Joshua JACOBS, Appellant v. The STATE of Texas, Appellee
No. 06-16-00008-CR
Court of Appeals of Texas, Texarkana.
October 6, 2016
November 10, 2016
Lauren N. Sutton, Assistant District Attorney, Texarkana, TX, for appellee.
Before Morriss, C.J., Moseley and Burgess, JJ.
OPINION
Opinion by Justice Moseley
As a result of his unlawful contact with a twelve-year-old girl, a Bowie County jury found Joshua Jacobs guilty of aggravated sexual assault of a child.1 After Jacobs pled true to having previously been convicted of felony carnal knowledge of a juvenile in Louisiana, the trial court imposed the mandatory sentence2 of confinement for life in the Correctional Institutions Division of the Texas Department of Criminal Justice.
Jacobs argues on appeal that the trial court erred (1) in enhancing his punishment by using his prior conviction in Louisiana, (2) by unreasonably restricting his voir dire of the jury, and (3) by admitting evidence of his prior conduct in Louisiana during the guilt/innocence phase of his trial in violation of Article 38.37 of the Texas Code of Criminal Procedure. See
I. Jacobs’ Voir Dire Was Improperly Restricted
In his second point of error, Jacobs asserts the trial court abused its discretion in restricting him to referring to his prior Louisiana conviction as an “assaultive offense,” rather than as a “sexual offense,” during his voir dire of the jury panel. Article 38.37, Section 2(b) allows the admission of evidence that the defendant committed a separate sexual offense specifically listed in Article 38.37, Section 2(a)(1) or (2), to be admitted during the guilt/innocence phase “for any bearing the evidence has on relevant matters.”
A. Background
Prior to voir dire, Jacobs submitted to the trial court copies of slides with questions he proposed asking the jury panel. Among those slides were questions and explanations under the heading “Innocent UNLESS Proven Guilty.” Included in that series of slides, Jacobs sought to explain the impact of Article 38.37, Section 2(b), as follows:
Evidence that the defendant has committed a separate unrelated offense described by Chapter 21 of the Penal Code (Sexual Offenses) may [sic] admitted at a trial for aggravated sexual assault of a child for any bearing the evidence has on relevant matters, including the character of the defendant, and action in conformity with character.
But, before you can consider this type of evidence for any reason, you must believe that the allegation is true beyond a reasonable doubt.
That slide was followed by a slide explaining that the State‘s burden of proof does not change and stating, “You cannot convict because you believe the accused is a bad person, absent the State proving every element beyond a reasonable doubt.” Then followed a series of five slides that broke down the State‘s burden of proof for the charged offense. The first slide asked the jury panel, “Who would not require the State to prove beyond a reasonable doubt that the charged offense occurred in Bowie County, if evidence of an unrelated sexual offense is proven beyond a reasonable doubt?” (Question 1).
The same question was asked on subsequent slides, but replacing “occurred in Bowie County” with “occurred on November 25, 2014,” (Question 2), and “was committed by . . . Jacobs and that he intentionally or knowingly penetrated the sexual organ of Victoria Whiteman4 with his finger.” (Question 3). Jacobs also sought to ask the jury, “Who would require that the State only prove that . . . Jacobs contacted the sexual organ of Victoria Whiteman with his finger, if evidence of an unrelated sexual offense is proven beyond a reasonable doubt?” (Question 4), and “Who would not require the State to prove beyond a reasonable doubt that at the time the charged of-
The trial court acknowledged that Jacobs could question the jury panel on Article 38.37, but was concerned that referring to the offenses listed in Article 38.37 as sexual offenses, and referring to a sexual offense in Questions 1 thru 5 might be too specific, and that it would run the risk of poisoning the jury panel. The trial court informed Jacobs that it would not have a problem with him referring to an “unrelated felony offense” or an “unrelated offense.” Jacobs explained to the trial court that he first addressed the State‘s burden of proof and that the defendant is presumed innocent until the State proves each element of the charged offense beyond a reasonable doubt, then addressed Article 38.37. He then argued each of the questions were proper commitment questions because they ask if the jury panel can follow the law. Jacobs objected to the trial court forbidding him to refer to “sexual offense” in the questions. After forbidding the use of the phrase “sexual offense” in the questions and explanation of Article 38.37, the trial court agreed that Jacobs could use the term “assaultive offense” instead. During voir dire, Jacobs referenced only “assaultive offenses” and “an unrelated assaultive offense” in the questions and explanation of Article 38.37.5
B. Standard of Review
A “trial court may impose reasonable restrictions on . . . voir dire examination.” Thompson v. State, 267 S.W.3d 514, 517 (Tex. App.—Austin 2008, pet. ref‘d) (citing Boyd v. State, 811 S.W.2d 105, 115 (Tex. Crim. App. 1991)). “We review the trial court‘s decision to limit voir dire under an abuse of discretion standard.” Id. (citing Boyd, 811 S.W.2d at 115). “The trial court abuses its discretion when it limits a proper question concerning a proper area of inquiry.” Id. (citing Dinkins v. State, 894 S.W.2d 330, 345 (Tex. Crim. App. 1995)). Further, it is an abuse of discretion when a trial court‘s “denial of the right to ask a proper question prevents determination of whether grounds exist to challenge for cause or denies intelligent use of peremptory challenges.” Mason v. State, 116 S.W.3d 248, 253 (Tex. App.—Houston [14th Dist.] 2003, pet. ref‘d) (quoting Babcock v. Nw. Mem‘l Hosp., 767 S.W.2d 705, 709 (Tex. 1989)).
