Villafranco, Jesse Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: October 20, 2021
• Docket: PD-0488-20
• Status: Published

Opinion

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 Villafranco–Page 2

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 Villafranco–Page 3

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. Villafranco–Page 4

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 Villafranco–Page 5

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 Villafranco–Page 6

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. Villafranco–Page 7

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 Villafranco–Page 8

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 Villafranco–Page 9

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 Villafranco–Page 10

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 Villafranco–Page 11

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 Villafranco–Page 12

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 Publish