In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-24-00299-CR
NATHANIEL NEUSER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 140th District Court Lubbock County, Texas Trial Court No. DC-2023-CR-2692, Honorable Douglas H. Freitag, Presiding
November 5, 2025 MEMORANDUM OPINION Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
Nathaniel Neuser appeals from his multiple convictions relating to indecency with
and injury to a child. Six issues pend for review. We address the first, for it is dispositive
of the appeal and reverse.
Background
The circumstances concern sexual and physical abuse suffered by a four-year-old
child, JN, at the hands of his biological parents and grandmother. Appellant Neuser was
JN’s biological father. At trial on charges of indecency and injury to a child, medical staff testified that
neurological injuries as a consequence of the chronic abuse suffered by JN resulted in
global delays in his mental development. As one doctor explained, the child “has a
damaged developing brain with multiple neurodevelopmental disorders” impacting every
facet of his life. “And in this case it’s motor, it’s social, it’s emotional, it’s behavioral, it’s
cognitive. It’s every aspect of this child’s functioning.” The defensive theory advanced
below focused on some genetic abnormality that could be the cause of JN’s neurological,
mental, and physiological deficits.
The jury found appellant guilty of indecency with a child by sexual contact (a lesser-
included offense of aggravated sexual assault of a child, as charged); indecency with a
child by sexual contact; injury to child by an act causing serious mental deficiency,
impairment, or injury (using his hand as a deadly weapon); and injury to a child by
omission causing serious mental deficiency, impairment, or injury. Appellant appealed
and presented six issues for our review.
Issue One: Voir Dire
Appellant initially asserts that the trial court improperly limited his voir dire and
denied his challenges for cause. Allegedly, “[d]efense counsel attempted to further
question several jurors who admitted they could not consider the low end of the
punishment range or would ‘always or almost always’ believe police over other witnesses.
The court, however, deemed these inquiries improper, refused to allow further
examination, and denied the challenges for cause.” We sustain the issue. 1
1 The State argues that appellant failed to preserve his complaint. He allegedly so failed because he did not inform the court of the specific question or questions he wanted to ask. Yet, the circumstances at bar liken not to a situation where the opportunity to ask a particular question was denied. Rather, they compare to a situation where the trial court refused to undertake individualized questioning of jurors who 2 Bias Regarding Punishment
Our review begins with voir dire on punishment. Comments from the trial court
best frame the debate at bar. The court rejected defense counsel’s request for
individualized questioning of those veniremen who voiced hesitance in their ability to
“foresee” circumstances in which certain punishment would “be appropriate.” It explained
as follows:
1) Well, just so we’re clear, Mr. Reese asked can they foresee something being an appropriate punishment. That is not an appropriate question to disqualify a juror by being able to consider the full range of punishment. Can you see something as being the appropriate punishment is not can you consider the full range of punishment. I ain’t talking to everybody that said they wouldn’t consider something inappropriate. That’s an improper commitment question and not a reason to disqualify a juror. That was all of the injury questions were phrased that way[;]
2) On the injury questions you asked can you foresee something as being an appropriate punishment. Not could they consider the range of punishment. They could consider it and still decide it’s not appropriate[;] and,
3) You said, “Can you foresee it being appropriate?” I wrote it down.
