James Wallace Jayroe v. the State of Texas

Affirmed and Opinion Filed December 5, 2024

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00242-CR

JAMES WALLACE JAYROE, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 439th Judicial District Court
Rockwall County, Texas
Trial Court Cause No. 2-22-0361

MEMORANDUM OPINION
Before Justices Reichek, Carlyle, and Miskel
Opinion by Justice Miskel
A jury convicted appellant, James Wallace Jayroe, of two counts of indecency

with a child by sexual contact and returned sentences of 16 years and 18 years of

imprisonment, respectively. Appellant appeals the trial court’s judgment, bringing

three issues, all of which relate to voir dire: (1) the denial of a challenge for cause of

a venire member, (2) ineffective assistance of appellant’s counsel, and (3) alleged

fundamental error based on statements by the State’s counsel. We affirm.
I. Factual and Procedural Background
The complainant, J.I., was seventeen years-old at the time of trial. Previously,

when she was approximately seven or eight years old, J.I. and her family resided in

an apartment attached to her father’s truck repair shop. Appellant was a friend of

her father’s and was often at the shop. J.I. testified at trial that when she came home

from school, she would often go into her father’s office inside the repair shop and

play on the computer while sitting in appellant’s lap. She testified about two

occasions when appellant touched her clitoris with his hand while she was seated in

his lap playing on the computer.

Several years later, when J.I. was a teenager, she became friends through

TikTok with another teenager. J.I. testified that this other teen encouraged J.I. to

report what appellant had done to her. J.I. then told her mother, who also told J.I.’s

father. J.I.’s father reported these incidents to law enforcement.

The State charged appellant with two counts of indecency with a child by

sexual contact. See TEX. PENAL CODE ANN. § 21.11(a)(1). At the conclusion of

appellant’s trial for these offenses, the jury convicted appellant of both counts and

assessed his punishment at 16 years’ confinement for the first count and 18 years’

confinement for the second count. On February 23, 2023, the trial court rendered

judgment of conviction on these verdicts, ordering that the sentences run

concurrently. Appellant appealed the trial court’s judgment.

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On March 9, 2023, the trial court signed an amended judgment of conviction.

The changes in the amended judgment are not at issue in this appeal, but the amended

judgment superseded the original judgment as the operative judgment in this case.

Around this same time, appellant designated a new lead counsel to handle the appeal.

On March 24, 2023, appellant’s new counsel filed a motion for new trial in the trial

court, on the basis that “the verdict is contrary to the law and the evidence.” This

motion was overruled by operation of law.

II. Denial of the Challenge For Cause
Appellant’s first issue contends that the trial court reversibly erred during voir

dire by overruling appellant’s motion to strike Venire Member No. 6 for cause. The

State responds that appellant did not preserve error regarding the trial court’s ruling,

and, even if appellant had preserved error, the trial court did not abuse its discretion

in overruling appellant’s motion to strike.

In response to counsel’s questions, Venire Member No. 6 disclosed that one

of his relatives had confided in him within the last couple of years that such relative

had been abused when he was younger. Venire Member No. 6 also equivocated

about whether he could consider the minimum punishment, whether he could be fair

and impartial, or whether he had a bias and prejudice for the State. At the conclusion

of voir dire, the trial court met with counsel outside the presence of the venire to

discuss challenges for cause and peremptory strikes. The trial court excused several

venire members based on agreed challenges for cause. The trial court then turned to

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appellant’s challenge for cause to Venire Member No. 6, to which the State did not

agree. The court brought Venire Member No. 6 back into the courtroom for further

questioning and then denied appellant’s motion to strike the venire member for

cause. Appellant’s counsel exercised a peremptory strike against Venire Member

No. 6, and he also used all his peremptory strikes. The trial court then impaneled

the jury.

A. Applicable Law
Error in denying a challenge for cause is preserved for review only if appellant

(1) used all his peremptory strikes, (2) asked for and was refused additional

peremptory strikes, and (3) was then forced to take an identified objectionable juror

whom appellant would not otherwise have accepted had the trial court granted his

challenge for cause (or granted him additional peremptory strikes so that he might

strike the juror). Buntion v. State, 482 S.W.3d 58, 83 (Tex. Crim. App. 2016);

Chambers v. State, 866 S.W.2d 9, 23 (Tex. Crim. App. 1993).

