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Fort Worth, Texas – Criminal Defense lawyer represented defendant with a aggravated sexual assault of a child under six years of age charge.
To protect the privacy of the complainant, we refer to her and her family
members by initials or by their relation to the complainant.1
Complainant RM was five years old when she made an outcry to her mother, AM, that her stepfather,
Appellant, had penetrated her female sexual organ with his finger and with his penis.
At the time, Complainant lived with her mother, Appellant, and two brothers aged
seven and nine. When RM made the outcry to her mother, AM called her own
mother for advice, and her mother told her to take the little girl to the hospital in
Graham, Texas. She did, and the police were called. The police instructed AM to
take RM to Cook Children’s Medical Center in Fort Worth for a sexual-assault nurse
examination. RM was taken to Virginia’s House for a forensic interview, in which she
repeated and expanded on her accusations against Appellant.
Appellant was contacted, and he denied the allegations. When he returned to
Young County from West Texas where he was working, Appellant was arrested.
Young County Sheriff’s Deputy Tim Bay interviewed Appellant, who denied he had
ever done anything with any of “his kids.”
Appellant testified at his trial for aggravated sexual assault, denying he had ever
done anything inappropriate to any child, including his biological daughter who lived
with her mother. However, RM’s brothers testified they had seen Appellant commit
sexual assault. And RM described genital penetration as well as oral penetration.
Appellant’s sister testified she had lived with Appellant, his wife, and the
children for a short while. Their apartment was small, and she could hear Appellant
Loc. R. 7; McLendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.]
1982).
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and his wife having sex nearly every night. She also testified that Appellant had spent
a lot of time around her children. She testified she had never seen anything
inappropriate between Appellant and her children.
AM testified about Appellant’s enjoying role-playing daddy-daughter sex. And
she testified over Appellant’s relevance and Rule 403 objections that Appellant had
shown her porn sites dealing with adult daddy-daughter or daddy-stepdaughter roleplaying and dealing with incest involving brother–sister sex and general-familymember sex.
AM testified that the family laptop was actually hers. Appellant used the
computer and took it with him in his work truck. Over Appellant’s relevance and
Rule 403 objections, AM testified at length about Appellant’s computer searches. She
saw two searches of his that disturbed her: whether “daddy-daughter” molestation is
common and what constitutes the signs of toddler molestation. She testified that she
knew what topics Appellant had searched for:
We shared an email address, so anything I Googled showed in our
search engine and anything he Googled showed up in my search engine.
Because we shared the same email, anything that is Googled on
something that shares the same email it shows up on that other device.
Bay, who by the time of trial in April 2019 had retired from the Young County
Sheriff’s Department, next testified that AM had brought the family computer to him
on August 24, 2017. It was “partially destroyed.” Although he obtained a search
warrant for the information on the computer, he could not remember whether he had
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sent the computer to a lab to be tested. He testified he did not know what was
available on the computer. Nor did he know where the computer was at the time he
testified. He did not remember receiving a report on the examination of the
computer.
Discovery of Computer
When the trial began, the State could not locate Appellant’s family computer.
But after the second day of trial, the Sheriff’s Office contacted the prosecution to say
that it had found out that when the search warrant for the laptop had been executed
in 2017, the Sheriff’s Office had sent the laptop to the Irving Police Department for
forensic examination and requested that the scope of that examination be limited to
pornography of any kind, including child exploitation. After the Irving police
provided a mirrored hard drive of the laptop, limited to the scope of the forensic
examination, to Young County, the laptop itself was inadvertently misplaced. In
August 2017, the Irving Police Department had apparently generated a report from its
forensic examiner to the Young County Sheriff’s Office and notified its Chief Deputy
of the results, but neither that report nor the laptop itself had, in turn, been forwarded
to the District Attorney’s Office or to Appellant prior to trial. Consequently, the
State’s attorneys, while aware of the laptop’s seizure, were unaware that the laptop had
been examined and that a forensic report had been generated.
The attorneys for both sides apparently first learned of the forensic
examination and report when Bay testified at trial. As Appellant explains, “The
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State’s attorneys were unaware of the snafu until April 8, 2019 in the middle of trial.
When they learned of the problem, State’s attorneys immediately notified the trial
court and appellant’s [sic] trial counsel.” Upon learning of the examination and
report, Appellant’s counsel filed various motions with the trial court including a
verified, combined motion for mistrial, dismissal, and continuance to allow time to
investigate the newly discovered evidence. On April 10, 2019, the trial court denied
Appellant’s motion for mistrial and dismissal but ordered the appointment of a
forensic expert to examine the laptop’s contents on Appellant’s behalf. The court
also ordered that the laptop be delivered from the Irving Police Department to that
forensic expert, and the trial court granted a continuance “until April 24, 2019 or until
further order of the Court” to allow time to comply with its orders.
