No. 06

- 16 -0008- CR Trial Court No. 14F1096-102


### I N 

### T HE 

### C OURT 

### O F 

### A PPEALS 

### F OR 

### T HE 

### S IXTH 

### S UPREME 

### J UDICIAL 

### D ISTRICT



### A T 

### T EXARKANA 

### , T EXAS 

### Joshua Jacobs, Appellant

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 ACCEPTED 06-16-00008-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 9/8/2016 4:56:23 PM DEBBIE AUTREY

CLERKi In The Court of Appeals For the Sixth Supreme Judicial District At Texarkana, Texas

Joshua Jacobs , §

Appellant § § No. 06

- 1 6

- 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 a ppeal: Troy Hornsby 1725 Galleria Oaks Drive Texarkana, TX 75503ii

4. Attorney for the State of Texas at trial: Kelley Crisp Lauren Richards Assistant District Attorney s 601 Main Street Texarkana, Texas 75501
5. Attorney for the State of Texas on Appeal:
Lauren R ichards 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 Sta te Line Avenue Texarkana, Texas 75501iii 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 Point s 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 Compl iance

................................ ................................ ........................ 26
Certificate of Service

................................ ................................ ............................... 27iv 

### 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. 199 7)

................................ ........ 14
Barnett v. State , 344 S.W.3d 6 (Tex. A pp.

— Texarkana 20 11, pet. ref'd)

............... 14
Brooks v. State , 357 S.W.3d 777 (Te x.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)

................................ ....... 1 6
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.2 d 117 (Tex. Crim. App. 1992)

................................ .. 13
McDaniel v. State , 3 S.W.3d 176 (Tex. App.

— Fort Worth 1999, p et. 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. A pp.

— Eastlan d 1999, pet. ref’d)

.............. 18
Prudholm v. State , 333 S.W.3 d 590 (Tex.Crim.App.2011)

..................... 6,8,10,11,12v

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. Ap p.

— 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. Ap p

— 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 Co de Crim. Proc. art. 38..37 § 2(b)

................................ ............................... 19


### Te xas 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)

................................ ....................... 121 

### 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 w as previously convicted of a Felony Carnal Knowledge of a Juvenile, Appellant was automatically sentenced to Life in the Texas Department of Criminal Justi ce
Institutional Division by t he Judge. Jacobs then perfected a ppeal to this Honorable
Court. H e now appeals the v er dic t of the trial court on a three points of error.2 

### Reply to Points of Error

R EPLY TO P OINT S OF E RROR N UMBER O NE : The Appellant’s prior conviction was properly used to enhance his punishment.

R EPLY TO P OINT OF E RROR N UMBER T WO : The trial court did not err is limiting Appellant’s trial counsel’s voir dire on prior extraneous offenses.

R EPLY TO P OINT OF E RROR N UMBER T HREE : Appellant’s prior out

- of

- state conviction is admissible pursuant to Texas Code of Criminal Procedure article 38.37

.3 

### Summary of the Argument

R EPLY TO P OINT S OF E R ROR N UMBER O NE : 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
off enses are substantially similar and the trial court did not abuse its discretion in making such a determination.4 R EPLY TO P OINT OF E RROR N UMBER T WO : 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 off ense.” However, the trial
court did not abuse its discretion because the limitation on the defense voir dire

was re asonable.
R EPLY TO P OINT OF E RROR N UMBER T HREE : 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 Proce dure 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.5 

### Argument Reply to Point s 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 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
off enses are substantially similar and the trial court did not abuse its discretion in making such a determination. Argument and Authorities
A . Standard of Review Appel lant 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.6

The reviewing court must review the trial court's i nterpretation of the
Louisiana and Texas statutes on a de novo ba sis

. 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 convic ted 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 se x 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 Ca rnal 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 (Te x.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 T e x. Penal Code § 12.42(c)(2).7

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 und er 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 , Exhib it C, DPS Determinati ons 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

ov er 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 sexua l 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 and8

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 cont ains “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 Cour t 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 not ice of the Appellant’s Louisiana sexual
of fense 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.9

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 acco unt the language was almost identical to the Louisiana statute and when compared the elements display ed 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. 80.10

Und er the laws of the State of Texas, if an individual has sexual relations with a juvenile under the age of 17 year s, 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 convict ion 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 substanti ally 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 simila r approaches.
While the Texas statute pro hibits 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
Louisi ana statute prohibits oral, vaginal , and anal intercourse with a child victim 13 years or older but under 17 years of age. The statutes furthe r 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).11

