















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-11-00345-CR



Brian Shawn Gilley


 


APPELLANT




 
V.




The State of Texas


 


STATE



 
 
----------
FROM THE 89th
District Court OF Wichita COUNTY
----------
OPINION
----------
Introduction
Appellant
Brian Shawn Gilley appeals his conviction for aggravated sexual assault of a
child, contending that the trial court erred by excluding him and his counsel
from an in-camera examination to determine whether the six-year-old complainant
was competent to testify.  We affirm.
Background
Facts and Procedural History
The
complainant was a pre-kindergartner when she said to a teacher’s aide at her
school, “Ms. Land, my dad put a trash––plastic sack on my head and put his
wiener in my mouth.”  Land reported the outcry to authorities; an investigation
followed; and Appellant was charged, tried and convicted of aggravated sexual
assault of a child.
The
complainant was six years old when Appellant filed a pretrial motion asking the
trial court to determine whether she was competent to testify.  During a
hearing on Appellant’s motion, which was held before jury selection, the trial
court listened to an audio recording of a child advocacy worker’s interview
with the complainant.  After listening to the recording, the trial court believed
that the complainant was competent and that an in-chambers examination would not
be needed:
Having
listened to the audio tape, I don’t think there’s anything that can be added by
a conference with the child in chambers.  She certainly seemed to know the
difference between right and wrong and punishment and good, was able to
describe what I thought was a fairly good –– or a good description of what it
was she was attempting to describe in answering the questions directly.
Appellant
informed the trial court that if it made a competency finding without having
examined the complainant in chambers, he would lodge an objection based on rule
of evidence 601:
Rule 601 says
children or other persons who after being examined by the Court appear not to
possess sufficient intellect, to relate to transactions with respect to which
they are interrogated, so I would make an objection based upon that not being
done according to the––to the procedure.
The
trial court agreed to examine the complainant in chambers, using questions that
had been prepared in advance by the parties:
THE COURT:  Well, I
do not wish there to be any doubts so far as compliance with Rule 601, so I’ll
go ahead and speak with her in chambers.  I have the questions from the State. 
Do you have your questions?
 
MR. RASMUSSEN [for
Appellant]:  I do, Judge.  And I’ve given the State a copy.  And I –– as I
understand that then, you’re thinking of using the same procedure that I had
mentioned that Judge Fudge did in a previous case that we talked about?  Is
that –– is that my understanding, Judge?
 
THE COURT:  I intend
to have the Reporter in chambers with me when I talk to ––
 
MR. RASMUSSEN: 
Okay.  All right.
 
THE
COURT:  –– to her at that time.
Appellant
objected once more, citing the federal and state constitutions and the code of
criminal procedure:
MR. RASMUSSEN:  And
Judge, let me go ahead and make objection . . . to that procedure under the
Sixth Amendment of the U.S. Constitution, Article 1, Section 10 of the Texas
Constitution and Code of Criminal Procedure, Article 1.25, specifically that
we’re –– we are not allowed to be present during that examination and also
allowed to examine the –– the child at that time.
 
And I think the
examination of the child is somewhat discretionary, but I think the right of
confrontation would include our right to be present during that examination.
 
THE COURT:  Well, I
think the examination of the child is highly discretionary because it’s not
even mentioned in the Rules, so . . . .
 
MR. RASMUSSEN:  Right. 
But that –– that would be my objection to the procedure . . . .
 
THE
COURT:  All right.  Your objection is understood and it is overruled.
The
trial court conducted the competency examination in chambers with only the
complainant and the court reporter present.  Afterward, the record reflects the
following:
THE COURT:  Okay. Be
seated, please.  Okay.  Let the record reflect that I did spend some time in my
office and –– with [the court reporter], who was taking down all that was said
at which time I had an opportunity to talk to [the complainant] and ask her
questions of my own and also I selected some questions from those submitted by
the State and those submitted by the Defendant.
 
I found from talking
to her that under the Rules or under Rule 601, the Texas Rules of Evidence,
that she is competent to testify.  There –– she left no doubt in my mind that
she knows the difference between the truth and a lie and that she understands
that there are penalties for telling lies and understands that telling the
truth is the correct or the right thing to do, that that is what she has been
taught.  So she will be allowed to testify.
 
