Opinion
01-22-00201-CR
05-18-2023
JOSHUA CURTIS DRYER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 10th District Court Galveston County, Texas Trial Court Case No. 17-CR-3187
Panel consists of Justices Goodman, Hightower, and Guerra.
ORDER DENYING REHEARING
Gordon Goodman Justice
Following the issuance of our opinion reversing the trial court's judgment and remanding for further proceedings, the State filed a Motion To Protect Sensitive Information. Because the State's motion requests that we withdraw our opinion and issue an amended one in its place, we construe the State's motion as a motion for rehearing. See Monroe v. State, No. 01-07-00474-CR, 2009 WL 276713, at *1 (Tex. App.-Houston [1st Dist.] Feb. 5, 2009, no pet.) (mem. op., not designated for publication) (construing State's motion to modify opinion as one for rehearing). We deny the State's motion for rehearing.
BACKGROUND
This appeal arises out of a prosecution for the offense of continuous sexual abuse of a young child. A jury found the appellant guilty of the indicted offense, by which the State alleged that he had sexually abused his daughter between the years 2009-15. We reversed the trial court's judgment of conviction and remanded for a new trial on the basis that the appellant's trial lawyer gave ineffective assistance.
In its motion for rehearing, the State asks us to amend our opinion to refer to two witnesses who testified at trial by their initials rather than their actual names. The two witnesses are Zeke Dryer, the appellant's son, and Kaitlyn Medlin, a onetime friend of the appellant's daughter. At the time of the trial, Zeke was 17 years old and Kaitlyn was 22 years old. Both witnesses were less than 17 years of age during the 2009-15 period in which the appellant allegedly molested his daughter.
DISCUSSION
Citing Rule 9.10(a)(3) of the Texas Rules of Appellate Procedure, the State argues that Zeke's and Kaitlyn's full names constitute sensitive information that the court must omit from its opinion. The State provides no other authority or argument.
Rule 9.10 governs privacy protection for documents filed in criminal cases. It defines "sensitive data"-data subject to privacy protection-to include "the name of any person who was a minor at the time the offense was committed." Tex.R.App.P. 9.10(a)(3). However, the remainder of this rule of appellate procedure shows that it applies to the filings made by the parties, not the court's orders or opinions.
Another part of Rule 9.10 requires sensitive data to be redacted from filings, stating: "Unless a court orders otherwise, an electronic or paper filing with the court, including the contents of any appendices, must not contain sensitive data." Tex.R.App.P. 9.10(b). The rule then specifies particular redaction procedures that include a directive for "[t]he filer" to "retain an unredacted version of the filed document during the pendency of the appeal." Tex.R.App.P. 9.10(d). In addition, the rule specifies that the "filing of a document constitutes a certification by the filer that the document complies" with the rule's redaction requirement. Tex.R.App.P. 9.10(e). On their face, these provisions concern the parties, not the court or its agents.
Similarly, another appellate rule concerning what constitutes filing shows that these rules are directed at the parties. See Tex. R. App. P. 9.2(a) (specifying acts constituting filing of document with court, including delivery to court clerk).
In sum, Rule 9.10's mandates regarding "sensitive data" apply to the filings made by the parties. But Rule 9.10 does not govern the court's orders or opinions.
This view of Rule 9.10's plain language is reinforced by comparing it with the rule governing the protection of a minor's identity in parental-termination and juvenile-court cases. In the former type of case, the applicable rule explicitly mandates that "the court must, in its opinion, use an alias to refer to a minor, and if necessary to protect the minor's identity, to the minor's parent or other family member." Tex.R.App.P. 9.8(b)(2). In the latter, the applicable rule mandates that "the court must, in its opinion, use an alias to refer to a minor and to the minor's parent and other family member." Tex.R.App.P. 9.8(c)(2). In contrast, Rule 9.10 does not extend its sensitive-data mandates about minors to the court's opinion.
The State conceivably could argue that though Rule 9.10 does not explicitly govern our opinion, we nonetheless should apply the rule as a matter of prudence and redact Zeke's and Kaitlyn's names. On the facts before us, we decline to do so.
Initially, we note the State has not actually articulated an argument or cited any authority for such an expansion of the application of Rule 9.10. Standing alone, the State's failure to do so is grounds for denying its motion. See Tex. R. App. P. 10.1(a)(2) (motion must "state with particularity the grounds on which it is based").
