      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                              444444444444444444444444444
                                ON MOTION FOR REHEARING
                              444444444444444444444444444



                                       NO. 03-03-00460-CR



                               James Thomas LaPointe, Appellant

                                                 v.

                                   The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
        NO. 03-111-K368, HONORABLE BURT CARNES, JUDGE PRESIDING



                                           OPINION


                In order to address concerns raised in the State’s motion for rehearing, we withdraw

our judgment and opinion issued on March 17, 2005 and substitute this opinion abating the appeal.

                Appellant James Thomas LaPointe was convicted by a jury of one count of

aggravated kidnapping, one count of assault-family violence second, and three counts of aggravated

sexual assault. See Tex. Pen. Code Ann. § 20.04 (West 2003); id. §§ 22.01, 22.021 (West Supp.

2004).1 His wife Kara LaPointe was the victim. James2 argues that the district court erred because:

       1
           Although certain statutes implicated in this case have been amended since the events at
issue, the amendments do not affect our analysis, and we will cite to the current versions of all
statutes for convenience.
       2
           To avoid confusion we will refer to the appellant and victim by their first names.
(1) it barred James and James’s counsel from attending an in camera hearing to determine the

admissibility of evidence of the alleged victim’s previous sexual conduct; (2) it refused to allow

James’s counsel to make offers of proof or bills of exception regarding evidence of the victim’s

previous sexual conduct; (3) it excluded evidence of the victim’s previous sexual conduct and other

evidence; (4) it erroneously admitted evidence of extraneous acts by James; (5) the evidence is

factually insufficient to support his conviction. We agree that the district court erred in barring

James’s counsel from the in camera hearing. However, the nature of the district court’s error

presents unique circumstances in which the error prevents the proper presentation of James’s issues

regarding the in camera hearing and the exclusion of evidence of Kara’s past sexual conduct. See

Tex. R. App. P. 44.4(a)(1). We, therefore abate the appeal and direct the trial court to correct the

error by conducting a hearing consistent with this opinion. See Tex. R. App. P. 44.4(b).3


                                        BACKGROUND

               James and Kara LaPointe, were married in March 2000 following the birth of their

son, J.L. In July 2001, following repeated marital difficulties, the couple separated, and Kara and

J.L. moved in with Kara’s mother.

               On October 4, 2001, Kara and J.L. were at her mother’s house in Williamson County

when James arrived and apparently began to argue with Kara. Kara testified at trial that she told

James to leave, but James refused to leave and assaulted her by pulling out some of her hair,


       3
          The State has filed a Motion to Strike Appendix to Appellant’s Brief. We overrule the
State’s motion. However, we recognize that the appendices are not part of the record and we have
not relied upon them in deciding the appeal. See Till v. Thomas, 10 S.W.3d 730, 734 (Tex.
App.—Houston [1st Dist.] 1999, no pet.).

                                                 2
throwing her to the floor, and stepping on her hand and head. She stated that James forced her to

remove her clothes, told her to lie down on the bed, and forced her to perform oral sex on him and

allow him to perform oral sex on her. He then forced her to have vaginal sex with him.

               Kara testified that James threatened her with a pair of pinking shears and made Kara

and J.L. leave with him. After the three arrived at James’s apartment in Travis County, James again

performed oral sex on Kara and forced her to perform oral sex on him. Kara stated that James also

inserted a water bottle into her vagina. She testified that James forced her to engage in sexual

intercourse with him again that evening. While the two were asleep that night, James handcuffed

their wrists together.

                Kara testified that the next morning, James, Kara, and J.L. returned to Kara’s

mother’s house in Williamson County, where James again forced Kara to engage in sexual

intercourse with him. Kara testified that James forced her to write a letter conveying custody of J.L.

to James; James then took Kara to a notary public, where Kara signed the letter in front of the notary.

James then returned Kara to her mother’s house, and ordered Kara to remain quiet about the events

that had just occurred; he then left with J.L.

                After James left, Kara told her mother what had happened; Kara’s mother then called

the Leander Police Department. Leander police obtained an arrest warrant for James and a search

warrant for his Travis County apartment. On the morning of October 6, Leander and Austin police

officers entered James’s apartment and discovered James hiding with J.L. in the apartment’s attic.

The police also discovered a water bottle and a pair of pinking shears in the apartment.




                                                  3
               James was indicted and tried on one count of aggravated kidnapping, one count of

assault-family violence second, and three counts of aggravated sexual assault. See Tex. Pen. Code

Ann. §§ 20.04, 22.01, 22.021. After a four-day trial, a jury convicted James on all five counts and

sentenced James to twenty years’ imprisonment for the count of assault-family violence second and

life imprisonment for the remaining four counts. This appeal followed.


