TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00725-CR

Ernest Garcia, Appellant

v.

The State of Texas, Appellee

FROM THE 207TH DISTRICT COURT OF COMAL COUNTY

NO. CR2020-774, THE HONORABLE JACK H. ROBISON, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellant Ernest Garcia challenges his convictions for two counts of indecency

with a child by contact. See Tex. Penal Code § 21.11(a)(1). In his sole issue, he contends that the 

trial court erred by preventing him from asking the potential jurors a set of questions during jury 

selection about their beliefs concerning the “Me Too” movement. We affirm.

BACKGROUND

Garcia was charged by indictment with aggravated sexual assault of a child 

(count 1), see id. § 22.021, and indecency with a child by contact (count 2), see id. § 21.11(a)(1). 

The indictment alleged a prior conviction for sexual contact with a child for enhancement of 

punishment. See id. § 22.011.

During voir dire the prosecutor discussed with the potential jurors the importance

of being fair when assessing witness credibility. Specifically, the prosecutor explained that 

individuals from any group—including police officers, priests, drug dealers, and children—can lie 
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or tell the truth and that to be on the jury they need to “be willing to not come in with preconceived 

ideas” of a witness’s truthfulness. At the end of its presentation, the State went through and asked 

each potential juror who had not previously stated they could not be fair whether they would be “a 

good juror for this case.”

Later in voir dire, defense counsel discussed generally the presumption of 

innocence and the burden of proof. He then asked the potential jurors if they would give extra 

weight to a uniformed police officer’s testimony. Through a series of questions, one of the 

potential jurors agreed that “there’s good and bad in every profession.” Defense counsel asked a 

question regarding the Fifth Amendment protection against self-incrimination. Using the aid of a 

PowerPoint presentation, defense counsel showed the jury a slide with a picture of Harvey 

Weinstein on it, told the jury about his personal concerns about the “Me Too” movement, and then 

attempted to ask the jury panel a question about their feelings regarding the movement. 

Specifically, after a potential juror identified the individual in the photo as Harvey Weinstein, 

defense counsel stated: 

Harvey Weinstein. 

Everything changed in 2018. I don’t know if y’all remember that Academy Awards 

that happened in April of 2018, I think. Right before that, everything exploded with 

Harvey Weinstein. They had all these people making allegations, and it was “all 

accusers must be believed,” right? And everything changed in Hollywood, 

everything changed in a lot of different areas, even the corporate world. And as a 

criminal defense attorney, you know, it’s scary as hell because on one side you have 

presumption of innocence and this idea that you have the right to remain silent and 

all that stuff. And when “all accusers must be believed” came out there, it kind of 

changed everything, didn’t it?

And imagine that kind of crept its way into the criminal justice system. It’s a lot 

harder to get a jury to listen to a case the way that they should when they are 

hearing that.
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And so it leads to certain questions. And so I have opinions on this “me, too” 

movement. Like I said, I’m only going to ask those of you who have [not] already 

said you could not be fair on this question.[

1

] So it’s a question with three different 

answers, what your opinion is regarding this movement. And the first answer is: I 

think all accusers should be believed. The second one is: I think all accusers should 

be believed, unless and until evidence is brought forward to prove they are lying. 

And three is: I think people who make accusations must provide evidence before I 

will believe them.

After one potential juror responded to the question, answering “3,” the trial court asked counsel to 

approach. During the bench conference, the trial court expressed that he believed the question to 

be an improper commitment question. Specifically, he expressed that a positive response to the 

first two options would result in challenges for cause and that the third option was a comment on 

the weight of the evidence. The State responded to the trial court that it “was dangerously close” 

to a commitment question and that it did not necessarily lead to a challenge for cause. The trial 

court informed counsel that he would not allow the question and that he would allow defense 

counsel to put on the record what he was going to ask the jury panel once they were done asking 

them questions.

Defense counsel then moved on from that question. He asked the potential jurors 

for their opinions about the purpose of punishment in the criminal justice system and about their 

ability to consider the full range of punishment. He then asked individual potential jurors about 

their previous experiences being on a jury and about their employment history. He then discussed 

the movie 12 Angry Men and asked the potential jurors to commit to not getting “steamrolled” and 

1 It is unclear from the record whether counsel misspoke in this statement. Earlier in voir 

dire, defense counsel stated that he was only going to ask questions to panelists who had not

previously said they could not be fair in this case.
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rather “to stand [their] ground.” After asking the potential jurors if they had any questions, which 

they did not, he concluded his presentation.

Outside the presence of the jury panel, defense counsel put on a proffer of evidence 

regarding his excluded question. He explained that he had a follow-up question that he would 

have asked if allowed. Specifically, he stated,

Number three is the standard under the law, one, that the State must prove every 

element of the offense beyond a reasonable doubt; two, that the Defendant is 

presumed innocent, and, three, the Defendant is under no obligation to present a

defense. And then I[’d] ask[] them: Do you disagree with the law?