However, at a hearing on April 15, 2019, the trial court said that it intended to
reconvene trial the next day because at least one and possibly two jurors would not be
available if the trial were delayed any further. The trial court also re-heard Appellant’s
motion for mistrial, dismissal, or continuance. The State announced it had not
complied with the order to deliver the laptop to Third Chair Digital Forensics, LLC
because on the State’s review of the evidence contained in the laptop’s hard drive, the
prosecutor concluded, “[C]ertain images that cannot definitively be classified as
nonchild pornography” were discovered.
The State’s attorney further explained to the trial court and defense counsel
that the lab tech who had examined the laptop for the State had expressed
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“reservations about the hard drive being put in the hands of a non-law[-]enforcement
agency,” apparently because of the presence of possible child pornography. In
response to those concerns, the State indicated that it had asked the Irving Police
Department lab tech to “mirror” the entire hard drive for defense counsel and to
prepare a report on its findings as well.
Defense counsel asserted that according to the Irving Police Department’s final
report, Defendant’s Exhibit 5, “[t]hey did not find child pornography on that
computer.” Among other defense objections at the hearing on April 15, Appellant
objected to the State’s failure to comply with the trial court’s discovery order on the
basis of Article 39.14 of the Texas Code of Criminal Procedure.2 Appellant asserted
that the laptop held the potential for either impeachment or exculpatory evidence and
that further forensic examination was required pursuant to the trial court’s order of
April 10, 2019.
Thus, as of the April 15 hearing, the forensic expert appointed by the trial court
on April 10 had still not had the opportunity to examine the computer. The trial
court denied counsel’s renewed motions and opted instead to allow defense counsel
an opportunity to view the mirrored hard drive overnight.
Appellant’s counsel argued that he knew little or nothing about computers and
needed his expert’s assistance. He also pointed out that, although the State’s trial
2Tex. Code Crim. Proc. Ann. art. 39.14(a).
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counsel might not have known of the hard drive’s location or of the report already
prepared by the police forensic investigator, the knowledge of members of the two
police departments was imputed to her.
Appellant’s counsel correctly stated,
Defendant’s Exhibit 5 sets out, which is the Irving Police report, a
copy of their report. It sets out that it was done for a limited
investigation, and I think that there could be materials on there that need
a full examination. And the fact that -- well, that I’m supposed to come
down here half a day before we resume the court to look at something
after I had asked for an expert to do it, I think is pretty ridiculous. I
can’t do that. I can’t make those determinations. It limits my
effectiveness to serve him, to serve Mr. Hance, and give him a fair trial.
Trial Outcome
Trial reconvened the next day, April 16, 2019. The jury convicted Appellant of
aggravated sexual assault and assessed his punishment at fifty years’ confinement.
The trial court sentenced Appellant accordingly. Appellant then filed a motion for
new trial setting forth as his grounds the language used here in the sixth issue of his
brief:
The trial court erred by denying Hance’s motion for new trial on the
grounds that:
A) a “laptop and its contents” were withheld from him until after
the start of trial and discussed in two (2) hearings held on Defendant’s
Motion to Dismiss, Motion for Mistrial, or Motion for Continuance on
April 9, 2019 and April 15, 2019;
B) The forensic expert appointed by the trial court on April 10,
2019 was prevented from examining the “laptop and its contents”
because of actions by the State in failing to turn the “laptop and its
contents” over to said forensic expert.
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That motion was overruled by operation of law.
Dispositive Complaint
Appellant argues in his fourth and sixth issues that the trial court abused its
discretion by denying his verified motions for continuance, mistrial, and new trial
because he should have been allowed to have his expert physically examine the laptop
before having to continue with trial. He argues in his fifth issue that the trial court
abused its discretion by failing to require the State to produce the actual laptop to him
for independent examination. We hold that the trial court abused its discretion by
denying Appellant’s motion for new trial––which complains that the trial court should
either have granted a mistrial or continuance rather than reconvening trial on April 16,
2019––when it was discovered that the court-appointed forensic expert was prevented
from examining the laptop and its contents as ordered by the court because the State
refused to make it available to Appellant’s forensic expert.
Standards of Review
We review the trial court’s rulings on Appellant’s motions for an abuse of
discretion.3 Appellant argues the trial court abused its discretion (1) in failing to
require the State to produce Appellant’s laptop seized from him by the State pursuant
3See Gonzalez v. State, 616 S.W.3d 585, 594 (Tex. Crim. App. 2020) (new trial),
cert. denied, 142 S. Ct. 436 (2021); Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App.
2009) (mistrial); Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007)
(continuance).
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to a search warrant to allow him to determine whether the laptop contained evidence
material to any matter involved in this action and (2) in reconvening the trial before
such an examination could occur.
