                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-12-00271-CV
                           ____________________


          IN RE COMMITMENT OF MICHAEL JEROME SMITH

_______________________________________________________           ______________

                   On Appeal from the 435th District Court
                        Montgomery County, Texas
                      Trial Cause No. 11-07-08058 CV
________________________________________________________           _____________

                         MEMORANDUM OPINION

      Michael Jerome Smith appeals from an order of commitment, rendered

following a trial in which the jury found Smith to be a sexually violent predator.

See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2013)

(SVP statute). Smith challenges the judgment in thirteen issues; however, resolving

Smith’s appeal requires that we consider just three of Smith’s issues, issues one,

three, and seven. In issue one, Smith challenges the constitutionality of the SVP

statute. In issue three, Smith asserts the trial court erred by failing to enter a

directed verdict against the State on its claim that he was previously convicted of

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having committed more than one sexually violent crime. In issue seven, Smith

asserts that during voir dire, the trial court abused its discretion by refusing to

allow his attorney to ask a question that he argues was relevant to his ability to

intelligently exercise his peremptory strikes. We overrule issues one and three.

However, we agree with Smith that the trial court’s error in voir dire constitutes an

abuse of discretion and that the error was harmful. We reverse the trial court’s

judgment, and remand the case so that Smith can receive another trial.

                                  Rendition Issues

      Before addressing issue seven, we must first consider the arguments Smith

has raised in issues one and three, as Smith’s arguments on these issues, if

successful, would require that we render judgment in Smith’s favor. See Lone Star

Gas Co. v. R.R. Comm’n of Tex., 767 S.W.2d 709, 710 (Tex. 1989) (per curiam). In

issue one, Smith challenges the constitutionality of the SVP statute. Smith

contends the SVP statute, as interpreted by the Texas Supreme Court in In re

Commitment of Bohannan, 388 S.W.3d 296, 302-03 (Tex. 2012), cert. denied, 133

S.Ct. 2746 (2013), is facially unconstitutional and violates his Fourteenth

Amendment right to due process. In issue three, Smith contends the trial court

should have granted his motion for a directed verdict on the State’s claim that he is

a “repeat sexually violent offender” under the SVP statute. See Tex. Health &

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Safety Code Ann. § 841.003(b) (West Supp. 2013) (requiring the State to

demonstrate that a “repeat sexually violent offender” has previously been

convicted of more than one sexually violent offense).

                                  Constitutional Claims

      In Smith’s first issue, he argues that sections 841.002(2) and 841.003(a)(2)

of the SVP statute are facially unconstitutional and violate his Fourteenth

Amendment right to due process. See id. §§ 841.002(2), 841.003(a)(2) (West Supp.

2013). We considered and rejected these same arguments in other SVP

commitment proceedings, beginning with In re Commitment of Anderson, 392

S.W.3d 878, 885-86 (Tex. App.—Beaumont 2013, pet. denied). In Anderson, we

explained that “[w]e do not read the Bohannan opinion as eliminating a statutory

requirement, or as altering the proof required under the statute to find that a person

is a sexually violent predator.” Id. at 886. We are not persuaded that Anderson

should be overruled; we overrule Smith’s first issue.

                                  Directed Verdict

      One of the arguments that Smith raises in his third issue would require us to

render judgment in his favor if we agreed with Smith that the State failed to prove

that Smith is a repeat sexually violent predator. According to Smith, his 1993

conviction for indecency with a child does not qualify as a prior “sexually violent

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offense” under the SVP statute because the 1993 judgment of conviction does not

state that Smith’s conviction was for indecency with a child “by contact.” See Tex.

Health & Safety Code Ann. §§ 841.002(8)(A), 841.003 (West Supp. 2013); and

compare Tex. Penal Code Ann. § 21.11(a)(1), (d) (West. 2011)1 (making sexual

contact with a child a second degree felony), with id. § 21.11(a)(2), (d) (West

2011) (making the exposure of certain parts of the actor’s or child’s body for the

purpose of sexual gratification a third degree felony).

