                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00013-CR


RONALD FRANKLIN SCIBEK                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


                                    ------------

          FROM COUNTY COURT AT LAW NO. 2 OF WICHITA COUNTY

                                    ------------

                         MEMORANDUM OPINION1
                                     ----------

      A jury convicted Appellant Ronald Franklin Scibek of assault family

violence of his estranged wife Crystal, and the trial court sentenced him to a

$500 fine and to thirty days‘ confinement in county jail. The trial court suspended

imposition of the confinement portion of the sentence and placed Appellant on

one year‘s community supervision. In two points, Appellant contends that the

trial court erred by failing to conduct an in camera review and by limiting cross-


      1
       See Tex. R. App. P. 47.4.
examination. Because we hold that the trial court did not abuse its discretion by

failing to conduct an in camera review and that Appellant did not preserve his

complaint about limiting cross-examination, we affirm the trial court‘s judgment.

      In his first point, Appellant contends that ―[t]he trial court erred by failing to

conduct an in camera review of the contents of the sealed envelope to determine

its admissibility for purposes of impeaching the State‘s sole eyewitness [Crystal]

to the incident.‖ Before trial, Appellant subpoenaed documents from the City of

Wichita Falls. The City filed a motion to quash the subpoena for one document,

which involved allegations that Crystal had injured her roommate and the

roommate‘s child in 2004. The City contended that Appellant did not take the

steps required by family code section 261.201 to obtain the document‘s release.

Appellant asked that the trial court ―review it for potentially to put us in

relationship of who is the aggressor and who is involved in assaults.‖ The trial

court granted the City‘s motion on the basis that the statutory procedures had not

been followed but also stated to defense counsel,

      If you go through the process, as provided by law, then I will be glad
      to take a look at the document and decide, in camera, whether or
      not any or all of it should come before this court and this jury.

            ....

             . . . [W]hat I‘m telling you, Counsel, I‘m not saying that forever
      that you couldn‘t do it[;] I‘m just saying that if you want to use it in
      this case, you‘re going to have to go through the process stated in
      order to get to it.

Appellant nevertheless still did not attempt to go through the process. The trial

court ultimately included in the appellate record a sealed copy of the challenged

                                          2
document alleging that Crystal had shoved a twelve-year-old child into a wall as

well as a sealed copy of another document, possessed by the State, providing

the roommate‘s later statement that the child complainant had not told the police

the truth about the cause of her injuries and that Crystal had not hurt the child.

      Section 261.201 of the family code provides,

            (a) Except as provided by Section 261.203, the following
      information is confidential, is not subject to public release under
      Chapter 552, Government Code, and may be disclosed only for
      purposes consistent with this code and applicable federal or state
      law or under rules adopted by an investigating agency:

                   (1) a report of alleged or suspected abuse or neglect
             made under this chapter and the identity of the person making
             the report; and

                    (2) except as otherwise provided in this section, the
             files, reports, records, communications, audiotapes,
             videotapes, and working papers used or developed in an
             investigation under this chapter or in providing services as a
             result of an investigation.

            (b) A court may order the disclosure of information that is
      confidential under this section if:

                   (1) a motion has been filed with the court requesting the
             release of the information;

                    (2) a notice of hearing has been served on the
             investigating agency and all other interested parties; and

                   (3) after hearing and an in camera review of the
             requested information, the court determines that the
             disclosure of the requested information is:

                          (A) essential to the administration of justice; and

                          (B) not likely to endanger the life or safety of:



                                          3
                                 (i) a child who is the subject of the report of
                           alleged or suspected abuse or neglect;

                                 (ii) a person who makes a report of alleged
                           or suspected abuse or neglect; or

                                  (iii) any other person who participates in an
                           investigation of reported abuse or neglect or who
                           provides care for the child.

           (b-1) . . . .

           (c) In addition to Subsection (b), a court, on its own motion,
     may order disclosure of information that is confidential under this
     section if:

                  (1) the order is rendered at a hearing for which all
           parties have been given notice;

                   (2) the court finds that disclosure of the information is:

                           (A) essential to the administration of justice; and

                           (B) not likely to endanger the life or safety of:

                                 (i) a child who is the subject of the report of
                           alleged or suspected abuse or neglect;

                                 (ii) a person who makes a report of alleged
                           or suspected abuse or neglect; or

                                  (iii) any other person who participates in an
                           investigation of reported abuse or neglect or who
                           provides care for the child; and

                 (3) the order is reduced to writing or made on the record
           in open court.2

     In Dixon v. State, Dixon argued that he was entitled to access confidential

information material to his guilt or punishment notwithstanding the statutory

     2
      Tex. Fam. Code Ann. § 261.201(a)–(c) (Vernon Supp. 2010).

                                           4
prohibitions and urged us to review the sealed documents for Brady3 material.4

We explained,

            The United States Supreme Court held in Brady that the
     prosecution violates a defendant‘s due process when it suppresses,
     upon request, evidence in its possession favorable to an accused
     ―where the evidence is material either to guilt or to punishment,
     irrespective of the good faith or bad faith of the prosecution.‖
     ―Brady‖ evidence includes both exculpatory and impeachment
     evidence. The test for materiality is whether ―there is a reasonable
     probability that, had the evidence been disclosed to the defense, the
     result of the proceeding would have been different. A ‗reasonable
     probability‘ is a probability sufficient to undermine confidence in the
     outcome.‖

            When a defendant seeks access to information that is
     protected by a confidentiality statute, a conflict arises between the
     defendant‘s rights to due process and the State‘s interest in
     maintaining confidentiality. On one hand, denial of access to
     information that would have a reasonable probability of affecting the
     outcome of a defendant‘s trial abridges a defendant‘s due process
     rights and undermines the court‘s duty to vindicate Sixth Amendment
     rights. Consequently, a confidentiality statute may not operate to
     totally bar a defendant access to information, whether in the
     possession of the State or of any other person, that might be Brady
     material.

