Villafranco, Jesse Jr., PD-0488-20

Background

Appellant was tried for aggravated sexual assault and indecency offenses involving a six-year-old victim who testified the defendant penetrated her.
A SANE nurse testified to vaginal scarring that could be caused by penetration; defense sought to introduce prior sexual abuse by a third person ("Isaiah") to rebut that medical evidence.
The trial court treated the Rule 412 (rape-shield) procedure as an ex parte in camera hearing, excluding the State, defense counsel, and appellant; however, defense counsel briefly questioned the child before the court conducted the ex parte proceeding.
The child answered that Isaiah had touched her under her clothes and on her vagina during the preliminary questioning; the trial court subsequently ruled the prior-acts evidence inadmissible.
The jury convicted appellant; the court of appeals affirmed, concluding the error in procedure was harmless. The parties and courts now agree the trial court did not follow Rule 412 procedure as clarified in LaPointe.

Issues

Issue	Appellant's Argument	State's Argument	Held
Whether Rule 412 requires an adversarial in camera hearing with parties present	LaPointe controls: Rule 412 hearings are adversarial and require presence/participation of defendant and counsel	Trial court followed its view; State later concedes error but urged preservation rules	Court holds Rule 412 hearings are adversarial and the parties must be allowed to participate (LaPointe governs)
Whether excluding defense counsel and appellant from the Rule 412 hearing was forfeited by failure to object	Appellant argues right to counsel at that hearing is a critical-stage right and not forfeited by inaction	State argues the right is forfeitable and counsel’s acquiescence waived error	Court holds the Rule 412 adversarial hearing is a critical stage; right to counsel was not forfeited by silence or counsel’s agreement
Appropriate remedy when the trial court fails to follow Rule 412 procedure	Abate and remand for a retrospective adversarial Rule 412 hearing so the record can be developed	State contends error preservation might bar relief; otherwise argues harmless-error review	Court orders abatement: remand to trial court for a retrospective adversarial hearing per LaPointe; court of appeals erred by conducting harm analysis first
Whether the court of appeals properly performed a harmless-error analysis on the deficient record	Appellant contends record was insufficient to evaluate harm because defense was excluded from the hearing	State and court of appeals treated any error as harmless or forfeited	Court holds appellate harm analysis was improper because the record was undeveloped; remand for corrective hearing is required

Key Cases Cited

LaPointe v. State, 225 S.W.3d 513 (Tex. Crim. App. 2007) (Rule 412 in‑camera proceedings are adversarial; remedy is abatement for retrospective hearing)
Young v. State, 547 S.W.2d 23 (Tex. Crim. App. 1977) (limited, case‑specific exception where record sufficed for review)
Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) (framework for classifying rules/rights as absolute, waivable, or forfeitable)
Anderson v. State, 301 S.W.3d 276 (Tex. Crim. App. 2009) (distinguishes forfeitable rights from those requiring affirmative waiver)
Gilley v. State, 418 S.W.3d 114 (Tex. Crim. App. 2014) (analysis of what constitutes a critical stage; contrasted child‑competency exam with adversarial Rule 412 hearing)
Darcy v. State, 488 S.W.3d 325 (Tex. Crim. App. 2016) (right to counsel at a critical stage must be affirmatively waived)
Patterson v. Illinois, 487 U.S. 285 (U.S. 1988) (useful test for assessing counsel’s usefulness at particular proceedings)
Hamilton v. Alabama, 368 U.S. 52 (U.S. 1961) (arraignment held a critical stage where rights could be irretrievably lost)