                                          DISCUSSION

Rule 412

               Evidence of an alleged victim’s past sexual conduct is admissible in a prosecution

for sexual assault only under limited circumstances. Tex. R. Evid. 412(b). The Texas Rules of

Evidence provide:


       (b) Evidence of Specific Instances. In a prosecution for sexual assault or aggravated
           sexual assault, or attempt to commit sexual assault or aggravated sexual assault,
           evidence of specific instances of an alleged victim’s past sexual behavior is also
           not admissible, unless:

            (1) such evidence is admitted in accordance with paragraphs (c) and (d) of this
                rule;

            (2) it is evidence:

                 (A) that is necessary to rebut or explain scientific or medical evidence
                     offered by the State;

                 (B) of past sexual behavior with the accused and is offered by the accused
                     upon the issue of whether the alleged victim consented to the sexual
                     behavior which is the basis of the offense charged;

                 (C) that relates to the motive or bias of the alleged victim;




                                                 4
                 (D) is admissible under Rule 609 [regarding impeachment by evidence of
                     conviction of a crime]; or

                 (E) that is constitutionally required to be admitted; and

            (3) its probative value outweighs the danger of unfair prejudice.

       (c) Procedure for Offering Evidence. If the defendant proposes to introduce any
           documentary evidence or to ask any question, either by direct examination or
           cross-examination of any witness, concerning specific instances of the alleged
           victim’s past sexual behavior, the defendant must inform the court out of the
           hearing of the jury prior to introducing any such evidence or asking any such
           question. After this notice, the court shall conduct an in camera hearing,
           recorded by the court reporter, to determine whether the proposed evidence is
           admissible under paragraph (b) of this rule. The court shall determine what
           evidence is admissible and shall accordingly limit the questioning. The
           defendant shall not go outside these limits or refer to any evidence ruled
           inadmissible in camera without prior approval of the court without the presence
           of the jury.

       (d) Record Sealed. The court shall seal the record of the in camera hearing required
           in paragraph (c) of this rule for delivery to the appellate court in the event of an
           appeal.


Tex. R. Evid. 412(b)-(d). Rule 412 is commonly referred to as the “rape shield” rule. See Southwell

v. State, 80 S.W.3d 647, 649 (Tex. App.—Houston [1st Dist.] 2002, no pet.).


The District Court’s In Camera Procedure

               At trial, James sought to introduce evidence of Kara’s previous sexual behavior. The

district court concluded that rule 412(c) required that only the judge, alleged victim, and court

reporter needed to be present at the in camera hearing. The district court proposed that James’s

counsel would submit specific areas of inquiry for the judge to discuss with Kara. The district court




                                                  5
would then determine the admissibility of any evidence of previous sexual behavior based on the

court’s own questioning of Kara outside the presence of James or his attorney.

                James’s counsel requested the right to examine Kara with respect to several subject

areas. First, James sought to introduce evidence of Kara’s previous sexual behavior with James upon

the issue of whether Kara consented to the sexual behavior in question. At trial, Kara testified that

James handcuffed her wrist to his while they slept. James maintained that they had previously used

a pair of handcuffs—which Kara admitted she had given him—in consensual sexual activity, and

that this evidence was admissible to show that Kara had consented to the events at issue here.

                Second, James sought to examine Kara regarding their prior use of objects such as

vibrators in consensual sexual activity. James argued this evidence was admissible to show that

Kara consented to the sexual activity at issue here, which allegedly involved the use of a water bottle.

                Third, James sought to introduce evidence of Kara’s recent sexual encounter with a

friend4 to present an alternative explanation for Kara’s injuries and rebut evidence offered by the

State, which included evidence of bruising and vaginal trauma to Kara.

                Fourth, James sought to introduce evidence regarding Kara’s possible motive or bias.

James’s counsel explained this argument to the district court as follows:


        I believe that one of the possible motives or explanations for this case is that . . . the
        alleged victim had engaged in conduct which would jeopardize her ability to keep her
        child, that she by the admissions of the State, what they have allowed me to get in,


       4
          Kara testified that she had consensual sexual intercourse with a boyfriend on October 3,
2001. DNA testing revealed that Kara and the boyfriend could not be excluded as contributors to
a mixture of DNA found on the water bottle collected from James’s apartment. James was excluded
as a possible contributor.

                                                    6
        she had engaged in sexual activities with some people, [naming the complainant’s
        friend]. I believe there are other people that she has done that with and that those
        other sexual escapades would lead to problems in a custody case. Whether she would
        win them or not, I don’t think is material, but would lead to a problem or a set of
        problems that would be posed in a custody case regarding the child, [J.L.]. And as
        a result of that, that having signed off on the letter, it is plausible that she . . . now
        realizes she’s done wrong, and she is putting together a rape story for—to avoid a
        child custody matter.