            On the other hand, to allow a defendant unlimited access to
     the information would unnecessarily compromise the State‘s interest
     in protecting the confidentiality of its information. The Supreme
     Court in Ritchie noted that the State has a compelling interest in
     keeping child abuse information confidential so that reluctant victims,
     relatives, and witnesses will be encouraged to come forward and
     report the abuse without the fear of general disclosure.

          To balance these competing interests, the trial court must
     conduct an in camera review of the requested information to

     3
      Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
     4
       Dixon v. State, 923 S.W.2d 161, 166–67 (Tex. App.—Fort Worth 1996),
rev’d on other grounds, 928 S.W.2d 564 (Tex. Crim. App. 1996).

                                       5
      determine whether it contains any Brady material. The in-chambers
      inspection must be conducted ―in a manner conducive to ‗scrupulous
      protection against any release or publication of material not found by
      the court . . . [to be] relevant to the issues of the trial for which it is
      sought.‘‖ Neither the State nor the attorney for the defendant should
      be present. If upon inspection the trial court deems any of the
      information material, the court must release this material information,
      and no other, to the defendant. The decision of whether to make
      any of the information available to the defendant is a matter of
      discretion on the part of the trial court and is reviewable under an
      abuse of discretion standard.5

      In the case now before us, given the trial court‘s encouragement to

Appellant to follow the procedures outlined in subsection (b) of the statute and

the trial court‘s assurance that the in camera review would then occur, we are not

prepared to hold that the trial court abused its discretion by not reviewing the

challenged document in camera. Nevertheless, in the interest of justice, we have

reviewed the sealed documents.

      A Brady violation does not occur if the defendant, using reasonable

diligence, could have otherwise obtained the information.6 As discussed more

fully in the analysis of Appellant‘s second point, Appellant did not attempt to

question Crystal or any other witness about the incident depicted in the

challenged document, even though he knew the alleged date of the incident and

the complainants involved in that incident by the time Crystal testified at trial.




      5
       Id. at 167 (citations omitted).
      6
       Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996), cert. denied, 519
U.S. 1094 (1997).

                                           6
      Further, the document sought by Appellant is not material in this case,

given the state of the record. Appellant argues that he needed the document to

advance the defensive theory that he was aware of Crystal‘s violent tendencies

and perceived that she was a danger to him. Appellant did rely on that theory in

argument, yet Appellant did not attempt to question the witnesses about any

specific prior acts of violence allegedly committed by Crystal, not even that

alleged in Defense Exhibit 1, admitted with no objection.           The documents in

Defense Exhibit 1 name Crystal as the aggressor and Appellant as the

complainant in an altercation that occurred prior to that for which Appellant was

on trial. Appellant also did not mention any prior acts of violence by Crystal in

argument. The State, on the other hand, referred to police reports offered into

evidence by Appellant that allege prior acts of violence of both Appellant and

Crystal and invited the jury to assess Crystal‘s credibility. Because the trial court

did not issue a final ruling barring Appellant from accessing the sealed document,

Appellant did not use diligence in otherwise securing the information, and the

sealed document was not material given Appellant‘s trial and argument decisions

and the state of the record, we overrule Appellant‘s first point.

      In his second point, Appellant contends that ―[t]he trial court erred by

limiting the cross examination of defense counsel regarding prior incidents of

violence such that Appellant‘s right of confrontation under the Sixth Amendment

was denied.‖    The trial court granted the State‘s motion in limine prohibiting

Appellant from referring to the 2004 family violence incident involving Crystal, her


                                          7
former roommate, and the twelve-year-old child discussed in the sealed

documents. The trial court then stated, ―[I]f it comes up during the course of the

trial, then you‘ll approach the bench and advise me that . . . that issue is going to

come up and we‘ll look at it again.‖ Appellant points to no place in the record

where he attempted to question Crystal or any other witness about any of her

prior acts of violence or where he sought a trial ruling, as opposed to the

preliminary ruling on the motion in limine, on the admissibility of such evidence.

Consequently, Appellant has preserved nothing for review.7 We overrule his

second point.

      Having overruled both of Appellant‘s points, we affirm the trial court‘s

judgment.


                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 23, 2010



      7
       See Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265
(Tex. Crim. App. 1998) (op. on reh‘g), cert. denied, 526 U.S. 1070 (1999); see
also Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008) (―A motion in
limine . . . is a preliminary matter and normally preserves nothing for appellate
review. For error to be preserved with regard to the subject of a motion in limine,
an objection must be made at the time the subject is raised during trial.‖), cert.
denied, 129 S. Ct. 904 (2009); Fuller v. State, 827 S.W.2d 919, 929 n.10 (Tex.
Crim. App. 1992), cert. denied, 509 U.S. 922 (1993).

                                         8
