Nathaniel Neuser v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00299-CR

NATHANIEL NEUSER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 140th District Court
Lubbock County, Texas
Trial Court No. DC-2023-CR-2692, Honorable Douglas H. Freitag, Presiding

November 5, 2025
OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

Nathaniel Neuser appeals from his multiple convictions relating to indecency with

and injury to a child. Six issues pend for review. We address the first, for it is dispositive

of the appeal and reverse.

Background

The circumstances concern sexual and physical abuse suffered by a four-year-old

child, JN, at the hands of his biological parents and grandmother. Appellant Neuser was

JN’s biological father.
At trial on charges of indecency and injury to a child, medical staff testified that

neurological injuries as a consequence of the chronic abuse suffered by JN resulted in

global delays in his mental development. As one doctor explained, the child “has a

damaged developing brain with multiple neurodevelopmental disorders” impacting every

facet of his life. “And in this case it’s motor, it’s social, it’s emotional, it’s behavioral, it’s

cognitive. It’s every aspect of this child’s functioning.” The defensive theory advanced

below focused on some genetic abnormality that could be the cause of JN’s neurological,

mental, and physiological deficits.

The jury found appellant guilty of indecency with a child by sexual contact (a lesser-

included offense of aggravated sexual assault of a child, as charged); indecency with a

child by sexual contact; injury to child by an act causing serious mental deficiency,

impairment, or injury (using his hand as a deadly weapon); and injury to a child by

omission causing serious mental deficiency, impairment, or injury. Appellant appealed

and presented six issues for our review.

Issue One: Voir Dire

Appellant initially asserts that the trial court improperly limited his voir dire and

denied his challenges for cause. Allegedly, “[d]efense counsel attempted to further

question several jurors who admitted they could not consider the low end of the

punishment range or would ‘always or almost always’ believe police over other witnesses.

The court, however, deemed these inquiries improper, refused to allow further

examination, and denied the challenges for cause.” We sustain the issue.1

1 The State argues that appellant failed to preserve his complaint. He allegedly so failed because
he did not inform the court of the specific question or questions he wanted to ask. Yet, the circumstances
at bar liken not to a situation where the opportunity to ask a particular question was denied. Rather, they
compare to a situation where the trial court refused to undertake individualized questioning of jurors who
2
Bias Regarding Punishment

Our review begins with voir dire on punishment. Comments from the trial court

best frame the debate at bar. The court rejected defense counsel’s request for

individualized questioning of those veniremen who voiced hesitance in their ability to

“foresee” circumstances in which certain punishment would “be appropriate.” It explained

as follows:

1) Well, just so we’re clear, Mr. Reese asked can they foresee something
being an appropriate punishment. That is not an appropriate question
to disqualify a juror by being able to consider the full range of
punishment. Can you see something as being the appropriate
punishment is not can you consider the full range of punishment. I ain’t
talking to everybody that said they wouldn’t consider something
inappropriate. That’s an improper commitment question and not a
reason to disqualify a juror. That was all of the injury questions were
phrased that way[;]

2) On the injury questions you asked can you foresee something as
being an appropriate punishment. Not could they consider the
range of punishment. They could consider it and still decide it’s not
appropriate[;] and,

3) You said, “Can you foresee it being appropriate?” I wrote it down.

Prior to that, counsel for appellant asked the venire the following:

1) If you found somebody guilty of any of those – I mean, that’s – you know,
aggravated sexual assault of a child, right? If you found somebody
guilty, you’re back there beyond a reasonable doubt, is there any set of
circumstances where you couldn’t – the range of punishment is five
to 99 or life, right? Is there anybody here that based on what I’m
telling you you could not consider the full range of punishment
including five years in the penitentiary?[;]

indicated impermissible bias. The questions asked by defense counsel purportedly did not trigger the need
for further inquiry, according to the court. They did not because it viewed them as improper questions. Yet,
they actually covered a very topic deemed appropriate by our Court of Criminal Appeals, as we will explain.
And the responses thereto indicated bias warranting further questioning. Simply put, the trial court knew
of what defense counsel desired but denied it. So, error was preserved. TEX. R. APP. P. 33.1(a). Had
appellant so illustrated in responding to the State’s contention, he could have avoided the use of such
distasteful and non-professional characterizations of that contention as requiring “vomit” and being “ticky-
tacky.” Preservation of error generally is mandatory, even though an appellant may think otherwise.
3
2) Do y’all understand the question I’m asking? . . . Intentionally or
knowingly, go back there and you’re in the jury room, you’ve found
somebody guilty of aggravated sexual assault of a child through any
means that we just talked about, right, and you could not consider the
full range of punishment including the lower end?[;]

