1 Althoug h certa in statute s implicat

ed in this case have b een amended since the events at issue, the amendments do not aff ect our a naly si s, and we

will cite t

o the cur rent versions of a

ll statutes for convenience.

2 To avoid c onfusion we will re fer to the appella nt and victim by

their first names. 

### TEXAS COUR T OF APPEALS, THIRD DIST RICT, AT AUSTIN

44444444444

44444444444

44444 ON MOTION FOR REHEARING

44444444444

44444444444

44444
NO. 03-03-00460-CR

James T homas LaP ointe, 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

O P I N I O N
Inorder to address concerns raised in the State’s motion for rehe aring, we withdraw
our judgment and opinion issued on March 17, 2005 and s ubstitute t his opinion ab ating th e appea l. Appellant James Thomas LaPointe was convicted b y a ju ry of one c ount of aggravated

kidnapping, one count of assault-family violence second, and

three counts of aggra

vated sexual assault
. See Tex. P en. Code A nn. § 20.04

(West 2003 ); id. §§ 22.01, 22.021 (West Supp. 2004). 1 His wife Kara La

Pointe was the victim. James 2 argues that the district court erred because:3 The State has filed a Motion to Strike Appendix to Appellant’s Brief. We overrule t h e State’s motion. However, we recog nize that the appendices are not part of the record and we have notrelied upon them in decidi ng the a ppeal. See Till v. Thomas , 10 S. W.3d 7 30, 73 4 (Tex. App.—Houston [1st Dist.] 1999, no pet.). 2 (1) it barred James and James’s counsel from attending an in cam era h earing to determine the admissibil ity of evidence o f the alleged victim’s previous sexual conduct; (2) it refused to allow James ’s counsel to make offers of proof or bills of exception reg arding evidence of the vict im’ s previous sexual conduct; (3) it excluded evidence of the victim’s previous sexual conduct and other evidence; (4) it erroneou sly admitted e

vidence of extraneous act s by

James; (5)the evide

nce is factua lly insufficient to support his conviction. We agree that the district court erre d in barring James’s counsel from the in camer a heari ng. How ever, the nature of the district court’s err or present s unique circumstances in which the error prevents the proper pre sentationof James’s issues regarding the in camera hearing and the exclusion of

evidenc e of Kar

a’s past sexual conduct. See Tex. R. App. P. 44.4(a)(1). We, there fore abate the appeal and direc t 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 La

Pointe, were ma

rried in M arch 200 0 followin g the bir th of their son, J.L. In July

2001, following repeated marital difficulties, the couple separated, and Kara a nd J.L. moved in with Kara’s mother.

OnOctober 4, 2001, Kara and J. L. were a

t her mothe

r’s house in Williamson

County when James arrived and apparently began to arg

u e with Ka

ra. Kar a testifi ed at tria

l that she t

old James to leave, but James refused to leave and assaulted her by pulling out some of her hair ,3

throwing her to the

floor, a nd steppin

g on her hand and head. She

state d t hat James f

orced he r to
remove her

clothes, told her to lie down on the bed, and forced her to per form oral sex on him and allow him to

perfor m oral sex on

her. He then for ced her to have va

ginal se x with him. Kara testified that James threatened her with a pair of pinking shears and made Kara and J.L. le ave with h

im. After the three arrive d at James’ s apartme nt in Trav is County, James ag ain performed

oral sex on Kara and forced her to per form oral sex onhim. Kara stated tha

t James also inserted a water bottle into her vagina. She testified that James force d her to engage in sexual interco urse 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 . ret urned to Kara’s mother’s house

in Wi lliamson County, where James ag ain forced Kara to enga ge in sexual interco urse wit h hi m. Kar a te st ifi ed t hat Ja mes for ced her to wri te a let ter con veyi ng c ust ody o f J .L. to James; James then took Kara to a notary pu bl ic , w he re Ka ra si gn ed th e l et te r i n f ro nt of th e n ot ar y. James then returned Kara to her mother’s house, and orde red Kar a to rema in quiet a bout the e vents th at h ad j ust occ urr ed; he t hen lef t wi th J. L. After James left , Kara to ld

her mother what had happened; Kara’s mother then c alled the Leander

Police Department. Leande r police obtained an arrest warra nt for James and a search warrant for his Travis County apar tment. On the morning of October 6, L eander and Austin police officers entered James’s apartment and discovered James hiding with J.L. in the apartment’s attic. The polic e also dis covere d a wate r bottle a nd a pair of pinking

shears i n the apa rtment.4 Jame s was indicted and tried on one count of agg ravated kidnapping, one count of assault- family

