ACCEPTED 06-16-00008-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 9/8/2016 4:56:23 PM No. 06-16-0008-CR DEBBIE AUTREY Trial Court No. 14F1096-102 CLERK
IN THE COURT OF APPEALS FOR THE SIXTH SUPREME JUDICIAL DISTRICT FILED IN 6th COURT OF APPEALS AT TEXARKANA, TEXAS TEXARKANA, TEXAS 9/9/2016 10:02:00 AM Joshua Jacobs, DEBBIE AUTREY Appellant Clerk
v.
The State of Texas, State Appealed from the 102nd Judicial District Court Bowie County, Texas
BRIEF FOR THE STATE The State Does Not Request Oral Argument
Respectfully submitted:
Jerry D. Rochelle Criminal District Attorney Bowie County, Texas 601 Main Street Texarkana, Texas 75501 By: Lauren N. Sutton Assistant District Attorney 601 Main Street Texarkana, Texas 75501 Texas Bar No. 24079421 Lauren.sutton@txkusa.org Attorneys for the State In The Court of Appeals For the Sixth Supreme Judicial District At Texarkana, Texas
Joshua Jacobs, § Appellant § § No. 06-16-00008-CR v. § § The State of Texas, § BRIEF FOR THE STATE State § §
Identity of the Parties
The following is a complete list of all the parties to the trial court’s judgment
as required by the provisions of Rule 38.2(a) of the Texas Rules of Appellate
Procedure:
1. Defendant and Appellant:
Joshua Jacobs
2. Attorneys for Appellant at trial:
Will Williams Bowie County Public Defender’s Office 424 W. Broad Street Texarkana, Texas 75501
3. Attorney for appellant on appeal:
Troy Hornsby 1725 Galleria Oaks Drive Texarkana, TX 75503
i 4. Attorney for the State of Texas at trial:
Kelley Crisp Lauren Richards Assistant District Attorneys 601 Main Street Texarkana, Texas 75501
5. Attorney for the State of Texas on Appeal:
Lauren Richards Assistant District Attorney 601 Main Street Texarkana, Texas 75501 Lauren.sutton@txkusa.org
6. Presiding Judge at trial:
Honorable Bobby Lockhart District Court Judge 102nd Judicial District Bowie County, Texas Bi-State Justice Building 100 North State Line Avenue Texarkana, Texas 75501
ii Table of Contents
Identity of the Parties and Counsel ......................................................................... i-ii
Table of Contents ..................................................................................................... iii
Index of Authorities .............................................................................................. iv-v
Statement of the Case................................................................................................. 1
Reply to Points of Error ............................................................................................. 2
Summary of the Argument..................................................................................... 3-4
Argument.............................................................................................................. 5-24
Reply to Points of Error Number One............................................. 5-11 The Appellant’s prior conviction was properly used to enhance his punishment.
Reply to Point of Error Number Two ............................................. 5-11 The trial court did not err is limiting Appellant’s trial counsel’s voir dire on prior extraneous offenses.
Reply to Point of Error Number Three ........................................... 5-11 Appellant’s prior out-of-state conviction is admissible pursuant to Texas Code of Criminal Procedure article 38.37.
