
 









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1581-12


BRIAN SHAWN GILLEY, Appellant

 v.

THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
WICHITA COUNTY


 Price, J., delivered the opinion of the Court in which Keller, P.J., and
Meyers, Womack and Cochran, JJ., joined.  Johnson, J., filed a dissenting opinion. 
Keasler, J., filed a dissenting opinion in which Hervey and Alcala, JJ., joined.

O P I N I O N

	The appellant was convicted of aggravated sexual assault of a child, and his
punishment was assessed by the jury at thirty years' confinement in the penitentiary. (1)  On the
morning that jury selection was scheduled to begin, the trial court heard argument on the
appellant's pretrial motion for a hearing to determine the six-year-old child-complainant's
competency to testify.  Over the appellant's objection, the trial court decided to conduct its
Rule 601(a)(2) competency examination of the child-complainant in camera, with the court
reporter in attendance but in the absence of the appellant and the attorneys for both sides. (2) 
Following the examination, the trial court found the child-complainant to be a competent
witness.
	On appeal, the appellant complained that, by excluding him and his attorney from the
competency  examination, the trial court violated various constitutional provisions.  The court
of appeals rejected the appellant's multifarious point of error in a published opinion. (3)  We
granted the appellant's petition for discretionary review, which was limited to complaining
that the trial court violated his Sixth Amendment right to the assistance of counsel at a
"critical stage" of the trial proceedings.  As it happens, however, this was the one
constitutional argument that the appellant raised in his multifarious point of error on direct
appeal that the court of appeals did not address.  Although we do not ordinarily review issues
that the court of appeals has not reached, we will, for the reasons that follow, address the
appellant's Sixth Amendment right-to-counsel claim and affirm the judgment of the court of
appeals.
FACTS AND PROCEDURAL POSTURE
In the Trial Court
	When the trial court proposed to resolve the competency issue by examining the child-complainant in chambers with only the judge, the witness, and the court reporter in
attendance, the appellant's counsel objected, (4) complaining that "we are not allowed to be
present during that examination and also allowed to examine" the child at that time and 
invoking "the Sixth Amendment of the United States Constitution, Article 1, Section 10 of
the Texas Constitution and Code of Criminal Procedure, Article 1.25[.]" (5)  The one right that
all of these provisions guarantee in common is the right of confrontation--indeed, that is the
only right enumerated in Article 1.25. (6)  The appellant shortly elaborated that "the right of
confrontation would include our right to be present during that examination." (7)  When the
appellant requested a running objection, the trial court sought clarification: "And your -- just
so it's real clear for the record, you're talking about your lack of right of confrontation." 
Counsel for the appellant simply replied, "Correct."  Apart from generally invoking both the
Sixth Amendment and Article I, Section 10--each of which contains a right-to-counsel
provision--the appellant made no specific mention of his right to assistance of counsel at a
critical stage during the trial proceedings.  The trial court cannot fairly be expected to have
known that the appellant was seeking a ruling on such an objection.  Therefore, if the
constitutional right to counsel at a critical stage of trial is of a kind that is subject to forfeiture
by inaction, (8) then the appellant procedurally defaulted it by failing to make timely objection
in the trial court.

On Direct Appeal
	The appellant raised only one point of error on appeal.  In that point of error, however,
he identified three distinct constitutional bases to argue that the trial court erred to exclude
him and his trial counsel from the competency examination.  The trial court, he urged, denied
him "his right to be present at a critical stage of the proceeding, [to] confront a witness
against him[,] and have the assistance of counsel in this process." (9)  In describing the
appellant's claim on appeal, the court of appeals recognized that the appellant predicated his
point of error in part upon the constitutional right to counsel. (10)  But, while it thereafter
addressed and resolved the appellant's other two constitutional claims, it said no more about
his constitutional right-to-counsel claim. (11)  Thus, the court of appeals failed to reach any
decision with respect to that issue.
On Discretionary Review
	In his petition for discretionary review, the appellant raised one ground for review. 
On its face, this ground for review was limited to a single legal issue: "Whether an accused's
Sixth Amendment right to counsel is denied if the trial court excludes counsel for the accused
from attending a Rule 601 determination of the competency of a child witness?"  Thus, it
appeared that the appellant would have us review the one constitutional issue that the court
of appeals simply did not address. (12)  Nevertheless, in the course of his argument, the
appellant relied in large measure--albeit analogically--upon the opinion of the United States
Supreme Court in Kentucky v. Stincer, a case that strictly involves the Sixth Amendment
right to confrontation. (13)  The appellant also made incidental arguments challenging the court
of appeals's resolution of his statute-based arguments. (14)  We granted the appellant's petition
for discretionary review and allowed briefing on the merits because, despite the facial
narrowness of his ground for review, he seemed also to be challenging the court of appeals's
resolution of some of the other, non-right-to-counsel issues that were raised and actually
resolved on direct appeal.

