Opinion
10-22-00137-CR
07-26-2022
JOHN WESLEY CASTLOW, Appellant v. THE STATE OF TEXAS, Appellee
From the 369th District Court Leon County, Texas Trial Court No. 20-0101CR.
Before Chief Justice Gray, Justice Johnson, and Justice Smith.
ABATEMENT ORDER
PER CURIAM
The complete reporter's record in this appeal has not been filed. The reporter's refusal to include the trial exhibits in the record means the record is, by definition, incomplete and cannot properly be certified as such. As a result, the appeal cannot proceed because the appellant cannot possibly begin to prepare a proper brief until counsel has had access to the complete appellate record.
It is this Court's understanding that the complete reporter's record has not been filed because the exhibits introduced in the proceeding below have been ordered sealed. The reporter has thus informed this Court by email that she declined to include in the appellate record any of the trial exhibits citing her concern about the content therein and the trial court's sealing order.
The following order rendered by the trial court forms the basis of the reporter's refusal to file the exhibits with this Court as a part of the certified record.
In addition, I'm going to order the exhibits in this file to be sealed. They can only be accepted by a motion and my signature on order. I'm going to allow one copy of the exhibits to be presented to my reporter for purposes of the record. Following that, those exhibits will be destroyed, as well.
The Court recognizes that some exhibits are required to be sealed. For example, Texas Code of Criminal Procedure article 38.45 requires the trial court to make an order sealing the "property or material described by Subsection (a)" of that article at the conclusion of the trial. Tex. Code Crim. Proc. art. 38.45 (b). The described property or material includes: 1) child pornography, as described by Section 43.26(a)(1) of the Texas Penal Code; 2) the promotion or possession of property or material which is prohibited under Section 43.261 of the Texas Penal Code; or 3) property or material described by Section 2 or 5, Article 38.071, of the Texas Code of Criminal Procedure. Id. (a). But, according to the reporter, some of the exhibits introduced into evidence may not need to be sealed.
The trial and appellate courts are jointly responsible for ensuring that the appellate record is timely filed. Tex.R.App.P. Rule 35.3(c). This Court has attempted to obtain the complete reporter's record without success. The reporter was asked to speak with the trial court judge to determine his thoughts on the matter. The reporter has not again contacted this Court. The trial court is in the best position to work with the court reporter to identify which exhibits need to be filed under seal under the relevant rules and statutes and which exhibits should be submitted in the normal fashion though the electronic filing portal as part of the electronic reporter's record.
Accordingly, this appeal is ABATED to the trial court for 60 days from the date of this ORDER so that the trial court, working directly with the reporter, may determine the best means by which the exhibit volume (or volumes) of the reporter's record containing all the exhibits introduced at trial will be transmitted to this Court in a timely manner. The exhibits necessary for a complete reporter's record, which must contain all the exhibits introduced at trial, are ORDERED to be filed by the court reporter within 60 days from the date of this ORDER.
The trial court is ORDERED to review the exhibits, the sole copies of which, according to the trial court's statement at the end of the sentencing hearing, may be in the possession of the reporter, and seal only those exhibits and portions of the record required to be sealed pursuant to article 38.45 (a) and (b), or other statutes or rules.
"I'm going to allow one copy of the exhibits to be presented to my reporter for purposes of the record. Following that, those exhibits will be destroyed, as well."
The trial court is also ORDERED to notify the trial court clerk and this Court precisely which exhibits are ordered sealed so that copies, if any, in the possession of the trial court clerk or the reporter, and those to be forwarded to this Court as a part of our appellate record, may be sealed in conformity with the trial court's sealing order. See Gravens v. State, 630 S.W.3d 99, 101 (Tex. App.-Waco 2020, order); see also Davis v. State, 440 S.W.3d 266 (Tex. App.-Waco 2013, order).
The exhibits filed with this Court, whether sealed or not, should be duplicates of the originals, with all originals being retained by the trial court clerk pursuant to the Texas Rules of Appellate Procedure. See e.g. Tex. R. App. P. 34.6(g).
Once this Court receives and files the exhibits introduced at trial, the exhibits ordered to be sealed will remain sealed until further order of this Court. Additionally, an order will be rendered by the Court setting the time for appellant's brief to be due and restricting access, as appropriate, to the sealed documents. See Garcia v. State, 514 S.W.3d 760 (Tex. App. -Waco 2014, order). See also Ukwuachu v. State, 494 S.W.3d 733 (Tex. App. -Waco 2016, order). Until that time, the appellate briefing schedule is ordered STAYED.
During the period of abatement, the trial court is fully authorized to hold any hearings necessary for the parties to participate in, as appropriate and necessary, to accomplish the objective of this abatement order.
This appeal will be automatically reinstated upon filing of the complete exhibit volume, in one or more parts, of the reporter's record, but in no event later than 60 days from the date of this ORDER.
Appeal abated.