      Under the SVP statute, the State must prove beyond a reasonable doubt that

“the person is a sexually violent predator.” Tex. Health & Safety Code Ann. §

841.062(a) (West 2010). The SVP statute defines “sexually violent predator” as a

person who “(1) is a repeat sexually violent offender; and (2) suffers from a

behavioral abnormality that makes the person likely to engage in a predatory act of

sexual violence.” Id. § 841.003(a). A person is a “repeat sexually violent offender”

if the person is convicted of more than one sexually violent offense. Id. §

841.003(b). “‘Sexually violent offense’” is defined by the SVP statute to include,

among other things, offenses under 21.11(a)(1) (indecency with a child by sexual

contact), and 22.021 (aggravated sexual assault). Id. § 841.002(8); Tex. Penal Code


      1
      Because subsequent amendments to section 21.11 do not change the
outcome of Smith’s appeal, we cite the statute’s current version.

                                          4
Ann. § 21.11(a)(1), § 22.021 (West Supp. 2013). However, a conviction for

indecency with a child by exposure is not a qualifying sexually violent offense

under the SVP statute. See Tex. Health & Safety Code Ann. § 841.002(8)(A).

      Smith argues that the evidence is legally insufficient to show that his 1993

indecency conviction was for indecency with a child by contact. But, Smith’s 1993

judgment of conviction, which was admitted into evidence during Smith’s trial,

indicates Smith was convicted of a second degree felony, the degree that is

associated with a conviction for indecent exposure by contact. See Tex. Penal Code

Ann. § 21.11(d). Smith’s indictment, which led to his 1993 conviction was also

admitted into evidence—it alleges that Smith committed indecency by contact.

      Indecency by contact is a second degree felony. Id. § 21.11(a). Indecency by

exposure is a third degree felony. Id. § 21.11(d). We conclude that the evidence

shows that Smith was convicted of indecency with a child by contact, not

indecency by exposure.

      Based on the evidence at trial, the trial court properly denied Smith’s motion

for directed verdict, which asserted the State had failed to show that he was a

repeat sexually violent predator. To the extent that Smith argues the State’s




                                         5
evidence was legally insufficient to prove that Smith was previously convicted of

two sexually violent offenses, issue three is overruled.2

                                     Remand Issue

      In issue seven, Smith complains the trial court prevented his attorney from

asking the array the following question: “Who thinks that African Americans are

more likely to commit crimes than white people?” The attorney for the State

objected, claiming that Smith’s question asked the prospective jurors for a

commitment. At that point, the trial court intervened, ruling:

      Why don’t you ask the proper questions about your client[?] Ask the
      proper question about your client about racism. Can everybody give
      Mr. Smith, even though he is an African American, a fair trial.
      Everyone, raise your hand. Raise your hand now because I want to
      know.

None of the prospective jurors responded to these statements. When one of the

prospective jurors asked the trial court to repeat its statement, the trial court stated:

      Knowing Michael Jerome Smith is African American, can you give
      him a fair trial? Anybody can’t give Michael Jerome Smith a fair trial
      knowing he is African American? Okay. Thank you very much.



      2
        Smith’s remaining issue three arguments, as well as his other issues, issue
two, issues four through six, and issues eight through thirteen, do not raise
arguments—if resolved in Smith’s favor—that would result in Smith being granted
relief greater than he has obtained based on our resolution of issue seven.
Therefore, we do not address Smith’s other issue three arguments, or issues two,
four through six, or eight through thirteen. See Tex. R. App. P. 47.1.
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Again, none of the prospective jurors responded. Immediately after the trial court

thanked the prospective jurors, Smith’s attorney asked if any of the array had “used

the ‘N word.’” Seven people responded by raising their hands. Only one of these

seven ultimately served on the jury. None of Smith’s other questions of the

prospective jurors asked about the prospective jurors’ views regarding the

frequency with which African Americans commit crimes. In addition to the

question about using racially pejorative language, the other questions Smith’s

attorney asked the prospective jurors about racial issues generally—a question

about whether the prospective jurors would worry about being treated fairly if they

were faced with a trial by a group consisting largely of persons from a different

race, and a question about whether the justice system treated minorities fairly—

were asked before the trial court told Smith’s attorney to ask proper questions.

      The standards regarding jury selection in SVP cases are clear. “A party

selecting jurors for trial must be given latitude to intelligently use its peremptory

challenges to seat a jury that, to the greatest extent possible, is free from bias.” In

re Commitment of Hill, 334 S.W.3d 226, 228 (Tex. 2011) (per curiam). During voir

dire, the parties should be allowed the opportunity to identify potentially biased

jurors to prevent them from serving on a jury. See In re Commitment of Barbee,

192 S.W.3d 835, 845 (Tex. App.—Beaumont 2006, no pet.). The attorneys should

                                          7
also be allowed to gather information to exercise their peremptory challenges

intelligently. See Hill, 334 S.W.3d at 228. While the trial court must give the

parties’ attorneys latitude in jury selection to discover bias and to discover

information to intelligently exercise their strikes, the attorneys’ right to question

prospective jurors remains subject to the trial court’s right to exercise reasonable

control over the proceedings. See id.at 228-29.