Prior to that, counsel for appellant asked the venire the following:
1) If you found somebody guilty of any of those – I mean, that’s – you know, aggravated sexual assault of a child, right? If you found somebody guilty, you’re back there beyond a reasonable doubt, is there any set of circumstances where you couldn’t – the range of punishment is five to 99 or life, right? Is there anybody here that based on what I’m telling you you could not consider the full range of punishment including five years in the penitentiary?[;]
indicated impermissible bias. The questions asked by defense counsel purportedly did not trigger the need for further inquiry, according to the court. They did not because it viewed them as improper questions. Yet, they actually covered a very topic deemed appropriate by our Court of Criminal Appeals, as we will explain. And the responses thereto indicated bias warranting further questioning. Simply put, the trial court knew of what defense counsel desired but denied it. So, error was preserved. TEX. R. APP. P. 33.1(a). Had appellant so illustrated in responding to the State’s contention, he could have avoided the use of such distasteful and non-professional characterizations of that contention as requiring “vomit” and being “ticky- tacky.” Preservation of error generally is mandatory, even though an appellant may think otherwise. 3 2) Do y’all understand the question I’m asking? . . . Intentionally or knowingly, go back there and you’re in the jury room, you’ve found somebody guilty of aggravated sexual assault of a child through any means that we just talked about, right, and you could not consider the full range of punishment including the lower end?[;]
3) And there is all kinds of circumstances, right? But, you know, you found guilty aggravated sexual assault of a child, can you consider the full range including the lower end of five? Anybody over here can’t do it, just raise your placard.[;]
4) You got – and – so you’ve gone into the back, you found a defendant guilty of indecency with a child, all right, by sexual contact. Is there anybody here that can’t foresee a set of circumstances where the lower end of the punishment range would be appropriate? Just can’t do it. Just can’t foresee – “I understand there’s all different kinds of circumstances, but just I can’t foresee any set of circumstances where the lower end would be appropriate”?[;]
5) And the range of punishment for that one is five to 99 years in the penitentiary, or probation. And probation is only eligible if they’re up to 10 years. 10 years or lower on the sentence, okay? You have to be able to consider the full range of punishment, and that’s anywhere from five to 99 years in the penitentiary up to and including probation if you sentence them to under 10, okay? Everybody understand what I’m asking? Intentionally or knowingly causing serious bodily injury by act or omission, serious bodily injury, serious mental impairment, all right? You’re back in that jury room, you’ve found somebody guilty of intentionally or knowingly causing serious bodily injury, serious mental impairment, is there anybody on this side that couldn’t consider – you know, it’s like, “I understand. I understand what we found him guilty of. I just can’t foresee, I can’t think of a set of circumstances where the lower end of the punishment range, that being five and/or probation would be appropriate. Just can’t foresee it, you know. I just can’t do it. I can’t foresee it.”[;]
6) [I]t’s meaningful consideration to the full range of punishment[;]
7) Some people just, “I know there’s different circumstances. I know there’s all different kind of facts, but I can’t give meaningful consideration because I can’t think of a situation where it would be appropriate, where the lower end including probation would be appropriate.” Anybody on this side feel like that when we’re talking about intentionally or knowingly by act or omission causing serious bodily injury, serious mental impairment?[;] [and]
4 8) [Regarding reckless injury to a child and asking]: So same question. Can anybody here – and the law says you’ve got to consider the full range of punishment, two to 20 years and up to and including probation if the sentence is 10 years or less. Does anybody here cannot foresee a set of circumstances where the lower end of that punishment range would be appropriate including probation?
(Emphasis added). With this in mind, we observe the following.
Asking veniremen if they could consider the full range of punishment falls within
the realm of a permissible commitment question. See Weaver v. State, 355 S.W.3d 911,
913 (Tex. App.—Amarillo 2011, pet. ref’d) (stating that “[n]ot all commitment questions
are improper” and “[f]or instance, asking a juror if he is able to ‘consider’ the full range of
punishment is a proper commitment question”). And, that counsel alluded to probation
or the lower end of the punishment spectrum when inquiring if the pool members could
consider the full range is similarly proper; such queries serve to highlight the ends of the
spectrum. As said in Cardenas v. State, 325 S.W.3d 179, 184 (Tex. Crim. App. 2010),
“[b]oth the State and defense are entitled to jurors who can consider the entire range of
punishment for the particular . . . offense—i.e., from the maximum to the minimum and all
points in between.”) Id. at 184. Had counsel structured his questions as inquiring if venire
members could “give” a certain punishment, that would be improper, however. See
Weaver, 355 S.W.3d at 913 (stating that “while jurors must be able to ‘consider’ the full
range of punishment, they cannot be required to commit to ‘giving’ a certain punishment”).
Yet, he did not.