The Texas Constitution guarantees a defendant the right to “trial by an impartial jury” and “of being heard by himself or counsel, or both.”
First, we must determine whether the trial court abused its discretion by limiting proper questions concerning a proper area of inquiry.6 If we find that it did, then we must determine whether its error was a constitutional error or a nonconstitutional error. See Easley, 424 S.W.3d at 540-41; Hill, 426 S.W.3d at 876. The nature of the error will determine our harm analysis under Rule 44.2 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 44.2(a), (b).
C. Analysis
1. The Trial Court Abused its Discretion
In each of the questions Jacobs sought to ask the jury panel, he asked the prospective jurors whether they would resolve an element of the State‘s case based solely on the State proving an unrelated sexual offense. They were, then, commitment questions. See Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001) (“[A] question is a commitment question if one or more of the possible answers is that the prospective juror would resolve or refrain from resolving an issue in the case on the basis of one or more facts contained in the question.“). While commitment questions are sometimes improper, “[w]hen the law requires a certain type of commitment from jurors, the attorneys may ask the prospective jurors whether they can follow the law in that regard.” Id. at 181. For a commitment question to be proper, it must meet two criteria: (1) “one of the possible answers to that question must give rise to a valid challenge for cause,” and (2) it “must contain only those facts necessary to test whether a prospective juror is challengeable for cause.” Id. at 182.
In order to obtain a conviction, due process requires the State to prove each element of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315-16 (1979); Ladd v. State, 3 S.W.3d 547, 556-57 (Tex. Crim. App. 1999). A defendant may challenge for cause any juror that “has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely.”
The State argues that under Article 38.37, the jury is entitled to be
Under the relevant statute and the indictment, the State was required to prove that (1) Jacobs, (2) on or about November 25, 2014, (3) in Bowie County, Texas, (4) intentionally or knowingly (5) caused the penetration of the sexual organ of Whiteman, (6) who was younger than fourteen years of age. (7) with his finger. See
Question 3 is a compound question that addressed the State‘s elements regarding the identity of Jacobs, his mens rea, and whether he penetrated Whiteman‘s sexual organ with his finger. Article 38.37, Section 2(b), specifically allows evidence of a separate sexual offense to establish the character of the defendant and acts performed in conformity with his character, as well as any bearing it may have on relevant issues.
Question 4 sought to determine whether, because of the unrelated sexual offense, a potential juror might convict Jacobs of the charged offense based on proof of a lesser, uncharged offense. Jacobs was charged with aggravated sexual assault of a child, which required proof that Jacobs penetrated Whiteman‘s sexual organ with his finger. In Question 4, Jacobs posed a hypothetical situation in which the State only proved indecency with a child.8 Question 4 asked, “Who would require that the State only prove that [Jacobs] contacted the sexual organ of Victoria Whiteman with his finger, if evidence of an unrelated sexual offense is proven beyond a reasonable doubt?”
In this hypothetical, evidence of an unrelated sexual offense would not be relevant in determining whether penetration had occurred, since the State only proved contact. In other words, even if the jury inferred that Jacobs acted in accord with the character evidenced by the unrelated sexual offense, it could not reasonably conclude that penetration occurred when the only other evidence was that it did not occur. Therefore, a potential juror who would only require the State to prove contact in order to convict Jacobs of aggravated sexual assault would have a bias against the law requiring the State to prove all of the elements of the charged offense beyond a reasonable doubt and would be challengeable for cause. We find that Question 4 meets the first prong of the Standefer criteria.