                We have reviewed the sealed transcript of the in camera hearing. In the hearing, the

district court briefly discussed the first two areas of inquiry with Kara and ruled that inquiry

regarding her previous sexual activity with James was inadmissible. The judge ruled that evidence

regarding intercourse between Kara and her friend was already in the record, so he would not

entertain further questioning in that area.5 Finally, the judge ruled that any evidence of the final area

of inquiry—bias by Kara stemming from a desire to gain custody of J.L.—was not admissible.

                James argues that the in camera hearing described in rule 412(c) requires at a

minimum that a defendant’s counsel be afforded the opportunity to examine the alleged victim

regarding specific instances of previous sexual conduct. See Tex. R. Evid. 412(c). James argues that

the district court’s failure to allow James’s counsel to attend the hearing constitutes reversible

constitutional error because the procedure denied James his constitutional right to confront witnesses

and denied him his constitutional right to the assistance of counsel. See U.S. Const. amend. VI (“In




       5
            The district court also held a private hearing with hospital nurse Kathleen Gann to
determine whether Kara had made statements regarding sexual conduct with other men in the days
prior to the incident in question that could have explained her injuries. The nurse testified that
although Kara acknowledged having sexual intercourse with another man on October 3, she did not
tell the nurse, nor did the nurse ask, if objects were used during that sexual encounter that could have
caused Kara’s injuries.

                                                    7
all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses

against him . . . and to have the Assistance of Counsel for his defence.”); Tex. Const. art. I, § 10

(accused “shall have the right of being heard by himself or counsel, or both, [and] shall be confronted

by the witnesses against him”). In a separate issue, James asserts that the district court’s refusal to

allow him to make a bill of exception regarding the alleged victim’s previous sexual conduct

constitutes reversible error.


Construction and Application of Rule 412

                The central question in the case before us is whether rule 412(c) requires a trial court

to afford a defendant and his counsel an opportunity to be present and cross-examine the alleged

victim at an in camera hearing. In making this determination, we examine principles of statutory

construction as well as the effect of the district court’s interpretation of the rule on James’s

constitutional rights.

                In analyzing a rule of evidence, it is appropriate to employ principles of statutory

construction. See Ludwig v. State, 931 S.W.2d 239, 241 (Tex. Crim. App. 1996). The starting point

for statutory analysis is the text of the relevant provision. Ex parte Kuester, 21 S.W.3d 264, 266

(Tex. Crim. App. 2000); State v. Laird, 38 S.W.3d 707, 712 (Tex. App.—Austin 2000, pet. ref’d).

Undefined words in a statute are ordinarily given their plain meaning, unless the statute shows that

they were used in some other sense. Daniels v. State, 754 S.W.2d 214, 219 (Tex. Crim. App. 1988);

State v. Wofford, 34 S.W.3d 671, 680 (Tex. App.—Austin 2000, no pet.). Every word of a statute

is presumed to have been used for a purpose, and every word excluded must also be presumed to




                                                   8
have been excluded for a purpose. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.

1981).

                The language in question provides: “[T]he court shall conduct an in camera hearing,

recorded by the court reporter, to determine whether the proposed evidence is admissible under

paragraph (b) of this rule.” Tex. R. Evid. 412(c). The crucial phrase is “in camera hearing.”

Because neither “in camera” nor “hearing” are defined in either the Texas Rules of Evidence or the

Texas Penal Code, we will use their plain meaning in analyzing the requirements of rule 412(c).

See Daniels, 754 S.W.2d at 219.

                “Hearing” is defined as: “1. A judicial session, usu[ally] open to the public, held for

the purpose of deciding issues of fact or of law, sometimes with witnesses testifying.” Black’s Law

Dictionary 725 (7th ed. 1999). “In camera” is defined as: “1. In the judge’s private chambers. 2.

In the courtroom with all spectators excluded.” Id. at 763. “Though this phrase usually refers to a

judge’s chambers, it may also refer to a courtroom from which all spectators are excluded.” Bryan

A. Garner, Dictionary of Modern Legal Usage 428 (2d ed. 1995).

                “In camera hearing,” therefore, denotes a judicial session held either in the judge’s

chambers or in the courtroom with all spectators excluded.6 But nothing about the exclusion of

outside spectators from a hearing implies that a judge could exclude the parties altogether and have

a private conservation with a witness. Indeed, federal rule 412 provides for an in camera hearing

on the admissibility of a victim’s past sexual behavior and explicitly states that the victim and parties


         6
        This is not to be confused with an in camera inspection, where a trial court independently
determines whether documents requested in discovery are privileged. See In re Nitla S.A. de C.V.,
92 S.W.3d 419, 420 (Tex. 2002); see also Tex. R. Civ. P. 193.4(a).