Rather, defense counsel began interspersing his queries with phrases like “foresee
a set of circumstances” and “appropriate punishment.” And, it was those phrases deemed
objectionable by the trial court. This was so despite the court utilizing rather identical
language when individually questioning venire members other than those designated by 5 defense counsel and who indicated concern with considering the full range of punishment.
For instance, it asked: 1) “can you envision a scenario where you were on a jury that
has convicted someone . . . where you could consider the appropriate punishment as
being 25 years imprisonment, or . . . 25 years imprisonment as an appropriate
punishment?”; 2) “can you envision a scenario where you’re on a jury that convicted
someone . . . could [you] give meaningful consideration to 25 years in the penitentiary as
the appropriate punishment?”; 3) “is there a scenario where you could consider . . .
could consider the appropriate punishment as a minimum being five years
confinement”; 4) “[i]s there a scenario you can think of where . . . where you [can]
consider two years as the appropriate punishment?”; 5) “is there a scenario that you
– where you could consider 20 years as the appropriate punishment?”; 6) “can you
envision a scenario where you’re on a jury that convicts . . . where you could consider
two years as an appropriate punishment?”; 7) “[t]he question I have is, is there a
scenario where you could consider where you’re on a jury that’s convicted someone . . .
where you could consider the appropriate punishment as being two years
confinement”; and 8) could you “envision a scenario where you were on a jury and you
had convicted someone of that charge and you could consider life imprisonment as an
appropriate punishment?” (Emphasis added). “Envision a scenario” differs in no
substantive way from “foresee a set of circumstances” or “think of a situation.” All three
invite the listener to perceive scenarios, circumstances, or situations which may influence
his or her decision. Reasonable minds cannot interpret them otherwise given the totality
of circumstances before us. And, more importantly, the trial court utilized that verbiage
6 in deciding whether the venire members it opted to question were lawfully capable of
serving.
In returning to Cardenas, we see that inquires of the ilk uttered by both defense
counsel and the trial court are proper. The statement that “[j]urors must be able to
consider both ‘a situation in which the minimum penalty would be appropriate and . . .
a situation in which the maximum penalty would be appropriate’” illustrates as much.
Id. at 184 (emphasis added). Indeed, identical sentiment was voiced by the same court
years earlier. See Fuller v. State, 829 S.W.2d 191, 200 (Tex. Crim. App. 1992) (en banc)
(requiring jurors to “be able, in a sense, to conceive both of a situation in which the
minimum penalty would be appropriate and of a situation in which the maximum penalty
would be appropriate”); see also Dixon v. State, No. 07-16-00058-CR, 2022 Tex. App.
LEXIS 268, at *36 (Tex. App.—Amarillo Jan. 13, 2022 pet. ref’d) (mem. op., not
designated for publication) (same). Mandating that prospective jurors be able to consider
“a situation in which” the minimum and maximum penalty would “be appropriate”
necessarily invites inquiry into whether they can envision, foresee, or think of such
situations. Given this, it is illogical to say one cannot ask if jurors could “envision,”
“foresee,” or “think of” scenarios where the minimum, maximum, and everything in
between would or would not be appropriate when controlling authorities require them to
be able to do just that. See Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002)
(en banc) (stating that a “question is proper if it seeks to discover a juror’s views on an
issue applicable to the case”).
In so concluding, we do not ignore language in Ladd v. State, 3 S.W.3d 547, 559
(Tex. Crim. App. 1999), stating that “a venireman is not challengeable for cause simply
7 because he cannot immediately envision a scenario in which the minimum punishment
would be appropriate.” One must place the quote within context. The court followed it
with the following: “[t]he mere fact that a venireman cannot envision such a scenario
during voir dire does not indicate that he could not consider the minimum punishment if
an appropriate scenario presented itself at trial.” Id. The topic being addressed was
whether the mere inability to immediately envision such scenarios rendered the
venireman challengeable for cause. Nothing was said about such an inability being
enough to relieve the trial court from engaging in individualized questioning to determine
if the venireman could comply with Cardenas and Fuller. In other words, such an inability
alone may not mean the venire members were, ipso facto, impermissibly biased. Nor
does it mean that further individualized interrogation is impermissible or unwarranted.
