IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1411-16
JOSHUA JACOBS, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
BOWIE COUNTY
N EWELL, J., filed a concurring opinion in which A LCALA, J.,
joined.
For the most part, I agree with the Court’s analysis. Specifically, I
agree with the Court’s legal conclusion that in most cases, though not all,
errors regarding a limitation of voir dire are non-constitutional. But I
disagree with the Court that we have to decide whether this is one of
those rare cases in which the voir dire error is constitutional. Instead, I
disagree with the court of appeals’ conclusion that Appellant’s proposed
Jacobs Concurring – 2
voir dire questions in this case were valid commitment questions.
Because I do not believe the trial court abused its discretion in keeping
Appellant from asking his proposed questions, I would save for another
case and another day the debate about which harm-analysis standard is
appropriate.1
As the court of appeals correctly observed, even though a trial court
should grant defendants great leeway in questioning the jury, we review
a trial court’s decision to limit voir dire under an abuse of discretion
standard.2 Whether a particular question amounts to an improper
commitment question requires a three-step analysis.3 The first step is to
determine if the question is a commitment question.4 The second is to
determine if the question only includes those facts that lead to a valid
challenge for cause.5 The third step is to consider whether the question
included only “necessary facts.” 6
1
The only question presented to this Court for review assum es the existence of error.
Consequently, I regard the question of error as subsum ed within the issue granted in light of
the fact that the court of appeals reached that conclusion in its decision below.
2
Jacobs v. State, 506 S.W .3d 127, 132 (Tex. App.— Texarkana 2016).
3
Lee v. State, 206 S.W .3d 620, 621 (Tex. Crim . App. 2006).
4
Lydia v. State, 109 S.W .3d 495, 497 (Tex. Crim . App. 2003).
5
Id.
6
Lee, 206 S.W .3d at 622.
Jacobs Concurring – 3
Here, Appellant sought to question the jury about how it would react
if the State proved that Appellant had previously committed an unrelated
sexual offense. As the court of appeals correctly observed, Jacobs sought
to ask “the prospective jurors whether they would resolve an element of
the State’s case based solely on the State proving an unrelated sexual
offense.”7 The court of appeals held that these questions were valid
commitment questions that would have led to a valid challenge for cause
because Appellant was entitled to a jury that would not be biased by the
prior offense in evaluating the evidence.8 More specifically, the court of
appeals explained that proof that Appellant had committed an unrelated
sexual offense was not relevant to certain elements of the offense, such
as the date of the offense or where the offense was committed.9 Had the
offense been committed and tried before our Legislature’s passage of
Section 2(b) of Article 38.37, I might have agreed.
But the State is correct that the terms of Article 38.37 allow the jury
to consider the facts of an unrelated extraneous act in considering
whether the State has proven its case beyond a reasonable doubt.
7
Jacobs, 506 S.W.3d at 133.
8
Id.
9
Id. at 134-35.
Jacobs Concurring – 4
Section 2(b) of Article 38.37 sets out in relevant part:
Notwithstanding Rules 404 and 405, Texas Rules of Evidence,
. . . evidence that the defendant has committed a separate
offense described by Subsection (a)(1) or (2) may be
admitted in the trial of an alleged offense described by
Subsection (a)(1) or (2) for any bearing the evidence has on
relevant matters, including the character of the defendant and
acts performed in conformity with the character of the
defendant.10
This statute gives broad license to the State to introduce evidence of
previous sexual offenses committed by a defendant to prove the
defendant’s guilt. Significantly, the evidence can be admitted to prove
the offense under a theory of character conformity. That is, a jury could
conclude that Appellant committed the offense in this case based upon
evidence that he had done it, or something like it, before. In that way,
a previous sexual offense committed by Appellant would be relevant to
every element of the offense because it could be used to establish that
Appellant committed the crime as alleged in the indictment.
It is startling to consider the scope of the license provided by this
statute. However, the court of appeals does not appear to have
adequately accounted for that scope in determining that Appellant’s
questions were proper commitment questions. For example, the court of
10
T EX . C O D E C RIM . P RO C ., art. 38.37 § 2(b).
Jacobs Concurring – 5
appeals determined that questions focused on the time and location of
the offense were proper because the unrelated sexual offense was not
relevant to those allegations without also considering whether character
conformity provided that relevance.11 When the court of appeals did
address a possible character conformity theory, it nevertheless limited the
applicability of that theory. The court of appeals essentially required the
unrelated sexual offense to establish a modus operandi by requiring the
acts of the previous offense to mirror those of the present offense.12 But
the modus operandi theory of admissibility is only required when an
extraneous offense cannot be used to show character conformity.13
In this case, Appellant essentially sought to commit the venire
members to assess his guilt without considering evidence of his prior
sexual offense. Prior to the enactment of Article 38.37, the jury could not
consider a prior sexual offense on a theory of character conformity to
11
Jacobs, 506 S.W .3d at 134.
12
Id. at 135 (holding that proof of a lesser, uncharged offense would not be relevant
to prove penetration).
13
See Owens v. State, 827 S.W .2d 911, 915 (Tex. Crim . App. 1992) (noting that
evidence of a defendant’s particular m odus operandi is a recognized exception to the
general rule precluding extraneous offense evidence because the m odus operandi evidence
tends to prove a m aterial fact at issue, other than propensity).
Jacobs Concurring – 6
prove guilt.14 That was law Appellant would have been entitled to rely
upon. And Appellant’s questions would have been proper commitment
questions under those circumstances because they could have revealed
a potential venire member’s inability to follow that law.
But after the passage of Section 2(b) of Article 38.37, that is no
longer the law. I see little conceptual difference between the questions
proposed by Appellant in this case and a defendant asking “could you be
fair and impartial if the victim is nine years old?” in an indecency case
involving a nine-year-old victim.15 In Barajas v. State, we held that the
latter question was improper.16 If a trial court could properly prohibit that
question, then the trial court’s limitation of Appellant’s voir dire was
equally proper.
With these thoughts, I concur.
Filed: October 10, 2018
Publish
14
See, e.g., Devoe v. State, 354 S.W .3d 457, 469 (Tex. Crim . App. 2011) (“Evidence
of extraneous offenses is not adm issible at the guilt phase of a trial to prove that a
defendant com m itted the charged offense in conform ity with a bad character.”).
15
Barajas v. State, 93 S.W .3d 36, 37-38 (Tex. Crim . App. 2002).
16
Id. at 41-42.