The next step in the Standefer analysis is to determine whether Questions 1, 2, 4, and 5 include only those facts necessary to lead to a valid challenge for cause. Standefer, 59 S.W.3d at 183. The State argues that referring to “sexual offenses” is too specific and points to our prior decision in Reichle, upon which the trial court relied, arguing that the trial court‘s ruling barring the use of the term was reasonable. See Reichle, 2015 WL 392846, at *7. In Reichle, which also involved Article 38.37, Section 2(b), we upheld the trial court‘s limiting the appellant from discussing the specific facts of the State‘s enhancement paragraph in his voir dire. Id. at *8. We
Article 38.37 strictly limits the type of extraneous acts that may be introduced in the guilt/innocence phase in the trial of a sexual offense against a child.9 All of the offenses for which evidence of a separate extraneous act may be admitted under Article 38.37, Section 2(b), are sexual offenses against children. Yet, Jacobs only sought to characterize them in a general manner as “sexual offenses.” “Sexual offenses” would encompass a wide range of offenses, including those not involving children. Likewise, in his proposed questions, Jacobs did not seek to discuss the specifics of the State‘s enhancement paragraph. Rather, he only referred in his hypothetical to “an unrelated sexual offense.” So long as their explanation is hypothetical and does not inform the jury panel of the specific allegations, both the State and the defendant are entitled to question the panel about the law applicable to the case. See Hanson v. State, 269 S.W.3d 130, 131, 134 (Tex. App.—Amarillo 2008, no pet.) (approving the State‘s use of a display quoting Section 12.42 of the Penal Code, including its title, “Penalties for Repeat and Habitual Felony Offenders“). Because sexual offenses are the only type of offenses allowed to be admitted in the guilt/innocence phase of the trial under Article 38.37, Section 2(b), we find this a proper, and not too specific, characterization and find that Jacobs was entitled to question the jury panel about this law, which was critical to the case.
The State also argues that allowing the use of “sexual offense” would be confusing to the jury. The State does not explain how the use of a proper characterization of the offenses allowed to be admitted by Article 38.37, Section 2(b), would be confusing to the jury.10 We also fail to see how the use of “sexual offense” would be confusing.
For these reasons, we find that Questions 1, 2, 4, and 5 included only those facts necessary to lead to a valid challenge for cause. Therefore, we find that these questions were proper commitment questions. See Standefer, 59 S.W.3d at 182-83. Since these questions, as proposed by Jacobs, were proper questions concerning a proper area of inquiry, we find that the trial court abused its discretion in barring Jacobs their use in his voir dire.
Not all instances in which the trial court limits the defendant‘s voir dire presentation are constitutional error. Easley, 424 S.W.3d at 541. In Easley, the Texas Court of Criminal Appeals overruled two of its prior cases to the extent they held that “erroneously limiting an accused‘s or counsel‘s voir dire presentation is constitutional error because the limitation is a per se violation of the right to counsel.” Id. at 537, 541.14 However, the court also made it clear that “[t]here may be instances when a judge‘s limitation on voir dire is so substantial as to warrant labeling the error as constitutional error subject to a Rule 44.2(a) harm analysis.” Id.; see TEX. R. APP. P. 44.2(a). Therefore, under Easley, “the proper analysis is not to apply a per se rule to a voir dire error but to determine if the error is substantial enough to [be constitutional error] warrant[ing] a Rule 44.2(a) analysis; if not, then the error is reviewed under Rule 44.2(b).” Hill, 426 S.W.3d at 875.
If the error is nonconstitutional error, we disregard the error and affirm the judgment unless the appellant‘s substantial rights are affected. TEX. R. APP. P. 44.2(b); Easley, 424 S.W.3d at 542-43. If the error is constitutional error, we must reverse the judgment unless we “determine[] beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” TEX. R. APP. P. 44.2(a).
