IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0488-20
JESSE VILLAFRANCO, JR., Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE ELEVENTH COURT OF APPEALS
MIDLAND COUNTY
KEEL, J., delivered the opinion of the Court in which HERVEY,
RICHARDSON, NEWELL, WALKER, and MCCLURE, JJ., joined. KELLER, P.J., filed a
dissenting opinion in which SLAUGHTER, J., joined. YEARY, J., dissented.
OPINION
We withdraw our prior opinion and substitute this opinion in its place. Appellant
was charged with aggravated sexual assault, attempted indecency with a child, and
indecency with a child by exposure. At trial, Appellant sought to ask the victim about a
previous incident of sexual abuse by someone else to rebut medical evidence offered by
the State. The trial court questioned the victim outside the presence of the parties and
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ruled the evidence of prior sexual abuse inadmissible. The State and defense now agree
that the trial court failed to follow the proper procedure for a hearing under Rule of
Evidence 412, also known as the “rape shield” rule, and erred in excluding the State,
defense counsel, and Appellant from the hearing. The court of appeals affirmed the trial
court, concluding that Appellant did not show harm.
We granted review to consider whether the court of appeals erred in failing to
remand this case to the trial court to remedy its error as required by our holding in
LaPointe v. State, 225 S.W.3d 513 (Tex. Crim. App. 2007), and whether the trial court’s
error was harmless beyond a reasonable doubt. We hold that the court of appeals erred in
failing to follow LaPointe. We reverse the judgment of the court of appeals, remand the
case to that court, and order the court of appeals to abate the case for the trial court to
hold an adversarial hearing on the admissibility of the evidence of prior sexual abuse.
This resolution renders moot Appellant’s second ground for review, and we need not
consider the issue of harm.
I. Background
The six-year old victim, A.U., testified that Appellant put his “middle part” into
her “middle part” and that his “middle part” is “called a dick” and her “middle part” is a
vagina. A sexual assault nurse examiner (SANE) testified that she observed some vaginal
scarring on A.U. that could have been caused by vaginal penetration. To rebut this
medical evidence, Appellant sought to question A.U. about a previous sexual assault by
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someone named Isaiah. The State objected that evidence of the victim’s previous sexual
activity is not admissible under Rule of Evidence 412. The State said the act with Isaiah
did not involve vaginal penetration and would not rebut the medical evidence from the
SANE exam.
The trial court construed Rule 412 as requiring an in camera hearing without the
presence or participation of the defense or State. Defense counsel agreed with the trial
court’s interpretation of the rule and responded, “That’s correct, Your Honor.” Defense
counsel was allowed to ask A.U. several questions to give the trial court guidance before
the ex parte in camera hearing. Defense counsel asked A.U., “did Isaiah touch you in
different parts of your body?” and she responded, “Yes, sir.” He asked if Isaiah touched
her with her clothes on or underneath her clothes, and she said it was underneath her
clothes. Defense counsel asked if Isaiah touched her vagina, and she responded, “Yes,
sir.” The trial court then held an in camera hearing outside the presence of Appellant and
the attorneys with only the court, the court reporter, and the victim present. After
questioning A.U. about the incident with Isaiah, the trial court ruled that it was not
admissible.
The jury found Appellant guilty of aggravated sexual assault, attempted indecency
with a child, and indecency with a child by exposure. The trial court assessed concurrent
sentences of twenty-five years for aggravated sexual assault and ten years for each
indecency offense.
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II. Court of Appeals
Citing our holding in LaPointe, 225 S.W.3d at 520-21, the court of appeals said the
trial court should have permitted the parties to be present and the attorneys to question
A.U. in the Rule 412 proceeding and that abatement is the proper remedy for the trial
court’s error. The court of appeals also cited Young v. State, 547 S.W.2d 23, 25 (Tex.
Crim. App. 1977), which held that the error was not material because the record was
sufficient to support appellate review of the issue. The court of appeals noted that
Appellant did not object to the trial court’s improper procedure. Assuming without
deciding that the Rule 412 hearing was a critical stage of the proceeding, the court of
appeals applied a harmless error test and concluded that Appellant failed to show harm
from the trial court’s error.