The trial court admitted the slides that counsel would have presented if allowed. The slide with 

the prohibited question was titled, “Opinions on Me Too Movement.” The slides that counsel 

would have shown next were titled “#3 is the standard under the law” and “Do you disagree with 

the law?” The trial court responded that it had overruled defense counsel’s attempt to ask the 

question with the set of three answers and that “the rest is kind of superfluous at this point.” 

Following the proffer, strikes for cause and preemptive strikes were made, and then the jury 

was impaneled.

During trial the State presented evidence through witness testimony that the victim, 

Ashley Rhodes,2 who was nine years old at the time of the offense and twelve when she testified 

at trial, lived with her father who was a single parent. Garcia was a longtime friend of Rhodes’ 

father. Father worked 14 hours a day as a forklift driver during the time of the offense and relied 

2 Ashley Rhodes is the pseudonym used throughout this case, including in the indictment, 

to protect the privacy of the minor victim. We will use that pseudonym here and we will refer to 

the other witnesses by their relationship to her rather than by name. See Tex. R. App. P. 9.10(a)(3).
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on family and friends to help watch Rhodes when he was at work. Garcia was one of those friends. 

One night in 2020 when Garcia was watching Rhodes after her father had left for work, she was 

awoken by a noise. Garcia, who was sleeping in the same bed with Rhodes, began touching her 

“boobs and vagina” with his hands inside her clothing. Later that year, Rhodes made an outcry to 

a family friend who told Rhodes’ father. After speaking with his daughter, Father called the police. 

Rhodes testified at trial that Garcia had touched her “boobs and vagina,” including 

penetrating her vagina with his finger, on one occasion when he was babysitting her. The SANE 

nurse that conducted a forensic examination of Rhodes about five months after the offense 

occurred testified that Rhodes had placed an “x” on an anatomy picture to show where Garcia had 

touched her. She admitted that the “x” was placed on the outside of the labia majora rather than 

on the vagina. When asked about the placement of the “x,” Rhodes confirmed that she was alleging 

that Garcia penetrated her vagina and that she believed the placement of the “x” indicated that.

During the guilt-innocence phase of trial, the State also presented documentary 

evidence that Garcia had previously been convicted of indecency with a child by contact. The 

victim from that case testified about the underlying facts of that offense.

After hearing all the evidence, the jury found Garcia guilty of the lesser-included 

offense of indecency with a child by contact for count 1 and found him guilty as charged for count 

2. After hearing the evidence on punishment, the jury found the enhancement allegation to be true 

and assessed the mandatory punishment of life imprisonment for each offense. See Tex. Penal

Code § 12.42(c)(2) (mandating life sentence for offense of indecency with child if defendant has 

previously been convicted of sexual contact with child). Garcia appealed.
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LEGAL STANDARD

We review a trial court’s ruling limiting jury selection questioning for an abuse of 

discretion. See Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). “A trial court has broad 

discretion over the voir dire process, including setting reasonable limits and determining the 

propriety of a particular question.” Samaripas v. State, 454 S.W.3d 1, 5 (Tex. Crim. App. 2014). 

In this context, a trial court abuses its discretion only when a proper question about a proper area 

of inquiry is prohibited. Id. A jury selection question is proper if it seeks to discover a potential 

juror’s views on an issue applicable to the case. Barajas, 93 S.W.3d at 38. An example of a 

relevant voir dire question “is if it seeks to uncover grounds for a challenge for cause[,]” by 

establishing that a potential juror: (1) “possesses a bias or prejudice in favor of or against the 

defendant,” (2) “possesses a bias against a phase of the law upon which the State or the defendant 

is entitled to rely,” or (3) “has already decided the defendant’s guilt or punishment[.]” Id. at 39. 

However, an otherwise proper question is impermissible if the question attempts to commit the 

potential juror to a particular verdict based on particular facts. Id. at 38. Indeed, a trial court has 

“discretion to restrict voir dire questions that are confusing, misleading, vague and broad, or are 

improper commitment questions.” Hernandez v. State, 390 S.W.3d 310, 315 (Tex. Crim. App. 

2012). Additionally, “if the trial court merely limits a question due to its form, trial counsel must 

determine the basis of the limitation and attempt to fashion a query which complies with the 

perceived inadequacy.” Wright v. State, 28 S.W.3d 526, 534 (Tex. Crim. App. 2000) (noting that

“[a]lthough appellant is authorized to ask proper questions in a particular area of inquiry, he is not 

entitled to ask questions in any particular form”).

When a trial court erroneously prohibits a proper voir dire question, such error is 

nonconstitutional error. See Easley v. State, 424 S.W.3d 535, 541 (Tex. Crim. App. 2014) (holding 
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that when trial court erroneously prohibits specific question, rather than entire proper legal 

concept, it is nonconstitutional error). Thus, we review any error from a prohibited voir dire 

question under Rule 44.2(b)’s harm analysis, which requires that we disregard any “error, defect, 

irregularity, or variance that does not affect substantial rights.” See Tex. R. App. P. 44.2(b).

