October 12, 2018

Texas Court of Criminal Appeals

Jacobs v. State

Nos. PD-1411-16                               10/10/18


Did the trial court abuse its discretion by preventing the defense from asking voir dire panelists if they could remain impartial given the defendant’s prior convictions for a “sexual offense?”


No. A trial court has broad discretion to impose reasonable limitations on voir dire. Here, the defendant’s trial was not fundamentally unfair because he was able to question the venire panel and commit potential jurors to the general proposition that “unrelated offenses do not change the State’s burden of proof.”  Read opinion.

Concurrence (Yeary, J.):

The defense should have been able to ask the venire panel specific questions about bias involving past “sexual offense” convictions because the prior conviction would be entered as character-conformity evidence at trial. However, because this error was not constitutional error, the Court correctly reversed the court of appeals and remanded for further proceedings. Read opinion.

Concurrence (Newell, J.):

“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 [the defendant’s] proposed voir dire questions in this case were valid commitment questions. Because I do not believe the trial court abused its discretion in keeping [the defendant] from asking his proposed questions, I would save for another case and another day the debate about which harm-analysis standard is appropriate.” Read opinion.

Dissent (Richardson, J.):

“I agree with the holding of the court of appeals, and I would affirm its decision. Because the majority does not, respectfully, I dissent. … The trial court’s erroneous restriction on voir dire prevented [the defendant’s] counsel from asking what he needed to ask in order to be able to select an impartial jury. The reason this erroneous restriction hindered [the defendant’s] ability to select an impartial jury is because of Texas Code of Criminal Procedure article 38.37, which allowed the State to introduce [the defendant’s] prior extraneous sexual offense during guilt/innocence.” Read opinion.


The majority opinion does not necessarily deal with whether the trial court erred in preventing the defense from asking certain questions during voir dire. Rather, it holds only that, whatever error might have existed in this case, it was not constitutional in nature. In that respect, this opinion is likely to provide little help to prosecutors in deciding what questions the State can or cannot object to during a defense voir dire. The majority opinion states only that most of these types of claims are not constitutional in nature, reaffirming Easley v. State.


New mandatory Brady training available online

TDCAA’s new state-mandated Brady training video is now available online through our website. As required by that statute (which went into effect on January 1, 2014), every attorney prosecuting a jailable criminal offense must complete one hour of instruction on a prosecutor’s duty to disclose such evidence and information within 180 days of assuming those duties, and Court rules require prosecutors to take a refresher course in the fourth year after completing that initial course. Our new 2018 course satisfies either requirement, and successful completion of the course will be recorded by TDCAA and shared with the Court as proof of satisfying this state mandate. Those who complete the course will also receive one hour of MCLE ethics credit from the State Bar of Texas. Visit our homepage to access and complete this course.

TDCJ fingerprint/pen packet policy change

Beginning Oct. 1, 2018, TDCJ will no longer be including offender fingerprints with pen packet requests. Fingerprints taken before 2010 may still be available, however. Further information is available here.

Jury selection training

Registration for Jury Selection in Impaired Driving Prosecutions is now open. This free 4-hour program will be held in three cities (Richmond, Rockwall, and San Antonio) on Friday, December 7. More information and registration links are available here.