             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

R ICHARDSON, J., filed a dissenting opinion.

                                     DISSENTING OPINION

        I agree with the holding of the court of appeals, and I would affirm its decision.1

Because the majority does not, respectfully, I dissent. As I explain below, unlike the

majority, I view this case as fitting within the very exception we recognized in Easley v.

        1
         The court of appeals held that the trial court abused its discretion by restricting Jacobs’s voir
dire because the questions that Jacobs sought to ask were proper commitment questions. Jacobs v.
State, 506 S.W.3d 127, 137 (Tex. App.— Texarkana 2016). It further held that, because the trial
court’s error violated Jacobs’s constitutional right to an impartial jury, it was “a constitutional error
that requires a Rule 44.2(a) analysis.” Jacobs, 506 S.W.3d at 139; T EX. R. A PP. P. 44.2(a). The court
of appeals concluded that, under the Rule 44.2(a) standard, the constitutional error was harmful
because the court of appeals could not say beyond a reasonable doubt that the trial court’s error did not
contribute to Jacobs’s conviction. Id.
                                                                                           Jacobs — 2

State.2 The difference between this case and Easley is that, in Easley, the trial court’s

erroneous restriction on voir dire did not infringe upon Easley’s constitutional right to be

heard by counsel or his constitutional right to have an impartial jury because the defendant’s

counsel was able to ask other questions that gave him the information he needed to pick an

impartial jury. In this case, however, the trial court’s erroneous restriction on voir dire

prevented Jacobs’s counsel from asking what he needed to ask in order to be able to select

an impartial jury. The reason this erroneous restriction hindered Jacobs’s ability to select

an impartial jury is because of Texas Code of Criminal Procedure article 38.37, which

allowed the State to introduce Jacobs’s prior extraneous sexual offense during

guilt/innocence.3

        Jacobs was charged with aggravated sexual assault. His defense counsel asked the

trial court if he would be permitted to ask, as part of his voir dire, certain questions of the

jury panel related to Jacobs having a prior similar sexual assault offense. Jacobs’s counsel

expressed to the trial court that, since the State would be permitted to introduce, during

guilt/innocence, evidence of a prior extraneous sexual assault pursuant to Article 38.37,




        2
            424 S.W.3d 535 (Tex. Crim. App. 2014).
       3
         Texas Code of Criminal Procedure article 38.37, section 2 applies to sexual related offenses
only. In this case, Article 38.37, section 2 allowed, during the guilt/innocence phase of Jacobs’s trial,
the admission into evidence of a prior sexual offense committed against a different child. A prior
assault against a different child (other than a sexual assault) would not have been admissible under
Article 38.37, section 2(b).
                                                                                             Jacobs — 3

section 2(b),4 he wanted to make sure that he would be selecting jurors who would not

convict his client if the State did not prove every element of the charged offense beyond a

reasonable doubt solely because Jacobs had committed a similar type of sexual assault once

before. In other words, defense counsel was trying to eliminate “for cause” any potential

juror who believed that “once a child molester, always a child molester” regardless of

whether the State proved the charged offense beyond a reasonable doubt.5 These were proper