violence second, and thre e countsof aggravated se xual 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 y

ears’ imprisonment for the count of assault-family violenc e second and life imprisonment for the remaining four counts. This appeal followe d.
DISCUSSION Rule 412 Evidence of an a lleged vi ctim’s past sexual conduct is admissible in a prosecution for sexual assault only under l imited circumstances. Tex. R. Evid. 412(b). The Texas Rules of Evidence provide: (b) Evidence of Specif

ic In stances
. In a prosecution for sexual assault or aggravated sexual assault, or attempt

to commit se

xual assau

lt or agg ravate d sexual as sault, evidence of

specific instance s of an al leged v

ictim’s pa st sexual be

havior is also not admissi

ble, unle ss: (1) suchevidenc e is admitt ed in accordance with parag

raphs (c) and (d) of this rule; (2) it is evidence: (A) that is nece ss ar y t o rebut or explain scientific or medical evidence offered by

the State; (B) of past sexua

l behavior with

the accused

and is offered by

the accused uponthe issue of whether the al leged victim consented to the sexual behavior which is the basis of the offense charged; (C) that rela

tes to the m

otive or b ias of the

allege d victim;5 (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 Off

ering E vidence . If t

he defe ndant pro poses to intro duce any documentary

evidenc e or to as k any

question, either by di

rect e xamin ation or cross-e xamination o f any

witness, c oncerni

ng spec ific 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 evide

nce or asking any

suc h question. After th

is notice, the cour

t shall c onduct an in c amera h earing, recorded by t he court reporte r, to dete rmine whe

ther the proposed evidenc e is admissible under parag raph (b) of this rule. The court shall determine what evidence is admissib le and sh all ac cordingly limit the questioning. The defendant shall not g o outside t

hese limit s o r ref

er to any e

vidence ruled inadmissib le incamera without prior approval of the court without the presence of th e j ur y. (d) Record

Sealed. The court shall seal the record of the in came ra hearing required inparagraph (c) of this rule f or delivery to the

appellate court in the event of an appeal.
Tex. R. Evid. 412(b)- (d). Rule 412 is commonly

refer red to as the “rape shield” rule. See South well v. State , 80 S.W.3d 647, 649 (Tex. App.—Houston [1st Dist.] 2002, no pet.).
The Distr

ict Cour t’s In CameraProcedure At trial, James sought to introduce evidence of Kara’s previous sexual behavior. The districtcourt concluded

that rule 412(c) required that only the judge, alleged victim, and court reporter needed to be present at the in camer a hearing . The distr

ict court prop osed that James’s counsel would submit specific areas of inquiry for the ju dge to d iscuss wit h Kara. The district court4 Kara testified that

she had consensual sexual intercourse with a boy friend on October 3, 2001. DNA testing revealed that Kara and the boy friend c ould

not be excl

uded as c ontributo rs to a mixture of DNA found on the water bottle collected from James’s apartment. James was excluded as a possible contributor. 6 would then dete rmin e the admissibility of any evidence of previous sexual behavior based on the
co ur t’ s o wn qu es ti on in g o f K ar a o ut si de th e p re se nc e o f J am es or hi s a tt or ne y.

James’s counsel r

equeste d the rig

ht to examine

Kara wi threspect to several

subject
areas. First, James sought to introduce evidence of Ka ra’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 pr eviously used
a pair o f handcu ffs—which Kara admitted she had given him—in conse nsual sexual activity, and that this evidence was admissible to show that Kara had consented to the eve nts at issue here. Second, James sought to examine Kara regarding their prior use of objects such as vibrators in con sensual s exual activity. James argued this evide nce was admissible to show that Kara consente d to the sexual activi ty a t issue he re, whic h alleg edly

involved t

he useof a water bottle. Third, James sought to introduce evidence of Kara ’s recent sexual encounter with a friend 4 to prese

nt an alte rnativ e explanation for Kara’s injuries and rebut evidence of fered by the State, which included evidence of bruising and vag inal trauma to Kara. Fourth, James soug

ht to introduce evidence rega rding Kara’s possible motive or bia s. James’s co

unsel expla

ined this a

rgumen t to the dist

rict cou rt as foll ows:
Ibelieve that one of

the possible motives or explanations for this case is that . . . the alleged victim had

engag ed in cond

uct which would jeo

pardize h er abilit

y to keep her child, that she by the admissions of the State, what they have a

llowed me to get in,5 The distr ict cour t also held

a privat e heari ng with hospital nu

rse Kath leen Ga nn to determine whether Kara had made statements re garding sexual conduct with other me n i n t he da ys prior to the incident in question that could have explained her injuries. The nurse testified that altho ugh Kara acknowledged ha ving sexual interco

