James Earnest Blackmon v. the State of Texas

NUMBER 13-24-00604-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JAMES EARNEST BLACKMON, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 415TH DISTRICT COURT
OF PARKER COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices West and Fonseca
Memorandum Opinion by Chief Justice Tijerina

A jury convicted appellant James Earnest Blackmon of continuous sexual abuse

of a young child, a first-degree felony, and the trial court assessed punishment at forty

years’ imprisonment. See TEX. PENAL CODE § 21.02. By a single issue, Blackmon argues

that during voir dire, the trial court abused its discretion when it denied his challenges to

four prospective jurors for cause and his request for additional peremptory challenges.
We affirm.1

I. PERTINENT FACTS

During voir dire, defense counsel asked the venire panel the following: “So you saw

aggravated sexual assault, right? And you saw the different ways that it could be proved.

Do you remember those . . . . ? Could you consider 5 years under the circumstances if

you were to find somebody guilty under that charge that the State put up?”

Twenty-one venirepersons stated they could not, including J.C., M.S., K.H., and C.M.2

The State disputed whether the question asked by defense counsel was sufficient to

support a challenge for cause: “I don’t think [defense counsel] asked the right

question . . . . I think that the proper question in order to strike somebody for cause should

be if the judge instructs you that the law is blank, can you follow it?” Defense counsel

agreed to bring the twenty-one venirepersons back in for requestioning and clarification.

The trial court stated:

So I want to assure that we have a jury that complies with the law that will
be instructed by the Court in order to assure that due process occurs in this
case.

So here’s the question: If the Court instructs you that for the offense of
aggravated sexual assault of a child the range of punishment for that is by
incarceration for a period of not fewer than 5 years or more than 99 years,
will you if seated as a juror be able to comply with the instruction from the
Court that that is the law?

Okay. I’m going to go along the front row. I’m going to ask you to state your
name loudly and give an answer yes or no if you will be able to comply with
the Court’s instruction to consider the entire range of punishment from 5 to

1 This appeal was transferred from the Second Court of Appeals in Fort Worth pursuant to an order

issued by the Texas Supreme Court. See TEX. GOV’T CODE § 73.001. We are required to follow the
precedent of the transferor court to the extent it differs from our own. TEX. R. APP. P. 41.3.
2 “[W]e will use the jurors’ initials or juror numbers to protect their identities.” Salazar v. State, No.

13-24-00024-CR, 2025 WL 3545566, at *1 (Tex. App.—Corpus Christi–Edinburg Dec. 11, 2025, pet. filed).

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99 years if seated as a juror. Okay. We’ll start over here to my left.

The trial court explained that it wanted the venirepersons to answer what their

“conscience allows” and that it was not a matter of upsetting anyone. Individual

questioning yielded “yes” responses from several venirepersons, including J.C., M.S.,

K.H., and C.M. The trial court further questioned whether everyone understood the

question and explained:

To be abundantly clear and cautious here, the Court would instruct the jury
that the potential range of punishment or the potential punishment—the
range of punishment for the offense of aggravated sexual assault of a child
will be 5 to 99 years incarceration. Okay? Those of you who said yes, we
take that answer to mean that you are able to consider that range if seated
as a juror. If you answered no, then you are not able to consider that range
if seated as a juror. Okay? Everybody good with the answer you gave just
now?

The venirepersons again confirmed, and the trial court instructed the parties to make their

strikes.

Defense counsel objected, and the trial court overruled his challenges for cause

on J.C. and M.S. as well as other venirepersons. Defense counsel also requested “about

12 extra strikes because that’s how many I would get,” which the trial court denied. The

parties then made their statutory peremptory challenges. J.C., M.S., K.H., and C.M.

served on the jury.

After trial, appellant was convicted as set forth above, and this appeal followed.

II. VOIR DIRE

Appellant argues that the trial court abused its discretion when it failed to grant his

challenges for cause and additional peremptory strikes for venirepersons J.C., M.S., K.H.,

and C.M. Appellant claims these four venirepersons were “unable to follow the law due

to their prejudices and/or biases involving allegations of sexual crimes against children

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making them unable to follow the very law(s) which [a]ppellant was entitled to rely.” The

State argues appellant failed to preserve error. “We first consider whether Appellant has

shown that any such error could have harmed him.” Hudson v. State, 620 S.W.3d 726,

729 (Tex. Crim. App. 2021) (citing Comeaux v. State, 445 S.W.3d 745, 747 (Tex. Crim.

