concurring.
The majority should directly address the substantive question of whether appellant’s voir dire was wrongfully limited, which is a large part of the ground upon which we granted review. Further, while I do not disagree that the majority’s harm analysis is a logical extension of existing precedent, I write separately to question why this analysis appears to bypass entirely the harmless error rule provided for in the rules of appellate procedure? Rule 81(b)(2) was ignored when it came to assessing error in jury selection, so perhaps Rule 44.21 will be ignored as well. The Court should say so.
I.
At trial several veniremembers were questioned individually at the bench. The trial court refused to allow appellant to ask two of these venirepersons an additional question.2 On appeal, appellant claimed the trial court’s restriction of his voir dire was an abuse of discretion since the questions he sought to ask were proper and he was forced to blindly use peremptory strikes on the two venireper-sons. The Court of Appeals applied a three-factor test established by this Court in Ratliff v. State, 690 S.W.2d 597 (Tex.Crim.App.1985), to determine when a trial court abuses its discretion in limiting voir dire. The Court of Appeals concluded under this test that since none of these venirepersons served on the jury, there was no abuse of discretion. The Court of Appeals also said there was no abuse of discretion because appellant was merely attempting to ask questions the trial court had already asked. The majority “assumes arguendo” the trial court abused its discretion in limiting. appellant’s voir dire. The majority ought to squarely address this issue. In my view, the trial court abused its discretion in restricting appellant’s voir dire and the Court of Appeals erred to the extent it held otherwise.
During the general voir dire in this aggravated sexual assault of a child case, one venireperson indicated that she had a “similar situation” in her family background that might prejudice her against appellant. Appellant informed the venire that they would be provided an opportunity to discuss such matters privately at the bench. Following the general voir dire, thirteen venire-members approached the bench for private discussions with the trial court and the parties. During discussions with two of these venirepersons, appellant was not allowed to ask questions:
THE COURT: Mr. Pulis ... You had some difficulty that you wanted to talk to the Court about. What was that?
VENIREMEMBER PULIS: Yes, sir. I wouldn’t call it sexually abused but I was molested when I was 12 years old and I’m afraid that might weigh on my decision.
THE COURT: Well, the test simply is can you sit in the jury box, listen to the testimony and render a verdict on what’s submitted by the witnesses on the stand. You’re dealing with another ease with another thing. Can you step in that jury box and listen to that testimony and give a verdict that you think is proper?
VENIREMEMBER PULIS: I would try. That’s all I can guarantee you.
*206THE COURT: You’re willing to do that?
VENIREMEMBER PULIS: I would be willing.
APPELLANT: May I question this witness?
THE COURT: No. That’s enough. Go have a seat.
APPELLANT: For the purpose of the record I need to object of not being allowed to — I would have tendered this question. My question to that juror would have been could he be a fair and impartial juror with regard to the given circumstances of his background.
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THE COURT: Come right up [Mrs. Wei]. We’re talking about a juror. Can you step in the jury box and listen to the testimony and apply the laws of the situation, render a verdict one way or the other? Can you do that?
VENIREMEMBER WEI: No, I’m trying to say this because my family is very strick [sic]. I have a very strong feeling.
THE COURT: Your father is very strick [sic]?
VENIREMEMBER WEI: We are a very strick [sic] family and when I listen to this I think it would be very difficult for me, I’m afraid.
THE COURT: What does that do to you? I’m not quite understanding. You can go by the evidence in this case, can’t you; sworn testimony?
VENIREMEMBER WEI: Yes.
THE COURT: And you could render a verdict?
VENIREMEMBER WEI: Yes. [B]ut I’m afraid I might already be set in my mind, that’s what I’m afraid of.
THE COURT: All right. Have a seat, please.
APPELLANT: Your honor, I would like to question that last witness.
THE COURT: Make your objections.
APPELLANT: I object. I would like to have questioned that witness with regard to giving her predisposition at this time, could she be a fair and equitable juror given the facts and circumstances and could she serve given her predisposition at this time....
