                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-16-00008-CR



             JOSHUA JACOBS, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 102nd District Court
                Bowie County, Texas
            Trial Court No. 14F1096-102




      Before Morriss, C.J., Moseley and Burgess, JJ.
              Opinion by Justice Moseley
                                               OPINION
           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 TEX. CODE CRIM.

PROC. ANN. art. 38.37 (West Supp. 2016). We find that the trial court abused its discretion in

restricting Jacobs’ voir dire, that the error was constitutional in scope, and that the error was

harmful, mandating reversal. Because that finding is determinative, we do not reach the other

points of error.

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


1
    See TEX. PENAL CODE ANN. § 22.021(a)(B)(i) (West Supp. 2016).
2
    See TEX. PENAL CODE ANN. § 12.42(c)(2)(A)(i), (B) (West Supp. 2016).

                                                         2
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.” TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b).

Jacobs sought to question the jury panel to determine whether individual members would still

require the State to prove each element of the charged offense beyond a reasonable doubt if

evidence of an unrelated sexual offense was proven by the State. The trial court barred him from

referring to a sexual offense, but allowed him to refer to an assaultive offense instead. Jacobs

argues that this was not a reasonable restriction since some panel members might have a

substantially different opinion of someone who committed an unrelated sexual offense as opposed

to someone who had not done so. Jacobs argues that (due to what he deems an improper restriction

of his right to voir dire) he was deprived of his constitutional right to counsel.3 The State responds

by arguing that the trial court did not abuse its discretion because (1) it was seeking to avoid

confusing the jury and “poisoning the panel” and (2) Jacobs was seeking a commitment from the

jury that it would not be influenced by the facts of the extraneous offense even though Article

38.37 of the Texas Code of Criminal Procedure specifically allows them to be so influenced. We

agree with Jacobs.




3
 The Texas Court of Criminal Appeals has noted that although some of its cases have characterized a trial court’s
unreasonable restriction of a defendant’s voir dire as violating a defendant’s constitutional right to counsel, it indicates
that such characterization is a misnomer; it states, rather, that the most pertinent issue in jury selection is the right to
a speedy trial by an impartial jury. See Hill v. State, 426 S.W.3d 868, 876 (Tex. App.—Eastland 2014, pet. ref’d)
(citing Easley v. State, 424 S.W.3d 535, 539–41 (Tex. Crim. App. 2014)). Both of these rights are contained in the
same provision of the Texas Constitution. See TEX. CONST. art. I, § 10. Because reported cases seem to hold that
either objection will suffice to preserve error, it is difficult for us to say that the error has not been preserved. In the
interest of justice and in an effort to comply with what we deem to be the current position of the higher court in matters
such as this, we construe Jacobs’ constitutional complaint to encompass both of these rights.
                                                             3
         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 Whiteman[4] with


4
 At trial, the parties made reference to the name of the child victim as “Victoria Whiteman,” and we continue the use
of that pseudonym. See TEX. R. APP. P. 9.10.
                                                         4
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

offense is alleged to have occurred that Victoria Whiteman was under 14 years old, if evidence of

an unrelated sexual offense is proven beyond a reasonable doubt?” (Question 5).

       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




                                                  5
“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.” TEX. CONST. art. I, § 10. Texas courts have long

recognized that “the constitutionally guaranteed right to counsel . . . encompasses the right to

question prospective jurors in order to intelligently and effectively exercise peremptory challenges

and challenges for cause during the jury selection process.” McCarter v. State, 837 S.W.2d 117,

119 (Tex. Crim. App. 1992) (citing Naugle v. State, 40 S.W.2d 92, 94 (Tex. Crim. App. 1931)).



5
 On appeal, Jacobs does not assert error in being barred from referring to “sexual offense” in his Article 38.37
explanation.
                                                       6
Consequently, “trial judges should allow defendants much leeway in questioning a jury panel

during voir dire.” Id. at 120 (quoting Ex parte McKay, 819 S.W.2d 478, 482 (Tex. Crim. App.

1990)). When the trial court improperly limits a defendant’s voir dire examination, it may

constitute a violation of the right to counsel. See Easley v. State, 424 S.W.3d 535, 538, 541 (Tex.

