dissenting.
This is an appeal from a conviction for capital murder under V.T.C.A., Penal Code, § 19.03(a)(2), where the death penalty was imposed by the court following affirmative answers by the jury to special issues one and two submitted under Article 37.071(b), V.A.C.C.P.
The majority reverses the conviction upon appellant’s fifteenth point of error in which the majority states the “appellant complains of a hypothetical question posed to a number of veniremen during the early portions of the voir dire which was intended to demonstrate the difference between a murder that is committed intentionally and one that is done deliberately.” The point of error, however, reads:
“The trial court erred in permitting the State to use a purported example of capital murder during voir dire which eliminated 'intentionally commit the murder’ element of the offense.”
And the appellant points only to the voir dire examination of one venireman.
In argument submitted in his brief in support of the wording of his fifteenth point of error the appellant states:
“It is appellant’s contention that the persons who enacted the capital murder statute certainly meant that before a death sentence could be enacted, a person would have to do more than inten*378tionally do an act, such as pull a trigger of a gun (while in the course of committing robbery, etc.) i.e., the state's version of the statute. Surely the act must be committed with the ultimate design to take a life. In fact, the definitions of ‘intentionally’ and ‘conduct’ clearly indicate such a result, particularly when coupled with the way in which the capital statute is drawn.
“Intentionally is defined in § 6.03(a) of the Penal Code:
“‘A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.’
‘Conduct’ is defined to mean ‘an act or omission and its accompanying mental state’. Tex.P.Code, § 1.07(a)(8).
“The use of the term ‘intentionally’ in § 19.03(A)(2) clearly is more than a redundant application of the culpable mental state required in the § 19.02(a)(1) definition of murder and appellant would submit that it means what it says, i.e. ‘intentionally commit the murder’ as opposed to ‘intentionally cause the death.’ ”
In support of his fifteenth point of error appellant sets out in his brief a particular portion of the voir dire examination of venireman Gary Mack Woods. That portion relied upon by appellant is as follows in its entirely:
“Q. (By Mr. Isenberg — Prosecutor) You’ve got that first example. I walk in the store, get the money, take the gun — it’s my conscious objective or desire to pull the trigger on the gun. The bullet hits Mr. Scott. He bleeds to death. That’s an example of when I intentionally caused the death of an individual while in the commission of a robbery.
“Here’s example number two. I go into the Seven-Eleven. I get the money from Mr. Scott. I take the gun. I don’t just fire at him, I take it and put it right up to his head. It’s just an inch away from the side of his temple, and I pull the trigger and I blow his brains out. Under that fact scenario, the first part of intentionally engage in the conduct, conscious objective or desire to engage in the conduct, you bet. Second question: deliberately engage in the conduct with a reasonable expectation that death would occur, second example. Does that, perhaps, draw the distinction for you a little better?
“A. I see the distinction that you tried to get to, yes, sir. He deliberately shot him in the head knowing he was going to die or should die.
“Q. That’s right. As opposed to just shooting at him and having the bullet hit him somewhere and then bleeding to death—
“MR. BRATTON (Defense Counsel): If that’s the example they’re using of just shooting at him and him ended up bleeding to death, that’s not capital murder and we would object to that example being used. He could confuse this prospective juror, and we would ask that he be instructed to disregard that as even an example.
“THE COURT: Disregard the statement of the prosecutor about shooting at somebody. It is not a capital murder.
“Q. (By Mr. Isenberg) I didn’t mean to change my example. The first example I gave you is where I shoot the gun. It’s my conscious objective or desire to engage in the conduct. I pull the gun, the gun fires and hits Mr. Scott in the leg and then he bleeds to death. That’s the example I meant for the first one.
“MR. BRATTON: Your Honor, we’re going to object to that as, further, not being intentionally causing the death if all he’s doing is shooting the gun and he doesn’t intend to cause the death.
“THE COURT: Overruled.
“MR. BRATTON: That’s under trial objection number one that we would make to the Court.
“THE COURT: That’s denied.
“MR. BRATTON: Is that the same ruling as to that?
*379“THE COURT: Yes, sir.
“Q. (By Mr. Isenberg) I’ve got these two examples. The first example was where I walk in and I take the gun and I fire the gun. It’s my intent to fire the gun to engage in that conduct or fire the gun. The bullet hits Mr. Scott in the leg and he bleeds to death, and I go out with the money. It answers the first question ‘intentional’. It might or might not answer the second question of whether it was done deliberately with a reasonable expectation that death would occur.
“The second example—
“MR. BRATTON: Your Honor, os to that first example, we would, again, that it’s not an intentional act and not a proper definition. Same objection.
“THE COURT: Overruled.” (Emphasis supplied.)
It is this quoted portion upon which appellant relies to illustrate his point of error stated above.