                                                   9
have a right to attend and be heard. Fed. R. Evid. 412(c)(2). Although the language of the federal

rule differs from the Texas rule 412, the Texas Rules of Evidence are patterned on the federal rules

and we are guided by the federal rules in construing our own. Potier v. State, 68 S.W.3d 657, 662

n.28 (Tex. Crim. App. 2002).

               Similarly, Texas Rule of Evidence 508(c)(3) provides for in camera disclosure of the

identity of an informant. The rule specifies that all parties are to be present at every stage of the

proceeding “except a disclosure in camera, at which no counsel or party shall be permitted to be

present.” Tex. R. Evid. 508(c)(3). If in camera meant the exclusion of the parties and counsel by

definition, then the additional words excluding counsel and the parties would be superfluous.7 See

Campbell v. State, 49 S.W.3d 874, 876 (Tex. Crim. App. 2001) (In construing a statute, “we assume

that every word has been used for a purpose and that each word, phrase, clause, and sentence should

be given effect if reasonably possible.”).

               Furthermore, the ordinary definition of a hearing assumes the normal adversarial

process that is a basic, long-established feature of our system of justice. Aspects of this adversarial

process, such as the right to cross-examine adverse witnesses, are guaranteed by our state and federal

constitution, as we discuss below. The adversarial nature of our judicial process also has deep roots

in the English common law, from which America’s founding fathers (and ultimately those of Texas)

derived many of our constitutional principles. As Justice Scalia recently observed in Crawford v.

Washington,




       7
         We also note that the rule does not refer to the disclosure in camera as a hearing. See Tex.
R. Evid. 508(c)(3).

                                                  10
       English common law has long differed from continental civil law in regard to the
       manner in which witnesses give testimony in criminal trials. The common-law
       tradition is one of live testimony in court subject to adversarial testing, while the civil
       law condones examination in private by judicial officers.


541 U.S. 36, ___ (2004) (citing 3 W. Blackstone, Commentaries on the Laws of England 373-74

(1768)).

               We see nothing in rule 412(c)’s requirement of an “in camera” procedure that signals

a departure from the characteristic adversarial nature of Texas “hearings” as we have historically

known them. Cf. Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990) (“A statute is

presumed to have been enacted by the legislature with complete knowledge of the existing law and

with reference to it.”). In particular, we believe that if the court of criminal appeals had envisioned

an anomalous, European-style procedure of private judicial interrogation, it surely would have

expressed such intent more explicitly when promulgating rule 412. Indeed, where the legislature and

our higher courts have required such rare departures from traditional adversarial procedures, they

have clearly stated so. See Tex. Fam. Code Ann. §33.003(k) (West 2002); Tex. Parental Notification

R. 2.4(c).

               Nor does the history of rule 412 suggest any such intent. We discussed rule 412 in

Cuyler v. State:


       Rule 412 is derived from the “rape shield statute” enacted by the legislature in
       1975.[8] Before the statute was enacted, sexual assault victims often found


       8
         See Act of May 15, 1975, 64th Leg., R.S., ch. 203, § 3, sec. 21.13, 1975 Tex. Gen. Laws
476, 477-78 (amended 1983), repealed by Act of May 26, 1985, 69th Leg., R.S., ch. 685, § 9(b)(1),
1985 Tex. Gen. Laws 2472, 2474 (hereinafter “Former Rape Shield Statute”). The pertinent portion

                                                   11
       themselves subjected to abusive, embarrassing, and irrelevant inquiries into their
       private lives, with the result that many sexual assault victims chose not to report the
       attack rather than face such questioning. Rule 412, like its predecessor statute,
       represents an explicit decision to eliminate trial practices that may have frustrated
       society’s vital interest in the prosecution of sexual crimes.


841 S.W.2d 933, 936 (Tex. App.—Austin 1992, no pet.) (citation omitted), overruled on other

grounds by Halstead v. State, 891 S.W.2d 11 (Tex. App.—Austin 1994, no pet.). The rationale

behind rape shield laws was described by one court as follows:


       [E]vidence of a rape victim’s prior sexual activity is of dubious probative value and
       relevance and is highly embarrassing and prejudicial. Often such evidence has been
       used to harass the prosecuting victim. Sponsors of [rape shield] statutes assert that
       they encourage victims of sexual assault to report the crimes without fear of having
       their past sexual history exposed to the public.