3) And there is all kinds of circumstances, right? But, you know, you found
guilty aggravated sexual assault of a child, can you consider the full
range including the lower end of five? Anybody over here can’t do it,
just raise your placard.[;]

4) You got – and – so you’ve gone into the back, you found a defendant
guilty of indecency with a child, all right, by sexual contact. Is there
anybody here that can’t foresee a set of circumstances where the
lower end of the punishment range would be appropriate? Just
can’t do it. Just can’t foresee – “I understand there’s all different kinds
of circumstances, but just I can’t foresee any set of circumstances
where the lower end would be appropriate”?[;]

5) And the range of punishment for that one is five to 99 years in the
penitentiary, or probation. And probation is only eligible if they’re up to
10 years. 10 years or lower on the sentence, okay? You have to be
able to consider the full range of punishment, and that’s anywhere from
five to 99 years in the penitentiary up to and including probation if you
sentence them to under 10, okay? Everybody understand what I’m
asking? Intentionally or knowingly causing serious bodily injury by act
or omission, serious bodily injury, serious mental impairment, all right?
You’re back in that jury room, you’ve found somebody guilty of
intentionally or knowingly causing serious bodily injury, serious mental
impairment, is there anybody on this side that couldn’t consider – you
know, it’s like, “I understand. I understand what we found him guilty
of. I just can’t foresee, I can’t think of a set of circumstances where
the lower end of the punishment range, that being five and/or
probation would be appropriate. Just can’t foresee it, you know. I
just can’t do it. I can’t foresee it.”[;]

6) [I]t’s meaningful consideration to the full range of punishment[;]

7) Some people just, “I know there’s different circumstances. I know
there’s all different kind of facts, but I can’t give meaningful consideration
because I can’t think of a situation where it would be appropriate,
where the lower end including probation would be appropriate.”
Anybody on this side feel like that when we’re talking about intentionally
or knowingly by act or omission causing serious bodily injury, serious
mental impairment?[;] [and]

4
8) [Regarding reckless injury to a child and asking]: So same question.
Can anybody here – and the law says you’ve got to consider the full
range of punishment, two to 20 years and up to and including probation
if the sentence is 10 years or less. Does anybody here cannot foresee
a set of circumstances where the lower end of that punishment
range would be appropriate including probation?

(Emphasis added). With this in mind, we observe the following.

Asking veniremen if they could consider the full range of punishment falls within

the realm of a permissible commitment question. See Weaver v. State, 355 S.W.3d 911,

913 (Tex. App.—Amarillo 2011, pet. ref’d) (stating that “[n]ot all commitment questions

are improper” and “[f]or instance, asking a juror if he is able to ‘consider’ the full range of

punishment is a proper commitment question”). And, that counsel alluded to probation

or the lower end of the punishment spectrum when inquiring if the pool members could

consider the full range is similarly proper; such queries serve to highlight the ends of the

spectrum. As said in Cardenas v. State, 325 S.W.3d 179, 184 (Tex. Crim. App. 2010),

“[b]oth the State and defense are entitled to jurors who can consider the entire range of

punishment for the particular . . . offense—i.e., from the maximum to the minimum and all

points in between.”) Id. at 184. Had counsel structured his questions as inquiring if venire

members could “give” a certain punishment, that would be improper, however. See

Weaver, 355 S.W.3d at 913 (stating that “while jurors must be able to ‘consider’ the full

range of punishment, they cannot be required to commit to ‘giving’ a certain punishment”).

Yet, he did not.