It is observed that the objection to the voir dire examination of Woods which appellant complains of in his fifteenth point of error is “Your Honor, we’re going to object to that, as further, not being intentionally causing the death if all he’s doing is shooting the gun and he doesn’t intend to cause the death” and “That’s under trial objection number one that we would make to the Court.” He tells us that the trial objection number one is to appellant’s written objection to the “State’s example of an act to pull the trigger.” In such written objection we find that appellant complains that the example or examples used do not define capital murder as stated in V.T.C.A., Penal Code, § 19.03(a)(2), thus allowing a juror to be qualified under an improper standard preventing the appellant from properly challenging for cause or effectively using his peremptory challenges, thus depriving him of a fair and impartial jury as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, §§ 10 and 19 of the Texas Constitution and Article 35.16(a)(8) and (c)(2), Y.A.C.C.P.
His last trial objection was “Your Honor, as to that first example ... that it’s not an intentional act and not a proper definition.”
Following the initial voir dire examination by the State, appellant was permitted to voir dire Woods at length in which appellant gave Woods hypothetical examples of the law concerning capital murder, etc., which were correct and in accordance with the definition he had earlier urged. Woods indicated he understood and could follow the law. While appellant challenged Woods for cause, he accepted Woods as the eighth juror and did not exercise a peremptory challenge. At the time he had not exhausted his peremptory challenges. Woods’ voir dire is the only prospective juror’s examination set out under his expressly worded fifteenth point of error. Under this point of error appellant does not refer us to other prospective jurors,1 despite the majority’s assertion as to “a number of veniremen.”
The majority seems to have substituted its own version of the fifteenth point of error. It quotes at length from Gardner v. State, 730 S.W.2d 675 (Tex.Cr.App.1987), fulfilling the prophecy of the concurring opinion in Gardner at p. 703. It also relies upon Lane v. State, 743 S.W.2d 617 (Tex. Cr.App.1987), involving a hypothetical question concerning the difference between intentional and deliberate murder. In the instant case the fifteenth point of error relates to a different question, and further and most importantly, unlike Lane, the appellant was not restricted or prevented from subsequently posing what he considered to be correct hypothetical questions concerning the same subject matter, and “rehabilitating” the prospective juror before he was accepted by the appellant without the use of a peremptory challenge. In his point of error he does not complain that the challenge for cause was improperly denied and that he was forced to take an objectionable juror.
*380The majority, using a different hypothetical than that referred to by appellant in his fifteenth point of error, writes and finds presumed harm:
“The hypothetical in the instant cause was in every instance givpn to the venireman during the State’s voir dire, before appellant could even begin to question the particular venireman’s ability to comprehend any genuine distinction between ‘intentional’ and ‘deliberate.’ Appellant was thus effectively precluded from mounting a challenge for cause in the ordinary sense against any of these veniremen on that basis. Indeed, as Lane, supra, establishes, the hypothetical given here actually rendered the veniremen challengeable for cause inasmuch as it instilled in them, under the trial court’s auspices, a bias against the law. Furthermore, the hypothetical could only have corrupted the answers to the undeniably ‘proper’ questions appellant subsequently posed to each of the veniremen relative to his ability to comprehend a distinction between the two statutory terms, thus denying appellant the intelligent use of a significant portion of his peremptory challenges. Smith v. State, 703 S.W.2d 641, 643 (Tex.Cr.App.1985). Under the circumstances presented here, harm may be presumed. Id.; Cf. Gardner v. State, supra at 690, n. 9.
“In short we find that the prosecutor’s use of the erroneous hypothetical in this cause, over appellant’s objection, so distorted the lawful course of the whole voir dire that appellant was denied due course of law and effective representation of counsel as guaranteed by Article I, §§ 19 and 10 of the Texas Constitution.”
First, it is observed that when prospective jurors in a capital murder case are examined on voir dire separate and apart, as in the instant case, it is customary and traditional that the State commence the voir dire examination. See Articles 35.17 and 35.13, V.A.C.C.P. Any hypothetical question posed by the State on initial interrogation of a prospective juror will always be before a defendant “could even begin to question the particular venireman’s ability” about the same subject matter. How this well-established order of procedure effectively precludes a defendant from mounting a challenge for cause, as the majority suggests, is not clear. The majority indicates that the hypothetical (it has chosen in disposing of the fifteenth point of error) “actually rendered the veniremen chal-lengeable for cause as it instilled in them, under the trial court’s auspices, a bias against the law.” The majority seems to be saying that if the State in explaining the law to a prospective juror, gives a hypothetical that is a “watered down” version of the law or is not totally correct, and the court overrules the objection thereto the prospective juror, whomever he or she might be, has forever instilled2 in his or her mind a bias against the law, and that subsequent voir dire examination of proper examples or hypotheticals of the law by the defendant are of no avail because the earlier hypotheticals “could only corrupt the answers” to the later questions of the defendant. Apparently, under the majority’s viewpoint, once the State’s hypothetical (if improper at all) is made and the objection thereto is overruled, the die is cast and nothing can be done to save the day, particularly not the defendant’s proper explanation of the law.