And, that is what appellant sought at bar . . . an opportunity for individualized questioning
when particular venireman evinced such an inability. He was denied the chance to garner
more information to effectively assess the bona fides of an ensuing challenge for cause.
So, while Ladd is informative, it is not controlling under the circumstances at bar. And
that seems particularly so here for one other reason.
The questions the Ladd court viewed as, not alone, forming the basis of a
successful challenge were the very questions asked by the trial court to determine
whether some veniremen were challengeable for cause per Cardenas and Fuller. So,
while answers to them alone may not require removal of veniremen, the trial court itself
deemed them relevant to and proper for assessing bias.
Additionally, defense counsel’s questions did not cross the threshold into
impermissible commitment queries. He omitted from them facts which would purportedly
8 warrant particular punishment. See Cardenas, 325 S.W.3d at 184 (stating that
permissible boundaries may be crossed when the question includes verbiage asking
about the consideration of particular punishment based on interjected evidentiary facts).
They merely dealt with the consideration of the full range of punishment and envisioning,
contemplating, thinking of, or foreseeing circumstances where that could or could not be
done.
No doubt, a trial court has broad discretion to control voir dire. Woodall v. State,
350 S.W.3d 691, 695 (Tex. App.—Amarillo 2011, no pet.). That discretion extends to
both the topics addressed and the form and substance of the questions used to address
them. Jacobs v. State, 560 S.W.3d 205, 210 (Tex. Crim. App. 2018). So too does its
discretion encompass the decision to perform individualized voir dire of particular
venireman. Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005). And, discretion
is not abused so long as the decision falls within the zone of reasonable disagreement.
Weaver, 355 S.W.3d at 913. Nor is it abused, in the voir dire setting, when the trial court
refuses “questions that only ‘might be helpful’ in examining the venire for bias.” Jacobs,
560 S.W.3d at 212. But, it is abused when the decision is arbitrary or unreasonable, State
v. Mechler, 153 S.W.3d 435, 439–40 (Tex. Crim. App. 2005); when it prohibits asking a
proper question about a proper area of inquiry, Fuller, 363 S.W.3d at 585 (quoting Sells
v. State, 121 S.W.3d 748 (Tex. Crim. App. 2003)); Barajas, 93 S.W.3d at 38; when voir
dire limitations render the defendant’s trial fundamentally unfair, Jacobs, 560 S.W.3d at
212 (quoting Mu’Min v. Virginia, 500 U.S. 415, 425–26, 111 S. Ct. 1899, 114 L. Ed. 2d
493 (1991)); or when it applies the wrong legal standard, Henderson v. State, No. 02-15-
9 00397-CR, 2017 Tex. App. LEXIS 8971, at *38–39 (Tex. App.—Fort Worth Sept. 21,
2017, pet. ref’d) (mem. op., not designated for publication).
There is no question that the delving into the ability of venire members to envision
situations where the full range of punishment would be “appropriate” is a proper area of
inquiry. Again, our Court of Criminal Appeals held as much in Cardenas and Fuller. That
defense counsel broached the subject matter with the venire is clear, as is that many in
the pool evinced an inability to do the very thing required of jurors by Cardenas and Fuller.
Equally clear is the trial court’s 1) refusal to submit the latter veniremen to individualized
questioning to assess their ability to comply with the dictate of Cardenas and Fuller, 2)
decision to submit to individualized questioning those veniremen identified by the State
as unable to consider the full range of punishment, and 3) utilization of questions virtually
identical to those of defense counsel when interrogating the veniremen identified by the
State. Defense counsel sought more than merely questioning which “may be helpful” but,
rather, that which was necessary to determine the veniremen’s ability to follow the law.
And, together these circumstances, when coupled with the application of the wrong legal
standard, moved the trial court’s decision to forgo individualized questioning into the
realm of exceeded or abused discretion. Thus, we sustain this aspect of Issue One.
Bias Toward Certain Witness Testimony
Next, we turn to the second voir dire error voiced by appellant. It pertained to
veniremen allegedly having a penchant to place greater credibility on testimony of law
enforcement officers. As explained by appellant, the questions revealed that those
veniremen “would always or almost always believe police officers over other witnesses.”
