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Yorktown man accused of illegal photography wins appeal, gets case dropped

By Jessica Priest
Dec. 17, 2013 at 6:17 a.m.
Updated Dec. 18, 2013 at 6:18 a.m.


PENAL CODE

A person commits improper photography or visual recording if they photograph, videotape or record, broadcast or transmit a visual image of another by any other electronic means at a location that is not a bathroom or private dressing room. It must be done without the person's consent with the intent to arouse or gratify the sexual desire of any person.

SOURCE: Texas Penal Code Chapter 21.15

Police stopped a Yorktown man outside a Cuero municipal pool in summer 2009 after he was described as suspiciously taking pictures of teenage girls swimming.

Felix Arguellez, 55 at the time of the incident, told the officers that some photos "were taken to see how the pictures came out."

After a judge allowed the pictures into evidence in 2011, Arguellez pleaded no contest to two counts of improper photography.

Although he was sentenced to 20 months in state jail, he posted an appeals bond.

Now, after the Texas Court of Criminal Appeals in Austin ruled Arguellez should not have been stopped or detained in 2009, DeWitt County District Attorney Michael Sheppard has signed a motion to dismiss the case.

"Taking photographs of people at such public venues is not unusual, suspicious or criminal," the justices wrote in their September opinion.

"If you want to have an analogy, it would be like if you were at a football game, and you were taking pictures of people out on the field, and there were cheerleaders in the pictures. That's not enough," said Victoria defense attorney Keith Weiser. "If you take it out of the pool context, then I think people will understand it a lot better."

Weiser represented Arguellez at the trial court and on his first appeal to the 13th Court of Appeals in Corpus Christi.

Victoria attorney Luis Martinez represented Arguellez on his second appeal to the Texas Court of Criminal Appeals in Austin.

Martinez could not be reached for comment Monday or Tuesday.

"I think it (the latter opinion) reaffirms the position that people are secure in what they do unless their actions rise to a level that objectively seems to be illegal or at least suspicious enough for an officer to interfere," Weiser said.

Sheppard, meanwhile, did not know what the officers could have done differently.

"I think their (the justices') analysis on the stop and search was wrong, but I think really deep down they don't like the statute of illegal photography," Sheppard said. "It's a strange statute because two people can each take the same picture, and in one instance, it can be a crime, and another instance it cannot be a crime based on subjective intent. ... Making that distinction is rather difficult."

"We knew it was a case that was kind of on the cutting edge. We'll have to proceed with caution with illegal photography cases in the future," he said.

A judge is expected to dismiss Arguellez's case at 9 a.m. Feb. 13.

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