urse 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 K ara’s in juries. 7 she had engaged in sexual activities with some people, [naming the c omplainant’s frie nd]. I be lieve the

re are other pe ople that

she has done that wi

th and th at those other sexual esc apades would lead to proble ms in acustody

case. Whe

ther she would win them or not, I don’ t thi nk 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 toge ther a rape story

for—to avoid a child custody matter.
We have reviewed the sealed transc ript of the in camer

a hearin g. In the h earing, the districtcourt briefly disc ussed the first two areas of inquiry with Kara an d ruled t hat inquiry regarding her previous sexual activity with James was inadmissible. The judge ruled that evidence regarding intercours e b etween Kara and her fr iend was already

in the record, so he would not enterta infurther questioning in that area. 5 Finally, the judg e ruled that any evidence of the final area of inquiry—bias by

Kara stemming from a desire to g ain custody of J.L .—was not admissible. James argues that the in camer a hearing described in rule 412( c) r equires at a minimum that a defendant’s counsel be afford ed th e opportu

nity to examine t

he alleg ed victim regarding specific instances of previous sexual conduct. See Tex. R. Evid. 412(c). James argues that the district c ourt’s fa

ilure to a llow James’ s counsel to attend the hear ing con stitutes r

eversib le
c onstitutional error because the procedur e denied James his constitutional right to conf ront witnesse s and denied him his constitutional right to the assistance of counsel. See U.S. Co nst . am end . VI ( “In8

all criminal prosecutions, the accused shall enjoy the rig

ht . . . to be confronted with the witnesses agains thim . . . and

to ha ve th e Ass istan

ce of Couns el fo r his d

efen ce.” ); Te x. Const. a rt. I, § 10 (accused “shall ha ve the ri ght of be ing hea

rd by himself or

counsel, or

both, [and] shall be confronted by th e wi tn ess es a gai nst hi m”) . In a separate issue, James asserts t hat the di strict co

urt’s re fusal to allow him to make a bill of exception regarding the alleged victim’s previous sexual con duc t 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 oppor tunity to be present and c ross-examine the a llege d vict imat an in camer

a hearing. I

n making this determination, we examine principles of statutory constructionas well as the effect of the district court’s interpr etation of the rule on James’s constituti onal rig

hts. Inanalyzing a

rule of evi dence, 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 st at ut or y analy sis is t

he text of the relevant provision. Ex parte Kuester , 21 S.W.3d 264, 266 (Tex. Crim. App. 2000); State v. La ird , 38 S.W.3d 707, 712 (Tex. App.—Austin 2000, pet. ref’d). Undefined

words in a

statute a re ordinarily

given their

plain mea

ning, un less the st atuteshows that they were used in some other sense. Daniels v . State , 754 S.W.2d 214, 219 (Tex. Crim. App. 1988); State v. W offord , 34 S.W.3d 671, 680 (Tex. App.—Austin 2000, no pet.). Every word of a

statute i s pr esumed to

have be en used f

or a purp ose, and

every word exclu

ded must a

lso be pre sumed to6 This is not to be confused with an in camer a inspection , where a

trial cou rt indepe ndently 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 alsoTex. R. Civ. P. 193.4(a). 9 have been excluded for a purpose. Cameron v. Terrell &Garrett, Inc. , 618 S.W.2d 535, 540 (Tex. 1981). The langua ge in question pr

ovides: “[T]he court shall conduct an in camer a hearin g,
r ecorded by t he court reporte r, to dete rmine whe

ther the proposed evidenc e is admiss ible unde r paragraph (b) of this r

ule.” Tex. R. Evid. 412 (c). The crucia l phrase is “ in camer

a hearing.” Becau se neither

“ in camer

a ” nor “hearing” are

defined in either the Texas Rules of Evidence or the Texas Pena l Code, we will use their plain meaning in analy zing the requirements of rule 412(c). See Dani els , 754 S.W.2d at 219. “Heari ng” is define d as: “1. A judicial session, usu[ally] open to the public, held for the purpose of deciding issues of fact or of la w, sometimes with witnesses testifying.” Black’s Law Dictionar y725 (7th ed. 1999). “

In camera ” is defined as: “1. In the judg e’s private chambers. 2. Inthe courtroom with all spectators excluded.” Id. at 763. “T hough th is phrase usually refe

rs to a judge’s chambers, it may also refer to a cour troom from which al l spectators are excluded.” Bry an A. Garner, Dictionary of Modern Legal Usage428 (2d ed. 1995).