Further, to establish reversible error, an appellant must demonstrate harm. See

Chambers, 866 S.W.2d at 23. Even if a court errs in overruling a challenge for cause,

an 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, 482 S.W.3d at 83; Chambers, 866

S.W.2d at 22. “When the trial judge denies a valid challenge for cause, forcing the

defendant to use a peremptory strike on a panel member who should have been

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removed, the defendant is harmed if he would have used that peremptory strike on

another objectionable juror.” Comeaux v. State, 445 S.W.3d 745, 750 (Tex. Crim.

App. 2014).

B. Appellant Failed to Preserve Error or Show Harm.
Appellant’s counsel used all his peremptory strikes, and he used one of these

strikes on Venire Member No. 6 after the trial court denied counsel’s motion to strike

this venire member for cause. However, appellant’s counsel did not ask the trial

court for an additional peremptory strike for Venire Member No. 6. Nor did counsel

identify for the trial court any other objectionable juror that he would have struck

had the judge granted his challenge for cause or granted his request for an additional

peremptory strike. Accordingly, appellant failed to preserve this issue for our

review, and he has not shown harm from the trial court’s refusal to grant his motion

to strike Venire Member No. 6. See Buntion, 482 S.W.3d at 83.

We overrule appellant’s first issue.

III. Ineffective Assistance of Counsel
Appellant’s second issue asserts that his trial counsel was ineffective for

failing to request an additional peremptory strike after the trial court denied his

request to strike Venire Member No. 6. The State responds that appellant has not

met his burden to prove that his counsel was ineffective.

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A. Applicable Law
The defendant bears the burden of proving an ineffective assistance of counsel

claim by a preponderance of the evidence. Young v. State, 991 S.W.2d 835, 837

(Tex. Crim. App. 1999). To prevail, the defendant must show that (1) trial counsel’s

performance fell below an objective standard of reasonableness; and (2) there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

687–88, 694 (1984); see also Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.

2011). The defendant must prove both prongs of the test. Lopez, 343 S.W.3d at 142.

The deficient performance must be affirmatively demonstrated on the record and not

require retrospective speculation. Id. When reviewing claims of ineffective

assistance, “there is a strong presumption that counsel’s conduct fell within the wide

range of reasonable professional assistance.” Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999) (citing Strickland, 466 U.S. at 689). “Any allegation of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.” Id.

A lawyer’s “[d]ecisions relating to challenging prospective jurors for cause or

striking prospective jurors are strategic and tactical.” Hebert v. State, 489 S.W.3d

15, 23 (Tex. App.—Houston [14th Dist.] 2016, no pet.); see also State v. Morales,

253 S.W.3d 686, 698–99 (Tex. Crim. App. 2008) (“Even if it is appropriate to regard

[the venire person] as impliedly biased under the Sixth Amendment, that does not

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ipso facto establish that trial counsel could not make a legitimate tactical decision to

keep her on the appellant’s jury.”); Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim.

App. 1992) (per curiam) (noting that trial counsel’s “[w]aiver of his client’s right to

insist that every juror in the case be in all things fair and impartial may in counsel’s

best professional judgment have been an acceptable gamble.”).

Trial counsel should generally be permitted to explain his actions before being

found ineffective. Johnson v. State, 624 S.W.3d 579, 586 (Tex. Crim. App. 2021).

“In the face of an undeveloped record, counsel should be found ineffective only if

his conduct was so outrageous that no competent attorney would have engaged in

it.” Id. (internal citation and quotation marks omitted); see also Ex parte Saenz,

491 S.W.3d 819, 828 (Tex. Crim. App. 2016) (noting that, in absence of evidence of

trial counsel’s reasons for challenged conduct, “an appellate court commonly will

assume a strategic motivation if any can possibly be imagined”) (internal citation

and quotation marks omitted); Menefield v. State, 363 S.W.3d 591, 592–93 (Tex.

Crim. App. 2012) (noting that direct appeal is usually an inadequate vehicle for

raising a claim of ineffective assistance because the record is generally

underdeveloped). A silent record that does not explain counsel’s actions will not

overcome the strong presumption of reasonable assistance. Johnson, 624 S.W.3d at

586. Therefore, “if the record does not contain affirmative evidence of trial

counsel’s reasoning or strategy, we presume counsel’s performance was not

deficient.” Id.

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B. Appellant Did Not Meet His Burden to Prove Ineffective Assistance of
Counsel.
The record does not show why appellant’s trial counsel did not request an

additional peremptory strike after the trial court denied such counsel’s request to

strike Venire Member No. 6. However, appellant contends there is “no conceivable

reasonable explanation” as to why his trial counsel did not request an additional

peremptory strike to use against R.P., another venire member who subsequently

made it onto the jury. In response to questions from appellant’s trial counsel during

voir dire, R.P. stated that her husband, as well as some of her friends, were abused

as children, and she had also been abused as an adult. R.P. described how these

experiences would impact her as a juror:

[DEFENSE COUNSEL]: . . . [I]s that going to affect your
ability to be fair and impartial in this case based upon a
couple of different circumstances?

