dissenting.
On original submission in this cause a three judge plurality opinion held that failure to allow questioning of veniremen regarding their ability to distinguish “intentional” from “deliberate” was error of state constitutional magnitude. Disallowing the question to a significant portion of the venire was held to violate applicant’s right to effective counsel under Article I, § 10 of the Texas Constitution. Because this inquiry “went to the very heart of our capital murder sentencing scheme,” and because of “the heightened need for due process standards” in capital cases, the plurality held this error cognizable under Article 11.07, Y.A.C.C.P. Op. at 485. It is cognizable, the plurality held, notwithstanding our holding in Ex parte Truong, 770 S.W.2d 810 (Tex.Cr.App.1989), that errors of state constitutional dimension that are subject to a harm analysis are not cognizable in post conviction habeas corpus.
I filed a concurring opinion in this cause, in which three judges joined. There I opined that in context of the state constitutional error that occurred here, a harm analysis “may have no application[.]” Op. at 486, n. *. That being so, the limitation on cognizability expressly announced in Truong would not apply. But I still believe that “[fjinding an error is not subject to a harm analysis does not necessarily end the cognizability inquiry.” Id. Neither my opinion, nor as I understand it, the plurality’s, addressed the question of what errors of state constitutional dimension not subject to a harm analysis may nevertheless not be cognizable under Article 11.07, supra. The plurality did not address the question because it believed the Eighth Amendment principle that “more-process-is-due” to a capital defendant rendered the issue cognizable. I rejected that approach. Instead, I avoided the question of cogniza-bility of state constitutional error altogether by positing that relief could be granted for. the same error, under the guise of ineffective counsel as guaranteed by the Sixth Amendment. Since that is an error of federal constitutional dimension, it is cognizable under existing precedent whether subject to a harm analysis or not. See Ex parte Banks, 769 S.W.2d 539 (Tex.Cr.App.1989). On that basis I concurred in the result. Judge Berchelmann dissented without opinion. Judge Davis did not participate.
In his motion for rehearing the State Prosecuting Attorney contends, inter alia, that the concurring opinion erred in assuming there is a Sixth Amendment claim of ineffective assistance of counsel comparable to this Court’s holdings that prevention of effective voir dire can violate the right to representation of counsel under Article I, § 10, supra. See, e.g., Mathis v. State, 167 Tex.Crim. 627, 322 S.W.2d 629 (1959). In fact, there is no comparable Sixth Amendment claim, or at least none that has been recognized in the federal courts. When treating voir dire issues the federal caselaw mostly speaks in terms of the Sixth Amendment right to an impartial jury, rather than deprivation of the right to effective counsel. Failure to allow questioning of veniremen as to whether they can follow various requirements of the law is not deemed a violation of the right to an impartial jury. E.g., Moreno v. Estelle, 717 F.2d 171, at 178-79 (CA5 1983); King v. Lynaugh, 850 F.2d 1055 (CA5 1988). Only one case that I found addresses at any length the question of inadequate voir dire from the standpoint of violation of effective counsel. In Milton v. Procunier, 744 F.2d 1091, 1095-97 (CA5 1984), the Fifth Circuit held that disallowing questions to veniremen as to their understandings of the meaning of the word “deliberate” did not so disable trial counsel as to render him ineffective for Sixth Amendment purposes. This is very close to the contention applicant raised on original submission here. See also Esquivel v. McCotter, 777 F.2d 956, at 957 (CA5 1985); Griffin v. Lynaugh, 823 F.2d 856, at 864-65 (CA5 1987). The United States Supreme Court denied certiorari in all of these cases.
Moreover, upon further reflection I cannot imagine any reason the “prejudice” *489prong of Strickland v. Washington, 468 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), would not come to bear on such a Sixth Amendment claim of ineffectiveness of counsel. It would not seem to fit any of the categories for which the Supreme Court has held a prejudice analysis unnecessary. See United States v. Cronic, 466 U.S. 648, at 659 & n. 25, 104 S.Ct. 2039, at 2047, 80 L.Ed.2d 657, at 668 (1984). On the facts of the present case, as set out in the opinion on direct appeal, McKay v. State, 707 S.W.2d 23, at 27-28 (Tex.Cr.App.1985), a jury could readily find appellant acted, not just deliberately, but with premeditar tion, which is more than Article 37.-071(b)(1), V.A.C.C.P., requires. Russell v. State, 665 S.W.2d 771, at 779-780 (Tex.Cr.App.1983). Given this circumstance, it does not seem reasonably probable that, but for the failure to allow questions as to the difference between the terms “intentional” and “deliberate,” the first special issue would have been answered differently. Strickland v. Washington, 466 U.S. at 694, S.Ct. at 2068, L.Ed.2d at 698.
In short, it has been demonstrated to my satisfaction that it was a mistake to rely on the Sixth Amendment as a source of post conviction habeas corpus relief in this cause. The error is purely of state constitutional dimension. Only the three judge plurality opinion explains why this state constitutional error is cognizable under Article 11.07, supra, Ex parte Truong notwithstanding. I, and presumably the three judges who joined my concurring opinion, have rejected the plurality’s explanation. Presumably Judge Berchelmann rejected it too. That means a majority of the Court has yet to agree that relief is available on collateral attack for the only error presented here — violation of Article I, § 10, supra. Until we address that issue we cannot grant relief.
Denial of intelligent use of peremptory challenges is not ordinarily susceptible to a harm analysis. See Nunfio v. State, 808 S.W.2d 482 (Tex.Cr.App.1991). Cf. Gardner v. State, 730 S.W.2d 675, at 690 n. 9 (Tex.Cr.App.1987). Nevertheless, I would not hold it cognizable under Article 11.07, supra. Particularly if we reject the fiction that constitutional error per se renders a conviction “void,” see Ex parte Crispen, 111 S.W.2d 103, at 108 (Tex.Cr.App.1989) (Clinton, J., concurring), we should at least be able to say that an error is “of sufficient character or magnitude that we are obliged to say that our interest in rectifying it overcomes otherwise compelling finality interests”, before we make it a basis for collateral relief. Ex parte Goodman, 816 S.W.2d 383 (Tex.Cr.App.1991) (Clinton, J., concurring) (slip op. at 3). We have said that denial of intelligent use of peremptory challenges is not subject to a harm analysis, not because the likelihood of harm is so great that a denial of a fair and impartial trial is inevitable, but rather, simply because the nature of the error is such that a meaningful inquiry into harm, vel non, cannot be made. See Nunfio v. State, supra, at 485 & n. 3; Roberts v. State, 784 S.W.2d 430, 435 (Tex.Cr.App.1990). I do not consider the refusal to indulge a harm analysis for this reason, on direct appeal, to be the functional equivalent of declaring that the error rendered the conviction “void,” or was otherwise of sufficient magnitude as to justify suspending the State’s interest in finality even absent a finding of voidness. I would hold that applicant’s claim is not cognizable in a post-conviction, post-appellate collateral attack under Article 11.07, supra. By denying rehearing the Court lets stand an opinion by less than a majority that not only entertains the claim, but grants extraordinary relief in this cause. I respectfully dissent.
CAMPBELL, J., joins.