Anyone with experience in jury voir dire examination knows that often the examples given in explanation of the law by the State, the defendant, or even by the court are not always totally correct or even sometimes improper. And this occurs without bad faith on the part of any party.
If the rule established by the majority today is a good rule, does it work both ways? If, during the voir dire examination by a defendant, an improper or not totally correct example or hypothetical is given, and the State’s objection thereto is overruled, then is the prospective juror subject to challenge for cause by the State? Sure*381ly the improper hypothetical of the defendant could only have corrupted the answers to any later undeniably proper questions by the State, if the majority reasoning is carried to its logical ending.
Undoubtedly the majority does not so intend, for it finds the use of the erroneous hypothetical, over appellant’s objection “so distorted the lawful course of the whole voir dire that appellant was denied due course of law and effective representation of counsel as guaranteed by Article I, §§ 19 and 10 of the Texas Constitution.”3
Since the State has no right to either due course of the law of the land or the effective assistance of counsel, the majority’s answer is clear. The State has no such right.
The majority also contends that the asking of the hypothetical and the ruling by the court denied the appellant the intelligent use of a significant portion of his peremptory challenges. “A peremptory challenge is made to a juror without assigning any reason therefor.” Article 35.14, V.A.C.C.P.4 The appellant in this cause did not assign reason at trial for any of his peremptory challenges. He was not required to do so. We know now why such challenges were utilized. As to juror Woods, he was accepted by the appellant as a juror without the exercise of an available peremptory challenge. Juror Race mentioned in the majority opinion was the first juror chosen. He was accepted without either challenge for cause or the exercise of a peremptory challenge by the appellant. Juror Hanneken was also accepted by appellant without the exercise of an available peremptory challenge. These three jurors, interrogated individually and separate and apart from other members of the jury panel, were the only prospective jurors who actually served on the jury after the use of the hypothetical in the fifteenth point of error or the one set forth by the majority opinion. Each was “rehabilitated” by the appellant in his voir dire examination and indicated they understood the law as described by appellant’s counsel and said they could follow it. It is difficult to see how the use of either hypothetical “so distorted the lawful course of the whole voir dire” so as to deny appellant the effective representation of counsel or the due course of law.
If the circumstances here present presumed harm, it may be difficult or even impossible to select a criminal trial jury in the future without reversible error.
Other new and dangerous case law continues to be created, see e.g., Goode v. State, 740 S.W.2d 453 (Tex.Cr.App.1987), and even other newly adopted rules do not work both ways. See Polk v. State, 813 S.W.2d 749 (Tex.Cr.App.1988).5
*382Because the majority advances its own point of error rather than the one urged by appellant and for all the other reasons discussed, I dissent to the reversal of this capital murder conviction on this point.
DAVIS, J., joins this opinion. MILLER, J., joins this opinion except for that part dealing with footnote #5.. Nevertheless, the majority uses prospective juror Race’s voir dire examination. Race, like Woods, was accepted by appellant as a juror. No peremptory challenge was exercised and appellant had not exhausted such challenges at the time.
. ‘Instill” is defíned as "1: to cause to enter drop by drop ... 2: to impart gradually." Webster’s New Collegiate Dictionary (1980).
. Interestingly enough, the objection made at trial and on appeal should be contrasted with the majority’s holding. The appellant does not expressly mention or argue that he was denied the effective representation of counsel or due course of the law of the land. The majority makes its own choice and limits its holding to state constitutional issues for obvious reasons. There will be no federal review of this holding.
. Now see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.ED.2d 69 (1986). The State may now be required under certain circumstances to disclose its reasons for peremptory challenges. The defendant is not so required.
. Polk, supra, held that the Benson (661 S.W.2d 708 [Tex.Cr.App.1982]), Boozer (717 S.W.2d 608 [Tex.Cr.App.1984]), and Marras (741 S.W.2d 395 [Tex.Cr.App.1987]) line of cases that the sufficiency of the evidence is to be measured against the charge of the court does not apply, despite a lack of objection by the defendant, where the charge authorizes conviction on less than the law requires. In such cases the standard is the old standard that the sufficiency of the evidence is measured against the allegations of the indictment. In the Benson-Boozer-Mar-ras line of cases the majority of this Court held that where the court’s charge required more than the allegations of the indictment and more than the laws required for a conviction, and the State does not object, the sufficiency of the evidence must be measured against the charge of the court. Even if the "more" is found by the jury beyond a reasonable doubt, appellate court will reverse on the sufficiency of the evidence if no rational trier of fact could have found the "more” beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). And this is true even if the "more" is not an essential element of the offense, and all the essential elements of the offense are proved and supported by the verdict of the jury. The conviction must nevertheless fall in such cases because the State did not object to the court’s charge. Where the charge requires *382less rather than "more," and the defendant fails to object, the rule that the sufficiency of the evidence is measured against the charge does not apply as made clear in Polk. There appears to be different standards applied depending upon whose ox is gored.