Rather, defense counsel began interspersing his queries with phrases like “foresee

a set of circumstances” and “appropriate punishment.” And, it was those phrases deemed

objectionable by the trial court. This was so despite the court utilizing rather identical

language when individually questioning venire members other than those designated by
5
defense counsel and who indicated concern with considering the full range of punishment.

For instance, it asked: 1) “can you envision a scenario where you were on a jury that

has convicted someone . . . where you could consider the appropriate punishment as

being 25 years imprisonment, or . . . 25 years imprisonment as an appropriate

punishment?”; 2) “can you envision a scenario where you’re on a jury that convicted

someone . . . could [you] give meaningful consideration to 25 years in the penitentiary as

the appropriate punishment?”; 3) “is there a scenario where you could consider . . .

could consider the appropriate punishment as a minimum being five years

confinement”; 4) “[i]s there a scenario you can think of where . . . where you [can]

consider two years as the appropriate punishment?”; 5) “is there a scenario that you

– where you could consider 20 years as the appropriate punishment?”; 6) “can you

envision a scenario where you’re on a jury that convicts . . . where you could consider

two years as an appropriate punishment?”; 7) “[t]he question I have is, is there a

scenario where you could consider where you’re on a jury that’s convicted someone . . .

where you could consider the appropriate punishment as being two years

confinement”; and 8) could you “envision a scenario where you were on a jury and you

had convicted someone of that charge and you could consider life imprisonment as an

appropriate punishment?” (Emphasis added). “Envision a scenario” differs in no

substantive way from “foresee a set of circumstances” or “think of a situation.” All three

invite the listener to perceive scenarios, circumstances, or situations which may influence

his or her decision. Reasonable minds cannot interpret them otherwise given the totality

of circumstances before us. And, more importantly, the trial court utilized that verbiage

6
in deciding whether the venire members it opted to question were lawfully capable of

serving.

In returning to Cardenas, we see that inquires of the ilk uttered by both defense

counsel and the trial court are proper. The statement that “[j]urors must be able to

consider both ‘a situation in which the minimum penalty would be appropriate and . . .

a situation in which the maximum penalty would be appropriate’” illustrates as much.

Id. at 184 (emphasis added). Indeed, identical sentiment was voiced by the same court

years earlier. See Fuller v. State, 829 S.W.2d 191, 200 (Tex. Crim. App. 1992) (en banc)

(requiring jurors to “be able, in a sense, to conceive both of a situation in which the

minimum penalty would be appropriate and of a situation in which the maximum penalty

would be appropriate”); see also Dixon v. State, No. 07-16-00058-CR, 2022 Tex. App.

LEXIS 268, at *36 (Tex. App.—Amarillo Jan. 13, 2022 pet. ref’d) (mem. op., not

designated for publication) (same). Mandating that prospective jurors be able to consider

“a situation in which” the minimum and maximum penalty would “be appropriate”

necessarily invites inquiry into whether they can envision, foresee, or think of such

situations. Given this, it is illogical to say one cannot ask if jurors could “envision,”

“foresee,” or “think of” scenarios where the minimum, maximum, and everything in

between would or would not be appropriate when controlling authorities require them to

be able to do just that. See Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002)

(en banc) (stating that a “question is proper if it seeks to discover a juror’s views on an

issue applicable to the case”).

In so concluding, we do not ignore language in Ladd v. State, 3 S.W.3d 547, 559

(Tex. Crim. App. 1999), stating that “a venireman is not challengeable for cause simply

7
because he cannot immediately envision a scenario in which the minimum punishment

would be appropriate.” One must place the quote within context. The court followed it

with the following: “[t]he mere fact that a venireman cannot envision such a scenario

during voir dire does not indicate that he could not consider the minimum punishment if

an appropriate scenario presented itself at trial.” Id. The topic being addressed was

whether the mere inability to immediately envision such scenarios rendered the

venireman challengeable for cause. Nothing was said about such an inability being

enough to relieve the trial court from engaging in individualized questioning to determine

if the venireman could comply with Cardenas and Fuller. In other words, such an inability

alone may not mean the venire members were, ipso facto, impermissibly biased. Nor

does it mean that further individualized interrogation is impermissible or unwarranted.