Crim. App. 2014) (overruling Plair v. State, 279 S.W. 267 (Tex. Crim. App. 1925), and its progeny

to the extent they hold 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”);

McCarter, 837 S.W.2d at 119, 122. In addition, when an improper limitation on voir dire prevents

a defendant from determining whether a veniremember should be disqualified for cause, the

defendant’s right to an impartial jury is violated. Hill v. State, 426 S.W.3d 868, 877 (Tex. App.—

Eastland 2014, pet. ref’d).

        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).




6
 Since the trial court allowed the modified questions to be asked, it is apparent that Jacobs was not attempting to
prolong voir dire. See McCarter, 837 S.W.2d at 121.
                                                        7
        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, 180 (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.” TEX. CODE CRIM. PROC. ANN. art. 35.16(c)(2) (West 2006).

By each of the questions Jacobs wanted to ask, he sought to determine whether the prospective

jurors would follow the law and require the State to prove the individual elements of the charged

                                                  8
offense beyond a reasonable doubt if the State had proven an unrelated sexual offense beyond a

reasonable doubt. Any potential juror who would not require the State to prove the individual

elements of the charged offense if it had proven an unrelated sexual offense would be

“challengeable for cause under Article 35.16(c)(2) for having a bias or prejudice against a law

applicable to the case upon which the defense is entitled to rely.” See Ladd, 3 S.W.3d at 558–59.

        The State argues that under Article 38.37, the jury is entitled to be influenced by the facts

of the unrelated extraneous acts in considering whether the State has proven its case beyond a

reasonable doubt. As we have previously pointed out, Article 38.37, Section 2(b), “allow[s] the

jury to consider the extraneous offenses ‘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.’” Reichle v. State, No. 06-14-00073-CR, 2015 WL 392846, at *7 (Tex. App.—

Texarkana Jan. 30, 2015, pet. ref’d) (mem. op., not designated for publication)7 (quoting TEX.

CODE CRIM. PROC. ANN. art. 38.37, § 2(b)). By the plain language of the statute, Article 38.37,

Section 2(b), only allows the admission (and, therefore, consideration by the jury) of the evidence

of the extraneous act for any bearing it may have on “relevant matters.” Thus, in regard to the

individual elements of the charged offense, evidence of the extraneous offense can only properly

be considered in regard to those elements to which it is relevant. Therefore, as to those individual

elements of the charged offense to which evidence of the extraneous offense is not relevant, Jacobs

is entitled to rely on the State’s burden to prove those elements beyond a reasonable doubt without



7
 Although unpublished cases have no precedential value, we may take guidance from them “as an aid in developing
reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).
                                                      9
the jury considering the extraneous-offense evidence. If a potential juror would not require the

State to prove these elements if it proved the extraneous offense, then the juror would be

challengeable for cause. Conversely, for those elements to which the extraneous-offense evidence

is relevant, Jacobs is not entitled to rely on the jury making its determination without considering

the extraneous-offense evidence. As to the relevant elements, a potential juror who would rely on

the proof of the extraneous offense would not be challengeable for cause. Therefore, we must

determine whether the questions Jacobs sought to ask involved elements to which evidence of an

unrelated offense would be relevant.

       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 TEX. PENAL CODE ANN. § 22.021(a)(B)(i). Questions

1, 2, and 5 addressed the State’s elements regarding the place and date of the offense, and the age

of Whiteman at the time of the offense, respectively. Evidence of an unrelated sexual offense

would have no relevant bearing on these elements. Therefore, a potential juror who would not

require the State to prove any one or more of these elements beyond a reasonable doubt, if the

State proved an unrelated sexual offense, would be challengeable for cause. We find that

Questions 1, 2, and 5 meet the first prong of the Standefer criteria.

       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

                                                 10
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. TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b).