	By way of his brief on the merits in this Court, however, and especially during his oral
argument, the appellant has now vehemently insisted that his argument on discretionary
review is limited to the proposition that he suffered a violation of his constitutional right to
the assistance of counsel.  He has disclaimed any present reliance upon his right of
confrontation.  For the first time in his brief on the merits, he has also argued that the court
of appeals "sidestepped the issue" of the right to the assistance of counsel and "neither
considered nor adequately analyzed the Rule 601 proceeding as a 'critical stage' of the
adversarial process." (15)  Nevertheless, the appellant does not ask us to remand the cause to the
court of appeals. (16)  Instead, he continues to urge us to reach the merits of that issue for the
first time on discretionary review.
ANALYSIS
Justiciability
	As a general proposition, this Court will review only the "decisions" of the courts of
appeals. (17)  There are exceptions to our practice of remanding under such circumstances,
however, and when the proper disposition of an outstanding issue is clear, we will sometimes
dispose of it on discretionary review in the name of judicial economy. (18)  A remand in this
cause would require the court of appeals potentially to address a number of ancillary issues,
including: (1) whether it is appropriate to reach the appellant's right-to-counsel argument in
light of the fact that it was embedded in a multifarious point of error on appeal; (19) and (2)
whether the appellant's right-to-counsel claim is subject to forfeiture by a failure to object
at trial, or is, alternatively, a waiver-only right that can be raised for the first time on appeal
in the absence of an express waiver on the record. (20)
	The appellant made no objection based upon the Sixth Amendment right to counsel
when the trial court excluded his trial attorney from the competency examination. (21)  We have
held that the right to counsel at a critical stage of the criminal proceedings must be
affirmatively waived and cannot be forfeited by inaction alone. (22)  If a pretrial competency
examination does not constitute a critical stage for Sixth Amendment purposes, however,
then the potential implications of the appellant's failure to object to his trial counsel's
exclusion on that basis are academic, since the appellant cannot prevail on appeal in any
event.  And the appellant cites to no case in his brief on the merits in this Court--from any
jurisdiction--holding that a pretrial competency examination  necessarily constitutes a
critical stage.  Because we think it clear that the competency examination was not a critical
stage of the criminal proceedings against the appellant, in the interest of judicial economy
we will resolve the case on that basis without burdening the court of appeals with a remand.
Critical Stage
	The Sixth Amendment right to counsel "extends to all 'critical stages' of the criminal
proceeding, not just the actual trial." (23)  But "[n]ot every event following the inception of
adversary judicial proceedings constitutes a 'critical stage' so as to invoke the right to
counsel under the Sixth Amendment." (24)
	In assessing whether a particular stage of the pre-trial proceedings is a
"critical" one, "the test utilized by the [Supreme] Court has called for
examination of the event in order to determine whether the accused required
aid in coping with legal problems or assistance in meeting his adversary."  In
essence, we must scrutinize any pre-trial event with a view to ascertaining
whether presence of counsel is necessary to assure fairness and the effective
assistance of counsel at trial[.] (25)