VENIREPERSON: I think I can be fair.

[DEFENSE COUNSEL]: What about the impartial part?

VENIREPERSON: I’m not sure about the impartial.

[DEFENSE COUNSEL]: Would you have a – coming in
here, would you have a bias or prejudice towards the State
or against the defense, being a victim yourself?

VENIREPERSON: Possibly.

[DEFENSE COUNSEL]: Okay. And would that -- do you
believe that would affect your ability to sit as a juror in this
case?

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VENIREPERSON: No. But, I mean, if the person is
assumed -- or convicted, then I would base my scale on the
higher end of the spectrum.

[DEFENSE COUNSEL]: Could you follow the
punishment range?

VENIREPERSON: Yes.

[DEFENSE COUNSEL]: Okay. So if you felt like it was
appropriate, you could consider as low as 2 or as high as
20?

VENIREPERSON: I can.

[DEFENSE COUNSEL]: Okay. If you change your mind,
will you let me know?

VENIREPERSON: (Nods.)

[DEFENSE COUNSEL]: If you think there’s something
we need to know, will you let me know?

VENIREPERSON: I will let you know.

In the absence of evidence regarding why appellant’s trial counsel did not

request an additional peremptory strike to use on R.P., we presume that such

counsel’s representation of appellant was not deficient. See Johnson, 624 S.W.3d at

586; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (“Due to the

lack of evidence in the record concerning trial counsel’s reasons for not challenging

or striking venire member Supinski, we are unable to conclude that appellant’s trial

counsel’s performance was deficient.”). Although R.P. responded that she might be

biased against the defense, she followed up by stating that she could follow the

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punishment range. On this record, appellant did not overcome Strickland’s strong

presumption of reasonable assistance. See 466 U.S. at 689; Johnson, 624 S.W.3d at

586; Thompson, 9 S.W.3d at 813.

We overrule appellant’ second issue.

IV. Fundamental Error
Appellant’s third issue contends that we must reverse this case and remand it

for a new trial because counsel for the State committed fundamental error during

voir dire, which affected appellant’s substantial rights. During voir dire, the State

questioned the venire about the delayed outcry of a child victim. Appellant claims

that the following questions and statements by the State’s counsel included

fundamental error:

[STATE’S COUNSEL]: So we have fear. We have shame
and guilt. We have not knowing what’s going to happen
or fearing that you are not being believed or maybe
actually not being believed.

Does anyone else have anything else to add? We have --
is it Mr. D*****? What would you add?

VENIREPERSON: You know, you kind of touched on it
a little, but, you know, if it’s someone in the family or
close to the family, then the ramifications of telling, you
know, what happens to the family, right?

[STATE’S COUNSEL]: Yeah.

VENIREPERSON: So what follows, the fear of that, could
be a pretty strong factor in delaying.

[STATE’S COUNSEL]: And, Mr. D*****, you make a
really important point about the connection to the family.
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So in these type of cases, child sexual abuse, who do you
think the offender most often is? Somebody known to the
family or is it stranger danger?

VENIREPERSONS: No.

[STATE’S COUNSEL]: Okay. Is there any – you know,
mostly what we see on the news is the stranger danger.
That’s what gets clicks on the Internet and gets eyeballs
on TVs. But statistically that’s really rare.

Mr. P********, what -- or, Mr. D*****, sorry. What do
you think the percentage -- if you had to just guess a
percentage of known offenders to the victim, what do you
think?

VENIREPERSON: It’s probably really high. I would say
over 90 percent.

[STATE’S COUNSEL]: Is there anybody who is surprised
by that? I see lots of heads shaking affirmatively that
that’s kind of what you know.

So all of you who raised your hand earlier about knowing
somebody who outcried to sex abuse, raise your hand if
that person outcried and it was a stranger. We have one,
Mr. T*******. We have another one, Ms. P***, D****
P***.

So of all those hands up, we get two hands for what might
be described as a stranger, and so I think just anecdotally,
Mr. D*****, that is consistent with your estimate of over
90 percent.

And so let’s talk about, you know, what does a child
molester look like? So if it’s people that are known to the
family, do they have a look? Mister -- I want to say your
last name correctly. How do you say it?

VENIREPERSON: K********.

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[STATE’S COUNSEL]: K********. Mr. K********, is
there a sex offender look?