MS. JONES [for the
State]:  And Your Honor, just for the record, do you also find that she
possesses sufficient intellect to relate the transactions with respect to what
she was interrogated [sic]?
 
THE COURT:  Yes, I
do.  I certainly do.
 
MS. JONES:  Thank
you, Your Honor.
 
MR. RASMUSSEN:  And Judge,
the [court reporter] has marked that interview that you listened to as
Defendant’s Exhibit A and I will make reference to that as a part of the record
for this and renew my previous objection regarding the procedure and also ask
that the Court grant me a running objection so I don’t have to object when ––
when [the complainant] testifies.
 
THE COURT:  Oh,
okay.  And your –– just so it’s real clear for the record, you’re talking about
your lack of right of confrontation.
 
MR. RASMUSSEN: 
Correct.  Thank you, Judge.  And –– and ––
 
THE COURT:  Okay. 
You are granted a running objection on that.
 
MR. RASMUSSEN: 
Correct.  And also, I would state, I don’t know –– of course, we weren’t there,
so I don’t know what questions you asked and just an opportunity to review that
at a later date when it gets typed up and submit any –– if there’s anything
questionable there to prepare as part of a new trial hearing if it gets that
far or whatever.[1]
 
THE
COURT:  Okay.  All right. . . .  
The
parties conducted voir dire, and a jury was selected.  Evidence was presented,
including testimony from the complainant, whom Appellant subjected to
cross-examination, and the jury convicted Appellant and assessed his punishment
at thirty years’ confinement.
The
trial court sealed the record of the in-chambers competency examination, and
despite Appellant counsel’s stating to the trial court that he would like to
review it, Appellant conceded that he did not do so.  On our own motion, we
have reviewed the sealed record.
Issues
Appellant
contends that by excluding him and his counsel from the in-camera competency hearing,
the trial court violated his rights to attend a critical stage of the
proceedings, confront a witness against him, and have the assistance of counsel
in the process.  He argues that the procedure violated rule of evidence 601,
the Sixth Amendment to the United States Constitution, Article 1, Section 10 of
the Texas constitution, and code of criminal procedure articles 1.25 and 33.03.
He
also notes in his brief that code of criminal procedure article 28.01 requires
the defendant’s presence “during any pre-trial proceeding.”  Appellant did not,
however, object based on article 28.01 in the trial court.  The same goes for
article 33.03.  Apart from his earlier objection based on evidence rule 601,
Appellant’s objections in the trial court focused on his constitutional right
to confront witnesses against him:
And
Judge, let me go ahead and make objection . . . to that procedure under the
Sixth Amendment of the U.S. Constitution, Article 1, Section 10 of the Texas
Constitution and Code of Criminal Procedure, Article 1.25, specifically that
we’re –– we are not allowed to be present during that examination and also
allowed to examine the –– the child at that time.
It
is not apparent from the context of Appellant’s objection that, in addition to
his complaint based on the confrontation clauses, he intended also to alert the
trial court to the statutory requirements that he be present at all phases of
trial.  Consequently, Appellant’s issue in this regard does not comport with
the objection he raised at trial, and we hold that he did not preserve a claim
based on articles 28.01 and 33.03.  See Pena v. State, 285 S.W.3d 459,
464 (Tex. Crim. App. 2009).  Accordingly, we do not address whether those
statutes were violated by the procedure employed by the trial court in this
case.  See Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983
S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526
U.S. 1070 (1999).
The
one code provision that Appellant urged in the trial court was article 1.25.  As
Appellant notes in his brief, it mirrors the confrontation clauses of the state
and federal constitutions.  However, as Appellant has not shown how it should
be interpreted to afford him any greater protection than the constitutions, we neither
consider whether it does, nor do we analyze his claim based on that provision
of the code.  See Lagrone v. State, 942 S.W.2d 602, 612 (Tex. Crim.
App.) (declining to address claim of state constitutional error where appellant
failed to provide the court with any distinction or reason that the Texas
constitution provides greater protection than the Fifth Amendment), cert.
denied, 522 U.S. 917 (1997).  Consequently, what remain for this appeal are
Appellant’s claims based on the constitutional confrontation clauses and rule
of evidence 601.
The
trial court did not violate Rule 601.
When the
trial court stated that it would find the complainant competent to testify
after having listened to the audio of her interview with the child advocacy
worker, Appellant said that he would make an objection based on rule 601.  In
response, the trial court examined the complainant in chambers and found that she
“possesses sufficient intellect to relate the transactions with respect to what
she was interrogated.”  While there is nothing in the plain language of rule
601 that prohibits anyone other than the trial judge and the witness from the
examination, there also is nothing in the plain language that compels that
anyone else attend.  The rule provides, in pertinent part, that children “who, after
being examined by the court, appear not to possess sufficient intellect to
relate transactions with respect to which they are interrogated” are
incompetent to testify.  Tex. R. Evid. 601(a)(2) (emphasis added).
Appellant
points to rules of evidence 412, 508, and 705 as examples of other rules showing
that “the promulgators of the Texas Rules of Evidence knew how to define and
call for special procedures if they desired to do so.”  We agree.  Rule 412,