The court of appeals rejected Appellant’s contention that the error was structural
and that harm should be presumed. Appellant also argued that the error was not harmless
because A.U. gave ambiguous and confusing answers, and the trial court did not have her
define the terms she used in the Rule 412 hearing. In its harm analysis, the court of
appeals said the trial court clarified A.U.’s answers, and A.U. did not display any
confusion about the questions regarding Isaiah and those regarding Appellant. There was
also no evidence that A.U.’s prior sexual activity showed a motive or bias against
Appellant. The court of appeals concluded that the trial court’s error in excluding
Appellant and his counsel from the Rule 412 hearing did not contribute to Appellant’s
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conviction or punishment.
III. Rule 412 and LaPointe
Specific instances of a sexual assault victim’s past sexual behavior are generally
inadmissible but may be admitted for limited purposes, such as if the evidence is
necessary to rebut or explain medical evidence offered by the State. TEX. R. EVID.
412(b)(2)(A). If a defendant wishes to offer evidence of the victim’s past sexual
behavior, he must inform the court outside the jury’s presence, and the court must
conduct an in camera hearing, recorded by the court reporter, to determine if the evidence
is admissible. TEX. R. EVID. 412(c).
LaPointe held that a Rule 412 in camera proceeding is an adversarial hearing at
which the defendant, defense counsel, and the State are present, and the attorneys are
permitted to question the witness and present evidence. 225 S.W.3d at 520, 523-24.
Defense participation in the hearing gives the defendant the opportunity to substantiate
his claim that the victim’s prior sexual history is admissible. Id. at 523. If the trial court
fails to follow this procedure, and the defendant is prevented from properly litigating the
admissibility of this evidence, the appellate court may not be able to intelligently evaluate
the correctness of the admissibility determination, but this does not mean that the trial
court’s admissibility determination was incorrect. Id. at 521; TEX. R. APP. P. 44.4. The
defendant should be given the opportunity to perfect the record so the appellate court can
review the admissibility issue. LaPointe, 225 S.W.3d at 521. The proper remedy is for
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the court of appeals to abate the appeal and remand the case to the trial court to conduct a
retrospective adversarial hearing in which the defendant has an opportunity to show that
the victim’s prior sexual history is admissible. LaPointe, 225 S.W.3d at 523, 524.
IV. Analysis
The trial court’s error prevented the development of the record necessary to
determine harm, and the court of appeals should not have conducted a harm analysis
based on a deficient record. The court of appeals erred in relying on Young for the
proposition that the record was sufficient to support appellate review. Young specified
that it should not be used as precedent to avoid the requirements of the predecessor statute
to Rule 412. Young, 547 S.W.2d at 25. Young allowed a case-specific exception to the
requirements only because the trial occurred shortly after the effective date of the statute,
and the trial court had made a sufficient record of the issue for review. Id.
The State agrees that the trial court erred but says Appellant failed to preserve the
issue for appellate review.
A. Error Preservation
If the trial court’s error in excluding the parties from the Rule 412 hearing is
subject to the usual rules of procedural default, it must have been preserved by objection.
LaPointe, 225 S.W.3d at 522. Because Appellant did not object, we must first consider
whether his claim is subject to forfeiture, or if it involves a right that may be raised for the
first time on appeal in the absence of an express waiver on the record.
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We have identified three categories of rules or rights that comprise our system.
Marin v. State, 851 S.W.2d 275, 278-79 (Tex. Crim. App. 1993). (1) Absolute or
systemic requirements that are not optional and must be followed even if the parties wish
otherwise, (2) waivable rights that must be implemented unless expressly relinquished by
the defendant, and (3) all other complaints, whether constitutional, statutory, or otherwise,
that are forfeited if not requested by the defendant. Anderson v. State, 301 S.W.3d 276,
279 (Tex. Crim. App. 2009) (citing Marin, 851 S.W.2d at 278-79).