VENIREPERSON: It could be anyone.

[STATE’S COUNSEL]: Yeah. It can be really helpful if
there is that look, but most often these are -- you know,
these are known people to the family, family, friends,
uncles, stepparents, parents. And so you are not going to
see that look.

Is there anybody that is surprised by that who is thinking
more, you know, van down by the river with free candy on
it? That’s stereotypical, but that’s just not what we see.
Has anyone heard the term grooming before in this
context?
Appellant argues that the State improperly assumed the role of an expert

witness in voir dire by instructing the venire members that the perpetrator in child

sex abuse cases is usually well known to the victim. Appellant also contends that

the prosecutor’s statements amounted to improper commitment questions that

“effectively commit[ed] the venire members to a guilty verdict once the[y] heard

that the accused was not a stranger to the complainant.” Appellant urges that the

above comments “rose to such a level as to bear on the presumption of [appellant’s]

innocence or vitiate the impartiality of the jury.”

A. Applicable Law
Ordinarily, to preserve an error for appellate review, the complaining party

must make “a timely, request, objection, or motion.” See TEX. R. APP. P. 33.1(a)(1).

Appellant acknowledges that his trial counsel did not object to the above questions

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and statements. However, he argues that the State’s comments amounted to

“fundamental error” that can be raised for the first time on appeal.

Questions of “fundamental error” are considered within the framework of the

Texas Court of Criminal Appeals’ decision in Marin v. State. See 851 S.W.2d 275,

279 (Tex.Cr.App.1993).1 Under Marin, the Texas adjudicatory criminal system

contains three types of error-preservation rules: (1) absolute requirements and

prohibitions, (2) rights of litigants that must be implemented unless expressly

waived, and (3) rights of litigants that are to be implemented upon request. Id. at

279; see also Cruz v. State, 698 S.W.3d 265, 268 (Tex. Crim. App. 2024); Proenza

v. State, 541 S.W.3d 786, 792 (Tex. Crim. Ap. 2017). These separate classifications

are also referred to as category one, -two, and -three Marin rights, respectively.

Proenza, 541 S.W.3d at 792. Category three rights are the most common, see Cruz,

698 S.W.3d at 268, and they are forfeited unless preserved through an objection. See

Proenza, 541 S.W.3d at 796.

B. The State’s Comments Were Not “Fundamental Error.”
Appellant cites Jasper v. State to support his argument that the prosecutor’s

comments in this case rose to the level of fundamental error. See 61 S.W.3d 413,

421 (Tex. Crim. App. 2001). In Jasper, the Court of Criminal Appeals noted that it

had the power to “take notice of fundamental errors affecting substantial rights

1
Overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997), and
abrogated on other grounds by Matchett v. State, 941 S.W.2d 922, 928 (Tex. Crim. App. 1996) (plurality
op.).
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although they were not presented to the court.” Id. at 420. However, the Court of

Criminal Appeals subsequently clarified that its decision in Jasper did not establish

a freestanding doctrine of “fundamental error.” See Proenza, 541 S.W.3d at 794–

97. The Court declined to divine a freestanding, harm-based exception to the rules

of error preservation established in Marin. See id. at 795. Instead, the fundamental

errors described in Jasper were simply category-one and -two Marin errors. Id.2

We conclude that the State’s comments in the present case were not fundamental,

category-one or -two Marin errors, and thus appellant failed to preserve his

complaint by not objecting in the trial court.

1. Complaints about the State’s comments were forfeited under
Marin category three.
Appellant cites no case authority, nor have we found any, holding that a

prosecutor commits a Marin category-one or -two fundamental error in a child sex

abuse case by commenting to the jury panel during voir dire that the offender is

usually known by the victim’s family. Absent such authority, we view this comment

to be akin to jury argument. Cf. Davis v. State, No. 05-19-00508-CR, 2020 WL

2
Some decisions by this Court have used a harm-based analysis for determining whether a prosecutor’s
statements made during voir dire were fundamental error. E.g., Holland v. State, No. 05-18-01419-CR,
2019 WL 6799755, at *4 (Tex. App.—Dallas Dec. 13, 2019, pet. ref’d) (mem. op.) (not designated for
publication) (“Here, other actions by the prosecutor mitigated any harm the statement might have brought
to the presumption of innocence.”); Avula v. State, No. 05-13-00405-CR, 2015 WL 3429674, at *5 (Tex.
App.—Dallas Jan. 30, 2015, no pet.) (not designated for publication) (“The prosecutor’s comment did not
rise ‘to such a level as to bear on the presumption of innocence or vitiate the impartiality of the jury.’ (citing
Jasper, 61 S.W.3d at 421)). As discussed previously, the above harm-based analysis is contrary to Proenza,
which declined to read Jasper to divine a freestanding, harm-based exception to the rules of error
preservation established in Marin. See Proenza, 541 S.W.3d at 795; see also Robinson v. State, 685 S.W.3d
217, 222 n.5 (Tex. App.—Fort Worth 2024, no pet.) (based on Proenza, disagreeing with our harm-based
fundamental error analysis in Holland).
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3396440, at *5 (Tex. App.—Dallas June 19, 2020, no pet.) (memo. op.) (not