commitment questions and should have been permitted by the trial court.6


        4
            Texas Code of Criminal Procedure article 38.37, section 2(b) provides, in pertinent part, that,

        . . . evidence that the defendant has committed a separate offense described by
        Subsection (a)(1) or (2) [sexual offenses committed against a child under the age of
        seventeen or eighteen] 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.
        5
          The majority states that “it was Jacobs, not the trial judge, who proposed the adjective
‘assaultive’ in describing the relevant ‘offenses.’” Majority Opinion at 12. However, his request to
use the term “assaultive” was only in response to the trial judge’s ruling prohibiting him from using
the term “sexual” to describe the offense.
        6
           A commitment question during voir dire is one that commits a prospective juror to resolve,
or refrain from resolving, an issue a certain way after learning a particular fact. Standefer v. State, 59
S.W.3d 177, 179 (Tex. Crim. App. 2001). 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. A challenge for cause is valid if it seeks to excuse an unqualified juror. Texas
Code of Criminal Procedure article 35.16 lists all of the specific “Reasons for Challenge for Cause”
that render “[a] juror incapable or unfit to serve on the jury.” In this case, any potential juror who
would not hold the State to its burden to prove all of the elements of the charged offense beyond a
reasonable doubt simply because Jacobs had previously committed a sexual offense would be
challengeable for cause under Article 35.16(a)(9) and Article 35.16(c)(2). Under Article 35.16(a)(9),
a challenge for cause may be made if “the juror has a bias or prejudice in favor of or against the
defendant.” T EX. C ODE C RIM. P ROC. art. 35.16(a)(9). Under Article 35.16(c)(2), a challenge for cause
may be made by the defense that a juror “has a bias or prejudice against any of the law applicable to
the case upon which the defense is entitled to rely.” T EX. C ODE C RIM. P ROC. art. 35.16(c)(2); see
                                                                                            Jacobs — 4

        The applicability of Article 38.37 here is critical. Evidence of an extraneous prior

offense committed by a defendant is usually excluded during the guilt/innocence phase of

trial because such evidence is inherently prejudicial, tends to confuse the issues in the case,

and forces the accused to defend himself against collateral charges.7                    However, our

Legislature has chosen to make a specific and limited exception to this prohibition. Under

Article 38.37, sections 2(a) and 2(b), extraneous prior sexual offenses (not assaultive

offenses) committed against a different child (not the complainant) are allowed to be

admitted in the guilt/innocence phase of a defendant’s trial for a sexual offense against a

child.8 The majority states on page 4 of its opinion that “Jacobs conducted his Article 38.37

voir dire by referring primarily to prior ‘assaultive’ offenses.” This is not accurate. Article

38.37 does not apply to “assaultive” offenses. It only applies when there is a prior sexual




Harris v. State, No. AP-77,029, 2016 WL 922439, at *5 (Tex. Crim. App. 2016) (not designated for
publication) (“A defendant may challenge a veniremember for cause when he or she is alleged to be
biased or prejudiced against the defendant or the law on which the State or defendant is entitled to rely.
. . . A trial court must excuse the venire member if such a bias or prejudice would substantially impair
the juror’s ability to carry out his oath and instructions in accordance with the law.”) (first citing
Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009); and then citing Feldman v. State, 71
S.W.3d 738, 744 (Tex. Crim. App. 2002)); see also Ladd v. State, 3 S.W.3d 547, 558–59 (Tex. Crim.
App. 1999).
       7
          Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972); see also T EX. R. E VID.
404(b)(1) (“Evidence of a crime, wrong, or other act is not admissible to prove a person’s character
in order to show that on a particular occasion the person acted in accordance with the character.”).
        8
           Under Article 38.37, section 2(b), “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) [sexual related offenses against a child] 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.”
T EX. C ODE C RIM. P ROC. art. 38.37 § 2(b).
                                                                                  Jacobs — 5

offense against a child—which is exactly my point.9 Jacobs was erroneously prohibited from

conducting an Article 38.37 voir dire, which kept him from knowing if he was selecting an

impartial jury, which he has a constitutional right to do.

       Jacobs did not have the opportunity to initiate any questioning that might have

exposed so much as a negative feeling, much less a challengeable bias, possessed by a

potential juror against a prior sex offender.     Because of Article 38.37 section 2, the

prosecutor was allowed to present evidence, during the guilt/innocence phase of the trial, of

Jacobs’s prior sexual-assault-of-a-child offense.10 However, Jacobs’s counsel was not

allowed to ask during voir dire if knowing that Jacobs had a prior sexual-assault-of-a-child

offense would affect the potential jurors’s ability to be fair and impartial in rendering their

verdict of guilt or innocence.        Jacobs was therefore precluded from identifying

veniremembers who would be challengeable for cause based on their bias against a repeat

child sex offender. Gauging the veniremembers’s reactions to Jacobs having a prior

“assaultive” offense did not (and would not) reveal any bias or prejudice toward Jacobs for

having a prior sexual assault conviction. Since the type of prior assaultive offense was the

key to whether Jacobs’s prior sexual offense would have been admissible during

guilt/innocence, the type of prior offense was also the key to revealing whether, knowing




       9
           Supra n.8.
       10
            Supra n.3.
                                                                                             Jacobs — 6


such information, the potential jurors could or could not have been fair and impartial toward

a defendant who was a repeat child-sex-offender.

