. (quoting Guzman v. State, 955
S.W.2d 85, 89 (Tex. Crim. App. 1997)). We view the record and indulge all reasonable inferences
in the light most favorable to the trial court’s ruling. McCumber, 690 S.W.3d at 691–92 (citing
Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996)). We must uphold the ruling if it
is reasonably supported by the record and under any theory of law applicable to the case. Id.
Here, the State filed a “Request for Testimony via Zoom” and argued, based on Touhy that
remote testimony was necessary because the federal government refused to allow Agent Garcia to
testify in person and would only allow remote testimony. No Touhy letter, affidavit, or any
evidence was attached to the motion. At a pretrial hearing on this motion, the State tendered copies
of a Touhy letter to the court and to defense counsel. The defense argued that, based on McCumber,
an evidentiary hearing was required and that no necessity was shown here. The State responded
that the Touhy letter itself established the need for remote testimony because it was the only way
Agent Garcia could testify. The trial court took the State’s request under advisement.
Shortly before jury selection, the trial court made the following finding:
THE COURT: All right. Just for purposes of the -- purpose of witnesses and putting
on the record with respect to the testimony of Special Agent Krista Garcia of
Homeland Security Investigations, the Court finds that there is a public policy
interest in that the Homeland -- individuals who are federal agents cannot be
compelled to testify via subpoena. Further, Special Agent Garcia does not reside in
the State of Texas and isn’t subject to any type of subpoena power, so, therefore,
based on the Touhy letter, there is a necessity that she testify -- if she testifies, she
may testify via Zoom. Okay?
Under Maryland v. Craig, the trial court must (1) hear evidence and (2) make a casespecific necessity finding. 497 U.S. at 855. While the trial court made a necessity finding, the only
support is the Touhy letter itself, which is not in the record. Defense counsel objected to the State
prosecutor attempting to testify as to the contents of the Touhy letter; however, no ruling was
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obtained. While this is far from ideal practice, we need not decide whether these deficiencies
resulted in error, because we conclude that any such error was harmless beyond a reasonable doubt.
See TEX. R. APP. P. 44.2(a).
A denial of physical, face-to-face confrontation is reviewed for harmless error. Haggard v.
State, 612 S.W.3d 318, 328 (Tex. Crim. App. 2020). Constitutional error is harmful unless a
reviewing court determines beyond a reasonable doubt that the error did not contribute to the
conviction. TEX. R. APP. P. 44.2(a). The harm analysis “cannot include consideration of whether
the witness’ testimony would have been unchanged, or the jury’s assessment unaltered, had there
been confrontation” because “such an inquiry would obviously involve pure speculation.”
Haggard, 612 S.W.3d at 328 (citing Coy, 487 U.S. at 1021–21). Instead, harm must be determined
based on “the remaining evidence.” Id. We thus consider the importance of the witness’s
testimony, whether it was cumulative, the presence or absence of corroborating or contradictory
evidence on material points, and the overall strength of the State’s case. Id. at 329–30.
Agent Garcia testified to four substantive matters: (i) she opened the DeepThroat splash
page on July 8, 2019, and observed seven thumbnail images consistent with CSAM arranged below
an advertisement for two membership tiers; (ii) an HSI task-force blockchain analysis traced a
0.008 BTC payment from a wallet associated with Pullen’s IP address to the bitcoin address
displayed on the splash page; (iii) subpoenas to BitPay and Coinbase resulted in responses that
identified the wallet and ProtonMail account as Pullen’s; and (iv) the splash page’s images and the
wallet address did not change during her investigation.
Each of these points was independently established by other witnesses. Officer Croft
similarly described the splash page. Agent Hardin and Analyst O’Donnell independently
established the blockchain trace. Ranger Evans testified to the subpoena information and that the
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site persistently contained CSAM both before and after Pullen’s visit. Pullen himself admitted
visiting the page and sending bitcoin. Because the same facts were independently established
through untainted sources, any error was harmless. See Clay v. State, 240 S.W.3d 895, 905–06
(Tex. Crim. App. 2007) (confrontation error harmless where the same evidence was admitted from
other sources). We overrule Pullen’s fourth issue.
