                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-10-00405-CR
                               No. 10-10-00406-CR
                               No. 10-10-00407-CR
                               No. 10-10-00408-CR
                               No. 10-10-00409-CR

JUSTIN TYLER DAVIS,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                     From the 272nd District Court
                         Brazos County, Texas
Trial Court Nos. 09-02131-CRF-272, 09-02132-CRF-272, 09-02133-CRF-272,
                09-02134-CRF-272 and 09-02135-CRF-272


                                      ORDER


      Justin Tyler Davis was convicted on twenty-five counts (five counts in five cases)

of possession of child pornography.      The five cases were tried together.      Davis

appealed, raising four identical issues in each case. None of the issues involved a

sufficiency of the evidence complaint, thus a review of the entire record was not
required. Davis did not contend on appeal that the images were not child pornography.

His convictions were affirmed by this Court on February 29, 2012. We issued our

mandates on July 17, 2012.

        Since that time, Davis has requested a copy of various portions of the reporter’s

record in his appeals, including copies of photographs admitted into evidence.

        Article 38.45 of the Texas Code of Criminal Procedure, entitled Evidence

Depicting or Describing Abuse of or Sexual Conduct By Child or Minor, provides:

              (a) During the course of a criminal hearing or proceeding, the court
        may not make available or allow to be made available for copying or
        dissemination to the public property or material:
               (1) that constitutes child pornography, as described by Section
        43.26(a)(1), Penal Code;
               (2) the promotion or possession of which is prohibited under
        Section 43.261, Penal Code; or
               (3) that is described by Section 2 or 5, Article 38.071, of this code.
               (b) The court shall place property or material described by
        Subsection (a) under seal of the court on conclusion of the criminal
        hearing or proceeding.
               (c) The attorney representing the state shall be provided access to
        property or material described by Subsection (a). In the manner provided
        by Article 39.15, the defendant, the defendant's attorney, and any
        individual the defendant seeks to qualify to provide expert testimony at
        trial shall be provided access to property or material described by
        Subsection (a).
               (d) A court that places property or material described by Subsection
        (a) under seal may issue an order lifting the seal on a finding that the
        order is in the best interest of the public.

TEX. CODE CRIM. PROC. ANN. art. 38.45 (West Supp. 2013). The article requires the trial

court to make the order sealing the “property or material described by Subsection (a)”

at the conclusion of the trial. Id. (b). It does not appear that this was done at the
Davis v. State                                                                          Page 2
conclusion of Davis’s trials. We have been unable to identify specific authority for this

Court to seal any part of the record. Because Davis’s criminal trials were for the offense

of possession of child pornography, we have grave concerns about providing Davis

with a copy of the record without a sealing order pursuant to Article 38.45 having been

issued.

         Accordingly, the trial court is ORDERED to review the reporter’s record, a

duplicate of which is in the possession of the trial court clerk, see TEX. R. APP. P. 34.6(h),

in compliance with article 38.45 and seal those portions of the record required to be

sealed pursuant to subsections (a) and (b) set out above within 42 days from the date of

this order. The review must include a review of the original exhibits admitted at trial

which are required to now be in the possession of the trial court clerk. See TEX. R. APP.

P. 34.6(g)(1). The trial court is also ORDERED to notify the trial court clerk and this

Court within 49 days from the date of this order precisely what portions of the record

were ordered sealed so that the record in the possession of this Court and any copies in

the possession of the trial court clerk may be sealed in conformity with the trial court’s

order.

                                           PER CURIAM

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Order issued and filed December 19, 2013
Publish


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