designated for publication) (“[I]f the prosecutor in this case misstated the law during

voir dire, then we view those statements to be akin to an improper jury argument,

which is forfeited if it is not preserved with an objection.”). Appellant forfeited any

complaints to such argument by not objecting. See Hernandez v. State, 538 S.W.3d

619, 622 (Tex. Crim. App. 2018) (“The right to a trial untainted by improper jury

argument is forfeitable.”); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.

1996) (“[D]efendant’s ‘right’ not to be subjected to incurable erroneous jury

arguments is one of those rights that is forfeited by a failure to insist upon it.” (citing

Marin, 851 S.W.2d at 279)).

In other words, under the Marin framework, the State’s comments in this case,

even if erroneous, were a category three error. See Proenza, 541 S.W.3d at 792;

Marin, 851 S.W.2d at 279. Accordingly, appellant forfeited any complaint regarding

these comments by failing to object in the trial court. See Proenza, 541 S.W.3d at

792; Marin, 851 S.W.2d at 279.

2. Complaints about the State’s purported commitment questions
were forfeited under Marin category three.
Appellant also contends the State’s comments to the jury panel were

“effectively the same as improper commitment questions.” Commitment questions

“commit a prospective juror to resolve, or to refrain from resolving, an issue a certain

way after learning a particular fact.” Lydia v. State, 109 S.W.3d 495, 498 (Tex.

Crim. App. 2003) (internal citation and internal quotation marks omitted).
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Commitment questions are improper when (1) the law does not require a

commitment or (2) the question adds facts beyond those necessary to establish a

challenge for cause. Id. “[I]n criminal cases, questions that are not intended to

discover bias against the law or prejudice for or against the defendant, but rather

seek only to determine how jurors would respond to the anticipated evidence and

commit them to a specific verdict based on that evidence, are not proper.” Sanchez

v. State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005).

Appellant argues the State’s comments to the jury panel—that the offender in

a child abuse case is usually known by the victim’s family—“effectively

committ[ed] the venire members to a guilty verdict once the[y] heard that the

accused was not a stranger to the complainant.” We interpret appellant to argue that

the State, in effect, asked the jury panel whether, assuming the defendant was known

to the victim’s family, the panel would find the defendant guilty. Even if the State’s

comments amounted to improper commitment questions, a party must object to an

improper commitment question to preserve his complaint for appellate review. See

Halprin v. State, 170 S.W.3d 111, 119 (Tex. Crim. App. 2005), habeas corpus

granted on other grounds by Ex parte Halprin, No. WR-77,175-05, 2024 WL

4702377 (Tex. Crim. App. Nov. 6, 2024); Phillips v. State, No. 05-08-01654-CR,

2010 WL 297942, at *1 (Tex. App.—Dallas Jan. 27, 2010, pet. ref’d) (not designated

for publication). Appellant cites no case authority (nor have we found we find any)

in which an improper commitment question was held to be a fundamental, Marin

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category-one or -two error. See Proenza, 541 S.W.3d at 792, 795; Marin, 851

S.W.2d at 279. Accordingly, we conclude that appellant forfeited any complaint

regarding the State’s questions by failing to object to them in the trial court.

We overrule appellant’s third issue.

V. Conclusion
We affirm the trial court’s amended judgment of conviction.

/Emily Miskel/
230242f.u05 EMILY A. MISKEL
Do Not Publish JUSTICE
TEX. R. APP. P. 47.2(b)

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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

JAMES WALLACE JAYROE, On Appeal from the 439th Judicial
Appellant District Court, Rockwall County,
Texas
No. 05-23-00242-CR V. Trial Court Cause No. 2-22-0361.
Opinion delivered by Justice Miskel.
THE STATE OF TEXAS, Appellee Justices Reichek and Carlyle
participating.

Based on the Court’s opinion of this date, the amended judgment of
conviction of the trial court, dated March 9, 2023, is AFFIRMED.

Judgment entered this 5th day of December, 2024.

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