the “rape shield” rule, expressly calls for an in-camera hearing when a
defendant on trial for sexual assault, aggravated sexual assault, or attempt of
one of these offenses seeks to offer evidence of the complainant’s prior sexual
activity. Tex. R. Evid. 412; see LaPointe v. State, 166 S.W.3d 287, 291
(Tex. App.—Austin 2005, pet. dism’d).  Rule 508 specifically allows the
parties’ and their counsels’ presence during inquiries into the invocation of
an official privilege not to disclose an informant’s identity except during in-camera
showings, from which the rule expressly excludes the parties and their
counsel.  Tex. R. Evid. 508(c).  And rule 705 expressly permits the party
against which an expert will offer an opinion the opportunity to examine the
expert outside the presence of the jury.  Tex. R. Evid. 705.
But
these examples do not bolster Appellant’s argument.  The court of criminal
appeals has held that the word “hearing” in rule 412 implies an adversarial
proceeding, which necessarily, requires the presence of adversaries.  LaPointe
v. State, 225 S.W.3d 513, 520 (Tex. Crim. App.), cert. denied, 552
U.S. 1015 (2007).  The court distinguished rule 412’s use of “hearing” from other
rules’ use of words contemplating that in-camera proceedings are intended to
take place without the parties being present––words including “inspection,”
“review,” “showing,” “determination,” and, in the case of rule 508,
“disclosure.”   Id. at 518.
Unlike
“hearing” in 412, rule 601’s use of the word “examined,” as in “examined by the
court,” does not imply an adversarial hearing.  It is more like “inspection,”
“review” and “determination,” all of which are used in rules that do not
require the litigants’ presence.  See id.  Further, rule 601’s use of
the words “examined by the court,” as opposed to, say, “examined by the parties,”
is consistent with an interpretation that the rule does not require that the parties
attend.
          In
sum, the fact that other rules expressly either require a hearing during which
proffered evidence is explored (rule 412) or explicitly allow or exclude parties
and counsel (rule 508) does not suggest that rule 601, which specifically names
the trial court as the examiner, requires that the parties and their counsel
also attend.  The only two whose presence during a competency examination is required
by the plain language of rule 601 are the trial judge and the witness.  Appellant
has not convinced us that we should disregard the plain language of the rule
and we see no reason why we should.  From the record in this case it is
apparent that the trial court complied with the plain language of the rule, and
we so hold.  Accordingly, to the extent Appellant urges that the trial court violated
rule 601, that portion of his claim is overruled.  See Tex. R. Evid.
601(a)(2).
Confrontation
Appellant
also claims that his and his counsel’s exclusion from the competency
determination violated the Sixth Amendment to the United States Constitution
and Article I, Section 10 of the Texas constitution.  Although he preserved
claims based on both constitutions’ confrontation clauses in the trial court,
he has not argued that the state provision in Article 1, Section 10 provides
any greater protection than its federal counterpart.  Therefore, we analyze his
appellate claim based solely upon the United States Constitution.  See LaGrone,
942 S.W.2d at 612.
The
Sixth Amendment’s Confrontation Clause provides: “In all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses
against him.”  U.S. Const. amend. VI.  This right is secured for defendants in
state as well as in federal criminal proceedings.  Pointer v. Texas, 380
U.S. 400, 403, 85 S. Ct. 1065, 1068 (1965). The Supreme Court has emphasized
that “a primary interest secured by [the Confrontation Clause] is the right of
cross-examination.”  Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct.
1074, 1076 (1965).  But the Confrontation Clause also encompasses the very
basic right of a defendant to be present in the courtroom “at every stage of
his trial.”  Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 1058
(1970).  While the right to be present is rooted to a large extent in the
Confrontation Clause of the Sixth Amendment, the right also has a due process
component.  United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482,
1484 (1985).  Accordingly, it is not restricted to situations where the
defendant is “actually confronting witnesses or evidence against him,” but
encompasses all trial-related proceedings at which a defendant’s presence “has
a relation, reasonably substantial, to the fullness of his opportunity to
defend against the charge.”  Id. (quoting Snyder v. Massachussets,
291 U.S. 97, 105–06, 108, 54 S. Ct. 330, 332, 333 (1934)).
The constitutional
right to cross-examination is essentially a “functional” right designed to
promote reliability in the truth-finding functions of a criminal trial.  Kentucky
v. Stincer, 482 U.S. 730, 737, 107 S. Ct. 2658, 2663 (1987).  The cases
that have arisen under the Confrontation Clause reflect the application of this
functional right. Id.  They fall into two broad, albeit not exclusive,
categories:  “cases involving the admission of out-of-court statements and
cases involving restrictions imposed by law or by the trial court on the scope
of cross-examination.”  Id.; Delaware v. Fensterer, 474 U.S. 15,
18, 106 S. Ct. 292, 294 (1985).
This
case falls more into the second category because Appellant complains that he
was denied the right to confront and cross-examine the complainant.  He argues
that because witnesses are presumed competent, he had the burden to prove
incompetency, but that he could not do so because he was denied his right to
confront and cross-examine the complainant at “the only hearing that had a
bearing on the subject [of competency].”  Even if the in-camera examination had
been a hearing, a proposition we have already rejected, it was not “the only