LaPointe’s holding that a Rule 412 hearing was an adversarial proceeding was
based in part on the defendant’s right to confrontation. 225 S.W.3d at 520. The right to
confront witnesses is forfeited if not requested by the defendant, as is the right to a
meaningful opportunity to present a complete defense. Anderson, 301 S.W.3d at 277,
280. But the right to counsel at a critical stage of trial must be affirmatively waived; it
cannot be forfeited by inaction alone. Darcy v. State, 488 S.W.3d 325, 329 (Tex. Crim.
App. 2016); Gilley v. State, 418 S.W.3d 114, 119 (Tex. Crim. App. 2014).
The State asserts that the right to counsel in a Rule 412 hearing should be
classified as a forfeitable right because defense counsel was present and could have
pointed out to the trial court that there was case law directly on point that mandated his
presence in the Rule 412 hearing, distinguishing this case from a situation where a
defendant is unrepresented and forced to fend for himself against a trained lawyer on the
other side. The State says it is not unreasonable to require counsel in this situation to
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preserve error with an objection.
If a Rule 412 hearing does not constitute a critical stage for Sixth Amendment
purposes, then Appellant’s claim is forfeited by his failure to object to trial counsel’s
exclusion from the hearing.
B. Critical Stage
Appellant argues that a Rule 412 hearing is a critical stage of trial because it may
result in the loss of critical rights. The State agrees that a Rule 412 hearing is a critical
stage but says it should be treated the same as the denial of counsel at closing argument,
which lower courts have held is forfeited if not objected to. The State says in both
situations the defendant will have counsel present through most of the proceedings to
vindicate his rights. The State cites two cases in which the trial court ruled on a motion to
revoke the defendant’s deferred adjudication without first allowing the defense the
opportunity to make a closing argument. Error was not preserved when the defense either
failed to request closing argument or failed to object to the implied denial of a request for
closing argument. Habib v. State, 431 S.W.3d 737, 742 (Tex. App.—Amarillo 2014, pet.
ref’d.); Foster v. State, 80 S.W.3d 639, 640 (Tex. App.—Houston [1st Dist.] 2002, no
pet.). Disallowing argument by counsel is not the same as disallowing counsel’s presence
at a proceeding, and the argument cases are not analogous to excluding counsel from the
Rule 412 hearing.
In LaPointe, we declined to address whether the trial court’s error completely
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deprived the defendant of counsel at a critical stage of trial because the scope of any
prejudice resulting from the error was limited and was remediable by affording the
defendant an adversarial hearing in which he had the opportunity to perfect the record and
substantiate his claim that the victim’s prior sexual history was admissible. LaPointe, 225
S.W.3d at 521. But the trial court’s error was preserved in LaPointe, so our decision did
not turn on whether the right to counsel at a critical stage had been affirmatively waived.
To determine whether a proceeding is a critical stage, we assess the usefulness of
counsel to the accused at that particular proceeding. Upton v. State, 853 S.W.2d 548, 553
(Tex. Crim. App. 1993) (citing Patterson v. Illinois, 487 U.S. 285, 298 (1988)). A
proceeding is a critical stage if the absence of counsel may result in rights being
irretrievably lost if not then and there asserted, or if the accused requires aid in coping
with legal problems or assistance in meeting his adversary. Gilley, 418 S.W.3d at 123
n.38; Hidalgo v. State, 983 S.W.2d 746, 752 (Tex. Crim. App. 1999). For example, the
arraignment in Hamilton v. Alabama was a critical stage because an Alabama arraignment
may affect the whole trial, and available defenses may be irretrievably lost if not then and
there asserted. 368 U.S. 52, 54 (1961).
In Gilley, we concluded that a pretrial examination to determine whether a child-
witness is competent to testify was not a critical stage of trial. 418 S.W.3d at 119-20.