        I do not agree with what seems to be the use of an “estoppel”-type of reasoning to

support the majority’s holding. Jacobs’s attorney only requested using the term “assaultive”

because the trial court judge had already denied Jacobs’s request to use the term “sexual” to

describe the prior offense.

        Significantly, the State conceded that the trial court’s restriction of Jacobs’s voir dire

was erroneous.11 The State’s petition and supporting brief challenged only the second and

third decisions made by the court of appeals—asserting that the trial court’s error was non-

constitutional and harmless under Rule 44.2(b). However, the majority does not respond

directly to the arguments that were made by the parties in their briefs to this Court. Rather,

the majority analyzes “the trial court’s conduct” under the constitutional provisions

guaranteeing a trial by an impartial jury and the right to be heard by counsel “to ensure that

error did not occur under either.”12 However, in this case, both parties agree that error

occurred, and they have limited their dispute before this Court to the harm analysis.13


        11
          The State argues, “[t]he court of appeals was correct to find error. But it was wrong to
conclude that the error was constitutional in dimension.” State’s Petition for Discretionary Review at
4.
        12
             Majority Opinion at 8.
        13
           It is true that our review of an appellate court decision is a matter within our discretion. But
as a matter of course, we do not generally address questions that are not raised in the petition for
discretionary review. See Zamora v. State, 411 S.W.3d 504, 508 n.1 (Tex. Crim. App. 2013); Batiste
v. State, 888 S.W.2d 9, 10 n.1 (Tex. Crim. App. 1994); Haughton v. State, 805 S.W.2d 405, 407 n.1
(Tex. Crim. App. 1990).
                                                                                            Jacobs — 7


        I also do not agree with the majority’s use of federal law as controlling the issue

before us. Historically, federal voir dire has been solely the province of the trial judge, not

the attorneys, and thus harm attributable to trial court error is not assessed in the same way.

The majority’s reliance on federal and out-of-state case law14 seems misplaced. The majority

states that, “[t]o constitute an abuse of discretion, the trial court’s voir dire limitation must

‘render the defendant’s trial fundamentally unfair.’”15 However, this rule of law has never

been our state standard of review whereby we determine if a trial court’s limitation on voir

dire is harmful error. We have held that, in resolving a claim of trial court error due to its

limiting of voir dire questioning, a reviewing court must first determine if the trial court’s

ruling was an abuse of discretion.16 In such a review, a trial court’s ruling limiting voir dire

may be an abuse of discretion if it is arbitrary or unreasonable,17 or if the appellant was




        14
             Majority Opinion at 10-13, nn.43-44, 55-57.
        15
             See Id. at 12 (citing to Mu’Min v. Virginia, 500 U.S. 415, 425-26 (1991)).
        16
           Hernandez v. State, 390 S.W.3d 310, 315 (Tex. Crim. App. 2012); Barajas v. State, 93
S.W.3d 36, 38 (Tex. Crim. App. 2002); Rios v. State, 122 S.W.3d 194, 197 (Tex. Crim. App. 2003);
Skinner v. State, 956 S.W.2d 532, 542 (Tex. Crim. App. 1997); Nunfio v. State, 808 S.W.2d 482, 485
(Tex. Crim. App. 1991); Smith v. State, 703 S.W.2d 641, 643 (Tex. Crim. App. 1985).
        17
            See Ratliff v. State, 690 S.W.2d 597, 599 (Tex. Crim. App. 1985) (a trial court has the right
to impose “reasonable restrictions”); Whitaker v. State, 653 S.W.2d 781, 781 (Tex. Crim. App. 1983)
(holding that the trial court’s restriction of the voir dire examination was not unreasonable and did not
constitute an abuse of discretion); Clark v. State, 608 S.W.2d 667, 670 (Tex. Crim. App. 1980) (holding
that the trial court abused its discretion when it imposed an arbitrary time limitation on defendant’s voir
dire).
                                                                                        Jacobs — 8