Bell v. Harrison, 670 F.2d 656, 658 (6th Cir. 1982), quoted in Allen v. State, 700 S.W.2d 924, 929

(Tex. Crim. App. 1985). The notes of the advisory committee on the federal rule 412 also emphasize

the protection of the victim from public humiliation:


       The rule aims to safeguard the alleged victim against the invasion of privacy,
       potential embarrassment and sexual stereotyping that is associated with public
       disclosure of intimate sexual details and the infusion of sexual innuendo into the fact-
       finding process. By affording victims protection in most instances, the rule also
       encourages victims of sexual misconduct to institute and to participate in legal
       proceedings against alleged offenders.




of the former rape shield statute is nearly identical to rule 412(c) and provided: “After this notice
[identical to that required by rule 412], the court shall conduct an in camera hearing, recorded by the
court reporter, to determine whether the proposed evidence is admissible under Subsection (a) of this
section.” Id.

                                                  12
Fed. R. Evid. 412 advisory committee notes. Clearly, rule 412 was intended to address the

disincentive for victims to report and prosecute sexual crimes because of the particular threat that

the victim would have her sexual history publicly disclosed.9 See Allen, 700 S.W.2d at 929.

               This intent is achieved by ensuring that the court can first hear and evaluate the

probity of evidence of an alleged victim’s sexual history in a private setting before allowing that

sensitive information to be interjected into the public domain. Excluding the parties does little if

anything to advance this intent. The victim will still have to face the defendant when she testifies

in open court on relevant matters and the testimony about the alleged victim’s sexual history will

presumably concern matters that counsel has already investigated.

               Additionally, we are required, when possible, to construe the rules of evidence

consistently with the constitution. Tex. R. Evid. 101; see also Tex. Gov’t Code Ann. § 311.021

(West 1998); Lebo v. State, 90 S.W.3d 324, 329-30 (Tex. Crim. App. 2002). If rule 412 were

construed to exclude the parties, it would, as explained below, violate the defendant’s constitutional

rights.




          9
           We do not believe that the procedure proposed by James—allowing James’s counsel to
attend the in camera hearing and examine Kara—conflicts with the purpose of rape shield laws. Had
the district court allowed James’s counsel to examine Kara, the hearing still would have been “in
camera.” That is, the in camera hearing would have “exclude[d] . . . the presence of any
unnecessary spectators.” Wofford v. State, 903 S.W.2d 796, 798 (Tex. App.—Dallas 1995, pet.
ref’d); see also Fed. R. Evid. 412(c)(2) (“the court must conduct a hearing in camera and afford the
victim and parties a right to attend and be heard”). All public spectators could have been removed
from the courtroom, leaving only the parties, Kara, and the judge to participate in the hearing, with
the court reporter recording the proceeding. The record would have been sealed, thereby exposing
Kara’s previous sexual conduct to only a handful of necessary persons, while preventing any undue
public exposure.

                                                 13
Constitutional Considerations

    Confrontation Clause

               The Texas Constitution provides that in all criminal prosecutions, the accused “shall

be confronted by the witnesses against him.” Tex. Const. art. I, § 10. This guarantee “has as its

purpose the protection of an accused against processes of a secret and inquisitorial nature.” Id.

interp. commentary (West 1997); see also Robertson v. State, 142 S.W. 533, 543 (Tex. Crim. App.

1911) (“By our Constitution it is clearly made manifest that no man shall be tried and condemned

in secret and unheard.”).

               The guarantee that a defendant in a criminal prosecution shall be “confronted by the

witnesses against him” is a right also found in the United States Constitution. U.S. Const. amend.

VI.10 “The central concern of the Confrontation Clause is to ensure the reliability of the evidence

against a criminal defendant by subjecting it to rigorous testing in the context of an adversary

proceeding before the trier of fact.” Maryland v. Craig, 497 U.S. 836, 845 (1990). Included in the

right to confront adverse witnesses is the right to reasonable cross-examination. Olden v. Kentucky,

488 U.S. 227, 231 (1988) (citing Davis v. Alaska, 415 U.S. 308, 315-316 (1974)).11 “[T]he exposure

of a witness’[s] motivation in testifying is a proper and important function of the constitutionally

       10
          The federal constitutional right to confront witnesses was made applicable to the states
through the fourteenth amendment. U.S. Const. amend. XIV; Pointer v. Texas, 380 U.S. 400, 403
(1965).
       11
           Notably, “trial judges retain wide latitude insofar as the Confrontation Clause is concerned
to impose reasonable limits on such cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’[s] safety, or interrogation that is
repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); accord
Davis v. Alaska, 415 U.S. 308, 316 (1974) (right to cross-examination is “[s]ubject always to the
broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation”).

