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


                                      No. 06-17-00024-CR



                           JAMES DAVID HAYNES, JR., Appellant

                                               V.

                              THE STATE OF TEXAS, Appellee



                             On Appeal from the 5th District Court
                                    Bowie County, Texas
                                Trial Court No. 14F0359-005




                        Before Morriss, C.J., Moseley and Carter,* JJ.
                        Memorandum Opinion by Chief Justice Morriss

________________________
*Jack Carter, Justice, Retired, Sitting by Assignment
                                         MEMORANDUM OPINION
            James David Haynes, Jr., stands convicted of aggravated sexual assault of a child1 and, for

that, has been sentenced to life in prison. On appeal, Haynes claims error in the trial court’s

limitation on inquiries Haynes would have made of the jury venire during voir dire. We affirm the

trial court’s judgment, because, although (1) Haynes preserved this issue for appeal, (2) Haynes’

proposed question amounted to an improper commitment question.

            Before trial in this case, Haynes had previously been adjudicated, as a juvenile, to have

sexually assaulted three girls, one of whom, Alice,2 was his current victim. The State filed a

motion in limine and included in its scope a request to keep Haynes from discussing in voir dire

his previous juvenile adjudications for aggravated sexual assault and indecency with a child by

sexual contact. Haynes complained that this restriction would unfairly impede his defensive

strategy:

            I think that the Court is already aware from our earlier questioning of the outcry
            witnesses that our defense basically is that this young lady is talking about the same
            event for which this young man has already been punished, and I think that I have
            a right with regard to the punishment range issues of the jury to talk to them about
            whether or not they can consider the entire punishment range knowing that this
            young man has been already adjudicated with respect to a similar crime with the
            same victim. I think that to preclude me from being able to ask such questions on
            voir dire would greatly impair my ability to pick a jury that is not prone to
            conviction just based on knowledge that he has once before been convicted
            [adjudicated], and in order for us to sustain our defense, we’re going to bring that
            information at some particular point in the trial.




1
 See Act of April 7, 2011, 82d Leg., R.S., ch. 1, § 6.05, 2011 Tex. Gen. Laws 1, 16 (amended 2015, 2017) (current
version at TEX. PENAL CODE § 22.021 (West Supp. 2017)).
2
    Alice is the pseudonym used in the trial court. See Tex. R. APP. P. 9.8.

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The trial court made this effort to clarify Haynes’ request:

       I take it, [Counsel], that the nature of your question that you’re proposing to ask
       would be “If you learned that he had previously been convicted of an offense
       involving the same child, are you just going to shut down and it’s going to be a
       guilty verdict from that point forward, it doesn’t matter what the rest of the evidence
       is?”

Haynes agreed with the court’s summary, saying, “[I]f a potential juror knows from the beginning

of this trial that the information would preclude them fair [sic] and considering the entire range [of

punishment], I think I have a right to know that.” The court granted the State’s motion in limine,

thus effectively overruling Haynes’ request to question the venire on Haynes’ earlier adjudication.

(1)    Haynes Preserved this Issue for Appeal

       At first glance, one might question whether Haynes preserved this argument for our review,

given that it was addressed in the context of the State’s motion in limine. It is true that one of the

paragraphs of the State’s motion in limine sought to bar Haynes from discussing in voir dire his

previous juvenile adjudication for aggravated sexual assault and indecency with a child by sexual

contact. Generally, positions taken in connection with a motion in limine do not preserve any issue

for appeal. See Gonzales v. State, 685 S.W.2d 47, 50 (Tex. Crim. App. 1985) (“For error to be

preserved with regard to the subject matter of the motion in limine it is absolutely necessary that

an objection be made at the time when the subject is raised during trial.”). Where the topic

addressed in the limine motion results in an “adverse final ruling,” however, error will be

preserved. Geuder v. State, 115 S.W.3d 11, 14–15 n.10 (Tex. Crim. App. 2003). In Draughon v.