10 Thus, they allegedly were subject to challenge for cause. We sustain this contention, as
well.
During voir dire, defense counsel posed the questions: 1) “before hearing anything
from them, do you believe the law enforcement officers to be more truthful than other
witnesses?”; 2) “[s]o the fact they have a badge and a gun, you don’t know anything about
them, . . . would you believe that they’re more truthful than other witnesses? Always or
almost always?”; and 3) “[s]o again can you hold up – if you answered yes always, or
almost always to that, please raise your card there.” Approximately 19 veniremen raised
their hands. Yet, the trial court agreed to individually question only one of them. It refused
to do so regarding the others, stating 1) “I ain’t bringing up everybody, because I agree
the way that question was asked was not” proper; 2) the court did not “believe that to be
a proper challenge for cause question the way it was asked”; 3) “[i]t’s an improper
question to ask is it’s a balance – it’s not the basis to disqualify somebody when you say
I believe most of the time are truthful”; 4) “[a]lmost always isn’t always”; and 5) “[i]t’s
already 4:43, we’re not going to waste any more time.” In other words, the trial court set
the threshold for further questioning at whether the respondents said they would “always”
assign greater credibility to law enforcement officials who testified. Time constraints
prevented it from individually questioning those who merely indicated that they would
“almost always” assign police personnel greater credibility. More importantly, of the 19
who raised their hand and did not undergo individualized questioning, one was selected
for the jury while another was chosen as an alternate.
Veniremen are challengeable for cause if they cannot impartially judge the
credibility of witnesses. Ladd, 3. S.W.3d at 560. “[T]his means only that jurors must be
11 open-minded and persuadable, with no extreme or absolute positions regarding the
credibility of any witness.” Id. They are not “challengeable for cause simply because they
would give certain classes of witnesses a slight edge in terms of credibility.” Id. This
language does not focus on absolutes but, rather, establishes an acceptable range. If
this were not so, then the Court of Criminal Appeals would have had no reason to include
the terms “extreme” and “slight edge” in its description of the test. Those terms, when
compared to “absolute,” reveal that the bias favoring the certain class of witness need not
be complete or total. Rather, it need only approach or fall close to that end of the spectrum
to render it “extreme,” and, therefore, impermissible. And, that was the tenor of defense
counsel’s questions: “[W]ould you believe that they’re more truthful than other witnesses?
Always or almost always?” The questions focused on the spectrum’s end reflecting
absolute and extreme, both of which reveal unacceptable bias. So, the questions posed
were legitimate. They also were enough to render a venireman challengeable for cause
if the responses given fell within that sector of the spectrum. And, therein lies the problem.
The responses provided by the 19 venireman alluded to above fell within the
unacceptable end of the spectrum. That made the members subject to a legitimate
challenge for cause unless rehabilitated. Yet, the trial court eschewed rehabilitative
efforts in all but one instance. And, the remainder having underwent no further
examination despite appellant’s request, they remained within that end of the spectrum.
More importantly, the venire member ultimately selected for the jury fell within the
unacceptable end of the spectrum; she was not rehabilitated.
The record further illustrates that appellant completed the steps necessary to both
preserve his complaint for review and obtain reversal. The trial court denied his requested
12 challenges for cause and denied his request for additional preemptory challenges after
utilizing all those originally allotted against the unduly biased individuals. So too did
appellant identify the impermissibly biased juror ultimately seated on the jury and which
he would have struck if additional challenges were granted. See Davis v. State, 329
S.W.3d 798, 807 (Tex. Crim. App. 2010) (describing the steps to perfect for review denied
challenges for cause and explaining that a defendant is harmed when using a preemptory
strike to remove a venire member who the trial court erred in refusing to remove per a
legitimate challenge for cause).
Having found reversible error, we sustain issue one. Our decision relieves us from
having to address appellant’s remaining issues. Thus, we reverse appellant’s four
convictions and judgments memorializing same and remand for further proceedings.
Brian Quinn Chief Justice