Digesting relevant Supreme Court decisions, Professor LaFave has described the examination
of a pretrial event for its criticalness as follows:
	a court must ask: (1) whether the proceeding either (i) had a consequence
adverse to the defendant as to the ultimate disposition of the charge which
could have been avoided or mitigated if defendant had been represented by
counsel at that proceeding; or (ii) offered a potential opportunity for
benefitting the defendant as to the ultimate disposition of the charge through
rights that could have been exercised by counsel, and (2) whether the adverse
consequence could have been avoided, or the lost opportunity regained, by
action that subsequently provided counsel could have taken. (26)

Measured by these criteria, we think it evident that the pretrial witness-competency
examination that occurred in this case was not a "critical stage" of the appellant's trial
mandating the participation of his counsel in order to ensure either the fairness of, or the
effectiveness of his counsel at, the subsequent trial.
	Rule 601(a)(2) provides that children "shall be incompetent to testify" if, "after being
examined by the court, [they] appear not to possess sufficient intellect to relate transactions
with respect to which they are interrogated." (27)  Under this provision, "[t]he party seeking to
exclude the witness from testifying must raise the issue of his competency and shoulders the
burden of establishing incompetency." (28)  The competency of a child-witness is a preliminary
question for the trial court to determine under Rule 104(a) of the Texas Rules of Evidence, (29)
and the trial court is not bound by the rules of evidence in making that determination. (30) 
Besides gauging the sufficiency of the child-witness's cognitive ability to relate relevant
facts, as specifically contemplated by Rule 601(a)(2), a trial court may also inquire whether
the child-witness possesses the capacity to appreciate the obligations of the oath--or can at
least distinguish the truth from a lie. (31)  The trial court has discretion to permit the parties to
participate in the Rule 601(a)(2) examination, and may even allow the parties themselves to
propound the questions, so long as the trial court itself "makes an independent ruling on
competency" based on that questioning. (32)  But the language of Rule 601(a)(2) certainly does
not, on its face, require the trial court to permit party participation. (33)  And there is no
particular reason why it should, since the typical inquiry into a child-witness's capacity to
relate facts and appreciate the virtue of veracity is hardly complex.
	This is not to say, of course, that a child-witness competency proceeding does not
carry the potential for adverse consequences to the defendant.  Simply put, if he cannot
satisfy his burden to persuade the trial court that the child-witness is incompetent, the child-witness will be allowed to testify against him, often to devastating and determinative effect. 
The defendant's trial counsel might have been able to prevent the child-witness's testimony
altogether by promulgating supplemental questions designed to expose the child-witness's
cognitive or truth-telling limitations, or suggesting deficiencies in the trial court's own
examination of the child-witness.  Moreover, the opportunity for the defendant's trial counsel
to question the child-witness at a pretrial competency examination could improve his trial
posture by providing some discovery of, and possible impeachment fodder for, the child-witness's later trial testimony--at least to the extent that a trial court opts to allow such
questioning as helpful to its free-range Rule 104(a) inquiry whether the child-witness has the
sufficient intellect to relate the events that are the subject of the prosecution.
	But these bare potentialities cannot serve, by themselves, to establish that the
particular Rule 601(a)(2) examination in this case constituted a "critical stage" of the
criminal proceedings for Sixth Amendment purposes.  We must also ask whether later actions
that the appellant's trial counsel took (or could have taken) avoided (or could have avoided)
the adverse consequences of the competency examination (i.e., that the child-witness was
found to be competent), and whether trial counsel was nevertheless afforded an opportunity
to impeach the child-witness at trial with whatever statements she might have made during
the competency examination that proves inconsistent with her later trial testimony.  We
conclude that trial counsel's later opportunities to challenge the child-witness's deficiencies
during the trial itself rendered the trial court's competency examination, though it was
conducted outside of trial counsel's presence, nonetheless to be a non-critical stage of the
criminal proceedings.
	At the conclusion of the exclusive in camera competency examination, the trial judge
immediately returned to the courtroom to announce that he had questioned the child-witness
and determined both that she "understands that telling the truth is the correct thing to do,"
and that she "possesses sufficient intellect" to relate the events she would be called by the
State to testify about.  The trial judge confirmed that the court reporter had been present,
"taking down all that was said[,]" and that "I had the opportunity to talk with [the child-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."  The appellant's trial counsel
renewed his objection (on confrontation grounds) to this proceeding, and then observed:
	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.

