Jacobs v. State
| Decision Date | 10 October 2018 |
| Docket Number | NO. PD-1411-16,PD-1411-16 |
| Citation | 560 S.W.3d 205 |
| Parties | Joshua JACOBS, Appellant v. The STATE of Texas |
| Court | Texas Court of Criminal Appeals |
Troy Hornsby, Miller, James, Miller & Hornsby, L.L.P., 1725 Galleria Oaks Drive, Texarkana, Texas 75503, for Appellant.
John R. Messinger, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711, Stacey Soule, State's Attorney, Austin, for State of Texas.
Joshua Jacobs was prohibited from asking potential jurors whether, if they knew that he had previously been convicted of a "sexual offense," they could remain impartial in the instant sexual-assault case.1 The trial judge wanted Jacobs to use the phrase "felony offense," but agreed, on Jacobs's request, to let him refer to prior "assaultive offenses" instead.2 The court of appeals held that, in so limiting Jacobs, the trial judge offended his constitutional rights.3 We disagree.
Twelve-year-old "Victoria Whiteman"4 (V.W.) told multiple people that Jacobs had "kissed" and "licked" her chest and "put his finger in [her] privates." A nurse examiner found injuries on one of V.W.'s labia consistent with this type of abuse, and Jacobs's DNA was found on V.W.'s nipple. Neither Jacobs nor V.W. could be excluded as contributors to a two-source DNA sample taken from underneath Jacobs's fingernails. Jacobs was charged with aggravated sexual assault of a child by digital penetration of V.W.'s sexual organ.5
Unfortunately for Jacobs, this was not the first allegation of sexual misconduct with a child that had been leveled against him. In 2010, Jacobs pleaded guilty to "Felony Carnal Knowledge of a Juvenile," a felony offense (as its name would suggest) under the laws of the State of Louisiana.6 As a result, Jacobs would almost certainly be assessed an automatic life sentence if he was found guilty of the instant offense.7 And, by dint of Article 38.37 of the Texas Code of Criminal Procedure, the jury deciding his guilt or innocence would likely learn of this prior offense and be instructed that they could use it as evidence, not only of his character, but also of any "acts performed in conformity" therewith.8
Jacobs therefore quite understandably wanted to identify any potential jurors who, because of an implicit or explicit bias against repeat sexual offenders, would not hold the State to its burden of proving the instant offense beyond a reasonable doubt. To that end, he assembled a series of PowerPoint slides for his voir dire, each bearing the heading, "Innocent UNLESS Proven Guilty."9 These slides strongly suggested that the State would introduce evidence that Jacobs had previously committed some as-yet-unspecified "unrelated sexual offense."10 Specifically, the slides asked, with respect to each successive element of aggravated sexual assault, whether the responding juror would, or "would not[,] require the State to prove beyond a reasonable doubt [a particular element], if evidence of an unrelated sexual offense is proven beyond a reasonable doubt?"11
The trial judge, evidently concerned about "poisoning the jury pool and busting the panel," placed the following limitation on Jacobs's voir dire:
I'm going to allow all six of those questions. I think the only thing I'm going to do, though, is require you to take out that it's a sexual offense. You can substitute felony offense or just offense period, but the fact that it's a sexual offense I'm going to prohibit you from using that language during your voir dire, on those specific questions.
In response to this proposed restriction, Jacobs's counsel proffered the following compromise: "[Given] that the Court is ruling that way, can I use assaultive offense?" To this request, the trial judge assented. So Jacobs conducted his Article 38.37 voir dire by referring primarily to prior "assaultive" offenses. But sometimes he made his point, as the trial judge evidently preferred, by talking about "unrelated offenses" more generally, without any kind of subject-matter qualifiers:
But here's the important part guys, any unrelated offense[ ] doesn't change the State's burden of proof. They still have to prove each element beyond a reasonable doubt, okay? No matter what other evidence they put in, the burden of proof doesn't change. It never changes. Does everybody understand that? Okay.
Nobody on the venire panel indicated that they would hold the State to a lesser burden upon a showing that Jacobs had previously committed an "unrelated" offense.
Jacobs was ultimately found guilty of aggravated sexual assault of a child. He pleaded "true" to the prior-offense enhancement, and the trial judge assessed a life sentence.
The Sixth Court of Appeals concluded that the trial judge abused his discretion in preventing Jacobs from describing the potentially admissible prior convictions as "sexual offense[s]."12 Citing our 2014 opinion in Easley v. State ,13 the court then went on to determine whether this particular abuse of discretion "was a constitutional error or a nonconstitutional error."14 The court of appeals resolved that issue as follows:
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
Applying this standard, the court found that the trial judge's error was harmful and reversed Jacobs's conviction.
In its petition for discretionary review, the State does not contest the court of appeals' conclusion that the trial court erred. Instead, the State argues that the court of appeals "was wrong to conclude that the error was constitutional in dimension." We granted the State's petition to review this limited aspect of the court of appeals' opinion.
Before we proceed, we wish to make a few brief observations regarding Jacobs's points of error on appeal and the State's ground for discretionary review.
Before the Sixth Court of Appeals, Jacobs claimed only that his "constitutionally guaranteed right to counsel" was violated by the trial court's voir dire limitation. He cited, in support of this argument, two opinions from this Court discussing the interplay between an accused's "right to counsel" and the trial court's authority "to impose reasonable restrictions on the exercise of voir dire examination."16 He 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 caselaw precedent. Yet the court of appeals cited Easley for the proposition that, in the face of Jacobs's claim of voir-dire error, its first task was to determine whether the trial court had erred (by disallowing a proper commitment question),17 and its second task was to determine whether that error was "constitutional" or not.18
This approach misreads Easley . Easley does not stand for the proposition that any time an appellant complains of an improper voir dire restriction, the reviewing court should classify that error as either "constitutional" or "nonconstitutional."19 As we shall see, Easley rejected the "overly broad conclusion that every restriction on counsel's voir dire presentation violates an accused's right to counsel."20 It did not upend the elementary rule that, where a harm analysis is appropriate,21 claims of constitutional error are subject to constitutional harm analysis and all other claims of error are subject to non-constitutional harm analysis.22 The court below appears to have agreed with Jacobs that the trial court violated Article I, Section 10 of the Texas Constitution.23 If that is correct, there is only one kind of harm analysis that could possibly apply: the constitutional error standard contained in Rule of Appellate Procedure 44.2(a). To hold otherwise would be to decide that, although the court of appeals found a constitutional violation, it might nevertheless be justified in applying the non-constitutional error standard contained in Rule 44.2(b). This cannot be.
So although the State purports to concede voir-dire error, we perceive the crux of the issue to be whether the trial court committed constitutional error by actually running afoul of one of the two constitutional provisions the court of appeals thought to have been raised by Jacobs on appeal.24 The upshot of this approach is that if we agree that the trial court violated Jacobs's constitutional rights, we will necessarily affirm the court of appeals' decision to apply the constitutional-error harm standard. But if we disagree that a constitutional violation occurred, we will simply overrule Jacobs's claim of constitutional error and remand the case for the court of appeals to address any remaining issues. We turn now to an examination of the relevant constitutional provisions and their application to this case.
"In our discretionary review capacity we review ‘decisions’ of the courts of appeals."25 In this case, the court of appeals decided that the trial court's limitation impinged either Jacobs's Texas constitutional right to "trial by an impartial jury" or his Texas constitutional right "of being heard by himself or counsel."26 Because the State has not complained of this approach, we will proceed on the assumption that it was proper. This means, however, that we must analyze the trial court's conduct under both of...
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