precluded from proffering a proper question regarding a proper area of inquiry, which he was

in this case.18

       I therefore disagree with the majority’s reference to the case of George Alarick Jones

v. State as dictating that the federal standard “should apply in a comparable claim under the

Texas Constitution.”19 Jones does not support that assertion. The appellant in Jones argued

that the trial court erred by granting the State’s challenge for cause. This Court stated that,

to show error, the appellant must show either that the trial judge applied the wrong legal

standard in sustaining the challenge, or the judge abused his discretion in applying the correct

legal standard.20 This Court held in Jones that “it is clear that the trial court erred in granting

the State’s challenge of veniremember Snyder for cause.”21 We then stated in Jones that we

must decide “whether the error is constitutional or otherwise, because the standard of review

for errors of constitutional dimension is different from the standard for other errors.” 22

Therefore, Jones is actually consistent with what the court of appeals did in this case, which




       18
          See Barajas, 93 S.W.3d at 38; Skinner, 956 S.W.2d at 542 (“The propriety of the question
which the defendant sought to ask is determinative of the issue.”) (citing Nunfio v. State, 808 S.W.2d
at 484; Green v. State, 934 S.W.2d 92, 106 (Tex. Crim. App. 1996)).
       19
         Majority Opinion at 12 (“per Jones”) (citing George Alarick Jones v. State, 982 S.W.2d 386,
391 (Tex. Crim. App. 1998)).
       20
            Jones, 982 S.W.2d at 388.
       21
            Id. at 390.
       22
            Id. at 390-91 (citing T EX. R. A PP. P. 44.2).
                                                                                           Jacobs — 9


was to first determine error, and if error is found, to then assess harm as either constitutional

or non-constitutional under Rule 44.2.23

       I therefore do not view this stair-step approach as a “misread[ing]” of Easley v.

State.24 Easley did not condemn the approach of first determining error and then determining

harm under Rule 44.2. That particular point was actually not addressed in Easley, since the

trial court’s voir dire limitation was treated as an error.25 I also do not agree with the

majority’s statement that “Easley does not stand for the proposition” that error should be

classified as “‘constitutional’ or ‘nonconstitutional.’” As I read Easley, that is exactly the

issue this Court addressed—whether the voir dire “error” rose “to the level of constitutional




       23
         Texas Rule of Appellate Procedure 44.2 addresses how to evaluate “Reversible Error in
Criminal Cases”:

                 (a)    Constitutional Error. If the appellate record in a criminal case
                        reveals constitutional error that is subject to harmless error
                        review, the court of appeals must reverse a judgment of
                        conviction or punishment unless the court determines beyond
                        a reasonable doubt that the error did not contribute to the
                        conviction or punishment.

                 (b)    Other Errors. Any other error, defect, irregularity, or variance
                        that does not affect substantial rights must be disregarded.
       24
            See Majority opinion at 6; 424 S.W.3d 535 (Tex. Crim. App. 2014).
       25
          Easley, 424 S.W.3d at 541 (“While erroneous, the judge’s refusal to allow Easley’s counsel
to compare other burdens of proof did not mean he was foreclosed from explaining the concept of
beyond a reasonable doubt and exploring the venire members’ understanding and beliefs of reasonable
doubt by other methods.”)
                                                                                          Jacobs — 10


magnitude” or was a “non-constitutional error.” 26

        According to our decision in Easley, a trial judge’s erroneous refusal to allow defense

counsel to ask proper questions of veniremembers is generally considered non-

constitutional.27 However, we acknowledged in Easley that “there 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.”28 I agree with the court of

appeals that this case represents such an exception. The trial judge’s erroneous limitation on

Jacobs’s voir dire under the facts of this case warranted labeling his error as constitutional

because it hampered Jacobs’s ability to exercise what would have been valid challenges for

cause, and thus hindered Jacobs’s ability to select an impartial jury.