But the child-witness competency examination at issue in Gilley differs from a Rule 412
hearing in several ways. The trial court has discretion to permit the parties to participate
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in a child-witness competency examination, whereas a Rule 412 hearing is an adversarial
proceeding requiring the presence and participation of the parties. Gilley, 418 S.W.3d at
121; LaPointe, 225 S.W.3d at 520. A child-witness competency examination also differs
because counsel can still ask competency questions of the witness at trial, whereas a Rule
412 hearing may prevent admission of testimony crucial to the defense. Defense
counsel’s later opportunity to challenge the child-witness’s deficiencies during the trial
itself rendered the trial court’s competency examination to be a non-critical stage of the
proceedings. Gilley, 418 S.W.3d at 122-23. In contrast, exclusion of Appellant and his
counsel from the Rule 412 hearing may have permanently foreclosed Appellant’s ability
to rebut medical evidence and defend on grounds that someone else caused the victim’s
injury.
We said in Anderson that a meaningful opportunity to present a complete defense
is forfeitable, but Anderson did not involve the denial of counsel at an adversarial
hearing. 301 S.W.3d at 277. Anderson’s appellate challenge to the trial court’s denial of
his unsworn oral motion for continuance was forfeited by his failure to comply with
procedures requiring the motion to be sworn to and in writing. See TEX. CODE CRIM. P.
Arts. 29.03, 29.08; Anderson, 301 S.W.3d at 280. There was no due process exception to
the preservation requirements governing motions for continuance, and Anderson forfeited
his right to present a defense to the State’s DNA report. Anderson, 301 S.W.3d at 280-
81. The denial of the right to present a complete defense in this case is distinguished
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from Anderson by the adversarial nature of the Rule 412 hearing, the sole purpose of
which is to determine the admissibility of defensive evidence, and the exclusion of
counsel from the hearing, which prevents the admissibility of the evidence from being
properly litigated.
We conclude that a Rule 412 adversarial hearing is a critical stage of trial, and
Appellant’s right to counsel was not forfeited by inaction alone.
The State argues that even if the Rule 412 hearing is a critical stage and if the right
to counsel must be affirmatively waived, Appellant waived it by endorsing the trial
court’s belief that the hearing was to be held ex parte. The State says this is analogous to
defense counsel announcing “no objection” when the State offers something into
evidence, thereby waiving any objection to the evidence, even if it was subject to a
pretrial motion to suppress. But a more fitting analogy is the right to a jury trial, which
we have said is waivable only. Marin, 851 S.W.2d at 279. If a trial judge said that a
defendant was not entitled to a jury trial, and defense counsel responded, “That’s correct,
Your Honor,” we would not conclude that the defendant’s right to a trial by jury had been
affirmatively waived.
Appellant’s agreement with the trial court’s proposed ex parte procedure for the
Rule 412 hearing was not an affirmative waiver of his right to counsel.
C. Remedy
Citing Rule of Appellate Procedure 44.4, Appellant says the proper remedy for the
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trial court’s error is to abate the appeal and remand to the trial court for an adversarial
hearing on the admissibility of the evidence. We agree. Rule of Appellate Procedure
44.4 precludes a court of appeals from affirming a judgment if the trial court’s error
prevents the proper presentation of the case to the court of appeals and if the trial court
can correct its error. The court of appeals must direct the trial court to correct the error
and then proceed as if the error had not occurred.
Because the trial court’s error was limited to the Rule 412 hearing, and that error
can be corrected by the trial court, abatement is the proper remedy. LaPointe, 225
S.W.3d at 521. The court of appeals should have followed LaPointe and remanded the
case to the trial court for a retrospective hearing on the Rule 412 issue.
V. Conclusion
A Rule 412 adversarial hearing is a critical stage of trial, and Appellant’s right to
counsel was not forfeited by his failure to object. The court of appeals erred in failing to
follow LaPointe and in analyzing harm without first remanding the case to the trial court
to correct its error and develop the record necessary to determine harm.
We reverse the judgment of the court of appeals, remand the case to that court, and
order the court of appeals to abate the case for the trial court to hold a retrospective
hearing on the Rule 412 issue.
Delivered: October 20, 2021
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