Therefore, the jury would be entitled to consider the unrelated sexual offense, infer that Jacobs

acted in accord with his character exhibited therein, and determine that Jacobs committed the

charged offense intentionally and knowingly. Since this would be legally sufficient evidence of

this element of the State’s case, a potential juror would not be challengeable for cause by answering

in the affirmative to this part of the question. Under this hypothetical, the evidence of the unrelated

sexual offense may also be relevant in determining whether the State had proven beyond a

reasonable doubt that Jacobs penetrated Whiteman’s sexual organ with his finger. For instance, if

the victim testified that Jacobs touched her sexual organ, but was equivocal about whether

penetration had occurred, a reasonable jury might infer that Jacobs acted in conformity with the

character exhibited in the unrelated sexual offense and conclude that penetration had occurred.

Since some additional evidence would be needed to establish penetration beyond a reasonable

doubt, a potential juror answering affirmatively to this part of the question may be subject to

challenge for cause. However, Question 3, a compound question, can be answered affirmatively

if a prospective juror would consider the fact of the prior, unrelated sexual offense at least partial

support for a finding beyond a reasonable doubt that Jacobs had an intentional or knowing mens

rea as to his currently charged behavior. Therefore, because such an affirmative answer might not

necessarily support a valid challenge for cause, we find Question 3 does not meet the first prong

of the Standefer criteria.



                                                  11
           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


8
    See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011).
                                                          12
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

pointed out that “Texas courts allow parties to voir dire ‘the jury venire about the law applicable

to the enhancement of punishment as long as the explanation is hypothetical and does not inform

the jury of any specific allegation in the enhancement paragraph of the indictment.’” Id. (quoting

Hanson v. State, 269 S.W.3d 130, 134 (Tex. App.—Amarillo 2008, no pet.)). However, in Reichle

the appellant argued that he should have been able to discuss the specific facts of the enhancement

paragraph and of the Article 38.37 extraneous offenses. Id. In this case, Jacobs did not seek to

discuss the specifics of either the enhancement paragraph or of the Article 38.37 extraneous

offenses. Rather, Jacobs sought to characterize the Article 38.37 extraneous offenses in a general

manner as “sexual offenses” in his explanation of that statute.

        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



9
 See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b). Article 38.37, Section 2(b), provides that only “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) and (2).” Id. The offenses described by those subsections are:

                 (1)      an offense under any of the following provisions of the Penal Code:

                (A)       Section 20A.02, if punishable as a felony of the first degree under Section 20A.02(b)(1)
        (Sex Trafficking of a Child);

                 (B)      Section 21.02 (Continuous Sexual Abuse of Young Child or Children);

                 (C)      Section 21.11 (Indecency With a Child);
                                                        13
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, 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/innocent 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.




                 (D)      Section 22.011(a)(2) (Sexual Assault of a Child);

                 (E)      Sections 22.021(a)(1)(B) and (2) (Aggravated Sexual Assault of a Child);

                 (F)      Section 33.021 (Online Solicitation of a Minor);

                 (G)      Section 43.25 (Sexual Performance by a Child); or

                 (H)      Section 43.26 (Possession or Promotion of Child Pornography), Penal Code; or

                 (2)      an attempt or conspiracy to commit an offense described by Subdivision (1).

TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(a)(1), (2) (West Supp. 2016).
                                                       14
            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.

            Finally, the State argues that allowing the use of “sexual offense” would risk poisoning the

jury panel. While this may be a valid concern, it must be balanced against the defendant’s

constitutional right to a fair trial by an impartial jury. Generally, evidence of extraneous offenses

by the defendant would not be admissible in the guilt/innocence phase of the trial to prove his

character and that he acted in accord with that character on a particular occasion. TEX. R. EVID.

404(a)(1); Graves v. State, 452 S.W.3d 907, 913 (Tex. App.—Texarkana 2014, pet. ref’d). So, in

most cases, there is not a concern that an extraneous act would impact whether a juror would

require the State to prove each element of the charged offense beyond a reasonable doubt.

However, the Legislature has decided that evidence of extraneous acts described as certain sexual

offenses against children may be admitted for that purpose in cases governed by Article 38.37,

Section 2(b). This creates a legitimate concern on the part of the defendant that a juror may not

require the State to prove each element of the charged offense beyond a reasonable doubt once he

hears evidence of the extraneous act. Since it is only evidence of sexual offenses that are allowed

to be admitted, the defendant has a right to voir dire the jury panel referring in a general manner




10
     The State does not contend, nor did the trial court find, that the questions were confusing.
                                                             15
to sexual offenses, which is a proper statement of the law applicable to the case. 11 See Hanson,

269 S.W.3d at 134.12,13

         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.