And, that is what appellant sought at bar . . . an opportunity for individualized questioning

when particular venireman evinced such an inability. He was denied the chance to garner

more information to effectively assess the bona fides of an ensuing challenge for cause.

So, while Ladd is informative, it is not controlling under the circumstances at bar. And

that seems particularly so here for one other reason.

The questions the Ladd court viewed as, not alone, forming the basis of a

successful challenge were the very questions asked by the trial court to determine

whether some veniremen were challengeable for cause per Cardenas and Fuller. So,

while answers to them alone may not require removal of veniremen, the trial court itself

deemed them relevant to and proper for assessing bias.

Additionally, defense counsel’s questions did not cross the threshold into

impermissible commitment queries. He omitted from them facts which would purportedly

8
warrant particular punishment. See Cardenas, 325 S.W.3d at 184 (stating that

permissible boundaries may be crossed when the question includes verbiage asking

about the consideration of particular punishment based on interjected evidentiary facts).

They merely dealt with the consideration of the full range of punishment and envisioning,

contemplating, thinking of, or foreseeing circumstances where that could or could not be

done.

No doubt, a trial court has broad discretion to control voir dire. Woodall v. State,

350 S.W.3d 691, 695 (Tex. App.—Amarillo 2011, no pet.). That discretion extends to

both the topics addressed and the form and substance of the questions used to address

them. Jacobs v. State, 560 S.W.3d 205, 210 (Tex. Crim. App. 2018). So too does its

discretion encompass the decision to perform individualized voir dire of particular

venireman. Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005). And, discretion

is not abused so long as the decision falls within the zone of reasonable disagreement.

Weaver, 355 S.W.3d at 913. Nor is it abused, in the voir dire setting, when the trial court

refuses “questions that only ‘might be helpful’ in examining the venire for bias.” Jacobs,

560 S.W.3d at 212. But, it is abused when the decision is arbitrary or unreasonable, State

v. Mechler, 153 S.W.3d 435, 439–40 (Tex. Crim. App. 2005); when it prohibits asking a

proper question about a proper area of inquiry, Fuller, 363 S.W.3d at 585 (quoting Sells

v. State, 121 S.W.3d 748 (Tex. Crim. App. 2003)); Barajas, 93 S.W.3d at 38; when voir

dire limitations render the defendant’s trial fundamentally unfair, Jacobs, 560 S.W.3d at

212 (quoting Mu’Min v. Virginia, 500 U.S. 415, 425–26, 111 S. Ct. 1899, 114 L. Ed. 2d

493 (1991)); or when it applies the wrong legal standard, Henderson v. State, No. 02-15-

9
00397-CR, 2017 Tex. App. LEXIS 8971, at *38–39 (Tex. App.—Fort Worth Sept. 21,

2017, pet. ref’d) (mem. op., not designated for publication).

There is no question that the delving into the ability of venire members to envision

situations where the full range of punishment would be “appropriate” is a proper area of

inquiry. Again, our Court of Criminal Appeals held as much in Cardenas and Fuller. That

defense counsel broached the subject matter with the venire is clear, as is that many in

the pool evinced an inability to do the very thing required of jurors by Cardenas and Fuller.

Equally clear is the trial court’s 1) refusal to submit the latter veniremen to individualized

questioning to assess their ability to comply with the dictate of Cardenas and Fuller, 2)

decision to submit to individualized questioning those veniremen identified by the State

as unable to consider the full range of punishment, and 3) utilization of questions virtually

identical to those of defense counsel when interrogating the veniremen identified by the

State. Defense counsel sought more than merely questioning which “may be helpful” but,

rather, that which was necessary to determine the veniremen’s ability to follow the law.

And, together these circumstances, when coupled with the application of the wrong legal

standard, moved the trial court’s decision to forgo individualized questioning into the

realm of exceeded or abused discretion. Thus, we sustain this aspect of Issue One.

Bias Toward Certain Witness Testimony

Next, we turn to the second voir dire error voiced by appellant. It pertained to

veniremen allegedly having a penchant to place greater credibility on testimony of law

enforcement officers. As explained by appellant, the questions revealed that those

veniremen “would always or almost always believe police officers over other witnesses.”