        The majority relies on Johnson v. State29 to support its reasoning. However, Johnson

did not involve a restriction on voir dire. It involved a restriction on cross examination. In



       26
          Easley, 424 S.W.3d at 539-540 (citing Jones 982 S.W.2d at 388) (“After finding the judge
erred in granting the State’s challenge, we were confronted with determining the nature of this error
under Texas Rule of Appellate Procedure 44.2"). Unlike in this case, where Jacobs prevailed in the
court of appeals on the issue of constitutional versus non-constitutional error, the court of appeals in
Easley held that the erroneous limitation on voir dire was non-constitutional and harmless. Hence,
Easley would have no-doubt argued, just as Jacobs did in this case, that the error was constitutional
since, to argue that the error was non-constitutional would be an argument in favor of the State’s
position. Yet, the majority limits its analysis because Jacobs “made no independent claim that the trial
court’s voir dire limitation ran afoul of a non-constitutional provision of law, such as a statute, rule,
or precedent.” My question is, why would he when, to do so, would run counter to his legal position?
        27
             Easley, 424 S.W.3d at 541.
        28
             Id. at 541.
        29
             433 S.W.3d 546 (Tex. Crim. App. 2014).
                                                                                           Jacobs — 11


Johnson, this Court held that the defendant’s right to confrontation was not violated simply

because the trial court did not allow defense counsel to question the State’s witnesses about

what kind of first degree felony was pending against them.30 Our holding in Johnson made

sense because a witness’s tendency to testify favorably for the State would be the same

regardless of whether the witness had a pending first degree felony theft or a pending first

degree felony robbery. It is the length of a potential sentence stemming from a pending

felony hanging over a State witness’s head—not necessarily the type of felony—that affects

whether that witness might be inclined to testify favorably for the State. In that situation, it

makes sense to conclude that the type of felony is irrelevant to the issue of bias on the part

of the witness. But in this case, it is the type of prior offense—i.e., sexual—committed by

Jacobs that decides whether that prior offense is admissible under Article 38.37, section 2.

        The State gave formal notice of its intent to introduce evidence of the prior sexual

offense pursuant to Article 38.37 section 3. Since the State was able to, and did, introduce

evidence of the prior sexual assault in its case in chief,31 and since the State would have

therefore been permitted to address such topic on voir dire, which it would have been, then



        30
             Johnson, 433 S.W.3d at 557-58.
       31
          The State relied heavily on the prior Louisiana sexual offense in its opening statement, in its
case-in-chief, and in its final argument. The prosecution began opening statement calling Jacobs a
“repeat offender,” and describing the details of the prior Louisiana offense to the jury. The State’s first
witness was the victim of the prior Louisiana offense. And, the State argued in closing that the jury
could use the evidence of Appellant’s prior Louisiana offense “to determine the character of the
defendant and if he was acting in conformity with that character. His character is that he is a sexual
predator, and he preys on little girls.”
                                                                                          Jacobs — 12


the defendant should also have been permitted to voir dire as requested. Jacobs was entitled

to know whether the potential jurors would still hold the State to its burden of proof in spite

of such evidence.