“ In camera

hearing,” therefore , denotes a judicial s ession he ld

either in the judge’s chambers or in the c ourtroom with all spectators excluded. 6 But nothing about the exclusion of outside spectato rs from a hearing implies that a judge c ould exclude the parties altogether and have
a private conservation with a witness. I ndeed, federal rule 412 p ro vides for an in camera hearing
onthe admiss ibility

of a vict im’s past sexual behavior and explicitly states that the victim and parties7 We also note that the rule does not refer to the disclosure in camer a as a hearing. See Tex. R. Evid. 508(c)(3). 10 have a right to attend and be heard. Fed. R. Evid. 412(c )(2). Although the languag e 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).

Si mi la rl y, Texas Rule of Evidence 508(c)(3) provides for in camera disclosure of the identity of an informant. The rule specifies that all parties ar e to be p resent at ever

y stage of the proceeding

“except a disclosure in camera, at which no counsel or party shal l be p ermitted to be present.” Tex. R. Evid. 508(c)(3). If in camer a meant the exclusion of the parties and counsel by definition, then the additional words excluding counsel and the parties would be sup erfluou s. 7 See Campbell v. State , 49 S. W.3d 8 74, 87 6 (Tex. Crim. App. 2001) (I n constru ing a sta tute, “we assume that every word has been use d for a pu

rposeand that each word, phrase, clause, and sente nce shou ld be given effect if rea sonably possible.”).

Furthermore, the ordinary de finition of a hearing assumes the normal adve rsarial process that is a ba sic, long -establi shed fea ture of o ur sy stem of jus tice. Asp ects of this adversarial process , such as the right

to cross-e xamine adv erse wit

nesses, are guaranteed by

our state and federal constitution, as we discuss below. The adversarial nature of our jud

icial pro cess als o has dee

p roots inthe English common law, from whic h Americ a’s foun

ding fa thers (a nd ultimate ly th

ose of Texas) derived many of our constitutiona

l principl es. As Justice Sc alia rec ently observed in Crawford v. Washington ,8 See Act of May 15, 1975, 64th L eg., 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 (hereina fter “Former Rape Shield Statute”). The pertinent portion 11 English common law has long differed from continental c ivil law in regar d to the manner in which w

itnesses g ive testimo ny in cr

iminal trials. The common-law tradition is one of l ive testimony incourt subject to adversarial testing, while the civil law cond ones exami

nation in private by ju

dicial of ficers.
541 U.S. 36, ___ (2004) (citing 3 W. Blackstone, Commentari es on the L aws of England 373-74 (1768)). We see nothing in rule 412(c)’s requirement of an “in camera” procedure that sig

nals
a departu re from t he charac teristic adversa rial natu re of Texas “hear

ings” a s we have

historica lly 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 refer ence toit.”). I

n partic ular, we believe that if the court of criminal appeals had envisioned
ananomalous, European-sty le procedure of pr

ivate j udicial interrogation, it surely would have expressed such intent more explicitly when promulgating rule 412. Indeed, where the legislature and
our higher courts have required suc h rare departures from traditional adve rsarial 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 r ule 412 suggest any

such intent. We discuss ed rule 4 12 in Cuyler v. State :
Rule 412 is derived from the “rapeshield st atute” e nacted by th e legis lature in 1975.[ 8 ] Befor

e the sta tute was e

nacted, sexual ass ault victi ms ofte n foundof the former rapeshield statute is nearly identica l to rule 412(c) and provided: “After this notice [identical to thatrequired by rule 412], the court shall conduct an in camer a hearing, recorded by

the court reporter, to determine whether the proposed evidence is admissible under Subsection (a) of

this section.” Id. 12 themselves subjected t o a busive, e mbarra ssing, a

nd irrele vant inqui

ries into t heir private lives, with the result that many sexual assault victims chose not to report the attack rathe r than fac e such questioning. Rule 412, like its predecessor statute, repres ents an explicit

decision to elimina

te trial practic es tha t may have fr ustrated society’s vital interest in the prose cution of sexual crimes.
841 S.W.2d 933, 936 (Tex. App.—Austin 1992, no pet.) (citation omitted), overruled on oth er grounds by Halstead v. State , 89 1 S.W.2d 11 ( Tex. App.— Austin 199 4, no pet. ). The ra tionale behind ra pe shield laws was describ ed by

one cour t as follow s: [E]vidence of a rape victim’s prior sexual activity is of dubious probative value and relevance and is hig