10
Thus, they allegedly were subject to challenge for cause. We sustain this contention, as

well.

During voir dire, defense counsel posed the questions: 1) “before hearing anything

from them, do you believe the law enforcement officers to be more truthful than other

witnesses?”; 2) “[s]o the fact they have a badge and a gun, you don’t know anything about

them, . . . would you believe that they’re more truthful than other witnesses? Always or

almost always?”; and 3) “[s]o again can you hold up – if you answered yes always, or

almost always to that, please raise your card there.” Approximately 19 veniremen raised

their hands. Yet, the trial court agreed to individually question only one of them. It refused

to do so regarding the others, stating 1) “I ain’t bringing up everybody, because I agree

the way that question was asked was not” proper; 2) the court did not “believe that to be

a proper challenge for cause question the way it was asked”; 3) “[i]t’s an improper

question to ask is it’s a balance – it’s not the basis to disqualify somebody when you say

I believe most of the time are truthful”; 4) “[a]lmost always isn’t always”; and 5) “[i]t’s

already 4:43, we’re not going to waste any more time.” In other words, the trial court set

the threshold for further questioning at whether the respondents said they would “always”

assign greater credibility to law enforcement officials who testified. Time constraints

prevented it from individually questioning those who merely indicated that they would

“almost always” assign police personnel greater credibility. More importantly, of the 19

who raised their hand and did not undergo individualized questioning, one was selected

for the jury while another was chosen as an alternate.

Veniremen are challengeable for cause if they cannot impartially judge the

credibility of witnesses. Ladd, 3. S.W.3d at 560. “[T]his means only that jurors must be

11
open-minded and persuadable, with no extreme or absolute positions regarding the

credibility of any witness.” Id. They are not “challengeable for cause simply because they

would give certain classes of witnesses a slight edge in terms of credibility.” Id. This

language does not focus on absolutes but, rather, establishes an acceptable range. If

this were not so, then the Court of Criminal Appeals would have had no reason to include

the terms “extreme” and “slight edge” in its description of the test. Those terms, when

compared to “absolute,” reveal that the bias favoring the certain class of witness need not

be complete or total. Rather, it need only approach or fall close to that end of the spectrum

to render it “extreme,” and, therefore, impermissible. And, that was the tenor of defense

counsel’s questions: “[W]ould you believe that they’re more truthful than other witnesses?

Always or almost always?” The questions focused on the spectrum’s end reflecting

absolute and extreme, both of which reveal unacceptable bias. So, the questions posed

were legitimate. They also were enough to render a venireman challengeable for cause

if the responses given fell within that sector of the spectrum. And, therein lies the problem.

The responses provided by the 19 venireman alluded to above fell within the

unacceptable end of the spectrum. That made the members subject to a legitimate

challenge for cause unless rehabilitated. Yet, the trial court eschewed rehabilitative

efforts in all but one instance. And, the remainder having underwent no further

examination despite appellant’s request, they remained within that end of the spectrum.

More importantly, the venire member ultimately selected for the jury fell within the

unacceptable end of the spectrum; she was not rehabilitated.

The record further illustrates that appellant completed the steps necessary to both

preserve his complaint for review and obtain reversal. The trial court denied his requested

12
challenges for cause and denied his request for additional preemptory challenges after

utilizing all those originally allotted against the unduly biased individuals. So too did

appellant identify the impermissibly biased juror ultimately seated on the jury and which

he would have struck if additional challenges were granted. See Davis v. State, 329

S.W.3d 798, 807 (Tex. Crim. App. 2010) (describing the steps to perfect for review denied

challenges for cause and explaining that a defendant is harmed when using a preemptory

strike to remove a venire member who the trial court erred in refusing to remove per a

legitimate challenge for cause).

Having found reversible error, we sustain issue one. Our decision relieves us from

having to address appellant’s remaining issues. Thus, we reverse appellant’s four

convictions and judgments memorializing same and remand for further proceedings.

Brian Quinn
Chief Justice

Publish.

13