                                                  14
protected right of cross-examination.” Id. (quoting Davis, 415 U.S. at 316-17). The Supreme Court

recently explained in Crawford that the confrontation clause represents a choice, deeply entrenched

in our law, that the reliability of testimony is to be determined through cross examination. Crawford,

124 S. Ct. at 1370 (confrontation clause is a procedural rather than substantive guarantee). The focus

on cross examination is in recognition of the unique power of the adversarial process in reaching the

truth. See Lilly v. Virginia, 527 U.S. 116, 124 (1999) (cross examination is the greatest legal engine

for the discovery of truth ever invented); California v. Green, 399 U.S. 149, 159 (1970) (citing 5 J.

Wigmore, Evidence § 1367 (3d ed. 1940)).

               The rights to confrontation and cross-examination found in our state and federal

constitutions were used to challenge the constitutionality of the former rape shield statute, the

precursor to rule 412. In Allen v. State, the Texas Court of Criminal Appeals determined that the

rape shield statute was constitutional on its face and as applied to Allen, who argued that the rape

shield statute violated his right to confront adverse witnesses. 700 S.W.2d at 932. In so holding,

the court stated:


       The constitutional right to confront adverse witnesses is fundamental and is of such
       importance that a State’s interest in protecting a certain class of witnesses from
       embarrassment must fall before the right of confrontation and cross-examination.
       Thus a statute that purports to prohibit completely the introduction of the victim’s
       consensual sexual activity with persons other than the defendant is unconstitutional
       unless given a judicial gloss requiring a hearing out of the jury’s presence so that the
       defendant, upon motion, may be given an opportunity to demonstrate that due process
       requires the admission of such evidence because probative value in the context of
       that particular case outweighs its prejudicial effect on the prosecutrix.[12]


       12
           Whereas rule 412 allows the introduction of evidence of an alleged victim’s previous
sexual conduct only under certain specified circumstances, the rule’s statutory precursor was not as
precise in explaining the type of evidence that could be admitted. The former statute provided:

                                                 15
Id.

               Although the question of whether a defendant’s counsel must be present at the hearing

was never expressly addressed by the court of criminal appeals, our review of Allen and other case

law persuades us that a trial court’s failure to afford the parties the opportunity to be present at the

in camera hearing and examine the alleged victim regarding specific instances of previous sexual

conduct violates the defendant’s confrontation rights. In Allen, the court of criminal appeals

approvingly quoted North Carolina v. Fortney, 269 S.E.2d 110 (N.C. 1980), at considerable length.

Allen, 700 S.W.2d at 930-931. In Fortney, the Supreme Court of North Carolina upheld the

constitutionality of that state’s rape shield law and wrote:


        If any question arises concerning evidence of a victim’s prior sexual history, that
        question may be presented at an in camera hearing where opposing counsel may
        present evidence, cross-examine witnesses and generally attempt to discern the
        relevance of proffered testimony in the crucible of an adversarial proceeding away
        from the jury. In summary, then, [the North Carolina statute] merely contains and
        channels long-held tenets of relevance by providing a statutory definition of that
        relevance and by providing a procedure to test that definition within the context of
        any particular case. Defendant’s substantive right to cross-examine is not
        impermissibly compromised.

Fortney, 269 S.E.2d at 116 (emphasis added), quoted in Allen, 700 S.W.2d at 931. The Texas Court

of Criminal Appeals immediately followed its quote of Fortney by stating:


          (a) Evidence of specific instances of the victim’s sexual conduct, opinion
              evidence of the victim’s sexual conduct, and reputation evidence of the
              victim’s sexual conduct may be admitted under Sections 21.02 through
              21.05 of this code (rape, aggravated rape, sexual abuse, and aggravated
              sexual abuse) only if, and only to the extent that, the judge finds that the
              evidence is material to a fact at issue in the case and that its inflammatory
              or prejudicial nature does not outweigh its probative value.

Former Rape Shield Statute, sec. 21.13(a).

                                                  16
       While the North Carolina statute is not totally like [the Texas rape shield statute], it
       is similar in many respects and the language in Fortney is here instructive.

       “Of course rape shield statutes should not be used to exclude highly relevant
       evidence and violate the defendant’s right of confrontation or other constitutional
       rights.”


Allen, 700 S.W.2d at 930-31 (quoting Bell, 670 F.2d at 658).

