concurring.
Had applicant raised the present contention in his direct appeal, I would not hesitate to reverse his conviction and remand the cause for new trial. See Gardner v. State, 730 S.W.2d 675 (Tex.Cr.App.1987); Lane v. State, 743 S.W.2d 617 (Tex.Cr.App. 1987); Morrow v. State, 753 S.W.2d 372 (Tex.Cr.App.1988); Martinez v. State, 763 S.W.2d 413 (Tex.Cr.App.1988). Concluding that the error committed was one of state constitutional dimension, the plurality-grants essentially the same relief today under a post-conviction application for writ of habeas corpus brought pursuant to Article 11.07, Y.A.C.C.P. Having alluded to it in passing, the plurality never explains how its disposition today is consistent with the Court’s holding in Ex parte Truong, 770 S.W.2d 810 (Tex.Cr.App.1989). As I understand its opinion, the plurality believes cog-nizability of the issue in post-conviction ha-beas corpus is justified because this is a capital murder conviction, and the United States Supreme Court has held that due process considerations are “heightened” in that context, vis-a-vis the Eighth Amendment’s prohibition against cruel and unusual punishment. In my view this is another example of this Court’s ad hoc approach to the question of what issues will be entertained in collateral attack of a conviction suffering no jurisdictional defect as to render it void. See Ex parte Dutchover, 779 S.W.2d 76 (Tex.Cr.App.1989) (Clinton, J., concurring).
In Ex parte Truong, supra, we essentially held that an allegation of error which, though of state constitutional dimension, is nevertheless subject to a harm analysis under Tex.R.App.Pro., Rule 81(b)(2), “is at best voidable, and as such is not subject to a collateral attack by writ of habeas corpus.” 770 S.W.2d at 813. We did not thereby hold, necessarily, that any defect of constitutional dimension that is not subject to a harm analysis will be cognizable in an 11.07 collateral attack. In Truong we held that susceptibility to a harm analysis was one indicator that error did not render a conviction void. That is not to say, however, that this is the exclusive measure for determining whether or not an error voids the conviction. It seems to me that, consistent with Truong, if the plurality purports to rely upon error of state constitutional magnitude, it should proceed upon two inquiries. First, it should ask whether the error is subject to a harm analysis.* If the plurality finds it is, then we know the conviction is “at best voidable," id., at 813, and hence, not cognizable on collateral attack. That a given error is not subject to a harm analysis, however, does not dispositively establish it is of a nature as to render the conviction void. Finding a harm analysis inapplicable, the plurality would nevertheless have to address the question whether by any other measure the error is such as to void the conviction.
Rather than undertake this admittedly daunting enterprise, the plurality concludes the issue is cognizable for the simple reason that applicant was prosecuted for capital murder. I do not understand how that *487circumstance translates into instant cogniz-ability in post-conviction collateral attack. Surely the particular ground upon which relief is granted here has no Eighth Amendment component. Article 37.071, V.A.C.C.P., requires that a finding of deliberateness be made before the death penalty may be imposed. Rules of statutory construction demand that “deliberate” be given meaning and significance apart from that attributed to “intentional;” Article 37.-071(b)(1), supra, must involve an inquiry discrete from that of whether the murder was committed intentionally. Heckert v. State, 612 S.W.2d 549 (Tex.Cr.App.1981); Fearance v. State, 620 S.W.2d 577, 584 (Tex.Cr.App.1981). Thus, a juror unable to differentiate “deliberate” at the punishment phase from “intentional” at the guilt phase would deprive a capital accused of due process and due course of law. Gardner v. State, supra, at 689. Disallowing questioning tailored to reveal such an inability in a venireman would, by the same token, render assistance of counsel ineffective, inasmuch as it deprives counsel of the chance to establish a possible basis for challenge for cause, id., or, failing that, of intelligent use of his peremptory challenges. Morrow v. State, supra. It is doubtful, however, that in our particular capital murder scheme the Eighth Amendment necessarily requires that a “deliberate” finding be made at the punishment phase before a death penalty may be obtained. For Eighth Amendment purposes, V.T.C.A. Penal Code, § 19.03 may already sufficiently narrow the class of death-eligible offenders. See Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). Thus, the plurality proceeds upon no more than the premise, it seems to me, that under the Eighth Amendment “more process is due" capital murder defendants. But if that is enough to bestow cognizability upon a claim on collateral attack, I do not understand why the applicant in Ex parte Banks, 769 S.W.2d 539 (Tex.Cr.App. 1989), did not have an equally cognizable claim. Banks was, after all, a capital murder defendant too. The plurality’s criteria are entirely too whimsical for me.