The trial court responded, "Okay.  All right."  So far as the record reveals, however, though
it was apparently readily available to him, the appellant never sought to obtain the court
reporter's transcript of the competency examination for use at trial.  Although the appellant
eventually did file a motion for new trial, he did not complain of any irregularity in the
conduct of the competency examination among his grounds therefor.
	The record thus establishes that the appellant was able to participate to the limited
extent that he was allowed to submit questions for the trial judge to ask that the appellant
deemed relevant to the competency determination, some of which the trial judge actually
used. (34)  Moreover, because the trial court made sure that the court reporter was present in
chambers to memorialize the competency examination, the appellant's trial counsel was also
afforded the opportunity to review a transcript.  He could have used the transcript to evaluate
both the efficacy of the in camera examination to ferret out the child-witness's incompetency
(if any), and its utility as impeachment, prior to cross-examining her at trial. (35)  In any event,
trial counsel was given the opportunity to, and did, actually cross-examine the child-witness
during trial.  At that time, he could have asked her questions to test her ability to relate the
relevant events reliably and tell the truth about them, and he could have sought another ruling
on his motion to deem her incompetent. (36)  As the Supreme Court observed in United States
v. Ash, "[i]f accurate reconstruction is possible, the risks inherent in any confrontation [in the
absence of counsel for the accused] remain, but the opportunity to cure defects at trial causes
the confrontation to cease to be 'critical.'" (37)  That  trial counsel may not have maximized his
opportunities does not mean that the benefits were "irretrievably lost" so as to justify the
conclusion that the in camera competency examination constituted a critical stage. (38)
	The appellant argues that, "in Texas, . . . 'a critical stage' of a criminal proceeding
encompasses all pretrial proceedings." (39)  The only case he cites for this proposition supports
no such categorical Sixth Amendment proposition. (40)  Beyond that, the appellant draws our
attention, if only by analogy, to the Supreme Court's opinion in Stincer. (41)  He acknowledges
that the issue in that case was whether Stincer's exclusion from a child-witness competency
hearing violated his Sixth Amendment right to confront witnesses against him personally,
and that Stincer's attorney was present at the hearing--in short, that Stincer does not speak
directly to the Sixth Amendment right-to-counsel issue in this case.  Nevertheless, he argues
that there is language in Stincer demonstrating that the Supreme Court would regard a child-witness competency examination as a critical stage for Sixth Amendment right-to-counsel
purposes.  If anything, however, Stincer ultimately cuts the other way.
	In Stincer, the Commonwealth of Kentucky argued that the Sixth Amendment
Confrontation Clause was not implicated in child-witness competency hearings because those
hearings are not a "stage of trial" in which evidence is presented to the ultimate trier of fact. (42) 
The appellant relies on the fact that the Supreme Court rejected this distinction on the
grounds that a child-competency hearing, even when it occurs in a pretrial setting and outside
the presence of the jury, nonetheless "retains a direct relationship with the trial because it
determines whether a key witness will testify." (43)  We have acknowledged as much today. 
But this observation, standing alone, no more suffices to establish that a particular
competency examination constitutes a "critical stage" for Sixth Amendment right-to-counsel
purposes than it sufficed to convince the Supreme Court that Stincer's rights to confrontation
and due process were violated.  As we have already developed, other considerations inform
the "critical stage" analysis, just as other considerations informed the Supreme Court's
ultimate conclusion in Stincer that neither the Sixth Amendment Confrontation Clause nor
the Fourteenth Amendment Due Process Clause were violated. (44)  Indeed, similar
considerations led the court of appeals to rule that the appellant likewise suffered no
deprivation of his rights to confrontation and due process when both he and his trial counsel
were excluded from the child-witness competency examination in this case. (45)  The appellant
has refrained from challenging that ruling today.
CONCLUSION
	We hold that the appellant was not denied his Sixth Amendment right to counsel at
a critical stage of the criminal proceedings.  Accordingly, we affirm the judgment of the court
of appeals.