Prayer for Relief ....................................................................................................... 25
Certificate of Compliance ........................................................................................ 26
Certificate of Service ............................................................................................... 27
iii Index of Authorities
Cases
Anderson v. State, 394 S.W.3d 531, 536. (Tex. Crim. App. 2013) ...................... 8,12
Atkins v. State, 951 S.W.2d 787 (Tex. Crim. App. 1997)........................................ 14
Barnett v. State, 344 S.W.3d 6 (Tex. App.—Texarkana 2011, pet. ref'd) ............... 14
Brooks v. State, 357 S.W.3d 777 (Tex.App.-Houston [14th Dist.] 2011, pet. ref'd)6,8
Cuevas v. State, 742 S.W.2d 331 (Tex. Crim. App. 1987) ...................................... 14
Easley v. State, 424 S.W.3d 535 (Tex. Crim. App. 2014) ....................................... 16
Ex Parte White, 211 S.W.3d 316 (Tex. Crim. App. 2007) ...................................... 10
Goodwin v. State, 91 S.W.3d 912 (Tex. App—Fort Worth 2002, no pet.) ............. 18
Hanson v. State, 269 S.W.3d 130 (Tex. App.—Amarillo 2008, no pet.) ................ 14
Hill v. State, 426 S.W.3d 868 (Tex. App.—Eastland 2014, pet. ref'd).................... 13
Kuhn v. State, 45 S.W.3d 207 (Tex.App.–Texarkana 2001, pet. ref'd) ..................... 6
Lincicome v. State, 3 S.W.3d 644 (Tex. App.—Amarillo 1999, no pet.)................ 18
Love v. State, 861 S.W.2d 899 (Tex. Crim. App. 1993) .......................................... 18
McCarter v. State, 837 S.W.2d 117 (Tex. Crim. App. 1992) .................................. 13
McDaniel v. State, 3 S.W.3d 176 (Tex. App.—Fort Worth 1999, pet. ref’d) ......... 18
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990 (op. on reh’g) ....... 18
Phelps v. State, 999 S.W.2d 512 (Tex. App.—Eastland 1999, pet. ref’d) .............. 18
Prudholm v. State, 333 S.W.3d 590 (Tex.Crim.App.2011).....................6,8,10,11,12
iv Reichle v. State, 06-14-00073-CR, 2015 WL 392846 (Tex. App.—Texarkana Jan.
30, 2015, pet. ref'd) .............................................................................................15,16
Robinson v. State, 35 S.W.3d 257 (Tex. App.—Texarkana 2000, pet. ref’d) ......... 18
Sherman v. State, 20 S.W.3d 841 (Tex. App.—Texarkana 2000, no pet.).............. 18
Taylor v. State, 93 S.W.3d 487 (Tex. App—Texarkana 2002, pet. ref’d.) ............. 18
Texas Department of Public Safety v. Garcia, 327 S.W. 3d 898 (2010)................... 9
Thompson v. State, 267 S.W.3d 514 (Tex. App.—Austin 2008, pet. ref'd) ............ 13
Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000)................................. 18
Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002) ......................................18
Texas Code of Criminal Procedure
Texas Code Crim. Proc. art. 38..37 § 2(b) ............................................................... 19
Texas Penal Code
Tex. Penal Code § 22.011 ........................................................................................ 11
Tex. Penal Code § 12.42(c)(2) ................................................................................. 16
Texas Rules of Appellate Procedure
Tex. R. App. Proc. 44.2(b) ....................................................................................... 16
Louisiana Revised Statutes
Louisiana Revised Statutes Sec. 14.80 ...................................................................... 9
Louisiana Revised Statutes Sec. 14.81.2(B)(1) ....................................................... 12
v Statement of the Case
Appellant, Joshua Jacobs, was found of guilty by the jury of Aggravated
Sexual Assault of a Child. After pleading “true” to the enhancement that he was
previously convicted of a Felony Carnal Knowledge of a Juvenile, Appellant was
automatically sentenced to Life in the Texas Department of Criminal Justice-
Institutional Division by the Judge. Jacobs then perfected appeal to this Honorable
Court. He now appeals the verdict of the trial court on a three points of error.
1 Reply to Points of Error
REPLY TO POINTS OF ERROR NUMBER ONE:
The Appellant’s prior conviction was properly used to enhance his punishment.
REPLY TO POINT OF ERROR NUMBER TWO:
The trial court did not err is limiting Appellant’s trial counsel’s voir dire on prior extraneous offenses.
REPLY TO POINT OF ERROR NUMBER THREE:
Appellant’s prior out-of-state conviction is admissible pursuant to Texas Code of Criminal Procedure article 38.37.
2 Summary of the Argument
The Appellant’s prior conviction was properly used to enhance his punishment.
Appellant argues the trial court incorrectly found his prior conviction from
Louisiana for Felony Carnal Knowledge of a Juvenile is substantially similar to the
Texas offense of Sexual Assault of a Child. He argues the Louisiana conviction
should don’t have been used to enhance his punishment pursuant to Texas Penal
Code § 12.41(c)(2).