State, 831 S.W.2d 331 (Tex. Crim. App. 1992), Draughon filed a document he titled a motion in

limine. He sought to preclude the State from questioning the venire panel about their attitudes

                                                  3
toward the death penalty, and the trial court refused to so limit the questioning. The Texas Court

of Criminal Appeals did not find Draughon’s motion to be “truly a motion in limine, since it d[id]

not constitute a request that the admissibility of evidence or disposition of another matter . . . be

determined outside the jury’s presence.” Id. at 333 n.1. Draughon’s request, or motion, “was

sufficient to apprise the trial judge of his complaint, and . . . the judge’s adverse ruling . . . was

authoritative enough to obviate the necessity for further objection during the voir dire examination

of particular veniremembers.” Id.

       Preservation was similarly accomplished in Nunfio v. State, 808 S.W.2d 482 (Tex. Crim.

App. 1991), overruled on other grounds by Barajas v. State, 93 S.W.3d 36, 41 (Tex. Crim. App.

2002) (overruling Nunfio to extent that Nunfio’s proposed question was a “fishing expedition”).

In Nunfio, the trial court granted the State’s motion in limine, “which restricted appellant from

questioning the venire about a certain area, the vocation of the victim.” Nunfio, 808 S.W.2d at

483–84. Nunfio asked if he could “use a hypothetical fact situation, if the victim is a nun, could

they be fair and impartial?” “No,” replied the court. Id. at 484. “Once appellant posed the specific

question he sought to ask the venire and the judge refused to allow the question, the ruling by the

trial court amounted to a direct order not to ask the question,” not a preliminary order. Id. Because

Nunfio got a specific ruling on a specific question, he properly preserved the issue for review. Id.

       Likewise, we find preservation of error here.

(2)    Haynes’ Proposed Question Amounted to an Improper Commitment Question

       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

                                                  4
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 115–16). “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)). A trial 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.” 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)).

        “‘[A]n attorney cannot attempt to bind or commit a prospective juror to a verdict based on

a hypothetical set of facts.’ The rule is easily stated but has not been so easily applied.” Standefer

v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001) (quoting Allridge v. State, 850 S.W.2d 471,

480 (Tex. Crim. App. 1991)). “Commitment questions are those that commit a prospective juror

to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact. Often,

such questions ask for a ‘yes’ or ‘no’ answer, in which one or both of the possible answers commits

the jury to resolving an issue a certain way.” Standefer, 59 S.W.3d at 179.

        The Texas Court of Criminal Appeals explained the propriety of commitment questions in

Standefer: “(1) Is the question a commitment question, and (2) Does the question include facts—

and only those facts—that lead to a valid challenge for cause? If the answer to (1) is ‘yes’ and the

answer to (2) is ‘no,’ then the question is an improper commitment question, and the trial court

should not allow the question.” Id. at 182–83. Standefer wished to inquire of the venire, “Would

you presume someone guilty if he or she refused a breath test on their refusal alone?” Id. at 183.

                                                   5
Standefer’s proposed question asked the potential jurors to commit to answering an elemental issue

based solely on the existence of one particular fact. But the proposed question would not lead to

a valid challenge for cause. Evidence of one refusing to take a breath test is admissible. See TEX.

TRANSP. CODE ANN. § 724.061 (West 2011). The trial court properly precluded Standefer from

asking the question.

       Haynes claims that Jacobs v. State, decided by this Court last year, supports his argument.

See Jacobs v. State, 506 S.W.3d 127 (Tex. App.—Texarkana 2016, pet. granted). We distinguish

Jacobs from the situation before us now.

       Jacobs wanted to pose questions to the venire regarding the effect of evidence of a prior

sexual-offense conviction, which would likely be admitted in trial. We found the trial court erred

when it required Jacobs, during voir dire, to refer to his prior conviction as an assaultive offense

rather than a sexual offense. Jacobs wanted to ask the venire five specific questions:

   1. Whether they would convict if an “unrelated sexual offense [wa]s proven beyond
   a reasonable doubt,” even if the State failed to prove the offense charged in the current
   trial had not occurred in Bowie County;

   2. Whether they would convict if an “unrelated sexual offense [wa]s proven beyond
   a reasonable doubt,” even if the State failed to prove the offense charged in the current
   trial had not occurred on November 25, 2014;

   3. Whether they would convict if an “unrelated sexual offense [wa]s proven beyond
   a reasonable doubt,” even if the State failed to prove that Jacobs intentionally or
   knowingly digitally penetrated the victim’s sexual organ;

   4. Whether they would convict if an “unrelated sexual offense [wa]s proven beyond
   a reasonable doubt,” if the State “only prove[d] that . . . Jacobs contacted the sexual
   organ of [the victim] with his finger; and



                                                 6
    5. Whether they would convict if an “unrelated sexual offense [wa]s proven beyond
    a reasonable doubt, even if the State failed to prove the victim was younger than
    fourteen years of age when the alleged offense occurred.