A venireperson is challengeable for cause by either party if “he has a bias or prejudice in favor of or against the defendant.” Tex. Code Crim. Proc. Ann. art. 35.16(a)(9). When a venireperson states that his personal experiences, knowledge or opinions might bias or prejudice him against a party, “[t]he sole question is whether [he] can put aside prior knowledge and opinion and render an impartial verdict.”3 Penry v. State, 903 S.W.2d 715, 728 (Tex.Crim.App.1995). If the venireperson states that he cannot set aside his personal knowledge, opinions or experiences and be fair and impartial, he is challengeable for cause. See Burks v. State, 876 S.W.2d 877, 896 (1994)(quoting Smith v. State, 641 S.W.2d 248 (Tex.Crim.App.1982)). The questions sought were proper and the trial court abused its discretion in disallowing them. Once individual questioning was permitted and revealed the possibility of a bias or prejudice against appellant, appellant should have been allowed to ask the venire-persons whether they'would be able to lay their personal experiences aside and be fair and impartial. The Court of Appeals wrongly concluded the questions appellant sought to ask were duplicative of the trial court’s questions. A reading of the above two exchanges reflects that the trial court *207did not ask the venirepersons whether they could be fair and impartial despite their personal experiences. Without this information, appellant could not intelligently exercise a peremptory challenge against these venire-persons.
II.
Any such error, the majority concludes, was harmless. In arriving at this conclusion, the majority applies a test utilized recently in Janecka v. State, 937 S.W.2d 456 (Tex.Crim.App.1996), to assess harm arising from the prohibition of proper questioning of individual venirepersons during voir dire in a capital murder case:
[I]n order to establish that he is harmed by the denial of intelligent use of a peremptory challenge as to a single venire-member, a defendant must, in effect, blindly exercise a peremptory against the veniremember to prevent him from sitting on the jury. Only if this prophylactic use of the peremptory challenge subsequently results in the deprivation of a peremptory challenge he would have used later on can we say the error in denying him the intelligent use of the peremptory challenge was harmful.
Janecka, 937 S.W.2d at 471 (emphasis added). The Court emphasized the distinction between refusing a proper question propounded to the entire venire and the refusal of a proper question as to individual venire-persons. In Nunfio v. State, 808 S.W.2d 482, 485 (Tex.Crim.App.1991), a ease where a proper question was sought for query to the entire venire, we specifically held “error in the denial of a proper question which prevents the intelligent exercise of one’s peremptory challenges constitutes an abuse of discretion and is not subject to a harm analysis under Rule 81(b)(2).” The Court in Jar necka emphasized that the rule in Nunfio, that the error is not subject to a harm analysis under Rule 81(b)(2), only makes sense where the proper question was propounded to the entire venire. Janecka, 937 S.W.2d at 471 n. 9. The implication, therefore, is that where the question is asked as to a single venireperson, then harm can be assessed under Rule 81(b)(2). But nowhere in the Court’s analysis in Janecka or indeed in the instant case, is there any reference to Rule 81(b)(2) or its recent successor Rule 44.2.
This is not all that surprising. The Court has long disregarded the existence of the harmless error rule as provided for in the Rules of Appellate Procedure in the jury selection context, in favor of applying a variety of other tests to ascertain the existence of “harm.” Perhaps Rule 81(b)(2) has been avoided because no voir dire error that ultimately affects the make-up of the jury could be found harmless thereunder. As I have previously opined, the impact of error affecting the exercise of peremptory strikes cannot be proven beyond a reasonable doubt to have made no contribution to the conviction or the punishment:
... We cannot know with any certainty, let alone beyond reasonable doubt, whether appellant would have been convicted had [the wrongfully excluded venireperson] served on his jury. We cannot know whether the State would have used a peremptory strike against [that venireperson] had its challenge for cause been overruled, nor who would have served in [the excluded venireperson’s] place had the State used a peremptory challenge against him. If we follow the admonishment of Rule 81(b)(2), none of us can fairly say that the record affirmatively discloses a lack of harm beyond reasonable doubt.
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... however much we may suspect that errors such as the one committed in this ease did not affect the outcome of trial, however much we may suspect that the jurors who tried appellant were entirely fair in their deliberations, we are not at liberty under the law to ratify the judgment of conviction in this case, nor will we be in subsequent cases where the same error occurs. If it seems to some that this is too harsh a rule, the only solution is to amend or repeal article 35.16.