        An error that infringes on a constitutional right is a constitutional error.32 “When

confronted with a constitutional error, a reviewing court must analyze the error under Rule

44.2(a).”33 A defendant’s right to an impartial jury is a constitutional right.34 An impartial

jury is one that does not favor a party or individual due to the emotions of the human mind,

heart, or affections.35 Our case law is well established that, essential to the Sixth Amendment

guarantee of a trial before an impartial jury is the right to question veniremembers in order

to intelligently exercise challenges for cause to identify unqualified jurors.36 A juror with a

       32
           See, e.g., Snowden v. State, 353 S.W.3d 815, 818 (Tex. Crim. App. 2011) (“When a
prosecutorial remark impinges upon an appellant’s privilege against self-incrimination under the
constitution of Texas or of the United States, it is error of constitutional magnitude.”) (citing Canales
v. State, 98 S.W.3d 690, 695 (Tex. Crim. App. 2003) and Bustamante v. State, 48 S.W.3d 761, 764
(Tex. Crim. App. 2001)).
        33
             Snowden, 353 S.W.3d at 818.
       34
           U.S. C ONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have
been committed, . . . and to have the Assistance of Counsel for his defence [sic].”); T EX. C ONST. art.
I, § 10 (“In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury.
. . and shall have the right of being heard by himself or counsel, or both. . . .”).
       35
             Durrough v. State, 562 S.W.2d 488, 490 (Tex. Crim. App. 1978).
       36
          Franklin v. State, 138 S.W.3d 351, 354 (Tex. Crim. App. 2004) (“Constitutional provisions
bear on the selection of a jury for the trial of a criminal case.”) (first citing U.S. C ONST. amend. VI;
then citing Morgan v. Illinois, 504 U.S. 719, 729 (1992), then citing Raby v. State, 970 S.W.2d 1, 10
(Tex. Crim. App. 1998); then citing Linnell v. State, 935 S.W.2d 426, 428 (Tex. Crim. App. 1996);
and then citing Dinkins v. State, 894 S.W.2d 330, 344–45 (Tex. Crim. App. 1995) (some citations
omitted)); see also Armstrong v. State, 897 S.W.2d 361, 363 (Tex. Crim. App. 1995) (holding that the
                                                                                       Jacobs — 13


bias or prejudice against the defendant or against any law applicable to the case, who would

decide the case based on such bias rather than holding the State to its burden to prove the

charged offense beyond a reasonable doubt, is an unqualified juror.37 Why would it not

logically follow, then, that, if a trial court judge places a restriction on a defendant’s ability

to select such impartial jurors, as the judge did in this case, such erroneous restriction would

be a constitutional error?

       The majority believes that the trial judge was “evidently concerned” that if the jury

had been informed that Jacobs had a prior sexual offense, the jury pool would be

“poison[ed]” and he would have to “bust[] the panel.”38 However, when the right to select

a fair and impartial jury clashes with a judge’s concern over being able to obtain a qualified

jury due to there being highly sensitive and polarizing issues involved in the case, the

solution is not to restrict the attorneys from asking legitimate voir dire questions (that may

validly eliminate unqualified jurors). Rather, the solution (such as is done in capital death

cases) is to bring in a supplemental panel. Obviously, excusing potential jurors who have

preconceived opinions about certain topics (such as the death penalty or repeat sexual

offenders) is the whole purpose behind being able to ask such questions.

       The questions Jacobs’s counsel sought to ask would not have merely provided


jury selection process is designed to insure that an intelligent, alert, disinterested, impartial, and
truthful jury will perform the duty assigned to it).
       37
            T EX. C ODE C RIM. P ROC. art. 35.16(a)(9), (c)(2).
       38
            See Majority Opinion at 3.
                                                                                Jacobs — 14


information that would have assisted him in exercising peremptory challenges. Clearly, the

fact that a proffered question would “be of some use in exercising peremptory challenges”

does not mean that such a question is compelled by the constitution.39 But here, Jacobs was

trying to get information that would have given rise to a valid challenge for cause, not just

to assist him in exercising peremptory challenges. That is what made Jacobs’s voir dire

questions proper commitment questions, and that is why the trial court’s error in not allowing

him to ask these questions impinged his constitutional right to select an impartial jury, and

that is why the error was a constitutional error. As such, I agree with the unanimous decision

by the Sixth Court of Appeals. Because the majority does not, respectfully, I dissent.

FILED:           October 10, 2018

PUBLISH




       39
            Mu’Min v. Virginia, 500 U.S. 415, 424-25 (1991).