               The defendant’s ability to have counsel attend the in camera hearing and examine the

alleged victim is the exact safeguard that preserves the constitutionality of our rape shield rule. We

therefore conclude that the confrontation clauses found in our federal and state constitutions require

a trial court to afford the State, the defendant, and defense counsel the opportunity to attend the in

camera hearing and examine the alleged victim out of the public eye.13


     Right to the assistance of counsel

               The exclusion of the defendant and his counsel from an in camera hearing also

implicates the right to the effective assistance of counsel. “In all criminal prosecutions, the accused

shall enjoy the right . . . to have the Asistance of Counsel for his defence.” U.S. Const. amend. VI;


       13
           Our conclusion is consistent with numerous Texas cases where counsel evidently attended
the in camera hearing. See, e.g., Pinson v. State, 778 S.W.2d 91, 92-93 (Tex. Crim. App. 1989);
Allen v. State, 700 S.W.2d 924, 929 (Tex. Crim. App. 1985); Kesterson v. State, 959 S.W.2d 247,
248 (Tex. App.—Dallas 1997, no pet.); Stephens v. State, 978 S.W.2d 728, 734 (Tex. App.—Austin
1998, pet. ref’d); Cooper v. State, 959 S.W.2d 682, 684 (Tex. App.—Austin 1997, pet. ref’d);
Hughes v. State, 850 S.W.2d 260, 262 (Tex. App.—Fort Worth 1993, pet. ref’d); Simon v. State, 743
S.W.2d 318, 323 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d). But see Miles v. State, 61
S.W.3d 682, 685 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (neither defense counsel nor
prosecutor present at in camera hearing, but right to have counsel attend hearing not asserted at trial
or on appeal; court of appeals ruled trial court improperly excluded evidence of previous sexual
conduct and reversed and remanded case). The State has failed to cite, and we have been unable to
find, a single Texas case where, over a party’s objection, a trial court conducted an in camera hearing
without counsel present.

                                                  17
see also Tex. Const. art. I, § 10. The Sixth Amendment right to counsel attaches upon the

commencement of adversarial proceedings. Kirby v. Illinois, 406 U.S. 682, 688-90 (1972). “[T]he

right to the effective assistance of counsel is recognized not for its own sake, but because of the

effect it has on the ability of the accused to receive a fair trial.” U.S. v. Cronic, 466 U.S. 648, 658

(1984). The right extends to all “critical stages” of the criminal proceeding, not just the actual trial.

Hidalgo v. State, 983 S.W.2d 746, 752 (Tex. Crim. App. 1999). Whether a particular stage is critical

turns on an assessment of the usefulness of counsel to the accused at the time. Garcia v. State, 97

S.W.3d 343, 347 (Tex. App.—Austin 2003, no pet.); see Upton v. State, 853 S.W.2d 548, 553 (Tex.

Crim. App. 1993) (citing Patterson v. Illinois, 487 U.S. 285, 299-300 (1998); United States v. Wade,

388 U.S. 218, 235-39 (1967)); see also United States v. Ash, 413 U.S. 300, 313 (1973). Stated

differently, whether a particular part of the trial process is a “critical stage” is determined not by

whether the defendant suffered prejudice by the absence of effective assistance of counsel during that

part of the proceedings, but rather, whether critical rights of a defendant can be lost at the stage in

question. Medley v. State, 47 S.W.3d 17, 22 (Tex. App.—Amarillo 2000, pet. ref’d) (taking of

evidence on defendant’s guilt is critical stage) (citing Herring v. New York, 422 U.S. 853 (1975)

(final summation); White v. Maryland, 373 U.S. 59 (1963) (preliminary hearing); Hamilton v.

Alabama, 368 U.S. 52 (1961) (arraignment); Ferguson v. Georgia, 365 U.S. 570 (1961) (defendant

entitled to present his testimony by questions from his attorney)).

                The in camera hearing to determine the admissibility of evidence of an alleged

victim’s previous sexual conduct is a critical stage of the proceedings at which a defendant has the

right to the assistance of counsel. In sexual assault cases, the credibility of the alleged victim could



                                                   18
well be the critical factor for the jury in determining the defendant’s guilt. Here, James’s defense

was that the alleged sexual conduct in question was consensual. To present this defense, James

sought to introduce evidence of the parties’ previous sexual conduct to show that the details of the

sexual activity at issue here were consistent with previous consensual sexual activity.

               The district court’s in camera procedure thwarted James’s attempt to elicit such

testimony from Kara. Because the district court prevented the State, James, and James’s counsel

from attending the in camera hearing, Kara’s testimony regarding her previous sexual conduct was

not subjected to the adversarial process meant to test its veracity. Refusing to allow the parties in

a criminal proceeding to examine an alleged victim regarding her previous sexual conduct, albeit in

an in camera hearing, undermines the defendant’s ability to present a defense.

               The State argues, without citing authority, that the in camera hearing was not a

critical stage of the proceeding:


       In the in camera hearings conducted by the trial court during appellant’s trial, the
       trial court asked all the questions of the witnesses. Neither appellant nor the State
       was allowed to be present. Therefore the proceeding was not adversarial. Nor was
       it an event at which appellant needed legal assistance, since he was not even present.


