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Click here for the full text of this decision FACTS:Authorities charged James Thomas LaPointe of a variety of offenses allegedly committed against his estranged wife: one count of aggravated kidnapping, one count of assault family violence (second offense) and three counts of aggravated sexual assault. At trial, defense counsel sought to cross-examine the victim regarding her prior sexual history for the purpose of “exploring a bias or motive for testifying.” Defense counsel told the trial judge that he believed the victim had “engaged in sex with multiple partners at various times.” The state objected on the basis of Texas Rule of Evidence 412. The trial judge decided to address the admissibility issue in an in camera hearing where only the judge and the victim were present. The judge specifically declined to allow defense counsel to question the witness for the purpose of making a bill of exception, but the trial judge did offer to ask the victim any questions that the defense wished to submit. After the prosecution’s direct examination of witness Kathleen Gann, a nurse, the defense sought to cross-examine Gann on the victim’s prior sexual history. Again, the trial judge refused to permit defense questioning of the witness for the purpose of creating a bill of exception. Instead, the trial judge adhered to the same procedure used with the victim: defense counsel submitted questions and the hearing was held with only the trial judge and the witness being present. The trial judge allowed the defense attorney to make a bill of exception regarding certain other matters with some relevance to this discussion. A portion of a medical report was read into the record, and later the trial judge admitted the entire report as an exhibit. The report indicated that the victim suffered from bipolar disorder and had a problem with alcohol. Eventually, a jury convicted LaPointe of the offenses in question. On appeal, LaPointe argued that the trial court erred in excluding his defense attorney from the in camera hearings. The 3rd Court of Appeals agreed, holding that the trial court’s procedure violated both Rule 412 and the confrontation clause of the U.S. Constitution and deprived LaPointe of his constitutional right to the effective assistance of counsel. Concluding that the trial court’s errors “prevented the development of a record on which [the court] might determine that the error was harmless beyond a reasonable doubt,” the 3rd Court reversed the trial court’s judgment and remanded the case for a new trial. After the state filed a motion for rehearing, the 3rd Court withdrew its opinion and substituted a new opinion. In the new opinion, the 3rd Court altered the remedy, choosing instead to abate the appeal and remand the case for a retrospective in camera hearing that permitted the presence of the parties and the questioning of the witnesses by the parties’ attorneys. On the day that the trial court scheduled the hearing, LaPointe requested a continuance to prepare. The trial court granted a continuance as to the victim but denied the continuance with respect to Gann, because she currently lived out-of-state and the prosecution had produced her for the hearing. Lapointe’s attorney questioned Gann about any knowledge she had acquired about the victim’s past sexual history, but the trial judge prohibited certain questions that he stated had nothing to do with Rule 412. These latter, prohibited questions included asking whether the victim took a certain medication prescribed for bipolar disorder, whether the victim ever conveyed that she had been suicidal, and whether the victim mentioned any custody issues regarding her son. At the continued hearing, LaPointe’s attorney was given wide latitude in cross-examining the victim. The trial judge overruled all but two of the prosecutor’s objections. In the first sustained objection, the trial judge prohibited defense counsel from having the victim read from a medical report that had been entered as an exhibit, because the judge believed that the exhibit spoke for itself. The second sustained objection was to questions relating to the victim’s alcohol use. After cross-examining the victim, LaPointe’s attorney requested that Gann be recalled as a rebuttal witness. The trial judge initially denied the request, but he amended the ruling to allow LaPointe’s attorney to submit proposed questions that the trial judge would review to determine whether to go through the time and expense of recalling the out-of-state witness. No questions were ever submitted. When the 3rd Court received the case back on appeal, LaPointe advanced several arguments relating to the retrospective hearing. He argued that the trial court had no jurisdiction to conduct the hearing, because a petition for discretionary review was pending with the CCA, that the trial court erred in prohibiting some of defense counsel’s questions and that the trial court erred in refusing to allow defense counsel to recall Gann. The 3rd Court rejected all of these claims. The 3rd Court concluded that the two-part retrospective hearing cured the trial court’s error in excluding the defendant and his counsel from the in camera hearings at trial. Addressing the merits of the Rule 412 issue, the 3rd Court held that LaPointe failed to elicit any admissible evidence at the retrospective hearing. The 3rd Court then affirmed the conviction. Both parties sought discretionary review. HOLDING:Affirmed. First, LaPointe argued that a retrospective hearing was not a proper remedy for the trial court’s error in not conducting a proper in camera hearing at trial. The constitutional right to confront adverse witnesses, the CCA stated, 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, the court concluded that the in camera proceeding contemplated by Rule 412 is an adversarial hearing at which the parties are present and the attorneys are permitted to question witnesses. The CCA noted that the 3rd Court determined that LaPointe was deprived of his right to participate in the Rule 412 hearing. The purpose of allowing defense participation in the hearing is to give LaPointe the opportunity to substantiate his claim that the victim’s prior sexual history is admissible. The proper remedy, the CCA stated, was to abate the appeal and remand the case to the trial court to afford the defendant an adversarial hearing in which he would have an opportunity to make that showing. Once that was done, the 3rd Court would then be in a position to intelligently review the issue of whether the prior sexual history evidence was admissible. The 3rd Court followed this procedure in the present case, and it was entirely correct in doing so, the CCA held. In addition, the CCA concluded that the trial court conducted a proper hearing upon remand. OPINION:Keller, P.J., delivered the unanimous opinion of the court.

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