hly embarr assing a nd prejud icial. Often such evidencehas been used to ha

rass the prosecu ting vic tim. Sponsors of [rape shield] statutes assert that they encourage victims of sexual assault to report the crimes without fea r 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.2d924, 929 (Tex. Crim. App. 1985). The notes of the advisory committee on the

fede ral r ule 4 12 al so emp

hasiz e the protection of the victim from public humiliation:
The rule aims

to safeg uard the allege d victim ag

ainst th e invasio n o f p ri va cy, potential embarras sment and sexual stereoty ping tha t is associ ated with

public disclosure of intimate sexual details and the infusion of sexual innuendo into the factfinding process . By

afford ing vict ims protec

tion in most

instan ces, the

rule also enc ourages victims of sexual misconduct to institute and to participate in legal procee dings against alle ged of fenders.9 We do not believe that the procedure pro po se d b y J ames—al lowing James’s cou nsel to attend the in camer

a hearing and examine Kara—conflicts with the purpose of rape shield laws. Had the district c ourt allowed James’s counsel t o examine K

ara, the hearing still w ould have bee n “ in camera .” That

is, the in cam era hearing would have “exclude[d] . . . the presence of a ny unnecessary

spectators.” Wofford v. S tate , 903 S .W.2d 796, 7 98 (Tex. Ap p.—Dalla s 1995, pet. ref’d); see also Fed. R. Evid. 412(c)(2) (“the court must conduct a hea ring in camera

and afford the victim and parties a right

to attend and be heard”). All public spectators could have been removed fromthe cour

troom, lea

ving only the pa rties , Kara, and th e judge to par tici pate i n the h earing, with the court reporter recording the proceeding. The recor d would have been sealed, thereby exposing Kara’s previous sexual conduct to only a handfu l of nece ssary

persons, while preventing any undue public exposure. 13 Fed. R. Evi d. 412 advisory committee notes. Clear ly, rule 412 was intende d 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 a

chie ved by ensur

ing that the court can first hear and e valuate the probity of e v idence of an alleged victim’s sexual history in a private setting before allowing tha t sensitive informat

ion to be in

terject ed into the

public domain. Exclud

ing the p arties do es little if any thing to a dvance this intent
. The victi

m will still have to face the defendant when she testifies inopen cou

rt on rele vant matte

rs and the testimony

about the alleged vi ctim’s sexual history will presumably conc ern matters that counsel has already investigated. Ad di ti on al ly, we are required, when possible, to construe the r ules of evidence
cons istentl y

with the c onstitution . Tex. R. Evid . 101; see also Tex. Gov’t Code Ann. § 311.021 (West 1998); Lebo v. St

ate , 90 S.W.3 d 324, 329-30 (Tex. Crim. App. 2002). If rule 412 wer e construed to exclude the parties, it would, as explained below, violate the defendant’s constitutional rights.10 The federa l constitut ional rig ht t o confrontwitnesses was made applicable to the states throu gh the four

teenth amendme

nt. U.S. Con st. amend. X IV; Pointer v. Texas , 380 U.S. 400, 403 (1965).
11 No ta bl y, “trial judges retain wide latitude insofar as the Confr ontation Claus e is concerned to imp ose rea sonable l imits on suc h cross- examination based on conce rns about , among

other thin gs, harassment, prejudice, confusion of the issues, the wi tness’[s] safety , or inter rogati on that is repetitive or only

marginally

relevant.” Delaware

v. Van Ars dall , 475 U.S. 67 3, 679 (19 86); accord Davisv. Alaska , 415 U.S. 308, 3 16 (1974) (right to cross-examination is “[s]ubject always to the broad discretion of a trial judge to preclude repetitive and unduly ha

rassing interrogation”). 14 Constitut ional Conside rations Confrontation Clause

The Texas Constitution provides that in all criminal prosecutions, the accuse d “shall be confronted by

the witnesses against him.” Tex. Const. art. I, § 1 0. This guar antee “ has as its purpose the protection of an acc used a ga inst processes of a secret and inquisitorial nature.” Id. interp. commenta

ry (West 1997 ); see also R obertson v . State , 142 S .W. 533, 543 (Tex. Crim. App. 1911) (“ By

our Constit

ution it is c learly

made man

ifest that no man shall be tried and condemned in secret and unheard.”).