The State’s argument presupposes that counsel is not required to be present at the in camera hearing.

Moreover, the State’s argument illustrates the precise reason why the district court should have

allowed James’s counsel to attend the hearing and examine Kara: the fact that the hearing was not

adversarial and that James’s counsel was not present denied to James the right to the effective

assistance of counsel.




                                                 19
               We conclude that denying James the right to have counsel attend the in camera

hearing and examine Kara violated his right to confront witness and his right to the assistance of

counsel.


Remediable Error

               The district court’s error in refusing to allow the parties to attend the in camera

hearing to examine Kara and Kathleen Dunn would not necessarily require reversal if we could

determine, based on our examination of the record and the relevant standard of harm analysis, that

the error was harmless. However, the error itself prevented the development of a record from which

we might determine the error’s impact on the jury’s verdict and punishment. Furthermore, the trial

court’s failure to conduct a proper hearing deprives this Court of a record on which we might

properly consider James’s contention that the trial court improperly excluded evidence of Kara’s

previous sexual conduct.

               Rule 44.4 of the rules of appellate procedure states that a court must not affirm or

reverse a judgment if the trial court’s error (1) prevents the proper presentation of the appeal, and

(2) the trial court can correct the error. Tex. R. App. P. 44.4(a). We note that abatement is utilized

in a limited number of circumstances. See Crosson v. State, 36 S.W.3d 642 (Tex. App.—Houston

[1st Dist.] 2000, order), disposition on merits, 2001 Tex. App. LEXIS 6049, No. 01-98-00297-CR

(Tex. App.—Houston [1st Dist.] Aug. 30, 2001, pet. ref’d) (listing circumstances in which courts

have abated criminal appeals). Rule 44.4 may not be utilized to avoid waiver or otherwise permit

a party to do what that party failed to do in the trial court. See 43A George E. Dix & Robert O.

Dawson, Texas Practice: Criminal Practice and Procedure § 38.121 (2d ed. West 2001).


                                                 20
                Here, the district court’s error in failing to allow the parties to be present and examine

witnesses at the hearing pursuant to evidence rule 412(c) prevents our determination of whether the

error was harmless because we simply cannot determine what evidence would have been elicited at

an adversarial hearing. See Tex. R. App. P. 44.4(a)(1). For the same reason, the error prevents

proper presentation of James’s issue regarding the exclusion of evidence of Kara’s previous sexual

conduct. However, we find that the district court can correct the error by holding a proper hearing

and again making a determination of what evidence would be admissible under rule 412. See Tex.

R. App. P. 44.4(a)(2). Thus, we are compelled by the rules of appellate procedure, on this unique

set of facts, to abate this appeal and direct the district court to hold a hearing that is consistent with

rule 412(c) and this opinion.14

                We specifically direct the parties’ attorneys to contact the district court and set a

hearing date in this case. The district court is directed to set the hearing for a date no later than 60

days after the date of this opinion. The public shall be excluded from the hearing, and the hearing

shall be conducted either in chambers or in a closed courtroom. James, his attorney, and the

representative of the State must be present and afforded a reasonable opportunity to examine the

witnesses. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); accord Davis v. Alaska, 415

U.S. 308, 316 (1974) (right to cross-examination is “[s]ubject always to the broad discretion of a trial

judge to preclude repetitive and unduly harassing interrogation”). Because James only sought to




        14
          To the extent that James may object to the district court’s determination regarding the
admissibility of evidence under rule 412, the sealed record of the hearing will act as a bill of
exception for our consideration of his claims.

                                                   21
question Kara and Kathleen Gann regarding prior sexual activity at trial, the hearing will be limited

to those two witnesses.

               After hearing evidence and argument by counsel, the district court shall determine

whether the proffered evidence would be admissible under rule 412. A supplemental record from

the hearing shall be sealed in accordance with rule 412(d) and sent to this Court no later than 120

days from the date of this opinion. Once the supplemental record is received, this Court will

determine the merits of all of James’s issues.


                                          CONCLUSION

               The district court erred in refusing to allow James LaPointe, his counsel, and counsel

for the State to attend the in camera hearing and examine Kara LaPointe and Kathleen Gann. This

error is inconsistent with rule 412 and violated James’s constitutional right to confront witnesses and

his constitutional right to the assistance of counsel. Because these errors also prevented the proper

presentation of the case to this Court, we abate the appeal and order the district court to conduct a

hearing consistent with the directions set forth in this opinion.




                                                 __________________________________________

                                                 Bea Ann Smith, Justice

Before Justices Kidd, B. A. Smith and Pemberton;
    Justice Kidd Not Participating

Filed: April 28, 2005

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