Brian Shawn Gilley v. State, 383 S.W.3d 301

Appellant Brian Shawn Gilley was convicted of aggravated sexual assault of a child in Wichita County, Texas.
The complainant was six years old at trial and had previously described alleged acts to a school employee and a child advocacy worker.
Pretrial, Gilley moved to determine the complainant’s competency to testify; the court initially found no in-camera examination was needed after listening to an audio interview.
Gilley objected under Rule 601, prompting the court to conduct an in-chambers competency examination with only the court and the complainant present.
The trial court found the complainant competent to testify and allowed her to testify; the record of the in-chambers examination was sealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether excluding defense from the in-camera competency hearing violated Rule 601 and confrontation rights	Gilley argues exclusion violated Rule 601 and the Sixth Amendment	State contends Rule 601 permits court examination without counsel presence and no confrontation violation	No reversible error; court properly conducted the in-camera examination and allowed testimony
Whether the competency ruling, based on an in-camera examination, violated confrontation rights	Gilley asserts lack of opportunity to cross-examine complainant at competency stage violated confrontation	State argues the competency determination does not foreclose later cross-examination and trial proceedings	Harmless error; competency ruling did not prejudice defense and cross-examination occurred at trial
Whether the defense preserved claims under articles 28.01 and 33.03	Gilley claimed these statutes required presence during pre-trial proceedings	State contends objection did not preserve those claims and the court should rely on Rule 601	Claims under articles 28.01 and 33.03 were not preserved and not addressed

LaPointe v. State, 225 S.W.3d 513 (Tex. Crim. App. 2007) (in-camera proceedings can require or exclude parties depending on rule cited)
Davis v. State, 268 S.W.3d 683 (Tex. App.—Fort Worth 2008) (review of complete trial record permissible for competency issues)
Kentucky v. Stincer, 482 U.S. 730 (U.S. Supreme Court 1987) (presence rights and trial-stage hearings in confrontation context)
Pena v. State, 285 S.W.3d 459 (Tex. Crim. App. 2009) (preservation requirements for appellate claims in this context)
LaGrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1992) (distinguishes when presence or cross-examination is mandated in competency contexts)
Adanandus v. State, 866 S.W.2d 210 (Tex. Crim. App. 1993) (harmless error approach to certain due process claims)