DELIVERED:	January 15, 2014
PUBLISH
1. 	 Tex. Penal Code § 22.021(a)(1)(B)(ii).
2. 	 See Tex. R. Evid. 601(a)(2) ("The following witnesses shall be incompetent to testify in any
proceeding subject to these rules:  . . .  Children or other persons who, after being examined by the
court, appear not to possess sufficient intellect to relate transactions with respect to which they are
interrogated.").
3. 	 Gilley v. State, 383 S.W.3d 301 (Tex. App.--Fort Worth 2012).
4. 	 Specifically, the appellant's trial counsel objected as follows:

		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 the examination.
5. 	 U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. art. 1.25.
6. 	 See Tex. Code Crim. Proc. art. 1.25 ("The defendant, upon a trial, shall be confronted with
the witnesses, except in certain cases provided for in this Code where depositions have been taken.").
7. 	 The Appellant claims that, because he alluded to "our right to be present" during the
competency examination, his objection was sufficient to embrace his constitutional right to the
presence and assistance of counsel at any critical stage of trial.  But even if the appellant's objection
was sufficient thus to identify what the appellant sought--i.e., both his own presence at the
competency examination and the presence of his trial counsel--it failed to identify the constitutional
right to counsel at a critical stage of trial as the legal basis for his claim.  See Tex. R. App. P.
33.1(a)(1)(A) (objection must "state[] the grounds for the ruling . . . sought . . . with sufficient
specificity to make the trial court aware of the complaint").  Here, the only federal constitutional
provision in support of "our right to be present" that the appellant's trial counsel expressly invoked
was the Confrontation Clause. 
8. 	 See notes 20 & 22, post.
9. 	 Appellant's Brief on Direct Appeal at 6.
10. 	 See Gilley, 383 S.W.3d at 304 ("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.")
(emphasis added).
11. 	 Id. at 306-09.
12. 	 The court of appeals also addressed the appellant's statutory argument that he was entitled to
be present during the competency examination, accompanied by his trial counsel, under Rule 601(a)(2)
itself, holding that the plain language of the rule requires no such thing.  Id. at 305-06.  In the body of
his petition for discretionary review, the appellant argued that this holding with respect to the statute
also effectively constituted a holding that the competency examination was not a "critical stage" of
trial, and that the appellant therefore suffered no deprivation of his Sixth Amendment right to the
assistance of counsel.  Petition for Discretionary Review at 4.  However, nothing about the court of
appeals's statutory analysis disposed of, or purported to dispose of, the appellant's Sixth Amendment
right-to-counsel claim.
13. 	 See Petition for Discretionary Review at 6-8 (citing Kentucky v. Stincer, 482 U.S. 730 (1987)).
14. 	 Id. at 8-10.
15. 	 Appellant's Brief on the Merits at 19.
16. 	 See Tex. R. App. P. 47.1 ("The court of appeals must hand down a written opinion that . . .
addresses every issue raised and necessary to final disposition of the appeal.");  Menefee v. State, 287
S.W.3d 9, 18-19 & n.45 (Tex. Crim. App. 2009).
17. 	 E.g., Davison v. State, 405 S.W.3d 682, 691 & n.54 (Tex. Crim. App. 2013).
18. 	 Id. at 691-92.
19. 	 See, e.g., Prihoda v. State, 352 S.W.3d 796, 801 (Tex. App.--San Antonio 2011, pet. ref'd)
("As an appellate court, we may refuse to review a multifarious issue or we may elect to consider the
issue if we are able to determine, with reasonable certainty, the alleged error about which the complaint
is made.");  Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010) ("Because appellant bases
his single point of error on more than one legal theory, his entire point of error is multifarious.  Tex.
R. App. P. 38.1.  We will, however, review his arguments in the interest of justice.");  George E. Dix
& John M. Schmolesky, 43B Texas Practice: Criminal Practice and Procedure § 55:107 (3d
ed. 2011).
20. 	 We have observed that "[q]uestions of procedural default are systemic, meaning that a court
of appeals may not reverse a conviction without first addressing any potential issue of procedural
default, even sua sponte."  Lackey v. State, 364 S.W.3d 837, 844-45 n.28 (Tex. Crim. App. 2012). 
In Marin v. State, 851 S.W.2d 275, at 278 (Tex. Crim. App. 1993), we observed that the general right
to the assistance of counsel is of the waiver-only variety.  Moreover, the United States Supreme Court
has intimated that the right to counsel at a discrete "critical stage" is lost only when knowingly and
intelligently waived.  Iowa v. Tovar, 541 U.S. 77, 80-81 (2004).  Whether the appellant may raise his
claim of a deprivation of his constitutional right to counsel at a critical stage of his trial, however, is
a question the parties have not previously briefed.
21. 	 See note 4, ante.
22. 	 See Oliver v. State, 872 S.W.2d 713, 716 (Tex. Crim. App. 1994) (an accused does not lose
his right to counsel at a critical stage by inaction, but must affirmatively waive it).
23. 	 Hidalgo v. State, 983 S.W.2d 746, 752 (Tex. Crim. App. 1999).  Of course, the Sixth
Amendment right to counsel does not attach until the initiation of adversary judicial proceedings. 
Green v. State, 872 S.W.2d 717, 719 (Tex. Crim. App. 1994).  There is no question that such
proceedings had begun in the instant case, the trial court having conducted the witness-competency
examination on the morning of  jury selection and the day before trial on the merits commenced.