However, the elements of the prior Louisiana offense and Texas offense
each display a high degree of likeness. Additionally, the elements of each are
substantially similar with respect to the individual or public interests protected and
the impact of the elements on the seriousness of the offense. Therefore, the
offenses are substantially similar and the trial court did not abuse its discretion in
making such a determination.
3 REPLY TO POINT OF ERROR NUMBER TWO:
The trial court did not err is limiting Appellant’s trial counsel’s voir dire on prior extraneous offenses.
In his second point of error, the Appellant argues the trial court erred when it
was restricted in voir dire from referring to his prior Louisiana conviction for
felony carnal knowledge of a juvenile as a “sexual offense.” However, the trial
court did not abuse its discretion because the limitation on the defense voir dire
was reasonable.
Appellant’s prior out-of-state conviction is admissible pursuant to Texas Code of Criminal Procedure article 38.37.
In his third point of error, Appellant argues that because his prior conviction
for Felony Carnal Knowledge of a Juvenile is a Louisiana conviction, it is not
admissible under Texas Code of Criminal Procedure art. 38.37. However, nothing
in article 38.37 prohibits the use of a prior conviction or extraneous offense
because the act occurred in another state.
4 Argument
Reply to Points of Error One
The Appellant’s prior conviction was properly used to enhance his punishment.
Appellant argues the trial court incorrectly found his prior conviction from
Louisiana for Felony Carnal Knowledge of a Juvenile is substantially similar to the
Texas offense of Sexual Assault of a Child. He argues the Louisiana conviction
should don’t have been used to enhance his punishment pursuant to Texas Penal
However, the elements of the prior Louisiana offense and Texas offense
each display a high degree of likeness. Additionally, the elements of each are
substantially similar with respect to the individual or public interests protected and
the impact of the elements on the seriousness of the offense. Therefore, the
offenses are substantially similar and the trial court did not abuse its discretion in
Argument and Authorities
A. Standard of Review
Appellant claims that his prior Louisiana offense is not substantially similar
to the offenses listed Penal Code section 12.42(c)(2)(B)(i), (ii), (iii), or (iv) and,
therefore, could not be used to trigger a mandatory life sentence.
5 The reviewing court must review the trial court's interpretation of the
Louisiana and Texas statutes on a de novo basis.1.
B. Application of Law to Facts
Section 12.42 of the Texas Penal Code provides enhanced penalties for
repeat sex offenders.2 Section 12.42(c)(2) effectively creates a “two-strikes policy”
for repeat sex offenders in Texas, embodying the legislature's intent to treat repeat
sex offenders more harshly than other repeat offenders.3 Section 12.42(c)(2)
mandates a life sentence for a defendant convicted of a sexual offense listed in
subsection (c)(2)(A) that he committed after previously having been convicted of
any of the enumerated sexual offenses in subsection (c)(2)(B) or “under the laws of
another state containing elements that are substantially similar to the elements of
an [enumerated] offense.”4
In the present case, the Appellant is a registered sex offender and has been
so designated in this jurisdiction since on or about May 10, 2013. (C.R. p. 260,
Exhibit A, Sex Offender Registration Form.) On his sex offender registration form,
it is noted that the defendant’s out of state conviction was for Carnal Knowledge of
Juvenile and that the registering Texas offense is listed as 1199002, the DPS code
1 See Kuhn v. State, 45 S.W.3d 207, 209 (Tex. App.–Texarkana 2001, pet. ref'd) 2 Prudholm v. State, 333 S.W.3d 590, 592 (Tex. Crim. App. 2011); Brooks v. State, 357 S.W.3d 777, 785 (Tex.App.-Houston [14th Dist.] 2011, pet. ref'd). 3 Prudholm, 333 S.W.3d at 592; Brooks, 357 S.W.3d at 785–86. 4 Prudholm, 333 S.W.3d at 592; Brooks,357 S.W.3d at 786; see also Tex. Penal Code § 12.42(c)(2). 6 for Sexual Assault of a Child. (C.R. p. 260; 262 Exhibit B, Texas Department of
Public Safety’s List of Sexual Offense Codes). The DPS determinations under
Article 62.003, Code of Criminal Procedure of offenses under the laws of the State
of Louisiana clearly state that Felony Carnal Knowledge of a Juvenile is
substantially similar to the Texas Offense of Sexual Assault of a Child. (C.R. p.
