dissenting from denial of En Banc Review.
I requested en banc review based on conflicts between the Panel Opinion and the trend in opinions from the Court of Criminal Appeals treating voir dire error as non-constitutional error for which harm must be shown.
A. Constitutional Error?
The Panel Opinion holds that denial of a proper voir dire question is constitutional error because the right to propose questions during voir dire examination is included within the right to counsel under Article I, section 10, of the Texas Constitution, citing Gonzales v. State, 994 S.W.2d 170, 171 (Tex.Crim.App.1999). I do not read Gonzales as addressing whether the error is constitutional or non-constitutional. However, in Jones v. State, 982 S.W.2d 386 (Tex.Crim.App.1998), the Court of Criminal Appeals did address that precise issue in the context of another voir dire error. Having found error in granting the State’s challenge of a veniremember for cause, the court squarely and expressly addressed whether the error was constitutional. Id. at 390-91. Despite acknowledging that constitutional provisions for the right to an impartial jury bear on the jury selection process, the Court of Criminal Appeals held the constitutional right was not violated by every error committed during the voir dire examination. Id. at 391. The Jones court concluded that no constitutional violation was presented. Id. No such analysis was done in Gonzales.
It is significant that the Jones reasoning includes a quotation from a case emphasizing that the error in jury selection did not produce any claim that the jury, as finally constituted, was biased or prejudiced. Id. (quoting Shettel v. United States, 113 F.2d 34, 36 (D.C.Cir.1940)). The same reasoning applies to the error in the present case. Even if appellant was deprived of the opportunity to ask a proper question, there has been no allegation, much less a showing, that the jury, as finally constituted, was biased.
Therefore, I find the Panel Opinion contrary to the trend in this area of the law, as represented by the Jones case.
B. Appellant’s Impossible Burden
What really appears to bother the Panel, and the other courts of appeals whose cases are cited in the Panel Opinion, is the possibility of a stark change in the law, from a former automatic holding of harm to placement of the burden on the accused to show harm. This is a legitimate concern. See Gonzales, 994 S.W.2d at 172 (Price, J., dissenting) (disagreeing with the hypothesis that the lack of ability to prove harm, equals the lack of harm itself, but acknowledging that this reasoning appears to drive each of the Court of Criminal Appeals’s Cain1 analyses). There are two *406ways to look at this situation, however. It appears that a majority of the Court of Criminal Appeals is of the opinion that criminal defendants were receiving windfalls in cases like Nunfio v. State, 808 S.W.2d 482 (Tex.Crim.App.1991), which held that certain types of error were reversible per se. Indeed, in Jones, the Court of Criminal Appeals observed it was returning to the rule established more than a century ago in holding that no reversible error is presented unless the appellant can show he was denied a trial by a fair and impartial jury. Jones, 982 S.W.2d at 392.
Conclusion
Accordingly, I respectfully disagree with the Panel Opinion. I would hold that the error in not allowing appellant’s counsel to ask a proper voir dire question is non-constitutional, and that appellant has not met his burden2 to show the trial court’s error affected appellant’s substantial rights. Because a majority of this Court has denied en banc review, I respectfully dissent.
Chief Justice SCHNEIDER and Justice NUCHIA join this dissenting opinion.
. Cain held that "except for certain federal constitutional error labeled by the United States Supreme Court as ‘structural,’ no error ... is categorically immune [from] a harmless *406error analysis.” Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997).
. See Merritt v. State, 982 S.W.2d 634, 637 (Tex.App.—Houston [1st Dist.] 1998, pet. ref'd, untimely filed).