The guarantee that a defe

ndant 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 conc e rn of the Confrontation Clause is to ensure the reliability of the evidence agai nsta crimina l defendant by subje cting it to rigorous testing in the context of an adversar y proceeding

before the trier of fact.” Maryland v. Craig , 497 U.S. 836, 845 (1990). Included in the right to confr ont adver se witnes ses is the right to reasonable cross-examination. Olden v. Kentucky , 488 U.S. 227, 2 31 (19 88) (ci ting Davisv. 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 con stitutiona lly1 2 Whe reas rule 412 allows the introduction of evidence of an a lleged victim’s previous sexual conduct only

under ce rtain spe cified c ircumsta

nces, the rule’s statutory pr ecursor was not as precise in explaining the ty pe of evidence that could be admitted. The former statute provided: 15 protected right of cross-examination.” Id. (quot ing Davis , 415 U.S. at 316-17). The Supreme Court recent ly explained

in Crawford that the confrontation clause represents a choice, dee ply entrenche d inour law, that the r

eliability of testimony is to be determined throug h cross examination. Crawford , 124 S. Ct. at 1370 (confrontation clause is a procedural rather than substantive guarantee). The focus
oncross examination is in recognition of the unique power of the adversarial proc ess in reaching the truth. See Lilly v. Vi

rginia , 527 U.S. 116, 124 (1999) (crossexamination is the greatest legal engine for the disco very

of truth e ver inve nted); California v. Green , 39 9 U. S. 14 9, 1 59 ( 197 0) ( cit ing 5 J. Wigmore, Evidence

§ 1367 (3d ed. 1940)). The rights to confront atio n and cross-examination found in our state and federal constitutions were us ed to cha llenge the const

itutiona lity of the former r ape shield statute, the precursor to rule 412. In Allen v. S tate , the Tex as Court of Criminal Appeals determined that the rape shield sta

tute was c onstitutional on its fa ce and a s applied

to Allen, who argued that the rape shield statute vi olated hi s right to confron t adver se wit nesse s. 700 S.W. 2d at 9 32. In so hold ing, the court stated:
The constituti onal rig

ht to conf ront adve rse witne sses is fun

damenta l and is of such import ance tha t a State’s interest in protecting a certain cla ss of witnesses from embarrassmen

t must fall before the right of confrontation and c ross-examination. Thus a statute

that purp orts t o prohib it 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’spresence so that the defenda nt, upon motion , may

be giv en an oppo rtunity

to demonst

rate tha t due proc ess requires the admission of such evidence because p robative value in the context of that p arti cula

r cas e out weig hs itsprej udic ial e ffec

t on th e pro secu

trix. [ 12 ](a) Evidence of sp ecific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the vic tim’s sexual conduct may be admitted under Sections 21.02 t hroug h 21.05 of this code (rape, agg ravated rape, sexualabu se, and aggrava ted sexual abuse) only if, and only to the extent that, the judge finds that the evidence is material to a

fact at i ssue in the

caseand that its inflammatory or prejudicial nature does not outweigh its probative value. Former Rape Shield Statute, sec. 21.13(a). 16 Id
. Alth ough the question of whether a defendant’s counsel mu st be present at the hearing
was never expressly a

ddressed by the c ourt of criminal appeals, our review of Allen and other ca se law persuades us that a trial court’s failure to aff ord the parties the opportunity to be present at the in camera hearing and examine the alleged vic tim regarding specific instance s of previous sexual conduct violates the defendan

t’s confrontation rights. In Allen , the cour t of crimi

nal appe als approvin gly quoted North Carolina v. Fortney , 269 S.E.2 d 110 (N.C
. 1980), at considerable length. Allen , 700 S.W.2d at 930-931. In Fortne y , the Supreme Court of North Carolina upheld the constitutionality of that state’s rape shield law and wrote:
If any question a

rises co ncernin

g evide nce of a victim’ s prio r sexual history, that question may be pre sented at an in camera hear ing whereopposing counsel may present evidence, cross-examine witnesses and generally at tempt t o discern the relevance of proffered testimony in the crucible of an adversarial proceeding away f rom the jury . In summary , then, [the North Carolina statute] merely contains a nd channe ls 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 r ight to cr oss-ex amine 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 stati ng:13 Our conclusion is consistent with numerous Texas cases where counsel evidently attended the in camer

a hearing. See , e.g. , Pinson v. State , 778 S.W.2d 91, 9 2-9 3 (Tex. Crim. App. 1989); Allen v. S tate , 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 72 8, 734 (Te x. App.—Aus tin 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 2 60, 262 (T ex. App.—F ort Worth 19 93, pet. r ef’d); Simon v. S

tate , 743 S.W.2d 318, 323 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d). But see Miles v. State , 61 S. W.3d 68 2, 685 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (neither defense counsel nor prosecutor

present at in camer

a hearing, but right to have counsel attend hearing not asserted at trial or on appea l; court of

appeals ruled tri al court

imp roperly e xcl uded evidence of previous sexual conduct and reversed

and remande d case) . The State has faile d to cite, and we ha ve been unable to find, a single Texas case where, over a party’s objection, a trial court conducted an in camer a hearing without co

unsel pre sent. 17 While the North Carolina statute is not totally like [the Te

xas rape shield

statute], i t is similar in many respects and the language in Fortney

is here instructive. “Of cours e rape s hield statu tes sh ould not b e used to ex clude high ly rele vant evidence and violate the def e ndant’s right of confrontation or other constitutional rights.”
Allen , 700 S .W.2 d at 93 0-31 ( quot ing Bell , 670 F.2d at 658).