264-275, Exhibit C, DPS Determinations List for State of Louisiana).
In this case, Appellant acknowledged through his sexual offender
registration, that his out of state conviction for Felony Carnal Knowledge of a
Juvenile is substantially similar to Sexual Assault of a Child, a Texas offense. For
over two years, the defendant was in compliance with his registration requirements
and has not contested the finding of substantial similarity. It is only now, after the
defendant has reoffended and committed a second sexual assault of a child offense,
and subsequently been sentenced to life in prison, that he argues that the offenses
are not similar.
Appellant does not attack the jury's findings that he was guilty of aggravated
sexual assault of a child. Instead, he argues the trial court erred by determining that
the Louisiana offense of sexual battery qualifies as a substantially similar sexual
offense in Texas for purposes of section 12.42.
Before using a prior conviction from another state for this purpose, the trial
court first must take judicial notice of the relevant out-of-state sexual offense and
7 make a finding that the elements of that offense are substantially similar to the
elements of a Texas sexual offense enumerated in section 12.42(c)(2)(B).5
In determining whether an out-of-state sexual offense contains “substantially
similar” elements, courts use a two-pronged approach.6 First, they must determine
whether the elements of each offense “display a high degree of likeness.”7
Generally, but not always, the analysis focuses on the elements of the offense.8
Next, it must be determined whether the elements are substantially similar with
respect to the individual or public interests protected and the impact of the
elements on the seriousness of the offense.9 The second prong is a two-step
analysis.10 The Court must determine whether there is a similar danger to society
that the statute seeks to prevent, and then whether the class, degree, and
punishment range of the two offenses are similar.11
In the present case, the Appellant’s trial counsel filed “Defendant’s Brief
and Objection to a Finding of Substantial Similarity of an Alleged Conviction from
Louisiana Pursuant to 12.42(c)(2)(B)(v).” (C.R. p. 186). The trial court held a
hearing on the issue and took judicial notice of the Appellant’s Louisiana sexual
offense and made a finding that the elements of that offense are substantially
5 Brooks, 357 S.W.3d at 786. 6 See Prudholm v. State, 333 S.W.3d 590, 593–95 (Tex. Crim. App. 2011). 7 Id. at 594. 8 Anderson v. State, 394 S.W.3d 531, 536. (Tex. Crim. App. 2013). 9 Id. 10 Id. 11 Id. 8 similar to the elements of a Texas sexual offense enumerated in section
12.42(c)(2)(B). (R.R. Vol. 12, p. 61-66;74-77). In making this determination the
trial court took into account the language was almost identical to the Louisiana
statute and when compared the elements displayed a high degree of likeness, and
that the statutes were substantially similar with respect to the individual or public
interests protected and the impact of the elements on the seriousness of the
offenses. (R.R. Vol. 12, p. 76-78). Thus, the trial court determined all prongs of the
substantial similarity analysis weighed in favor of a finding that the two offense are
substantially similar.
It is significant in the substantial similarity test to determine if the person
guilty of the [out of state] law would also be guilty under the Texas law. 12 Here,
the defendant plead guilty to Felony Carnal Knowledge of a Juvenile. Under the
laws of the State of Louisiana, Felony Carnal Knowledge of a Juvenile is
committed when:
(1) A person who is seventeen years of age or older has sexual intercourse, with consent, with a person who is thirteen years of age or older but less than seventeen years of age, when the victim is not the spouse of the offender and when the difference between the age of the victim and the age of the offender is four years or greater.13
12 See Texas Department of Public Safety v. Garcia, 327 S.W.3d 898 (2010). 13 Louisiana Revised Statutes Sec. 14.80. 9 Under the laws of the State of Texas, if an individual has sexual relations
with a juvenile under the age of 17 years, that person would be guilty of Sexual
Assault of a Child. There is no requirement that the two statutes be identical. 14 A
statute from another jurisdiction may be considered to be substantially similar even
if a defendant would not be subject to conviction under the Texas statute. The
critical question appears to be whether the compared offenses protect the same
individual or public interests. In Ex Parte White, the Court of Criminal Appeals
held that a Delaware statute and a Texas statute were substantially similar despite
multiple differences.15
An evaluation of the Prudholm factors establish that the Appellant’s
Louisiana conviction is substantially similar to the Texas statute.
a. Degree of Likeness
Both statutes criminalize the same type of conduct using similar approaches.