hearing that had a bearing” on the complainant’s competency because that issue
is one that may be revisited throughout the entire trial, and in reviewing a
trial court’s ruling on the issue, appellate courts are free to examine the
entire record of the witness’s testimony.  See Davis v. State, 268
S.W.3d 683, 700 (Tex. App.––Fort Worth 2008, pet. ref’d).
Here,
Appellant did not ask the trial court to revisit its competency determination
at any time during the trial––including after the complainant testified in
front of the jury under both the State’s direct and Appellant’s
cross-examination.
This
last point also disposes of Appellant’s claim that he was deprived of his right
to cross-examination.  In Kentucky v. Stincer, the defendant (but not
his counsel) was excluded from an in-chambers hearing at which the trial court
made a preliminary determination as to whether the two children who were the
victims of the charged sex offense had sufficient understanding of their
obligation to tell the truth and sufficient intellectual capacity to be
competent to testify.  482 U.S. at 733, 107 S. Ct. at 2660.  The Supreme Court
initially noted that even though a particular hearing might be characterized as
a “pretrial proceeding,” it could still be a “stage of trial” for Confrontation
Clause purposes.  Id. at 739, 107 S. Ct. at 2664.  That was true of the
competency hearing since it “determines whether a key witness will testify.”  Id.
at 740, 107 S. Ct. at 2664.  Under the circumstances of the case, however, the
defendant’s exclusion from the hearing did not interfere with his opportunity
to confront the witness through cross-examination.  Id.  The questions
asked at the competency hearing did not relate to the crime itself (but only to
each child’s general capacity to recall facts and distinguish between truth and
falsehood), many of the background questions asked at the hearing were repeated
at trial, the children were subject to “full and complete” cross-examination at
trial, and the judge’s preliminary ruling at the in-chambers hearing was
subject to reconsideration in light of the witnesses’ trial testimony.  Id.
at 740–41, 107 S. Ct. at 2664–65.  In addition, the court held that the defendant’s
right of presence was not violated as defendant’s personal participation in the
limited hearing would not have borne “a substantial relationship to [the]
defendant’s opportunity better to defend himself at trial.”[2] 
Id. at 746, 107 S. Ct. at 2667–68.
Here,
with a couple of exceptions, the facts are similar to those in Stincer. 
The two exceptions are that counsel for Appellant was also excluded from the in-camera
examination, and although the trial court did not ask the complainant questions
that related to the crime itself, in response to one question, whether her
daddy was nice to her, the complainant responded, “Yes.  Well, he put his
wiener in my mouth.”  Although the trial court may have preferred, in
hindsight, not to have asked the question to which that was the reply, we think
that neither of these divergences from the facts in Stincer merit a
different result than the Supreme Court arrived at in that case.
Although
the complainant did divulge to the trial court the allegation upon which the
charge was based, the trial court did not solicit the response and her response
did not contain any more detail than what had been in her outcry statement,
what was alleged in the indictment, and what she had already reported in the
audiotaped interview with the child advocacy worker.  This was not news to
Appellant or his counsel, and could not have caused them surprise.  Moreover,
the jury in this case was the finder of fact, not the trial court.  And the
jury heard the complainant’s testimony about the facts of the case only when it
was subject to cross-examination by Appellant’s counsel.  Further, having
examined the sealed record of the in-camera examination, we hold that with the
possible exception of asking whether her daddy was nice to her, the questions
the trial court asked at the competency examination did not relate to the crime
itself but only to the child’s general capacity to recall facts and distinguish
between truth and falsehood.  Many of these background questions asked in
chambers were repeated at trial, the complainant was subject to “full and
complete” cross-examination at trial, and the judge’s preliminary ruling at the
in-chambers examination was subject to reconsideration in light of the complainant’s
testimony at trial.  See Davis, 268 S.W.3d at 700.  In addition, the due
process component of Appellant’s right of presence was not violated as
Appellant has not shown that his personal participation in the limited
examination would have borne a substantial relationship to his opportunity to
defend himself at trial.  See Stincer, 482 U.S. at 746, 107 S. Ct. at 2667–68.
Moreover,
were we to hold here that the trial court erred, we would also hold that
Appellant’s and his counsel’s exclusion from the examination bore no
substantial relationship to their opportunity to defend.  See Adanandus v. State,
866 S.W.2d 210, 219 (Tex. Crim. App. 1993), cert. denied, 510 U.S. 1215
(1994) (applying harmless error analysis to due process and Sixth Amendment
claims).  Furthermore, having reviewed the audio recording of the child advocacy
worker’s interview with the complainant, the record of the trial court’s in-chambers
examination of the complainant, and the entire record, including the
complainant’s testimony during both the State’s direct examination and her
cross-examination by Appellant, we hold that any error in excluding Appellant
and counsel from the in-chambers examination did not contribute to Appellant’s
conviction or punishment and, therefore, was harmless beyond a reasonable
doubt.  See Tex. R. App. P. 44.2(a).  Appellant’s point is overruled.
Conclusion
Having
overruled Appellant’s point on appeal, we affirm the judgment of the trial
court.
 