The defendant’s ability to ha ve counsel attend the in camer a hearing and examine the alleged victim is the exactsafeguard that preserve s the constitutionality of our rape shield rule
. We therefore conclude that the confron tation cla uses foun d in our fe deral a

nd state constitutions require a trial court to afford

the State , the def

endant, and defense counsel the opportunity to attend the in
camera hearing and examine the alleged vic tim out of the public eye. 13 Right to the assistance of counsel

The exclusion of the defendant and his coun sel f rom an in camer

a hearing also implicates the rig ht to th e ef fec ti ve a ss is tan ce o f co uns el. “In all criminal prosecutions, the accused shallenjoy the rig

ht . . . to have the Asistance of Counsel for his defence.” U.S . C ons t. ame nd. VI;18

see also Tex. Const. a

rt. I , § 10. The

Sixth Amendme

nt right to counsel attach es upon the commencement

of adversarial proceeding s. Kirby v. I llinois , 406 U.S. 682, 688-90 (1972). “[T]he right t o the effective assistance of counsel is rec ognized not for its own sake, but because of the effec t it has on the ability of the ac cused to receive a fair trial.” U.S. v. Cr onic , 466 U.S. 648, 658 (1984). The right e xten ds to all “c riti cal st ages” of the cri minal procee ding, not just the actual tr ial. Hidalgo v. State , 983 S.W.2d 746, 752 (Tex. Crim. App. 1999). Whet her a pa rticu lar st age is critical turns on an assessment of the usefulness of counsel to theaccused at the time. Garcia v . State , 97 S.W.3d 343, 347 ( Tex. App.— Austin 200 3, no pet. ); see Upton v. State , 853 S.W.2d 548, 5 53 (T ex. Crim. App. 1993) (citi ng Patterson v. Illinois , 487 U.S. 2 85, 299-3 00 (1998) ; United States v. Wade , 388 U.S. 218, 2 35-39 (19 67)); see also U nited State

s v. Ash , 413 U.S. 300, 313 (1973). Stated diffe re nt ly, whether a particular part of the trial proc ess is a “critical stage” is determined not by whether the defendant suffered p rejud ice by the a bsence of effective assistance of counsel during that part of the proceedings, but rather , whether critical rights of a defe ndant 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 def

endan t’s gui lt is criti cal st age) (ci ting Herring v. New York , 422 U.S. 853 (1975) (final summation) ; White v. Maryland , 37 3 U.S. 59 (1963)(prelimi nary hearing ); Hamilton v. Alabama , 368 U.S. 52 (1961) ( arraig nment); Fergusonv. Georg ia , 365 U.S. 570 (1961) (defendant entitled to present his testimony by questions from his attorney))
. The in camer

a hearing to deter mine the a

dmissi bility of e vidence of an alleged victim’s previous sexual conduct is a critical stage of the pr oceedi ngs at which a defendant has the right to the assistance of counsel. In se xual assault cases, the credibility of the alleged victim cou

ld19

wellbe the critical factor for the jury in deter mining th e defen

dant’s g uilt. Her e, James’s

defense
was that the alleged sexual conduct in questio n was consensual. To present this defense, James sought to introduce evidence of

the part ies’ pre vious sexua

l conduct to show tha

t the deta ils of the
se xu al ac ti vi ty a t i ss ue he re we re co ns is te nt wi th pr ev io us co ns en su al se xu al ac ti vi ty.