While the Texas statute prohibits a wider range of conduct with respect to child
victims than the Louisiana statute, it also prohibits oral, vaginal, or anal intercourse
with children 13 years old but under 17 years old. Like the Texas statute, the
Louisiana statute prohibits oral, vaginal, and anal intercourse with a child victim
13 years or older but under 17 years of age. The statutes further limit the age of the
14 Prudholm v. State, 227 S.W. 3d 590 (Tex. Crim. App. 2011). 15 Ex Parte White, 211 S.W. 3d 316 (Tex. Crim. App. 2007). 10 victim—17 for both Texas and Louisiana.16 One difference in the two is that the
Louisiana statutes requires a consent element with respect to child-victims, while
in the Texas statute, consent of a child-victim is an impossibility. This difference is
not dispositive, and after fully analyzing the elements of each statute, this Court
can conclude the minor differences between the two statutes do not manifest an
intent to punish different prohibited conduct. As a result, the statutes meet the first
prong of Prudholm.
b. Individual or Public Interests Protected
The interest protected by the Louisiana Felony Carnal Knowledge of a
Juvenile statute is clear. The statute aims to safeguard children from improper
sexual contact. Likewise, the Texas Sexual Assault of a Child statute protects the
same public interest. Both statutes serve the same public interest by criminalizing
the same type of contact.
c. Impact of the Elements on the Seriousness of the Offense
The Texas offense of sexual assault of a child is a second-degree felony,
punishable by two to twenty years' imprisonment and a fine not to exceed
$10,000.17 The Louisiana statute punishment range is not less than five years nor
16 See Prudholm, 333 S.W.3d at 594(explaining that a one-year age difference in different states statutory definitions of “child” is a good example of elements that are substantially similar, but not identical). 17 Tex. Penal Code § 22.011. 11 more than 10 years and a fine not to exceed $5,000.18 In Prudholm, the Texas
Court of Criminal Appeals concluded that the California offense of sexual battery
did not satisfy this requirement with respect to the Texas offenses of sexual assault
or aggravated kidnapping.19 The California offense was a misdemeanor with a
sentence of up to six months in prison, while Texas sexual assault is a second-
degree felony with a sentence of up to twenty years' in prison. In this case, the two
charges have much more similar punishment ranges. Therefore, this factor weighs
against a finding that the statutes are “substantially similar.”
No single factor in the analysis is dispositive, so this Court must weigh all
factors before making a determination.20 The elements of the two statutes–the
Louisiana offense of Felony Carnal Knowledge of a Juvenile and the Texas offense
of Sexual Assault of a Child–are “substantially similar.” Both statutes seek to
criminalize specific sexual acts against children. While the penalties for such
conduct are less severe in Louisiana than in Texas, the “degree of likeness” and
similar “interests protected” outweigh the sentencing variation. Therefore, the trial
court was correct in finding that the two offenses were substantially similar.
For these reasons, Appellant’s point of error number one should be
overruled.
18 Louisiana Revised Statutes Sec. 14:81.2(B)(1) 19 See Prudholm, 333 S.W.3d at 599–600. 20 Anderson, 394 S.W.3d at 537. 12 Reply to Point of Error Two
The trial court did not err is limiting Appellant’s trial counsel’s voir dire on prior extraneous offenses.
