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JACOBS, JOSHUA

PD-1411-16 04/12/2017

"Is it constitutional error to prevent defense counsel from asking a question during voir dire that could give rise to a valid challenge for cause?"

Jacobs was charged with aggravated sexual assault of a child. Because he previously committed a sexual offense against a child, defense counsel wanted to address Tex. Code Crim. Proc. art. 38.37 in voir dire. Article 38.37 permits the admission of extraneous sexual 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." Defense counsel wanted to ask the panel whether it would hold the State to its burden on the charged offense even if an extraneous sexual offense was proven beyond a reasonable doubt. The trial court permitted questioning but insisted that counsel refer to the extraneous offense as "assaultive" rather than "sexual."

The court of appeals reversed, finding constitutional harm. It noted Easley v. State, 424 S.W.3d 535 (Tex. Crim. App. 2014), in which the Court of Criminal Appeals held that erroneous limitation on voir dire is not a per se violation of the right to counsel subject to the constitutional harm standard. The court of appeals distinguished Easley because it did not deal with a question that could give rise to a strike for cause. It held that "having an unqualified veniremember on the jury is a violation of the defendant's right to an impartial jury" and is therefore constitutional error.

The State agrees that the limitation on voir dire was improper but argues that the error was not constitutional in dimension. The State argues that, as in Easley, the limitation on Jacobs's voir dire was not so substantial that he was denied the right to counsel; counsel thoroughly questioned the panel on its willingness to hold the State to its burden of proof. The State also argues that finding constitutional error each time a "cause" question is denied is just the kind of per se rule Easley abandoned.

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