1. “This Court should review this case because the court of appeals refused to remand this case to the trial court to remedy its error as required by this Court’s holding in LaPointe v. State.”
2. “Assuming that the error in this case should have been reviewed pursuant to the harmless beyond a reasonable doubt standard, the error clearly was not harmless beyond a reasonable doubt.”
During Villafranco’s trial for sexually abusing a child, he sought to question the victim about an incident with another male to rebut the assertion that he scarred her vagina. The trial court held an in camera hearing under Tex. R. Evid. 412(c)—the Rape Shield Law—and excluded the parties and counsel from being present. Villafranco’s attorney did not object. But before the in camera hearing, his counsel questioned the victim about the extent of touching involved in the other incident.
On appeal, Villafranco challenged his and his counsel’s exclusion from the hearing. The court held that the exclusion was in contravention with LaPointe v. State, which held that a Rule 412 hearing is an adversarial hearing in which the parties are to be present and the attorneys are permitted to question witnesses. 225 S.W.3d 513 (Tex. Crim. App. 2007). The court recognized that the remedy according to LaPointe was abatement so a record can be developed for the appellate court to resolve an issue. However, it found Young v. State, 547 S.W.2d 23 (Tex. Crim. App. 1977), to be on point because, like Young, the record here is sufficient for appellate review.
Considering preservation, the court of appeals assumed without deciding that a 412 hearing is a critical stage in a criminal proceeding and that the exclusion violated his constitutional right to counsel.
Next, rejecting Villafranco’s claim that the error was structural, the court concluded that the error was not harmful beyond a reasonable doubt. At the 412 hearing, when the trial court asked the victim to clarify her testimony about the extent of the extraneous touching, the victim said the male involved in the other incident did not touch her vagina or penetrate any other part. Also, the court pointed out there was no evidence that the other incident showed any motive or bias against Villafranco.
Villafranco argues he was denied counsel during the entire, critical stage 412 hearing. This error, he asserts, is not subject to forfeiture. He further contends that the court of appeals should have abated the case as required by LaPointe. Finally, he claims that he was harmed beyond a reasonable doubt. He states that the 412 hearing transcript establishes that the other male touched her in the area of the vagina. The young victim, he argues, could have used the word “butt” to refer to her anus, or she could have been referring to her vagina and anus. He also says the victim gave conflicting testimony about finger penetration to the vagina versus the anus. Counsel could have clarified the conflicts.