             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                           NO. PD-1411-16


                    JOSHUA JACOBS, Appellant

                                    v.

                        THE STATE OF TEXAS

   ON STATE’S PETITION FOR DISCRETIONARY REVIEW
         FROM THE SIXTH COURT OF APPEALS
                   BOWIE COUNTY

     N EWELL, J., filed a concurring opinion in which A LCALA, J.,
joined.

     For the most part, I agree with the Court’s analysis. Specifically, I

agree with the Court’s legal conclusion that in most cases, though not all,

errors regarding a limitation of voir dire are non-constitutional. But I

disagree with the Court that we have to decide whether this is one of

those rare cases in which the voir dire error is constitutional. Instead, I

disagree with the court of appeals’ conclusion that Appellant’s proposed
                                                                  Jacobs Concurring – 2

voir dire questions in this case were valid commitment questions.

Because I do not believe the trial court abused its discretion in keeping

Appellant from asking his proposed questions, I would save for another

case and another day the debate about which harm-analysis standard is

appropriate.1

       As the court of appeals correctly observed, even though a trial court

should grant defendants great leeway in questioning the jury, we review

a trial court’s decision to limit voir dire under an abuse of discretion

standard.2         Whether a particular question amounts to an improper

commitment question requires a three-step analysis.3 The first step is to

determine if the question is a commitment question.4 The second is to

determine if the question only includes those facts that lead to a valid

challenge for cause.5 The third step is to consider whether the question

included only “necessary facts.” 6


       1
         The only question presented to this Court for review assum es the existence of error.
Consequently, I regard the question of error as subsum ed within the issue granted in light of
the fact that the court of appeals reached that conclusion in its decision below.

       2
           Jacobs v. State, 506 S.W .3d 127, 132 (Tex. App.— Texarkana 2016).

       3
           Lee v. State, 206 S.W .3d 620, 621 (Tex. Crim . App. 2006).

       4
           Lydia v. State, 109 S.W .3d 495, 497 (Tex. Crim . App. 2003).

       5
           Id.

       6
           Lee, 206 S.W .3d at 622.
                                                    Jacobs Concurring – 3

     Here, Appellant sought to question the jury about how it would react

if the State proved that Appellant had previously committed an unrelated

sexual offense. As the court of appeals correctly observed, Jacobs sought

to ask “the prospective jurors whether they would resolve an element of

the State’s case based solely on the State proving an unrelated sexual

offense.”7     The court of appeals held that these questions were valid

commitment questions that would have led to a valid challenge for cause

because Appellant was entitled to a jury that would not be biased by the

prior offense in evaluating the evidence.8 More specifically, the court of

appeals explained that proof that Appellant had committed an unrelated

sexual offense was not relevant to certain elements of the offense, such

as the date of the offense or where the offense was committed.9 Had the

offense been committed and tried before our Legislature’s passage of

Section 2(b) of Article 38.37, I might have agreed.

     But the State is correct that the terms of Article 38.37 allow the jury

to consider the facts of an unrelated extraneous act in considering

whether the State has proven its case beyond a reasonable doubt.


     7
         Jacobs, 506 S.W.3d at 133.

     8
         Id.

     9
         Id. at 134-35.
                                                                Jacobs Concurring – 4

Section 2(b) of Article 38.37 sets out in relevant part:

     Notwithstanding Rules 404 and 405, Texas Rules of Evidence,
     . . . evidence that the defendant has committed a separate
     offense described by Subsection (a)(1) or (2) may be
     admitted in the trial of an alleged offense described by
     Subsection (a)(1) or (2) for any bearing the evidence has on
     relevant matters, including the character of the defendant and
     acts performed in conformity with the character of the
     defendant.10

This statute gives broad license to the State to introduce evidence of

previous sexual offenses committed by a defendant to prove the

defendant’s guilt. Significantly, the evidence can be admitted to prove

the offense under a theory of character conformity. That is, a jury could

conclude that Appellant committed the offense in this case based upon

evidence that he had done it, or something like it, before. In that way,

a previous sexual offense committed by Appellant would be relevant to

every element of the offense because it could be used to establish that

Appellant committed the crime as alleged in the indictment.

     It is startling to consider the scope of the license provided by this

statute.       However, the court of appeals does not appear to have

adequately accounted for that scope in determining that Appellant’s

questions were proper commitment questions. For example, the court of


     10
          T EX . C O D E C RIM . P RO C ., art. 38.37 § 2(b).
                                                                Jacobs Concurring – 5

appeals determined that questions focused on the time and location of

the offense were proper because the unrelated sexual offense was not

relevant to those allegations without also considering whether character

conformity provided that relevance.11               When the court of appeals did

address a possible character conformity theory, it nevertheless limited the

applicability of that theory. The court of appeals essentially required the

unrelated sexual offense to establish a modus operandi by requiring the

acts of the previous offense to mirror those of the present offense.12 But

the modus operandi theory of admissibility is only required when an

extraneous offense cannot be used to show character conformity.13

       In this case, Appellant essentially sought to commit the venire

members to assess his guilt without considering evidence of his prior

sexual offense. Prior to the enactment of Article 38.37, the jury could not

consider a prior sexual offense on a theory of character conformity to




       11
            Jacobs, 506 S.W .3d at 134.

       12
         Id. at 135 (holding that proof of a lesser, uncharged offense would not be relevant
to prove penetration).

       13
         See Owens v. State, 827 S.W .2d 911, 915 (Tex. Crim . App. 1992) (noting that
evidence of a defendant’s particular m odus operandi is a recognized exception to the
general rule precluding extraneous offense evidence because the m odus operandi evidence
tends to prove a m aterial fact at issue, other than propensity).
                                                                   Jacobs Concurring – 6

prove guilt.14 That was law Appellant would have been entitled to rely

upon. And Appellant’s questions would have been proper commitment

questions under those circumstances because they could have revealed

a potential venire member’s inability to follow that law.

       But after the passage of Section 2(b) of Article 38.37, that is no

longer the law. I see little conceptual difference between the questions

proposed by Appellant in this case and a defendant asking “could you be

fair and impartial if the victim is nine years old?” in an indecency case

involving a nine-year-old victim.15 In Barajas v. State, we held that the

latter question was improper.16 If a trial court could properly prohibit that

question, then the trial court’s limitation of Appellant’s voir dire was

equally proper.

       With these thoughts, I concur.

Filed: October 10, 2018

Publish




      14
         See, e.g., Devoe v. State, 354 S.W .3d 457, 469 (Tex. Crim . App. 2011) (“Evidence
of extraneous offenses is not adm issible at the guilt phase of a trial to prove that a
defendant com m itted the charged offense in conform ity with a bad character.”).

      15
            Barajas v. State, 93 S.W .3d 36, 37-38 (Tex. Crim . App. 2002).

       16
            Id. at 41-42.
