DAVID MORALES v. THE STATE OF TEXAS (concurring)

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

PD-0462-07
DAVID MORALES, Appellant
v.
THE STATE OF TEXAS
ON DISCRETIONARY REVIEW OF
CASE 08-05-00201-CR OF THE EIGHTH COURT OF APPEALS
EL PASO COUNTY
Womack, J., filed a concurring opinion.

I do not agree that the case involves the Sixth-Amendment doctrine of implied bias (see supra, at 10-15). I think the juror was subject to a challenge for cause because she was, in the language of Code of Criminal Procedure article 35.16(c)(1), "related in the third degree of consanguinity to any prosecutor in the case." She was related in the zero degree of consanguinity to a prosecutor in the case -- she was a prosecutor in the case, as was every other prosecutor in the District Attorney's office.

I concur in the judgment of the Court to remand the cause to the Court of Appeals, but I would have that court decide whether it was ineffective assistance for the appellant's attorney to fail to challenge the prosecutor.

En banc

Delivered May 14, 2008

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