      With respect to an attorney’s right to ask a particular question during voir

dire, the question of whether a court has exercised proper discretion “turns on the

propriety of the question: ‘a court abuses its discretion when its 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.’” Id. at 229

(quoting Babcock v. Nw. Mem’l Hosp., 767 S.W.2d 705, 709 (Tex. 1989)). In

Smith’s case, the trial court apparently agreed with the State that the question

posed regarding whether African Americans commit crime at a higher rate than

Caucasians was an improper commitment question.

      We disagree that the question asked the jurors to make a commitment. The

question at issue did not seek to test the weight that prospective jurors might place

on the evidence later admitted at trial. The question at issue also did not ask

prospective jurors to do or not to do something. The question about the rate that

                                          8
African Americans commit crime was also not irrelevant, as the evidence in

Smith’s trial, like that in other SVP trials, addresses whether Smith (who happened

to be African American) would likely engage in a future sexually violent offense.

See Tex. Health & Safety Code Ann. § 841.003 (defining the term “sexually

violent predator” for purposes of the SVP statute to require evidence showing the

person “suffers from a behavioral abnormality that makes the person likely to

engage in a predatory act of sexual violence”). We conclude the question at issue

did not ask for a commitment and it was a proper question.

      The State contends that by failing to rephrase the question or by failing to

tell the trial court of the purpose for the question, Smith waived his right to

appellate review. However, the purpose of the question was apparent to the trial

court from the circumstances of the case—Smith is African American, the case

would involve whether Smith is likely to reoffend, and the trial court was aware of

those facts. Smith’s attorney was also not required to rephrase the question—it was

not improper. Hill, 334 S.W.3d at 229.

      The record also shows the trial court’s ruling not to allow the question was

harmful. The candid admissions by seven members of the array, immediately after

the trial court disallowed Smith’s more general question probing the prospective




                                         9
jurors’ racial views, establish both the propriety of the question at issue and the

trial court’s abuse of discretion in denying Smith the right to ask it. Id.

      The question of harm requires that we consider the impact of the trial court’s

error after considering all of the questions asked in voir dire. The trial court’s

question about whether the prospective jurors could give Smith a fair trial is a

different question about racial prejudice that personalized the question to Smith.

Specifically, the trial court’s question about whether the array members could give

Smith a fair trial as an African American is not designed to reveal a prospective

juror’s general racial bias toward a group. Nonetheless, the fact the trial court

asked the question shows the trial court was aware that Smith’s counsel desired to

probe the prospective jurors regarding racial bias that was relevant to Smith’s case;

but the trial court’s question potentially allowed prospective jurors who held a

general racial bias, but not specific bias toward Smith, to serve on the jury.

      The State also criticizes Smith’s attorney for not asking additional questions

on bias. However, by telling Smith’s attorney to ask proper questions, the trial

court signaled that it would not allow follow-up questions probing whether any of

the prospective jurors had a general racial bias toward African Americans that

grew from a perspective that members of the group frequently committed crimes.

The follow-up question about the use of the “N word” did not concern the

                                           10
prospective juror’s views on whether African Americans commit crime more

frequently than Caucasians. Whether Smith was likely to commit additional crimes

of sexual violence was one of the issues the jury would consider in his case.

Because the trial court prevented Smith’s attorney from obtaining information

relevant to whether prospective jurors had a general racial bias that related to the

question concerning perceptions about recidivism, the trial court prevented Smith’s

attorney from being able to intelligently exercise Smith’s peremptory strikes and

prevented Smith from discovering which prospective jurors Smith should

challenge for cause. See id. at 228, 230. Under the circumstances, we disagree with

the State that the trial court’s error should be characterized as harmless. Tex. R.

App. P. 44.1.

      We hold that the trial court’s error in rejecting Smith’s question was

harmful. We reverse the trial court’s judgment and remand the case to the trial

court to conduct a new trial.

      REVERSED AND REMANDED.


                                             ______________________________
                                                     HOLLIS HORTON
                                                          Justice

Submitted on March 4, 2014
Opinion Delivered June 26, 2014
Before McKeithen, C.J., Horton and Johnson, JJ.
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