The district c ourt’s in camer a procedu

re thwarted James’s attempt to elicit such te stimon y from Kara. Because the district c ourt prevented the State, James, and James’s counsel fromattending the in camer a 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 i

n
a criminal procee ding to examine an a lleged victim re gardin

g her previous s exual cond uct, albeit in
an in camera hearing, undermines the defenda nt’s ability to present a def ense. The Stat e argu es, without citing authority, that the in camer a hearing was not a criti cal st age of th e proce eding:
Inthe in camer

a hearings conducted by

the t rial court during appellant’s trial, the trial court asked all the questions of the witnesses . Neither appella nt nor the State was allowed to be present. Therefore the proce eding was not adversarial. Nor was it an event at which appellant needed legal a ssistance , since he

was not e ven pres ent.
The State’s a

rgumen t presupposes that counsel is not required to be present at the in camer a hearin g. Moreover, the State ’s arg ume n t illustrates the precise reason why the district court should have allowed James’s counsel to attend the hear ing and examine Ka

ra: the f act that t he hear ing was not adversarialand that Ja

mes’s co unsel wa s not

present denied to

James the r

ight t o th e effective assistanc e of coun sel.20 We conclude that deny

ing Jam es the ri ght to have counsel attend the in camer a hearing and examine Kara violated his right to confront witness and his right to t he a ssistance of counsel.
Remediable Error

The district court’s error in refusing to allow the par ties to attend

the in camera hearing to examine Kara and Kathleen Dunn wo uld not nece ssarily require revers al if we c ould determine, based on our examination of the record and the relevant standard of harm analysis, that the error was harmless. However, the e rror 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 w hich we might properl y consider James’s contention that the tri al court impr operly excluded evidenc e of Kara’s previous sexual con

duct. Rule 44.4 of the rules of appellate procedure state s that a court must not affirm or
revers e a judgment if the trial court’s error (1) preve nts the proper presentation of the appeal, and (2) the trial court can correct the err or. Tex. R. App. P. 44.4(a). We notethat abatement is utilized ina limited

number of circumstances. See Cross on v. State , 36 S.W.3d 642 (Tex. App.—Houston [1st Dist.] 2000, order), disposition on merits, 2001 Tex. A pp. LE XIS 60 49, No. 01 -98-0029 7-CR (Tex. App.—Houston [1st Dist.] Aug. 30, 2001, pet. ref’d) (listing circu ms tances i

n which c ourts have abated criminal appeals). Rule 44.4 may not be utili zed to avoi d waiver or other wise per mit
a party to do what that party f ailed 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).14 To the exte nt that Jame s may

object to the distri ct court ’s deter

minati on rega rding the a dmissibility

of evidence under rule 412, the sealed r ecord of the hearing will act as a bill of exception for our consideration of his claims. 21

Here, the district court’s error in failing to allow the parties to be present and examine witnesses at the hearing pursuant to evidence r ule 412(c) prevents our

determination of

whether the
error was har mless bec ause we

simply cannot de

termine w hat evide nce woul d

have been elicited

at
anadversarial hearing. See Tex. R. App. P. 44.4(a)(1). For the same reason, the er r or preve nts 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 cor rect the error by

holding a proper hearing and again making

a determination of what evidence would be admissible under r ule 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 fact s, to abate this appeal and direct the district court to hold a hearing that is con sistent wit

h rule 412(c) and this opinion. 14

We specifically dire ct the parties ’ attorney s to conta ct the dist

rict cou rt and set a hearing date in th is case. The distr

ict cour t is directed to set t

he hear ing for a date no later than

60 da ys after the date of this opinion. The public shall be excluded from the hearing, and the hearing shallbe conducted

either i n chambers or in a closed courtroom. James, his attorney, and the representative of the Sta

te must be present and afforded a rea sonable opportunity to examine the witnesse s. See Delaware v. Van Ars dall , 475 U.S. 673, 679 (1986); acco rd Davis v. Alaska , 415 U.S. 308, 316 (1974) (right to cross-examination is “[s]ubject always to the broa d discretion of a trial judge to pre clude repeti tive a nd und uly haras sing interrogat ion”). B ecause James only

sought to22

question Kara and Kathleen Gann regar ding pri or sexual a

ctivity at trial, the hearing will be limited to those two witnesses.

A fter hearing evidence and ar

gument by c ounsel, the district court shall determine whether the prof fered e vidence would be a

dmissible u

nder rul e 412. A supplemental record from the hearing shall be sealed in accor dance with rule 412(d) and sent to this Court no later than 120 da ys from the date of this opinion. Once the supplement al record is rece ived, this Court will determine the mer

its of all o f James’s i ssues.

CONCLUSION The districtcourt er

red in re fusing t

o allow James LaPointe, his counsel, and counsel for the State to attend the in camer a hearing and examine Kara

LaPoi nte and K athleen Gann. Th

is
error is inconsis tent with r

ule 412 and violated James’s constitutional right to confront witnesses and his constituti onal rig

ht to the assistance of counsel. Because the se errors also prevented the proper present ation of the case t

o this Court , we aba

te the appeal and order thedistrict c ourt 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 Publish