	The appellant also invokes Article I, Section 10 of the Texas Constitution, but makes no
independent argument that it should be construed any more protectively in the right-to-counsel context
than the Sixth Amendment.  We therefore decline to reach that issue.  E.g., Barley v. State, 906 S.W.2d
27, 35-36 (Tex. Crim. App. 1995).
24. 	 Green, 872 S.W.2d at 720.
25. 	 Id. (quoting United States v. Ash, 413 U.S. 300, 313 (1973)) (citation omitted).
26. 	 Wayne R. LaFave, et al., 3 Criminal Procedure § 11.2(b), at 50 (3d ed. Supp. 2012-2013)
(citations omitted).
27. 	 Tex. R. Evid. 601(a)(2).
28. 	 Steven Goode, Olin Guy Wellborn III & M. Michael Sharlot, 1 Texas Practice: Guide to
the Texas Rules of Evidence § 601.2, at 643 (3d ed. 2002) (citations omitted).
29. 	 Id. at 643-44 & n.31 (citing Broussard v. State, 910 S.W.2d 952, 960 (Tex. Crim. App.
1995)).
30. 	 Tex. R. Evid. 104(a).
31. 	 See Goode et al., supra, at 641-42 (noting that the requirement of former Article 38.06 of the
Texas Code of Criminal Procedure that, to be a competent witness, a child must "understand the
obligation of an oath[,]" has not been carried over into current Rule 601(a)(2), but that, "[n]everthless,
as a corollary of the oath requirement found in [Texas Rules of Evidence] Rule 603, courts may
continue to demand that witnesses understand their responsibility to testify truthfully").
32. 	 Clark v. State, 558 S.W.2d 887, 890 (Tex. Crim. App. 1977).  Clark construed the language
of former Article 38.06, which, like current Rule 601(a)(2), contained the requirement that the child-witness be "examined by the court."  Nevertheless, we held that questioning by the parties could
constitute "compliance with the statute" so long as "the court makes an independent ruling on
competency based upon an examination by the court, the prosecution or the defense attorney[.]" Id. 
33. 	 Indeed, the court of appeals held it to be consistent with the plain language of Rule 601(a)(2)
that the parties could be excluded from the witness competency examination altogether.  Gilley, 383
S.W.3d at 305-06.  We have no occasion to pass on that question today.
34. 	 There is no particular reason to believe that, had the appellant's trial counsel been allowed to
attend the competency examination, the trial court would have permitted him to adduce questions
different than or in addition to those he submitted in writing that were actually posed to the child-witness at the in camera competency examination.
35. 	 Whatever trial counsel's failure to actually review the transcript may portend with respect to
his actual effectiveness, that the opportunity was available to review the transcript of the competency
examination prior to cross-examining the child-witness cuts against a conclusion that the examination
itself constituted a critical stage in this case simply because of its potential for generating impeachment
material.
36. 	 As the Supreme Court has noted in the Sixth Amendment Confrontation Clause context, "the
determination of [child-witness] competency is an ongoing one for the judge to make based on the
witness' actual testimony at trial."  Stincer, 482 U.S. at 740.  And "[i]n Texas, the scope of cross-examination is wide open."  Felder v. State, 848 S.W.2d 85, 99 (Tex. Crim. App. 1992).  See Tex. R.
Evid. 611(b) ("A witness may be cross-examined on any matter relevant to any issue in the case,
including credibility.").  Thus, as in Stincer, here,

