      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00329-CR



                                 Brandon Robisheaux, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
         NO. CR2012-042, HONORABLE R. BRUCE BOYER, JUDGE PRESIDING



                                             ORDER


PER CURIAM

               Appellant Brandon Robisheaux was convicted of two counts of sexual assault of a

child. During trial, the trial court held two in-camera hearings, the reporter’s records of which were

sealed. See Tex. R. Evid. 412.1 Robisheaux’s appellate counsel has filed a motion seeking access

to the sealed record in order to identify appellate issues and prepare Robisheaux’s brief. The State

has filed a response opposing Robisheaux’s motion and asserting we should follow the line of court

of appeals cases that refuse to grant access to records sealed under rule 412. See Escobar v. State,

No. 05-07-01716-CR, 2009 WL 3366551, at *1 (Tex. App.—Dallas Oct. 21, 2009, pet. ref’d) (not


       1
          In a prosecution for sexual assault, evidence of the victim’s past sexual behavior may be
admitted for very limited purposes. Tex. R. Evid. 412(b). If the defendant seeks to introduce such
evidence, he must inform the trial court of his intention, and the trial court must then “conduct an
in camera hearing” to determine whether the evidence is admissible. Id. R. 412(c). The reporter’s
record of that hearing shall be sealed “for delivery to the appellate court in the event of an appeal.”
Id. R. 412(d).
designated for publication); Buchanan v. State, No. 11-00-00368-CR, 2002 WL 32341839, at *2

(Tex. App.—Eastland Nov. 7, 2002, no pet.) (not designated for publication); McNaspy v. State, No.

14-96-01317-CR, 1999 WL 548371, at *3-4 (Tex. App.—Houston [14th Dist.] July 29, 1999, pet.

ref’d) (not designated for publication). All of those cases rely on Kesterson v. State, 959 S.W.2d 247

(Tex. App.—Dallas 1997, no pet.), in which the Dallas Court of Appeals held that “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.” Id. at 249. The Kesterson court drew a comparison

between rule 412 and rules governing a motion to disclose a confidential informant’s identity or a

civil discovery dispute related to assertions of privilege and reasoned that, although an “appellant

will be unable to make specific references in his brief to the testimony from the hearing,” “this will

not unduly hinder appellant in preparing any complaints he may have regarding the testimony

presented at the hearing. Appellant can still identify what he believes was the general nature of the

testimony involved and discuss why he believes the trial court erred in its ruling.” Id. at 248-49.

               After Kesterson was decided, however, the court of criminal appeals considered how

a rule 412 hearing should be conducted and held that such a hearing is “an adversarial hearing at

which the parties are present and the attorneys are permitted to question witnesses.” LaPointe v.

State, 225 S.W.3d 513, 520 (Tex. Crim. App. 2007). In LaPointe, the court held that the purpose

underlying rule 412, to protect a victim’s privacy, must be weighed against a defendant’s right to

confrontation and that rule 412 “balances those interests by closing the hearing to spectators, so that

only a minimum number of people—the witness, the parties and their attorneys, the judge, and the

court reporter—are privy to the information revealed.” Id.



                                                  2
                After LaPointe was decided, the Fort Worth Court of Appeals considered the issue

before us today: whether a defendant may seek to unseal portions of the reporter’s record sealed

under rule 412 for purposes of appeal. Dees v. State, No. 02-12-00488-CR, 2013 WL 627046, at *1

(Tex. App.—Fort Worth Feb. 21, 2013, order) (not designated for publication). The Dees court

declined to follow Kesterson and distinguished the rules cited for comparison in Kesterson, noting

that the rule governing a motion to identify a confidential informant specifically excluded the

party and counsel from the “showing in camera,”2 and that the rules related to assertions privilege

in civil discovery3 were “sufficiently different in procedure and purpose from rule 412” that they did

not provide guidance. Id. at *4-5.

                The court looked to the language in LaPointe discussing the balancing of a victim’s

privacy interests against a defendant’s right to confrontation and stated:


       Given that the complainant’s privacy interest must be balanced against an appellant’s
       right to confrontation for purposes of one part of rule 412, it follows that the same
       balance must be struck when addressing an appellant’s right to access to the complete
       record on appeal.


Id. at *3. The Dees court held that, to ensure a defendant’s right to effective assistance of counsel,

counsel should be given “limited access to the sealed record in order to assert the arguments he

deems best through the use of his professional judgment.” Id. at *6. The court granted access only

to the attorneys of record and placed strict limits on how counsel could view the record and use

information gleaned from the record. Id.

       2
           See Tex. R. Evid. 508(c)(2).
       3
           See Tex. R. Civ. P. 193.3, .4.

                                                  3
               We have reviewed rule 412 and the rules of appellate procedure, which require all

briefs to contain record references, see Tex. R. App. P. 38.1(d), (g), and compared Dees to Kesterson

and its progeny. We find the logic of the Dees opinion, particularly in light of the reasoning in

LaPointe, more persuasive, and we likewise decline to follow Kesterson. We grant Robisheaux’s

motion to the following degree:


•      The sealed portions of the reporter’s record are ordered unsealed only as to the attorneys of
       record for the purpose of preparing the parties’ briefs and motions to this court.

•      Appellate counsel for Robisheaux and the State may review the contents of the sealed
       records at the office of the Clerk of this Court during regular office hours but may not copy
       or check out the sealed records.

•      Counsel may take notes but are ordered to immediately destroy any such notes once this
       Court has issued its mandate in this case.

•      The parties and their counsel are ordered not to disclose or disseminate any information
       contained in the sealed records to any other person or entity.

•      Should the parties address any arguments related to any evidence contained in the sealed
       records, the parties are ordered to file their briefs under seal and in paper form only. The
       parties should file only one original of each brief, which should be unbound, and the cover
       of each brief should clearly state that the brief is sealed by order of this Court.

               It is ordered February 13, 2015.




Before Justices Puryear, Pemberton, and Bourland

Publish




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