In his second point of error, the Appellant argues the trial court erred when it
was restricted in voir dire from referring to his prior Louisiana conviction for
felony carnal knowledge of a juvenile as a “sexual offense.” However, the trial
court did not abuse its discretion because the limitation on the defense voir dire
A trial court’s decision to limit voir dire is reviewed under an abuse of
discretion.21 The trial court abuses its discretion when it limits a proper question
concerning a proper area of inquiry.22 Instead, to establish that the trial court
abused its discretion, the complaining party must show that (1) he did not attempt
to prolong voir dire, and (2) the questions he sought to ask were not improper voir
dire questions.23
21 Hill v. State, 426 S.W.3d 868, 874 (Tex. App.—Eastland 2014, pet. ref'd) 22 Thompson v. State, 267 S.W.3d 514, 517 (Tex. App.—Austin 2008, pet. ref'd) (quoting Dinkins v. State, 894 S.W.2d 330, 345 (Tex. Crim. App. 1995)). 23 See McCarter v. State, 837 S.W.2d 117, 121 (Tex. Crim. App. 1992) (applying two-prong test when defendant was in process of asking questions to entire panel, not individual members). 13 B. Application of Law to Facts
Texas courts allow parties to voir dire a jury panel about the law applicable
to the enhancement of punishment but the explanation must be hypothetical and
should not inform the jury of any specific allegation in the enhancement paragraph
of the indictment.24 The use of hypotheticals during voir dire is meant to avoid
“commit[ting] the [prospective] jurors to particular circumstances.”25
Prior to voir dire, the Appellant’s trial counsel submitted questions to the
court which it intended to ask the jury panel. (R.R. Vol. 13, p. 4). The proffered
questions sought to inform the jury that if evidence of a prior sexual offense is
introduced, the jury must still find all elements of the instant offense beyond a
reasonable doubt. After a review of the questions, and hearing arguments from the
defense and the state, the court determined that the defense would be allowed to
ask the questions, but would be prevented to referring to prior offenses as sexual
offenses. (R.R. Vol. 13, p. 13).
It is of special note that the court agreed with the State that it had recently
been extremely difficult seating juries and that voir dire had gotten very confusing
and upsetting for jury panels. (R.R. Vol. 13, p. 12). The Defendant’s questions
24 Hanson v. State, 269 S.W.3d 130, 134 (Tex. App.—Amarillo 2008, no pet.) (citing Jack v. State, 867 S.W.2d 942, 944 (Tex. App.—Beaumont 1993, no pet.)); see Barnett v. State, 344 S.W.3d 6, 20 (Tex. App.—Texarkana 2011, pet. ref'd) (informing jury panel of specific allegations of enhancement is improper). 25 Atkins v. State, 951 S.W.2d 787, 789 (Tex. Crim. App. 1997); see Cuevas v. State, 742 S.W.2d 331, 336 n.6 (Tex. Crim. App. 1987). 14 sought to commit panel members that they would not be influence by the facts of
the extraneous offense, when article 38.37 specifically allows the jury to be so
influence. (R.R. Vol. 13, p. 12). The trial court, in efforts to avoid confusion and
poisoning the panel imposed the reasonable restriction that the defense counsel be
allowed to refer to other felony offenses, but not specifically refer to them as
sexual offense. (R.R. Vol. 13, p. 13).
This Court addresses a similar situation in Reichle v. State, and found the
trial court’s restriction was reasonable.26 In the present case, while discussing the
matter prior to voir dire, the trial court also relied on the guidance from this Court
in Reichle. (R.R. Vol. 13, p. 5). Appellant seeks to distinguish Reichle from the
present case by pointing out the defense in Reichle was precluded from discussing
specific facts of the prior offenses. The State argues that the effect on the panel
would be virtually the same, even though Jacob’s counsel was not going to address
specific facts of the prior offenses, the mention of an unrelated sexual offense
would create the same problematic issues.
By seeking to inform the jury of the fact the defendant had previously been
convicted of a sexual offense, Jacobs trial counsel was seeking a commitment from
the panel that they would not be influenced by the facts of the extraneous offenses,
26 Reichle v. State, 06-14-00073-CR, 2015 WL 392846, at *7 (Tex. App.—Texarkana Jan. 30, 2015, pet. ref'd) 15 even though Article 38.37 specifically allows the jury to be so influenced.27 In this
circumstance, there was no abuse of discretion in the trial court’s limitation of the
presentation of the specific offense during voir dire.