DISCUSSION

Garcia contends that by prohibiting his questions regarding the jury panel’s “Me 

Too” movement opinions, he was prevented from asking questions about their opinions and ability 

to follow the law on the presumption of innocence, burden of proof, and witness credibility that

could have resulted in panelists being challenged for cause. The State responds that the trial court 

did not abuse its discretion in limiting the specific question because trial courts have great 

discretion in how to conduct voir dire, because Garcia was not prevented from asking other 

questions about witness credibility but rather only the specific way he attempted to ask, and 

because the specific question could have confused the jury by conflating personal views held in 

the “court of public opinion” and the legal standards to be applied during a criminal trial.

Here, the trial court could have reasonably concluded that the question—“So it’s a 

question with three different answers, what your opinion is regarding this movement”—could 

confuse or mislead the venire. See Hernandez, 390 S.W.3d at 315 (noting that restricting 

potentially confusing or misleading questions is within trial court’s discretion). The “Me Too” 

movement question did not ask for the potential juror’s opinion within the context of a legal setting. 

Rather it was asking the panelists about their opinions and views regarding outcries of harassment 

and sexual abuse and assault by individuals in non-legal settings. Specifically, counsel mentioned 

the entertainment industry and the corporate world. While counsel also mentioned that the social 
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movement created concern for him in the legal context, the question did not ask the panelists for 

their views on how to handle outcries in the context of witness credibility during a trial or under 

legal standards. Rather, the question was titled, “Opinions on Me Too Movement.” Although, 

defense counsel presented his intended follow-up questions that did ask about the standard under 

the law, those were not presented or attempted to be asked at the time of the ruling. Thus, the trial 

court could have reasonably concluded that the prohibited question had the potential to confuse or 

mislead the jury panel.

Further, the trial court expressed its concerns about the restricted question. Defense 

counsel did not attempt to ask a different question to ascertain the potential juror’s views of the 

presumption of innocence, burden of proof, or witness credibility. See Wright, 28 S.W.3d at 534 

(concluding that “[b]ecause [defense counsel] did not follow through on this topic, we cannot say 

that the trial court improperly restricted his voir dire”). On this record, we cannot determine that 

the trial court limited the entire topic rather than just the form of the specific question. See id. The 

trial court’s allowance of defense counsel discussing his personal concerns about the “Me Too” 

movement and only stopping him after hearing the specific question, supports that the trial court 

was limiting its prohibition to the specific question and not the whole topic. Thus, we conclude 

on this record that the trial court did not abuse its discretion when it disallowed the specific

question restricted in this case.3

3 Since we have concluded that the trial court did not abuse its discretion because it could 

have reasonably considered the question improper, we do not need to reach the question of whether 

it was an improper commitment question. See Tex. R. App. P. 47.1 (“The court of appeals must 

hand down a written opinion that is as brief as practicable but that addresses every issue raised and 

necessary to final disposition of the appeal.”); Barajas, 93 S.W.3d at 38 (noting that otherwise 

proper question may still be improper commitment question).
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Furthermore, even if exclusion of the question was error, Garcia has not shown that 

he was harmed. First, we address Garcia’s contention that the excluded question constitutes 

constitutional error. He contends that asking the question would have resulted in challenges for 

cause and thus, preventing him from doing so violated his right to a fair and impartial jury as 

protected by the Sixth and Fourteenth Amendments. We disagree. While prohibitions on proper 

areas of questioning can rise to the level of constitutional error, when the trial court restricts a 

specific question rather than a whole concept, the proper harm analysis is the nonconstitutional 

error analysis. See Easley, 424 S.W.3d at 541.

In conducting a harm analysis for an erroneously excluded voir dire question, we 

must determine “whether the error had a substantial and injurious effect or influence in determining 

the jury’s verdict.” Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005). To do so, we 

review the entire record and use “the same general factors used in cases in which evidence was 

erroneously admitted.” Easley, 424 S.W.3d at 542.

Here, a review of the record weighs against finding harm. Nothing indicates that 

any juror was unable to fairly assess witness credibility and weigh the evidence presented. No 

evidence shows that the jury was ever presented with an instruction or argument that they should 

always believe a sexual assault victim without considering credibility or the weight of the 

evidence. Rather, the State explained to the jurors during voir dire that anyone including children 

can lie or tell the truth and told the jurors they needed to “be willing to not come in with 

preconceived ideas” to be on the jury, before asking them individually if they would be “a good 

juror for this case.” Further, the jury’s decision to convict Garcia of the lesser included offense for 

count I supports that the jury did not believe everything the victim testified to but rather considered 

and weighed the conflicting evidence presented about whether penetration occurred. Thus, we 
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cannot conclude that any error had a substantial and injurious effect or influence in determining 

the jury’s verdict.

We overrule Garcia’s sole issue.

CONCLUSION

Because we overrule Garcia’s sole issue, we affirm the trial court’s judgment 

of conviction.

__________________________________________

Gisela D. Triana, Justice

Before Justices Baker, Triana, Kelly

Affirmed

Filed: October 2, 2024

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