IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1411-16

JOSHUA JACOBS, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE SIXTH COURT OF APPEALS

BOWIE COUNTY

YEARY, J., filed a concurring opinion in which HERVEY, J., joined.

CONCURRING OPINION

I am much inclined to agree with Judge Richardson that the trial court erred in

disallowing Appellant’s question during voir dire. Under Article 38.37, Section 2(b), of the

Code of Criminal Procedure, his prior conviction for a felony offense involving sexual abuse

of a child would be admissible against him at the guilt phase of his trial. TEX. CODE CRIM.

PROC. art. 38.37, § 2(b). Pursuant to that statute, the jury would be authorized to consider that

prior conviction as so-called “character-conformity” evidence—some evidence supporting

a finding that Appellant committed the offense charged in this case from the fact that he had
JACOBS — 2

committed a similar offense in the past. Id. That “character-conformity” evidence was

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therefore available for the State to invoke in trying to persuade the jury that Appellant was

guilty of the charged offense to a level of confidence of beyond a reasonable doubt. What the

jurors were not authorized to do, however, was to rely on Appellant’s prior conviction as an

excuse to find him guilty of the charged offense in the event that the State’s evidence failed

to convince them of his guilt to that heightened level of confidence—just because he has

been convicted of such an offense before. Appellant was entitled to ask proper commitment

questions to try to expose any potential juror who failed to appreciate this subtle distinction,

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and his voir dire questions were explicitly designed to do just that.

But I definitely agree with the Court’s conclusion that any such error was not one of

constitutional dimension,so as to invoke the lessrigorous harm standard provided for in Rule

44.2(a) of the Rules of Appellate Procedure. TEX. R. APP. P. 44.2(a). I also agree with the

Court that we need not even address the question of non-constitutional error at this juncture.

But I do not interpret the Court’s opinion necessarily to foreclose the court of appeals from

visiting the question of non-constitutional error on remand, should it find such a claim to

have been both preserved and fairly raised by Appellant’s brief on appeal (about which I

This is not to suggest that character-conformity evidence that is admissible under Article 1

38.37 could suffice, by itself, to provide legally sufficient evidence in satisfaction of Jackson v.

Virginia, 443 U.S. 307 (1979).

“A commitment question can be proper or improper, depending on whether the question 2

leads to a valid challenge for cause. For a commitment question to be proper, one of the possible

answers to that question must give rise to a valid challenge for cause.” Woods v. State, 152 S.W.3d

105, 109 (Tex. Crim. App. 2004) (footnotes omitted).
JACOBS — 3

express no opinion at present). With that understanding, I join the Court’s opinion reversing

the judgment of the court of appeals and remanding the cause for further proceedings.

FILED: October 10, 2018

PUBLISH