Opinion
NO. 07-11-00019-CR
08-30-2011
HAROLD DEAN WILSON, APPELLANT v. THE STATE OF TEXAS, APPELLEE
FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
NO. 22,015-B; HONORABLE JOHN B. BOARD, JUDGE
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
ORDER
Before us are appellant's motion to unseal one volume of the reporter's record, sealed by the trial court according to Rule of Evidence 412, and appellant's motion for additional time to file his brief. We will deny appellant's motion to unseal the record and grant him fourteen days to file his brief.
See Tex. R. Evid. 412.
In the underlying case, appellant was charged with possession of child pornography. At trial, the court conducted an in camera hearing according to Rule 412 and ordered volume three of the reporter's record sealed. Appellate counsel for appellant filed a motion asking that we order the record unsealed so he can prepare appellant's brief.
At our request, the State filed a response. The State points out that appellant's prosecution for possession of child pornography was consolidated for trial with an indictment containing counts alleging appellant committed aggravated sexual assault of a child. It contends the Rule 412 hearing concerned evidence of the aggravated sexual assault counts. The State asks that we deny appellant's motion or alternatively undertake our own review of the Rule 412 hearing record to determine whether any issues were preserved for review or the testimony is relevant to the case on appeal.
The indictment also accused appellant of acts of indecency with a child. Appellant was convicted of possession of child pornography but, according to the State, acquitted of all other charges submitted to the jury.
The application of Rule 412 is limited to prosecutions for sexual assault, aggravated sexual assault and attempts to commit those offenses. Tex. R. Evid. 412; Reyna v. State, 168 S.W.3d 173, 176 (Tex.Crim.App. 2005). For this discussion, we will assume that consolidation of two cases for trial, one prosecuting an offense listed in Rule 412 and the other not, means all evidence the defendant proposes to introduce at trial concerning specific instances of an alleged victim's past sexual behavior are subject to Rule 412. To conclude otherwise would obviate the purpose of the rule. See Wofford v. State, 903 S.W.2d 796, 798 (Tex.App.--Dallas 1995, pet. refused) (noting Rule 412 is a "rape shield law" protecting a complainant's previous sexual conduct from public exposure, with limited exceptions).
Other courts of appeals have declined to order unsealing of records of hearings conducted under Rule 412 so that an appellant can prepare his brief. Kesterson v. State, 959 S.W.2d 247, 248-49 (Tex.App.--Dallas 1997, no pet.) (holding "an appellant is not entitled to review the sealed record from an in camera hearing conducted pursuant to rule 412 to determine what complaints to raise on appeal"); Escobar v. State, No. 05-07-1716-CR, 2009 Tex. App. Lexis 8118, at *3-*4 (Tex.App.--Dallas Oct. 21, 2009, pet. refused) (op. on reh'g, not designated for publication) (following Kesterson); McNaspy v. State, No. 14-96-1317-CR, 1999 Tex. App. Lexis 5594, at *5-*9 (Tex.App.--Houston [14th Dist.] July 29, 1999, pet. refused) (not designated for publication) (overruling issue that trial court's refusal to unseal record of Rule 412 hearing for limited purpose of preparing appellate brief denied appellant due process); cf. Southwell v. State, 80 S.W.3d 647, 649 (Tex.App.--Houston [1st Dist] 2002, no pet.) (applying reasoning of Kesterson in denying motion to unseal record sealed according to Rule 508(c)(2)). We will do so in this case.
Appellant's trial counsel proposed the introduction of evidence of the alleged victim's past sexual behavior. Tex. R. App. P. 412(c). He surely is cognizant, therefore, of the nature and substance of that evidence as well as the general conduct of the hearing. See LaPointe v. State, 225 S.W.3d 513, 523-24 (Tex.Crim.App. 2007) (holding Rule 412 hearing "is an adversarial hearing where the parties are present and the attorneys are afforded the opportunity to question witnesses and present evidence"). While appellant was appointed new counsel for appeal, we know of no reason appellate counsel cannot communicate with trial counsel concerning any matters appellate counsel deems pertinent to the exclusion of evidence under Rule 412. And from that exchange counsel can formulate any related issues for presentation in appellant's brief.
We deny appellant's motion to unseal the third volume of the reporter's record. Appellant's brief was due July 27, 2011. He previously received two extensions of time to file his brief and requested a third by motion filed contemporaneously with his motion to unseal. We have carried that motion with his motion to unseal. Appellant's motion for additional time is granted to the extent his brief is due fourteen days from the date of this order.
Per Curiam Do not publish.