Jacobs, 506 S.W.3d at 131–32. There, the trial court found each of Jacobs’ proposed questions

were commitment questions, because each “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.” Id. at 133. We analyzed whether each question satisfied the two Standefer criteria, that

is, that one possible answer to each question must have led to a valid challenge for cause and that

each proposed question “must contain only those facts necessary to test whether a prospective juror

[wa]s challengeable for cause.” Standefer, 59 S.W.3d at 182.

         Questions one, two, and five (regarding proof of venue, offense date, and age of the alleged

victim, respectively) could each lead to a valid challenge for cause, thus meeting the first Standefer

prong.3 Jacobs, 506 S.W.3d at 134. Question three could not. Question three asked if venire-

members would convict based on proof of an unrelated prior sexual offense, notwithstanding

failure by the State to prove intentional or knowing digital penetration of the complainant’s sexual

organ.    As phrased by Jacobs, the question was compound in that it could “be answered

affirmatively if a prospective juror would consider the fact of the prior, unrelated sexual offense

[to] at least partial[ly] support . . . a finding beyond a reasonable doubt that Jacobs had an

intentional or knowing mens rea as to his currently charged behavior.” Id. at 135. In accordance

with Article 38.37 of the Texas Code of Criminal Procedure, it would be permissible for a juror to


3
 These questions inquired about proof of requisite elements for the charged offense. Veniremembers answering yes
to these questions would have convicted based on evidence of another sexual offense but without holding the State to
its burden on an element of the offense.
                                                         7
consider the extraneous offense evidence in resolving whether the element of the offense—

whether Jacobs intentionally or knowingly penetrated the victim’s sexual organ with his finger—

was proven beyond a reasonable doubt. Id. at 134–35.

        Question four met Standefer’s first prong, because that question allowed for consideration

of the extraneous offense only in determining if Jacobs committed a lesser offense, indecency with

a child by contact. “Therefore, a potential juror who would . . . require the State to prove [only]

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.” Id. at 135.

        Having determined that four of Jacobs’ suggested questions would lead to valid challenges

for cause, we next inquired whether those questions, as phrased by the defense, “include[d] only

those facts necessary to lead to a valid challenge for cause.” Id. (citing Standefer, 59 S.W.3d at

183). We concluded that those four questions included only such facts and that, therefore, the trial

court erred in disallowing those four questions. Jacobs offered questions including reference to

“an unrelated sexual offense,” but “did not seek to discuss the specifics” of that offense. Jacobs,

506 S.W.3d at 136. “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 found that this was

proper and that Jacobs therefore “was entitled to question the jury panel about this law, which was

critical to the case.” Id.

        Conversely, Haynes’ question contained the fact that he had been previously adjudicated

of an offense against the same child victim involved in the indictment at bar. Article 38.37 of the

                                                 8
Texas Code of Criminal Procedure allows admission of proof of any of several enumerated

offenses, not just those involving the same victim. This does not meet Standefer’s second criteria.

It was not necessary or proper to pose a question with the specific fact that the complainant in the

pending trial was a child against whom Haynes was previously found to have committed a sexual

assault. Haynes’ question would not have led to a valid challenge for cause and was, therefore, an

improper commitment question.       The trial court was correct in prohibiting Haynes’ use of this

question.

       The trial court did not abuse its discretion in precluding Haynes’ question.

       We affirm the judgment of the trial court.




                                              Josh R. Morriss, III
                                              Chief Justice

Date Submitted:        November 20, 2017
Date Decided:          December 13, 2017

Do Not Publish




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