We must remember that Texas courts are public institutions, which conduct their judicial business in the open through elected officials. In consequence, our law generally frowns on devices that are intended to shield any aspect of court proceedings from public view. See, e.g., Tex.R.Civ.P. 21c, 76a (disallowing court records from being removed from files except as permitted by statute or rule, disallowing orders and opinions from being sealed, and stating other court records are presumed to be open to general public, but requiring filers to redact "the name of any person who was a minor when the underlying suit was filed" and requiring filing parties to retain unredacted versions of redacted documents during pendency of case and appellate proceedings begun with six months of judgment). Anonymity in litigation is disfavored. The use of pseudonyms, for example, is allowed in certain limited circumstances, but this is not the norm. See, e.g., J.G. v. Jones, 660 S.W.3d 786, 792 n.2 (Tex. App-Dallas 2023, no pet. h.) (stating "[u]se of a pseudonym is permitted in state court under certain circumstances" but noting whether trial court erred in disallowing appellant from doing so was not before appellate court); Doe v. Univ. of the Incarnate Word, No. 04-19-00453-CV, 2020 WL 3260080, at *2 (Tex. App.-San Antonio June 17, 2020, no pet.) (mem. op.) (observing that "Texas courts occasionally permit plaintiffs to proceed under a pseudonym" but affirming trial court's refusal to allow plaintiff to do so as he did not adequately brief issue).
Rule 9.10 of the Texas Rules of Appellate Procedure's mandate that parties redact "sensitive data" is itself an exception to the norm of unhindered public access to the business of the courts. Appellate courts therefore should proceed with caution in redacting or anonymizing court orders and opinions to a greater extent than Rule 9.10 explicitly requires. We should only do so on a showing of significant need.
Our case law, which the State does not cite, supports the view that a party must show significant need for pseudonymity when it seeks more than is explicitly required by the applicable rule of appellate procedure. For example, in Gustafson v. Chambers, we agreed on rehearing to substitute a doctor's initials for his name because in the underlying suit it was alleged that he had killed a patient due to his use of intoxicants and the doctor submitted a sworn opinion that this allegation was so prejudicial it "could substantially and irrevocably harm his medical practice" otherwise. 871 S.W.2d 938, 950 (Tex. App.-Houston [1st Dist.] 1994, orig. proceeding) (per curiam). In so holding, we noted that other decisions in which courts granted greater anonymity than any rule required typically involved situations in which the party making the request might otherwise be subject to humiliation or obloquy or situations in which a lack of anonymity would defeat the purpose of the proceeding. See id. (citing decisions involving challenge to criminal abortion statute, dispute about whether homeowner's policy covered claim for negligent exposure to herpes, proceeding to expunge criminal records, and challenge to involuntary commitment); see also D.B. v. K.B., 176 S.W.3d 343, 345 n.2 (Tex. App.-Houston [1st Dist.] 2004, pet. denied) (granting divorcing parties' request to use their initials because disclosure of their actual names could have alerted unnamed defendants in unrelated qui tam suit of existence of federal government's ongoing investigation).
Here, the State has not made a showing of significant need for pseudonymity or greater anonymity than the appellate rules explicitly require. Zeke and Kaitlyn were fact witnesses at trial. They did not witness the acts for which the appellant was indicted, and their testimony did not concern any of those acts. On its face, their trial testimony was not of the sort that might subject them to humiliation or obloquy if their names are referenced in this court's discussion of the trial proceedings. There is no indication that the disclosure of the identities of these two witnesses could substantially and irrevocably harm their lives in some fashion. Finally, the purpose of these criminal proceedings will not be defeated by disclosure of their identities.
We acknowledge that in our opinion we referred to the appellant's daughter by her initials. But she was the complainant and victim of the offense for which the appellant was indicted. In contrast to the usual norm of openness that prevails in judicial proceedings, Texas law ordinarily does provide for pseudonymity with respect to victims of sex offenses, child victims in particular. See Tex. Code Crim. Proc. arts. 58.103-.105, 58.107 (allowing victim to elect to use pseudonym, requiring attorney for State who receives notice of victim's election to use pseudonym to "ensure that the victim is designated by the pseudonym in all legal proceedings concerning the offense," allowing court to disclose victim's name only if this is essential in trial of defendant for offense or victim's identity is at issue, prohibiting disclosure of name of victim younger than 17 years of age by public servants or others with access to this information, unless disclosed to certain persons involved in case or otherwise permitted by law or court order, and criminalizing disclosure of name of victim younger than 17 years of age by public servants). But neither Zeke nor Kaitlyn qualifies for pseudonymity on this particular ground.
CONCLUSION
We deny the State's motion for rehearing.