                  2.        The Trial Court’s Error Was Harmful

         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


11
 This situation is distinguishable from those cases that are only concerned with voir dire regarding possible
enhancement of punishment in exploring a potential juror’s ability to consider the full range of punishment. See, e.g.,
Barnett v. State, 344 S.W.3d 6, 20 (Tex. App—Texarkana 2011, pet. ref’d). Discussing the specifics of the
enhancement paragraph has been held to be “the functional equivalent of reading to the jury panel the enhancement
paragraph to the jury [sic],” which would be a violation of Article 36.01(a)(1) of the Code of Criminal Procedure.
Frausto v. State, 642 S.W.2d 506, 508 (Tex. Crim. App. [Panel Op.] 1982); see TEX. CODE CRIM. PROC. ANN. art.
36.01(a)(1) (West 2007).
12
 As we have discussed, a potential juror who would not require the State to prove each element of the charged offense
beyond a reasonable doubt, if an unrelated sexual offense was proven, would be challengeable for cause.
13
  For these same reasons, we find that the trial court requiring Jacobs to refer to an unrelated “offense,” “felony
offense,” or “assaultive offense,” rather than “sexual offense,” was unduly restrictive. First, this is an incorrect
statement of the law, which only allows evidence of separate sexual offenses and infringes on Jacobs’ right to question
the jury panel on the law applicable to the case. In addition, there is a qualitative difference between referring to a
generic offense, felony offense, or assaultive offense and referring to a sexual offense. A potential juror who may
have no problem requiring the State to prove each element of the charged aggravated sexual assault of a child beyond
a reasonable doubt if evidence of an unrelated theft or fight with a security officer is shown may not necessarily require
the State to carry its burden of proof if evidence of an unrelated sexual offense is proven. Depriving Jacobs of the
ability to determine whether a potential juror would not require the State to carry its burden of proof based on the law
applicable to the case improperly restricts him from determining whether the potential juror has a bias against the law
and is challengeable for cause. See TEX. CODE CRIM. PROC. ANN. art. 35.16(c)(2) (West 2006).

                                                           16
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



14
 In the cases specifically overruled by Easley, the trial court limited only the individual questioning of
veniremembers, and the questions only sought to determine if the defendant should use his peremptory challenges,
not whether the veniremember could be challenged for cause. Easley, 424 S.W.2d at 537–38. Here, Jacobs was
denied asking his questions to the entire jury panel and sought to determine if any of the veniremembers could be
challenged for cause.
                                                       17
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 6166583,

*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).

          In this case, Jacobs was not allowed to question the jury panel about whether they would

require the State to prove all the elements of the charged offense, or if it would find Jacobs guilty

of the charged offense if the State only proved a lesser, uncharged offense. By preventing him

from asking these questions of the jury panel, the trial court prevented him from determining if

any potential juror(s) should be struck for cause. We agree with our sister courts of appeal that

having an unqualified veniremember on the jury is a violation of the defendant’s right to an

impartial jury. Therefore, we find the error in this case is constitutional error that requires a Rule

44.2(a) analysis.15



15
  If the only disallowed questions were regarding the place and date of the offense, and the age of the victim at the
time of the offense, we might not find that this was constitutional error since these could be established, at least in this
case, with undisputed evidence. However, Question 4 addresses the fundamental issue of whether a potential juror
would convict Jacobs of the charged offense if the State only proved a lesser, uncharged offense.
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       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 you 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
                                                 19
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 simply

answering, “Yes” to the State’s questions. Regarding the incident, Whiteman’s entire testimony

was to respond, “Yes” to two questions from the State: “[D]id [Jacobs] put his mouth on your

chest?” and “[D]id he put his hands or his fingers in your private area?”

        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.




                                                20
         We reverse the judgment of the trial court and remand this cause to the trial court for a new

trial.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:         October 6, 2016
Date Decided:           November 10, 2016

Publish




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