	[a]t the close of the [child's] testimony, [the appellant's] counsel, had he thought it
appropriate, was in a position to move that the court reconsider its competency ruling[]
on the ground that the direct and cross-examination had elicited evidence that the
young girl[] lacked the basic requisites for serving as a competent witness[].

Stincer, supra, at 744.
37. 	 413 U.S. at 316.  Indeed, it is at least marginally relevant to the critical stage determination
that neither the appellant's trial counsel nor the prosecutor was allowed to attend the competency
examination in this case; each side was limited to submitting proposed questions.  In Ash, the Supreme
Court underscored not only the Sixth Amendment concern that the accused not stand alone at any
pretrial proceeding "where the results might well settle [his] fate and reduce the trial itself to a mere
formality[,]" but also the need to assure that, under those circumstances, he would receive "aid in
coping with legal problems or assistance in meeting his adversary"--namely, the prosecutor.  Id. at
310, 313 (emphasis added).  Because the prosecutor's involvement in the competency examination was
just as limited as the appellant's, there is no danger in this case that the appellant's interests may have
been prosecutorially steamrollered.
38. 	 See United States v. Wade, 388 U.S. 218, 225 (1967) (pretrial proceeding constitutes a "critical
stage" if the absence of counsel results in a right or defense that "may be irretrievably lost, if not then
and there asserted") (quoting Hamilton v. Alabama, 368 U.S. 52, 54 (1961)).
39. 	 Appellant's Brief on the Merits at 13.
40. 	 Id. at 13 n.38 (citing Adanandus v. State, 866 S.W.2d 210, 219 n.7 (Tex. Crim. App. 1993). 
The issue in Adanandus was the appellant's statutory right to be personally present during an "in-chambers meeting [that] was held in appellant's absence between the trial judge, the prosecutor and
defense counsel."  Adanandus, supra, at 217.  Thus, it does not speak to the Sixth Amendment right 
to counsel at all, much less does it hold that all pretrial proceedings in Texas must be regarded as
critical stages for Sixth Amendment purposes.
41. 	 482 U.S. 730 (1987).
42. 	 Id. at 739.
43. 	 Id. at 740.
44. 	 Having earlier found that the right to confrontation--or, more specifically, the right to cross-examination that confrontation partly entails--"is essentially a 'functional' right designed to promote
reliability in the truth-finding functions of a criminal trial[,]" the Supreme Court in Stincer did not
regard its analysis as complete with the simple conclusion that the competency hearing had an impact
on the conduct of the trial in the sense that it would determine "whether a key witness will testify." 
482 U.S. at 737, 740.  Instead, it continued:

		Instead of attempting to characterize a competency hearing as a trial or pretrial
proceeding, it is more useful to consider whether excluding the defendant from the
hearing interferes with his opportunity for effective cross-examination.  No such
interference occurred when respondent was excluded from the competency hearing of
the two young girls in this case.

Id. at 740.  Similarly, whether a pretrial proceeding should be regarded as a "critical stage" for Sixth
Amendment right-to-counsel purposes ultimately depends on "whether presence of counsel is
necessary to assure fairness and the effective assistance of counsel" in the particular trial.  Green, 872
S.W.2d at 720.  Thus, it is insufficient simply to inquire generally whether a category of pretrial
proceedings counts as a "critical stage."
45. 	 Gilley, 383 S.W.3d at 306-08.