5 Admission of magnified images
Pullen contends the trial court abused its discretion by admitting State’s Exhibit 3, a
magnified version of the seven thumbnail images that appeared on the DeepThroat website. He
objected under Rule 403, arguing that the exhibit “misrepresent[ed] the clarity, the size, and . . . the
representation” of what could have been seen on the page on the date of the offense.
We review the admission of evidence over a Rule 403 objection for clear abuse of
discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). Rule 403 favors
admission and requires exclusion of relevant evidence only if its probative value is “substantially
outweighed” by, among other things, a danger of unfair prejudice or misleading the jury. TEX. R.
EVID. 403. The Court of Criminal Appeals has articulated a six-factor balancing test for Rule 403
challenges. A trial court must balance (1) the inherent probative force of the proffered evidence
and (2) the proponent’s need for it against (3) any tendency of the evidence to suggest a decision
on an improper basis, (4) any tendency to confuse or distract the jury from the main issues, (5) any
tendency to be given undue weight by a jury not equipped to evaluate it, and (6) the likelihood that
presentation of the evidence will consume an inordinate amount of time or merely repeat evidence
already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).
Probative force and the State’s need. The magnified images were highly probative. The
State’s burden under section 43.26 included proof that the images “visually depict[ed] a child
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younger than 18 years of age . . . engaging in sexual conduct.” TEX. PENAL CODE ANN. §
43.26(a)(1) (West 2019). That inquiry necessarily turns on close visual examination of the
depictions themselves. The magnification gave the jury a meaningful basis on which to evaluate
whether each thumbnail depicted a child under eighteen engaged in sexual conduct—a
determination informed by factors such as the focal point of the image, the setting, the child’s pose
and attire, and whether the depiction suggests sexual activity or is designed to elicit a sexual
response. Cf. Bolles, 541 S.W.3d at 141–42 (applying the six-factor Dost analysis to an image to
determine whether it depicted a child engaging in sexual conduct). These factors weigh in favor of
admission.
Risks of unfair prejudice, confusion, and misleading the jury. An unmagnified
screenshot of the webpage with full context was also admitted as evidence. The jury could thus
compare the two exhibits and assess for itself whether Pullen could have recognized the thumbnails
as containing child sexual abuse imagery. We reject Pullen’s argument that Exhibit 3 distorted
“the clarity, the size, and . . . the representation” of what would have been visible when he visited
the website on July 2. These factors also weigh in favor of admission.
On this record, we cannot conclude the trial court abused its discretion by overruling
Pullen’s Rule 403 objection. We overrule Pullen’s fifth issue.
6 Improper closing argument
Pullen contends the trial court erred in overruling his objection to a portion of the State’s
closing argument in which the prosecutor stated that Ranger Evans testified CSAM was on the
website prior to Pullen’s access.
Proper jury argument falls within four general categories: (1) summation of the evidence,
(2) reasonable deduction from the evidence, (3) answer to opposing counsel’s argument, and (4)
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plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008); Freeman
v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011). We review the trial court’s ruling on
Pullen’s objection to the State’s closing argument for an abuse of discretion. Davis v. State, 329
S.W.3d 798, 825 (Tex. Crim. App. 2010).
The prosecutor’s statement was a permissible summation of, and reasonable deduction
from, Ranger Evans’s testimony. Ranger Evans testified that the site’s bitcoin address “was being
advertised on that dark web page with child porn images on the face of the page advertising for
the membership and viewing of child porn to that address.” He further testified that he “kn[e]w
what was on the site before this transaction occurred and what was on the site after this transaction
occurred.” Whether that testimony rested on unobjected-to hearsay or lack of personal knowledge
does not take the prosecutor’s statements outside the bounds of ordinary summation. Brown, 270
S.W.3d at 570. The trial court did not abuse its discretion in overruling the objection to the State’s
closing. We overrule Pullen’s sixth issue.
7 Judgment reformation
Finally, Pullen requests reformation of the nunc pro tunc judgment which incorrectly
reflects that the trial court assessed punishment. The State does not contest Pullen’s request and
the record confirms the jury—not the trial court—assessed Pullen’s punishment. We sustain
Pullen’s seventh issue. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim.
App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). The
judgment is modified to reflect that the jury assessed punishment.
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CONCLUSION
We vacate the convictions on counts two through seven. We modify the judgment of
conviction on count one to reflect that the jury assessed punishment. As modified, the judgment is
affirmed.
Velia J. Meza, Justice
PUBLISH
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