Kenneth Gregory v. the State of Texas ( 2022 )

Order filed November 3, 2022
In The
Eleventh Court of Appeals
__________
No. 11-21-00110-CR
__________
KENNETH GREGORY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 70th District Court
Ector County, Texas
Trial Court Cause No. A-19-1278-CR
ORDER
We issue this order in regard to eight exhibits—specifically, Exhibit Nos. 1,
16, 17, 21, 22, 23, 24, and 25—that are missing from the reporter’s record that was
filed in this court on July 8, 2021. The court reporter for the 70th District Court,
Tina Gregg, has notified this court that five of the eight DVD exhibits contain
explicit material and that she was told by the trial court not to send or upload them
because it was a federal crime to do so. Appellate counsel requested that all exhibits
be included in the reporter’s record, and in his appellate brief, Appellant challenges
the sufficiency of the evidence with respect to two of the counts for which he was
convicted. Therefore, pursuant to Rule 34.6(5) of the Texas Rules of Appellate
Procedure, all exhibits admitted into evidence by the trial court must be included in
the reporter’s record.
With respect to any concern that the court reporter would be violating federal
law by providing the exhibits to this court, we offer this quote from a federal district
court:
In support of his argument that the law [18 U.S.C. § 2252]
reaches conduct that cannot constitutionally be proscribed, defendant
observes that the statute fails to make explicit exceptions for possession
of child pornography by law enforcement officers, prosecutors, the
court, or a jury. The argument is specious for two reasons. Obviously,
neither the court nor a juror is subject to prosecution for possession of
contraband if it is being examined as evidence at trial, and it is a
sophistry to suggest that because possession of contraband is illegal, a
law enforcement officer may not seize it or an assistant U.S. attorney
may not present it as evidence in a prosecution. But these privileges do
not arise from any of the protections of expression embodied in the First
Amendment. They are rather incidents of the special functions these
persons perform in our justice system.
United States v. Lamb, 945 F. Supp. 441, 448 (N.D.N.Y. 1996) (addressing federal
law criminalizing the receipt, distribution, reproduction, transport, and shipping of
child pornography via mail or computer).
By this order, Tina Gregg is ORDERED to file in this cause (1) a sealed
supplemental reporter’s record containing copies of the explicit exhibits that
were admitted at trial but were omitted from the reporter’s record previously
filed in this cause and (2) an unsealed supplemental reporter’s record
containing copies of the nonexplicit exhibits that were admitted at trial but were
omitted from the reporter’s record previously filed in this cause. The
supplemental reporter’s records are due to be filed in this court on or before
November 17, 2022. Without preapproval from this court, all eight exhibits shall be
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filed electronically via the Texas Appeals Management and E-filing System
(TAMES) web portal.
PER CURIAM
November 3, 2022
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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