App. 2014) (“The issue . . . is one of harm, not preservation.”), and then citing Johnson v.

State, 43 S.W.3d 1, 5 n.6 (Tex. Crim. App. 2001) (stating that “[i]n the past we have

confused preservation of error and harm issues within the context of an erroneous denial

of a challenge for cause,” and noting that the steps that courts have sometimes called

necessary for preservation are really to show harm)); TEX. R. APP. P. 44.2 (standard for

reversible error in criminal cases).

A. Applicable Law

“If a trial judge errs in overruling a challenge for cause against a venire member,

then the appellant must show that he was harmed because he was forced to use a

peremptory strike to remove the venire person and that he suffered a detriment from the

loss of that peremptory strike.” Buntion v. State, 482 S.W.3d 58, 83 (Tex. Crim. App.

2016). In addition to demonstrating error by the trial court, an appellant must show that

he complied with five steps: “(1) he asserted a clear and specific challenge for cause; (2)

he used a peremptory challenge on the complained-of venire member; (3) his peremptory

challenges were exhausted; (4) his request for additional strikes was denied; and (5) an

objectionable juror sat on the jury. Daniel v. State, 485 S.W.3d 24, 33 (Tex. Crim. App.

2016); Hudson, 620 S.W.3d at 729. These steps are intended to allow the trial court “every

opportunity to correct error and to allow the defendant to demonstrate that he did not have

the benefit of using his peremptory challenges in the way that he desired.” Comeaux, 445

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S.W.3d at 750; Hudson, 620 S.W.3d at 729‒730.

B. Discussion

In this case, the record shows that appellant challenged the aforementioned jurors

for cause and therefore satisfied the first step. However, appellant did not use his

peremptory strikes to remove J.C., M.S., K.H., and C.M. from the jury. See Comeaux, 445

S.W.3d at 750 (providing that appellant must have “used a peremptory challenge on the

complained-of venire member”). Instead, appellant used his peremptory strikes to remove

other venirepersons. See id. at 752 (holding that a defendant who chooses to employ

peremptory strikes outside of the strike zone may not then complain about harm

concerning a juror within the strike zone who could have been removed instead); Hudson,

620 S.W.3d at 730 (“[T]he defendant must use a peremptory challenge on the

complained-of member and exhaust all remaining peremptory challenges.”). Therefore,

appellant cannot demonstrate “the loss of a peremptory strike” because he did not use

any peremptory strikes on the challenged venirepersons who ultimately served on the

jury. See Comeaux, 445 S.W.3d at 750; see also Sanchez v. State, No. 02-15-00302-

CR, 2016 WL 6123641, at *8 (Tex. App.—Fort Worth Oct. 20, 2016, pet. ref’d) (mem. op.,

not designated for publication) (“Without any support in the record to indicate that

Appellant utilized a peremptory challenge on Juror 17, she has failed to preserve error on

this point.”).

Furthermore, appellant did not identify on the record any objectional jurors whom

he would have removed with an additional strike. See Hudson, 620 S.W.3d at 730 (“Trial

counsel did not state that Moreno was an objectionable juror or that counsel would use

the requested additional peremptory challenge against her.”); Daniel, 485 S.W.3d at 34

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(“Regardless, the record shows that appellant did not request additional strikes or identify

an objectionable juror who sat on the jury. Consequently, he cannot demonstrate harm.”);

Comeaux, 445 S.W.3d at 750 (“[T]he defendant must identify on the record the

objectionable juror whom he would have removed with the additional strike, but he is not

required to explain why that juror is objectionable.”). Because appellant failed to identify

any objectionable juror as he was required to do, he cannot demonstrate harm. See

Hudson, 620 S.W.3d at 730; see also Nava v. State, 415 S.W.3d 289, 308 (Tex. Crim.

App. 2013) (“A review of the rest of the trial record we have does not reveal an identified

objectionable juror.”); Stanley v. State, No. 02-17-00084-CR, 2018 WL 3153542, at *7

(Tex. App.—Fort Worth June 28, 2018, pet. ref’d) (mem. op., not designated for

publication) (“Although the record shows that appellant challenged each of the

complained-of prospective jurors for cause and . . . requested but [was] denied additional

peremptory strikes, it does not show whether he used a peremptory strike on any of these

four prospective jurors, nor does it show that appellant identified any objectionable juror

on which he would have used an additional peremptory strike.”). We overrule appellant’s

sole issue.

III. CONCLUSION

We affirm the judgment of the trial court.

JAIME TIJERINA
Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed on the
19th day of February, 2026.

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