I had hoped the Court had begun to develop a more coherent doctrine of cogniz-ability at least of state, if not also of federal, constitutional claims under Article 11.-07, supra. Ex parte Truong, supra. See Ex parte Dutchover, supra (Clinton, J., concurring); Ex parte Crispen, 777 S.W.2d 103 (Tex.Cr.App.1989) (Clinton, J., concurring). It seems to me what the plurality does today potentially undermines what progress we have made.
For my own part, I would avoid the question altogether of whether applicant is entitled to relief under the Texas Constitution, and proceed, instead, upon the Sixth Amendment to the United States Constitution. For in my view, applicant was deprived of his federal constitutional right to effective assistance of counsel just as surely as he was deprived of his identical right under Article I, § 10.
I am not altogether sanguine about granting relief under a claim I do not regard as particularly “exceptional” or “fundamental,” notwithstanding its federal constitutional dimension. See Ex parte Cris-pen, supra, at 109 (Clinton, J., concurring). Moreover, the error not being “exceptional” in nature, applicant should be made to explain the reason he could not have raised this contention in due course of his direct appeal. Ex parte Dutchover, supra, at 79 (Clinton, J., concurring). As yet, however, this perspective has not prevailed on the Court. Under current law as I understand it, subject to the requirements that in some instances it be properly preserved in the trial court, Ex parte Crispen, supra, and that in any event it be properly pled in the application for writ of habeas corpus in this Court, Ex parte Dutchover, supra, any defect of federal constitutional magnitude may be remedied by way of a collateral proceeding brought under Article 11.07, supra. Ex parte Banks, supra, at 540, and cases cited. Accordingly, I would grant relief in this cause on the basis of a violation of applicant’s Sixth Amendment right to effective assistance of counsel.
Although I cannot join the plurality opinion, I therefore concur that relief should be granted.
McCORMICK, P.J., and CAMPBELL and WHITE, JJ., join in this opinion.*488OPINION TO DENIAL OF STATE’S MOTION FOR REHEARING
In Gardner v. State, supra, at 690, n. 9, we held error of the sort at issue here to be "cured" inasmuch as it affected the voir dire of but a single venireman, and the defendant had been granted an additional peremptory challenge. In so ruling we observed that where an accused is prevented from posing a proper question to the entire venire, or to a significant portion thereof, harm is, respectively, "manifest” and "evident.” See also Allridge v. State, 762 S.W.2d 146, 163 (Tex.Cr.App.1988). In Morrow v. State, supra, we held that use of an erroneous hypothetical purportedly to illustrate the distinction between "intentional” and “deliberate” to a substantial number of veniremen "so distorted the lawful course of the whole voir dire that [Morrow] was . denied due course of law and effective representation of counsel as guaranteed by Article I, §§ 19 and 10 of the Texas Constitution." 753 S.W.2d at 376-77. Under the circumstances presented there, we observed, "harm may be presumed.” Id,, at 376. It strikes me that with error of this kind, as with other kinds, “the record will contain no concrete data from which an appellate court can meaningfully gauge the likelihood that [it] did or did not contribute to the conviction or punishment of the accused.” Roberts v. State, 784 S.W.2d 430, 435 (Tex.Cr.App.1990). Thus, Rule 81(b)(2), supra, may have no application here. I would not want to say for that reason, however, that the error rendered the conviction void, rendering it cognizable under Article 11.07, supra. Ex parte Truong, supra. Finding an error is not subject to a harm analysis does not necessarily end the cognizability inquiry.