C. Harm Analysis
Should this court determine that trial court abused its discretion and did not
allow the defense to ask appropriate questions, it must next be determined if the
Appellant suffered harm. Generally, the denial of appropriate questioning
during voir dire constitutes non-constitutional error which is subject to
a harm analysis.28
During the defense voir dire, he informed the panel,
“In a trial of this nature, if there’s evidence that a defendant has committed a separate unrelated offense described by Chapter 22 of the Penal Code of assaultive offenses, that can be admitted at the trial for aggravated assault of a trial, and the jury is allowed to use that for any reason, any relevant reason and permissible reason, for the character of the defendant, did he acct on that character. So there’s different reasons you can use it, but before you can use that information, the State has to prove to you beyond a reasonable doubt that that occurred, too, okay? Does that make sense? So if anything like that comes in, the Judge gives you an instruction that says, you can’t even consider this unless you believe it beyond a reasonable doubt. That’s a hard thing to do, to hear something and then not consider it if you don’t think they proved it beyond a reasonable doubt. Does anybody think they’d have a hard problem not considering something if the State didn’t prove it beyond a reasonable doubt?” (R.R. Vol. 13, p. 88). 27 Reichle v. State, 06-14-00073-CR, 2015 WL 392846, at *7 (Tex. App.—Texarkana Jan. 30, 2015, pet. ref'd)(Stating Article 38.37 would allow the jury to consider the extraneous offenses “for any bearing the evidence ha [d] on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.”) 28 See Tex. R. App. Proc. 44.2(b); Easley v. State, 424 S.W.3d 535, 541 (Tex. Crim. App. 2014).
16 The defense continued to reiterate to the jury that they must hold the State to
it’s burden on the unrelated offense before they could use it as evidence of the
instant offense. (R.R. Vol. 13, p. 90).
Appellant was allowed to thoroughly question the panel on this topic. (R.R.
Vol. 13, p. 88-91). It cannot be said that the Appellant was harmed by the trial
court’s limitation on their voir dire. For the above-mentioned reasons, Appellant’s
second point of error should be overruled.
Reply to Point of Error Three
Appellant’s prior out-of-state conviction is admissible pursuant to Texas Code of Criminal Procedure article 38.37.
In his third point of error, Appellant argues that because his prior conviction
for Felony Carnal Knowledge of a Juvenile is a Louisiana conviction, it is not
admissible under Texas Code of Criminal Procedure art. 38.37. However, nothing
in article 38.37 prohibits the use of a prior conviction or extraneous offense
17 Argument and Authorities
A trial court has considerable discretion in determining whether to admit or
exclude evidence.29 When considering whether a trial court’s decision to admit or
exclude evidence is error, an appellate court must determine whether the trial court
abused that discretion.30 This inquiry depends on the facts of each case.31 An abuse
of discretion occurs only when the trial court acts arbitrarily or unreasonably
without reference to any guiding rules or principles.32 Even if the reviewing court
might have reached a different result, the court must uphold the trial court’s
decision to admit or exclude evidence if it was within the “zone of reasonable
disagreement.”33
Appellant claims that because Article 38.37 does not expressly allow for the
admission of out of state offenses or convictions, such should not be admitted into
evidence pursuant to Article 38.37. 29 Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990 (op. on reh’g); McDaniel v. State, 3 S.W.3d 176, 180 (Tex. App.—Fort Worth 1999, pet. ref’d). 30 Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Robinson v. State, 35 S.W.3d 257, 263 (Tex. App.—Texarkana 2000, pet. ref’d). 31 Love v. State, 861 S.W.2d 899, 904 (Tex. Crim. App. 1993); Sherman v. State, 20 S.W.3d 841, 847 (Tex. App.—Texarkana 2000, no pet.). 32 Lincicome v. State, 3 S.W.3d 644, 646 (Tex. App.—Amarillo 1999, no pet.); Phelps v. State, 999 S.W.2d 512 (Tex. App.—Eastland 1999, pet. ref’d); see Montgomery, 810 S.W.2d at 372. 33 Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002) (citing Montgomery, 810 S.W.2d at 391); Weatherred, 15 S.W.3d at 542; Taylor v. State, 93 S.W.3d 487, 505-506 (Tex. App—Texarkana 2002, pet. ref’d.); Goodwin v. State, 91 S.W.3d 912, 917 (Tex. App—Fort Worth 2002, no pet.). 18 The Appellant’s trial counsel filed a ‘Defendant’s Motion to Exclude
Evidence Offered by the State Pursuant to Tex. Code of Crim. Proc. Art. 38.37’
(C.R. p. 178). The basis of the motion was that Article 38.37 only applies to
Appellant’s offenses committed within the State of Texas. The trial court
addressed the motion, and overruled the Appellant’s objection to the evidence on
that basis. (R.R. Vol. 12, p. 26). The reasoning for the court’s ruling was that based
on the court’s interpretation of the case law, the extraneous offense does not have
to be a Texas offense to be introduced under Article 38.37. (R.R. Vol. 12, p. 26).
