VILLAFRANCO v. STATE (2021)

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 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 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.

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 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 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.

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 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 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, 108 S.Ct. 2389, 101 L.Ed.2d 261 (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, 82 S.Ct. 157, 7 L.Ed.2d 114 (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 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 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 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.

The Court says that a Rule 412 hearing is a critical stage of trial, and the right to counsel at a critical stage is a waivable-only right. And the Court says that a waiver did not occur in this case when counsel agreed to the trial court's procedure. But assuming those conclusions to be true for the sake of argument, there is one more question that needs to be resolved that the Court does not address. Was Appellant actually denied counsel at a critical stage? The answer to that question is “no.”

I. BACKGROUND

During his cross-examination of the victim in front of the jury, defense counsel asked, “So do you remember a friend or a neighbor named Isaiah?” The State objected, saying that defense counsel was headed toward eliciting an incident of prior sexual conduct that was inadmissible under Rule 412. The trial judge excused the jury from the courtroom and had the parties explain their respective positions. Defense counsel suggested that sexual conduct by Isaiah against the victim could explain medical findings about the child. The State responded that it could not because the conduct in question did not involve the penetration of the vagina. Defense counsel suggested that such a conclusion was premature because the victim had referred to Isaiah touching her but had never been given an opportunity to go into detail about what had happened.

The trial judge then indicated that he would conduct an in camera hearing, and in the following colloquy, the judge and the parties agreed that the parties could not be present at that hearing:

THE COURT: Well, wait just -- let's be sure I'm looking at this correct. I think this says that I must conduct an in-camera hearing and that doesn't mean that you -- either one of you get to ask any questions of her.

[DEFENSE COUNSEL]: That's correct, Your Honor.

[PROSECUTOR]: That's correct.

But the parties agreed that defense counsel should be permitted to ask the victim some questions to guide the trial judge's in camera inquiry.

Defense counsel then questioned the victim as follows:

Q. Do you know and would one of the kids that you had played with somebody by the name of Isaiah?

A. Yes, sir.

Q. And is that somebody that when you were asked some questions about had somebody done something to you, that you named Isaiah as somebody had -- that had done something to you?

A. Yes, sir.

Q. Now, I understand that when you were having your video -- do you remember that?

A. What?

Q. When you were at the place where they took your video and you were drawing on the dry erase board?

A. Yes, sir.

Q. Okay. Now, do you remember then that you described that Isaiah had touched you?

A. Yes, sir.

Q. And then they kind of changed the subject and didn't let you finish saying what you were going to say about Isaiah, so I'm just going to ask you about that, okay?

A. Yes, sir.

Q. And first off, was that the first time you had let anybody know that Isaiah was touching you?

A. No, sir.

Q. You had let somebody else know prior to the man that was asking you those questions?

A. Yes, sir.

Q. Do you remember who it was that you had told?

A. Yes, sir.

Q. Who was it?

A. My mother.

Q. So your mother knew before you did that interview where they took your video that Isaiah had been touching you?

A. Wait, no. Sorry.

Q. Okay. Then tell me, had you told anybody else prior -- you said you told your mother.

A. Yes, sir, I told her.

Q. Okay. And so did you tell her before you had done that interview?

A. No, sir.

Q. Okay. So was the first person that you told was the person that did that interview?

A. Yes, sir.

Q. Okay. So nobody knew anything about Isaiah until then?

A. Yes, sir.

Q. All right. And did Isaiah touch you in different parts of your body?

A. Yes, sir.

Q. And did he touch you with your clothes on or underneath your clothes?

A. Underneath my clothes.

Q. And did he touch you in your private that you described learning from your counselor what was -- is your vagina?

A. Yes, sir.

In the in camera hearing, the trial judge asked the victim about whether Isaiah touched her vagina, whether he penetrated her vagina, and whether that occurred before or after the incident with Appellant. The victim told the trial judge that Isaiah had touched her vagina, but did not penetrate it, and that this occurred before the incident with Appellant. She did say that Isaiah penetrated her butt with his “middle part” and that this happened only once.

II. ANALYSIS

For something to count as denial of counsel at a critical stage, it must be a complete denial.¹ Here, any denial of counsel was not complete. In my estimation, the critical stage at issue here is the guilt stage of trial. Any exclusion from the Rule 412 hearing would not be the complete denial of counsel at a critical stage. But even if the Rule 412 hearing itself were deemed to be a discrete critical stage, there was not a complete denial there either. Defense counsel was permitted to ask the complainant questions about the prior sexual contact, which she answered, before the court took the complainant back to its chambers for an in camera examination. This questioning constituted some participation in the hearing about the admissibility of the prior sexual conduct. Essentially, the hearing on the complainant's prior sexual conduct was divided into two parts: one in which defense counsel questioned the complainant, and another in which the trial court questioned the complainant in camera. Consequently, this was not a compete denial of counsel at the hearing.²

Also, counsel agreed with the trial court that the in camera questioning without the parties present was the proper procedure. Appellant therefore had assistance and advice from counsel regarding the Rule 412 inquiry. The fact that the advice was wrong can be the subject of an ineffective assistance claim, but that does not mean there was a complete denial of counsel for preservation purposes.

Most types of error have to be preserved.³ Admissibility-of-evidence claims ordinarily have to be preserved even if the claim involves a right-to-counsel violation.⁴ Although the error alleged here is not a straightforward admissibility-of-evidence claim, the purpose of a Rule 412 hearing is to determine the admissibility of evidence. And if a Rule 412 hearing is a critical stage, it is only because the absence of counsel at the hearing can result in the irretrievable loss of the right to question the victim. I would take the purpose of a Rule 412 hearing into consideration in determining whether this kind of error is forfeitable. If Appellant's complaint, for example, were that the evidence was improperly excluded because the hearing was not conducted properly, that would be an admissibility-of-evidence complaint with a right-to-counsel violation as the reason for the alleged inadmissibility, and our precedent would unquestionably require that complaint to be preserved.⁵ As it is, counsel had some participation in the Rule 412 inquiry, which takes this case out of the “denial of counsel at a critical stage” precedents. Because of that, we should apply the traditional rule that error has to be preserved. Because error was not preserved here, Appellant's claim should be rejected.

I respectfully dissent.

FOOTNOTES

1.   See Wright v. Van Patten, 552 U.S. 120, 124-25, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008) (presumption of prejudice arises from complete denial of counsel at a critical stage); Roe v. Flores-Ortega, 528 U.S. 470, 483, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (same); Schmidt v. Foster, 911 F.3d 469, 480 (7th Cir. 2018) (en banc) (same, emphasizing that denial must be complete).

2.   Cf. Van Patten, supra at 125, 128 S.Ct. 743 (cases do not clearly hold for federal habeas purposes that counsel's participation by speakerphone in plea hearing should be treated as a complete denial of counsel); Schmidt, supra at 481, (permitting counsel to be present but not participate in the in camera hearing was not a “complete” denial of counsel).

3.   Darcy v. State, 488 S.W.3d 325, 329 (Tex. Crim. App. 2016).

4.   Id.

5.   See id.

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.