In re State

564 S.W.3d 58
Court of Appeals of Texas·Decided July 18, 2018·No. No. 08-18-00070-CR·Published·Cited by 4 cases

Opinion

YVONNE T. RODRIGUEZ, Justice

The State of Texas has filed a mandamus petition against the Honorable Marcos Lizarraga, Judge of the 168th District Court of El Paso County, Texas, asking that we direct Respondent to vacate an order requiring the State to make photographic copies of digital child pornography images during a criminal trial involving aggravated sexual assault of a child and indecency with a child charges. The petition for writ of mandamus is conditionally granted.

FACTUAL SUMMARY

The real party in interest, Angelica Hernandez, is charged by indictment in cause number 20130D02077 with three counts of aggravated assault of a child and one count of indecency with a child. The indictment alleged that Hernandez, acting in concert with Osvaldo Araiza, provided alcohol to her sixteen-year-old biological daughter, B.P., and to another child, and Araiza penetrated B.P.'s sexual organ with his finger and penis, contacted her sexual organ with his mouth, and touched her breast.

This mandamus proceeding arises out of the second trial of Hernandez on these charges. The El Paso Police Department obtained a search warrant for Hernandez's cell phone and the phone was given to Detective Robert Hanner to examine using computer programs. After verifying that the search warrant permitted him to examine Hernandez's cell phone, he retrieved the child pornographic digital images at issue in this case. Hanner explained that cell phones are examined in a controlled and closed environment as a precautionary measure where only the examiner has access to the phone and the phone is not connected to the internet. If images depicting a naked child or child pornography are found on the phone, other law enforcement officers are not allowed access to the images unless they are pertinent to the case. In the event the images are pertinent to the case, the law enforcement officers assigned to the case must view the images in the laboratory and copies are not provided to them. These precautions are taken to prevent the child from being victimized.

Hanner was unsuccessful in his attempts to examine the cell phone because the phone was password-protected. Hanner removed the micro-SD card from the cell phone and initially did not find any images related to the case. He then used specialized computer programs to retrieve ten digital images that had been saved to and subsequently deleted from the micro-SD card. Hanner saved the restored images onto a disk which was marked at trial as State's Exhibit 3.1

*62When the State asked to approach Hanner with State's Exhibit 3, Hernandez's attorneys asked for a bench conference and the following exchanged occurred:

[Defense counsel]: I believe they're about to try to get in the images right now. Right? I don't think they should be on a disk like this. Right? Because they need to be able to be published to the jury via the Elmo like we had the last time and that way-
...
[Defense counsel]: -and that way in case they need to be recalled by the jury or referenced in later examinations that way we don't have to bring it up on a computer when the whole worry about attaching this to a computer is that it would be attached to the Internet.
[The prosecutor]: May I respond? Your Honor, I brought the computer where we view the child pornography images that has no Internet connection. I have already prepared it and set it up to the Elmo for us to publish it there and when we are done with the trial, I would leave the [sic] it with the bailiff so that he could provide it to the jury if they want to review images again-
[The trial court]: But he wants the printed out images for the jury. [Emphasis added].
Following a break, the parties and the trial court continued to discuss the issue.
[The trial court]: We're back on the record outside the presence of the jury at 8:50. I asked the state to go ahead and print out copies. It is now 25 minutes later and the state wants to make a record, but I expect and I hope that the copies are printed. Go ahead.
[The prosecutor]: Okay. Your Honor, just to clarify on the record. What was happening during this trial of aggravated sexual assault, I was in the process of showing State's Exhibit Number 3 to the witness, Detective Hanner. State's Exhibit Number 3 contains 10 images of child pornography that are relevant to this case. Defense counsel then asked to approach the bench and in approaching the bench, defense counsel stated that they needed to have a copy-the pictures printed out so that they could refer to during the trial and-
[The trial court]: Okay.
[The prosecutor]: -have access-
[The trial court]: Okay. Well, I want to clarify that.
[The prosecutor]: -from what I recall.
[The trial court]: Well, I want to clarify-
[The prosecutor]: Yes, Your Honor.
[The trial court]: -that they were not saying they had to have it. They were making that as a suggestion. The record will show what it shows. But it was me, not the defense, who ordered the copies and I didn't clarify that it was in response to defense's request, but it's the way that I want to handle the trial. So continue.
[The prosecutor]: Yes, Your Honor. And in doing so after that request-or after that suggestion was made by defense counsel, the state did object to the court's telling the state-requesting the state to print out the images of the child pornography. Section 39.15 of the Code of Criminal Procedure titled discovery of evidence depicting or describing abuse of a minor or sexual conduct by a child or a minor under section C states that a court shall deny any request by a defendant to copy, photo-photograph, duplicate or otherwise reproduce any property or material described by subsection A provided that the state makes the property *63and material reasonably available to the defendant. Under subsection A, Your Honor, the article states that in any manner provided by this article, the court shall allow discovery under article 39.14 of property or material that constitutes child pornography as described by section 43.26. And then also it refers to section 38.071. If I may just refer to that.
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