Zinger v. State, 932 S.W.2d 511, 515-16 (Tex.Crim.App.1996)(Meyers, J., concurring); see also george e. ddc & ROBERT o. dawson, 42 CRIMINAL PRACTICE AND PROCEDURE § 35.33 (1995)(to render denial of proper question of *208individual venireperson harmless by granting of additional strike ignores fact that his answer might have caused counsel not to strike him as easily as it could to strike him). To my knowledge, however, a majority of the Court has never expressed this sentiment. Cf. compare Ransom v. State, 920 S.W.2d 288, 294 n. 5 (Tex.Crim.App.1994)(opinion on original submission)(holding that State’s erroneously granted challenge for cause was not “error affecting punishment only” under article 44.29(c) because “the erroneous elimination of a venireperson conceivably affects the composition of the jury, which sits at both guilt and punishment) with id. at 298 (opinion on rehearing)(holding that under article 44.29(c) “voir dire error regarding a subject that a jury would consider only during the punishment phase of trial is ‘error affecting punishment only’ unless the defendant produces evidence showing that the error necessarily produced a jury biased against the defendant on the issue of guilt”). Rather, the Court has consistently placed a burden on the defendant to show that as a result of error during jury selection, he did all that he could to right the error (by exercising a peremptory if necessary and requesting more if needed) and nevertheless wound up with a juror that he found objectionable. What I still don’t understand is how this analysis jibes with former Rule 81(b)(2) or with the newly enacted harmless error rule, 44.2.
At any rate, it appears to have been the law for a very long time that harm is assessed in the jury selection process by considering the subsequent utilization of peremptory strikes and whether the defendant ultimately was forced to have an objectionable juror sit.4 This is well-established stare decisis and no one seems to be urging its overruling. But I nevertheless view it as odd, and with the promulgation of the Court’s revised Rules of Appellate Procedure, this might be a good time to re-evaluate our practice of ignoring application of those rules to error occurring in the jury selection process.
With these comments, I concur.
. Effective September 1, 1997, newly enacted Rule 44.2, Reversible Error in Criminal Cases, replaced former Rule 81(b)(2), providing:
(a) Constitutional error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.
(b) Other errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.
. Appellant also complains his voir dire was restricted as to a third venireperson, but he failed to specify for the record exactly what question he would have asked that person.
. A distinction has been made between a true bias or prejudice against one of the parties and an opinion that can be set aside. As was recently reiterated in Smith v. State, 907 S.W.2d 522, 530 (Tex.Crim.App.l995)(citing Williams v. State, 565 S.W.2d 63 (Tex.Crim.App.1978)), "While a trial court may hold a juror qualified who states that he can lay aside an opinion he has formed, no such discretion vests in the court with reference to a juror with a bias or prejudice against the parties.” See also Kemp v. State, 846 S.W.2d 289, 299 (Tex.Crim.App.l992)(discussing "fundamental distinction” between prejudice against a party and merely entertaining an opinion).
A distinction is also made between a bias or prejudice against a party and a bias or prejudice against the law upon which the parties are entitled to rely. When a venireperson is biased or prejudiced against the law, the test is whether their views would prevent or substantially impair their ability to abide by their- oath and follow the law. Smith, 907 S.W.2d at 527; Riley v. State, 889 S.W.2d 290 (Tex.Crim.App.l993)(opinion on original submission and opinion on reh’g).
. While the basis for this reasoning has never been explained, perhaps it is because a defendant is not entitled under the constitution or any statute to have any particular venireperson sit on his juiy (absent discrimination). See Rousseau v. State, 855 S.W.2d 666, 676 (Tex.Crim.App.l993)(parties do not have right to selection of any particular juror only right to exclude particular juror in absence of discrimination). Rather, a defendant only has a right to exclude particular venirepersons. Id. Further, exclusion of a particular qualified juror does not affect the fair and impartial make-up of the juiy. In the context of the potentially wrongful exclusion of a qualified venireperson on account of race, the Court has explained: ... The possibility of racial prejudice in the selection of the petit jury affects the adversarial presentation of the case not at all. If anything, it affects only the makeup of the tribunal that hears and adjudges that presentation.... In any event, if race is not an allowable "proxy” for bias [citation omitted] we can only conclude that an all white jury — whether it is the product of chance or of racial discrimination in the exercise of peremptory challenges— can nevertheless render a fair and impartial verdict in the trial of a minority defendant.
Batiste v. State, 888 S.W.2d 9, 15 (Tex.Crim.App.1994).