Applicable Law
Article 39.14(a) of the Texas Code of Criminal Procedure provides in pertinent
part,
[A]s soon as practicable after receiving a timely request from the
defendant the state shall produce and permit the inspection and the
electronic duplication, copying, and photographing, by or on behalf of
the defendant, of any . . . designated books, accounts, letters,
photographs, or objects or other tangible things not otherwise privileged that
constitute or contain evidence material to any matter involved in the action
and that are in the possession, custody, or control of the state or any
person under contract with the state. . . .
4
Additionally, and independent of the Article 39.14(a) statutory right to discovery, an
accused person is also protected by the constitutional right of access to exculpatory
evidence explained in Brady v. Maryland.
5
Summary
In the approximately twenty months between Appellant’s arrest and his trial,
the Young County Sheriff’s Office seized his family computer, examined it
forensically, and obtained an examination report but failed to provide that
4Tex. Code Crim. Proc. Ann. art. 39.14(a) (emphasis added); see Watkins v. State,
619 S.W.3d 265, 277 (Tex. Crim. App. 2021) (describing Article 39.14(a) after Michael
Morton Act as “revamped . . . completely”).
5Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
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information or the report either to the prosecution or to Appellant. The purpose of
the State’s seizing and examining the computer was to locate evidence of
“pornography of any kind (to include child exploitation materials, adult pornography,
and pornography depicting incest), evidence of the possession or transmission of such
materials and depictions of the victim in sexualized or inappropriate photos or
videos.” When the trial judge ordered the State to turn over the computer’s hard
drive to the defense expert, the State decided the court’s order was infirm and should
not be complied with. Images of child pornography cannot be turned over to persons
who are not part of law enforcement.6
But the prosecuting attorney did not raise this
objection when defense counsel asked the trial court to order the computer’s delivery
to Appellant’s forensic expert.7
Instead, she later acquiesced to the police forensic
examiner’s determination that it should not be turned over.
As Appellant pointed out to the trial judge, this decision to refuse to comply
with the court’s order did not occur in 2017 when the State’s report was generated. It
occurred mid-trial. Although this report was created by the police expert in 2017, it
was never provided either to the prosecution attorneys or to Appellant. Indeed, the
prosecution had no idea where the computer was or that it had been examined
6See Tex. Penal Code Ann. § 43.26(h).
7See Tex. Code Crim. Proc. Ann. art. 39.14(a) (“This article does not authorize
the removal of the documents, items, or information from the possession of the state,
and any inspection shall be in the presence of a representative of the state.”).
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forensically. But the law imputes the knowledge of the police to counsel for the State.
“The rule is well established that the knowledge of one part of the prosecution team is
imputed to all members of the prosecution team.”8
Not only did the State unilaterally refuse to comply with the trial court’s order,
the trial court’s original decision to continue the trial to April 24, 2019, was set aside
because at least one and possibly two jurors had expressed they might be unavailable
the week of April 24, and because the trial court did not want to declare a mistrial
because of losing jurors. The trial judge ordered the lawyers to proceed with the trial
the following day, despite the fact that Appellant’s expert had been denied access to
the computer.
The State had examined the computer, and the State had already presented
some of the computer’s contents to the jury (via testimony from AM) as evidence that
Appellant was invested in child-role-playing pornography and had researched the
indications that a very young child was being sexually abused. The record clearly
supports Appellant’s argument that the information on the laptop’s hard drive was
relevant9
and, therefore, that denial of his request for his forensic expert to examine
8Ex parte Roberson, 455 S.W.3d 257, 266 & n.3 (Tex. App.––Fort Worth 2015,
pet. ref’d) (Dauphinot, J., dissenting) (citing Rubalcado v. State, 424 S.W.3d 560, 574
(Tex. Crim. App. 2014); Ex parte Adams, 768 S.W.2d 281, 291–92 (Tex. Crim. App.
1989)); cf. Francis v. State, 428 S.W.3d 850, 853–56 (Tex. Crim. App. 2014) (discussing
former and then-current prosecutor’s knowledge of existence of machete and whether
either related their knowledge to the defense).
9See Watkins, 619 S.W.3d at 278, 291.
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the computer and denial of sufficient time to examine the computer constituted a
denial of counsel and denial of a fair trial. Accordingly, the trial court abused its
discretion by continuing the trial rather than giving Appellant the opportunity to
examine the hard drive. And because evidence of Appellant’s proclivities featured
heavily in the trial, and at the time of the laptop’s discovery the defense could not
unring the bell as to what the jury had already heard, the trial court should have
concluded that Appellant had been prejudiced and granted Appellant’s new-trial
motion.
10
We therefore sustain Appellant’s sixth issue. Because it is dispositive, we need
not address his first through third issues or expressly rule on his fourth and fifth
issues that raise the same argument4s.
Outcome: We reverse the trial court’s judgment and remand this cause to the trial court
for a new tria