Appellant argues on appeal that the trial court abused its discretion in
allowing the evidence of Appellant’s prior out-of-state conviction pursuant to
Article 38.37. However, there is no requirement that the separate offense be an
offense committed within the state of Texas.
Texas Code of Criminal Procedure Article 38.37 allows for the admission of
evidence that a defendant previously committed another offense in the same
category as the primary offense for which he is on trial. The statue provides:
(b) Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and subject to Section 2–a, 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.34
34 Tex. Code Crim. Proc. art. 38.37, § 2(b) (emphasis added). 19 The purpose of Article 38.37 is to allow evidence that the defendant acted in
conformity with his character to sexually assault children. In subsection (b) it
clearly states that the separate offense must only be described by Subsection (a)(1)
or (2). The statute does not require that the suspect have been charged with an
offense described in Subsection (a)(1) or (2). It also does not require that the
suspect have been convicted of an offense described in Subsection (a)(1) or (2).
The requirement is that there be evidence the defendant committed an offense, and
that offense must be described in Subsection (a)(1) or (2). If the legislature had
intended to restrict article 38.37 to only conduct occurring in Texas, the statute
would read, ‘..evidence that the defenand has committed a separate offense listed
in Substection (a)(1) or (2).’ Instead, it only requires that the separate offense be
described by the acts listed in Subsection (a)(1) or (2). It has in dispute that the
separate offense committed by the Appellant in Louisiana, if the conduct occurred
in Texas, would be described as Sexual Assault of a Child, which is listed in
Subsection (a)(1).
To preclude the introduction of such evidence based on a geographic
restriction would reach an absurd result. The fact that the defendant committed
other sexual offenses against children but they occurred in another state should not
exempt such conduct from being introduced at his trial for a subsequent sexual
offense against a child. Had the Appellant committed the same conduct for which
20 he was found guilty in Louisiana, he would be guilty under the Texas Penal Code
of Sexual Assault of a Child.
Appellant cites no binding precedent for his contention that an out-of-state
conviction should not be admissible under Texas Code of Criminal Procedure
article 38.37, but admits this is an issue of first impression. His contention is based
solely on an interpretation of the statute which would produce absurd results.
For the above-mentioned reasons, Appellant’s third point of error should be
21 Prayer for Relief
WHEREFORE, PREMISES CONSIDERED, there being legal and
competent evidence sufficient to justify the conviction and punishment assessed in
this case and no reversible error appearing in the record of the trial of the case, the
State of Texas respectfully prays that this Honorable Court affirm the judgment
and sentence of the trial court below.
Jerry D. Rochelle Criminal District Attorney Bowie County, Texas 601 Main Street Texarkana, Texas 75501 Phone: (903) 735-4800 Fax: (903) 735-4819
_/s/ Lauren N. Sutton___________ By: Lauren N. Sutton Assistant District Attorney 601 Main Street Texarkana, Texas 75501 Phone: (903) 735-4800 Fax: (903) 735-4819 Lauren.sutton@txkusa.org
Attorneys for the State
22 Certificate of Compliance
I, Lauren N. Richards, certify that, pursuant to Rule 9 of the Texas Rules of
Appellate Procedure, Appellee’s Brief contains 4,054 words, exclusive of the
caption, identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, certificate of compliance, and appendix.
/s/ Lauren N. Richards Lauren N. Richards
23 Certificate of Service
I, Lauren N. Richards, certify that I have served a true and correct copy of
the foregoing Brief for the State upon Mr. Troy Hornsby, Attorney for Appellant,
on this the 8rd day of September 2016.
__/s/ Lauren N. Richards_________ Lauren N. Richards