In Hill, the defendant asked individual veniremembers a hypothetical question to determine whether they could consider the full range of punishment. When asked, juror number 27 answered that he could not consider the minimum sentence of fifteen years, and he was excused for cause. When the defendant attempted to ask the question to additional veniremembers, the State objected, and the trial court did not allow the defendant to ask the question to the remaining veniremembers. Ultimately, three veniremembers were seated on the jury who had never been asked a question to determine if they could consider the entire range of punishment. Hill, 426 S.W.3d at 876. In determining that this was a constitutional error, the Eastland Court of Appeals explained:
Defense counsel is entitled to ask the veniremembers the question of whether they could consider the full range of punishment, and if the trial court prevents counsel from doing that, then defense counsel may not be able to discern if a juror should be struck for cause because he is unqualified. A veniremember is disqualified if he has prejudged the case or cannot follow the court‘s instructions. To have such an unqualified veniremember . . . on the jury is a violation of the defendant‘s right to an impartial jury. We find that the error in this case is a constitutional violation that requires a Rule 44.2(a) analysis.
Id. at 877 (citations omitted); see also Hawkins v. State, No. 12-13-00394-CR, 2015 WL 6163883, *9-10 (Tex. App.—Tyler Oct. 21, 2015, pet. ref‘d) (mem. op., not designated for publication) (finding constitutional error when trial court refused to allow defendant to question jury panel about whether it could consider community supervision).
Next, we determine whether this error did not, beyond a reasonable doubt, contribute to the conviction. In our analysis, we “take into account any and every circumstance apparent in the record that logically informs [our] determination whether ‘beyond a reasonable doubt [that particular] error did not contribute to the conviction or punishment.‘” Snowden v. State, 353 S.W.3d 815, 822 & n.31 (Tex. Crim. App. 2011) (citing TEX. R. APP. P. 44.2(a) and noting that “[t]here is no set formula for conducting a harm analysis that necessarily applies across the board, to every case and every type of constitutional error“).
In reviewing the record, we note that the State relied heavily on the unrelated sexual offense in its opening statement, in its case-in-chief, and in its final argument. The State began its opening statement with:
Good morning. The evidence that you‘re going to hear in this case you will never forget the rest of your lives. Joshua Jacobs is a repeat offender, and the evidence you are going to hear is that he has been previously convicted in the State of Louisiana for a similar offense that brings us to Court today.
The State then described the anticipated testimony of the victim of the unrelated sexual offense in detail. The State focused on the unrelated sexual offense for almost half of its opening statement. In its case-in-chief, the first witness called by the State was the victim of the unrelated sexual offense. Also, in its closing argument, the State addressed the unrelated sexual offense both in its opening and rebuttal arguments. We also note that Jacobs’ defensive theory was that although he may have touched Whiteman inappropriately, he was not guilty of aggravated sexual assault. In his opening and closing arguments, he stressed that there was no DNA evidence that he penetrated her sexual organ and that Whiteman‘s statements were inconsistent, and he argued that the evidence would show that he was only guilty of indecency with a child. In his cross-examination of witnesses, Jacobs established that Whiteman initially did not accuse Jacobs of penetration and that she mentioned it in response to a question from the police. Additional cross-examination showed that Whiteman subsequently told the interviewer at the Children‘s Advocacy Center that Jacobs put his hands inside her shorts and only said his hand went into her privates when directly asked by the interviewer. At trial, Whiteman testified very briefly, and for the most part
Considering the weight that the State placed on the unrelated sexual offense, the defensive theory that Jacobs was guilty only of indecency with a child, and the equivocal nature of Whiteman‘s statements and testimony regarding whether there was penetration, we cannot say beyond a reasonable doubt that the trial court‘s error did not contribute to Jacobs’ conviction. Therefore, we sustain Jacobs’ second point of error.
Jacobs has not challenged the sufficiency of the evidence supporting his conviction. Therefore, our sustaining Jacobs’ second point of error requires reversal of the trial court‘s judgment and remand of the cause for a new trial. In light of our ruling, we need not address Jacobs’ first and third points of error.
We reverse the judgment of the trial court and remand this cause to the trial court for a new trial.
Notes
- an offense under any of the following provisions of the Penal Code:
- Section 20A.02, if punishable as a felony of the first degree under Section 20A.02(b)(1) (Sex Trafficking of a Child);
- Section 21.02 (Continuous Sexual Abuse of Young Child or Children);
- Section 21.11 (Indecency With a Child);
- Section 22.011(a)(2) (Sexual Assault of a Child);
- Sections 22.021(a)(1)(B) and (2) (Aggravated Sexual Assault of a Child);
- Section 33.021 (Online Solicitation of a Minor);
- Section 43.25 (Sexual Performance by a Child); or
- Section 43.26 (Possession or Promotion of Child Pornography), Penal Code; or
- an attempt or conspiracy to commit an offense described by Subdivision (1).