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 a fter fully analyzing the elements of each statute, this Court

c an 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 t he 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 state s statutory definitions of “child” is a good example of elements that are substantially similar, but not identical). 17 Tex. Penal Code § 22.011.12

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 se ntence 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 th e analysis is dispositive, so this Court must weigh all factors before making a determination. 20 T he 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 statu tes seek to criminalize specific sexual acts against children. While the penalties for such

con duct are less severe in Louisiana than in Texas, the “degree of likeness” and similar “interests protected” outw eigh the sentencing variation. Therefore, the tri al 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 L ouisiana Revised Statutes Sec. 14:81.2 (B)(1) 19 See Prudholm , 333 S.W

. 3d at 599

– 600

. 20 Anderson, 394 S.W.3d a t 537.13 

### 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 off ense.” However, the trial
court did not abuse its discretion because the limitation on the defense voir dire

was re asonable. Argument and Authorities
A . Standard of Review
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

conce rning a proper area of inquiry. 22 I nstead, 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).14

B . Application of Law to Fact s
Texas cou rts allow parties to voir dire a jury panel about the law applicable
to the enhancement o f punishment but the explanation must be hypothetical and
should not inform the jury of any specific allegation in the enhancement paragraph
of the indictme nt. 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 pan el. (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, a nd 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 t he 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. 199 7); see Cuevas v. State, 742 S.W.2d 331, 336 n.6 (Tex. Crim. App. 1987).15

sought to commit panel members that the y 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 restri ction 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 discuss ing the matter prior to voir di r e , 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 ou t the defense in Reichle was precluded from discussing specif ic facts of the prior offenses. The State argues that the effect on the panel
would be virtuall y the same, even though Jacob’s counsel was not going to address specific facts of the prior offense s, the mention of an unrelated sexual offense
would create the same problematic issues

. By seeking to inform the jury of the fact the defen dant had previously been convicted of a sexual offense, Jacobs trial counsel was seeking a commitment from the panel that they w ould 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)16

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 s pecific offense during voir dire.
C . Harm Analysis
Should this court determine that trial court abused its discretion and did not
allow t he defense to ask appropriate questions , it must next be determined if the Appellant suffered harm . Generally, the den ial 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 rea son, 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 m ake 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 thi nk 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 J an. 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 T ex. R. App. Proc. 44.2(b); Easley v. State, 424 S.W.3d 535, 541 (Tex. Crim. App. 2014).17

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 sa id that the Appellant was harmed by the trial
court’s limitation on their voir dire. For the above

- menti oned 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 Proce dure 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.18 Argument and Authorities
A . Standard of Review
A trial court has considerable discretion in dete rmining wheth er 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 c ourt’s
decision to admit or exclude evidence if it was within the “zone of reasonable disagreement.” 33
B . Application of Law to Facts Appellant claims that because Article 38.37 does not expressly allow for the
admission of out of state offenses or convic tions, 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, p et. 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.).19

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 obj ection to the evidence on that basis. (R.R. Vol. 12, p. 26) . The reasoning for t he 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 Evid ence, 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 o n 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)

.20

The purpose of Article 38.37 is to allow evidence that the defendant acted in conformity with his character to sexually a ssault children. In subsection (b) it clearly states that the separate o ffense must only be descr ibed by Subsection (a)(1) or (2). The statute does not require that the suspect have been charged with an
offense described in S ubsection (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 of fense, and
that offense must be described in Subsection (a)(1) or (2). If the legislature had
intend ed 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 disput e that the separate offense co mmitted by the App el l ant 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 which21

he was found guilty in Louisiana, he would be guilty under th e 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
articl e 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

- menti oned reasons, Appellant’s third point of error should be
overruled.22 Pr ayer 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.

Respectfully Submitted: Jerry D. Rochelle Criminal District Attorney Bowie County, Texas 601 Main Street Texarkana, Texas 75501 Phone: (903) 73 5

- 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 State23 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 argume nt, table of contents, index of authorities, statement of the case, statement of issues presented,

state m ent of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix.

/s/ Lauren N. Richards Lauren N. Richards24 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 , Attor ney for Appellant,
on this the 8 rd d ay of September 2016

.

__ /s/ Lauren N. Richards

_________ Lauren N. Richards