LEE GABRIEL
JUSTICE
 
PANEL: 
MCCOY,
MEIER, and GABRIEL, JJ.
 
PUBLISH
 
DELIVERED:  October 11, 2012
 

 




 














COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
NO. 02-11-00345-CR
 
 







Brian
  Shawn Gilley
 
 
 
v.
 
 
 
The
  State of Texas


§
 
§
 
§
 
§
 
§


From the 89th District Court
 
of
  Wichita County (51,036-C)
 
October
  11, 2012
 
Opinion
  by Justice Gabriel
 
(p)



 
JUDGMENT
 
          This
court has considered the record on appeal in this case and holds that there was
no error in the trial court’s judgment.  It is ordered that the judgment of the
trial court is affirmed. 
 
SECOND DISTRICT COURT OF APPEALS 




 
 
 
 
By_________________________________
   
Justice Lee Gabriel




 
 




[1]Appellant filed a motion
for new trial, but the record does not indicate that he presented it to the
trial court or that the trial court conducted a hearing on it.  On its face,
the motion does not appear to challenge the competency finding or the procedure
the trial court used to make the finding.  Appellant’s counsel claims that he
did not review the record of the in-camera proceeding because the trial court
had it sealed.  There is no motion to unseal in the clerk’s record.


[2]The Court noted that there
might have been such a relationship if the children had been asked in the
competency hearing to discuss their “upcoming substantive testimony.”


