Santana v. State ( 1986 )

MILLER, Judge,

concurring.

In his first ground of error (at 10), appellant complains that the trial court erred by not allowing him to question prospective jurors regarding the lesser included offense of murder. Initially, our recent decision in Pierce v. State, 696 S.W.2d 899 (Tex.Cr.App.1985), also a capital murder case, seems right on point. In Pierce, supra, we ordered a reversal seemingly under the same facts as present in the instant case. What was not stated in the opinion in Pierce, supra, was that the trial court’s charge therein contained instructions on the lesser included offense of murder. Thus we are not in conflict with prior caselaw when we hold that henceforth, prior to deciding whether to reverse, we will look to the harm in denial of a “proper” voir dire question by examining the record of the evidence and the court’s charge.

One cautionary note: This distinction between error and reversible error should not be a factor in the decision that a trial judge makes vis-a-vis what questions he will, in his discretion, allow during voir dire. True, a judge who intentionally commits error will not have to try the case again if the error is not reversible, e.g. “harmless”. This truism, however, neither alters the reality that error is error nor justifies intentionally committing error. A proper¹ voir dire question should be allowed regardless of an opposing litigant’s belief that the issue will not arise during trial (and therefore not render denial of the question reversible error).

Emphasizing that denial of proper questions, such as in the case at bar, is error, I join the majority.

1 . For this Court's latest discussion of what constitutes a proper voir dire question see Smith v. State, 703 S.W.2d 641 (Tex.Cr.App.1985).