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Click here for the full text of this decision FACTS:This is an appeal of a conviction for the offense of tampering with a governmental record following a jury trial. HOLDING:Affirmed. The appellant argues that the question “Do you believe there’s anything wrong with putting false information in a police report?” was a commitment question. The Court of Criminal Appeals recently addressed an improper voir dire question in Lydia v. State, 109 S.W.3d 495 (Tex. Crim. App. 2003), where the prosecutor asked, “Do each of you feel as though you could evaluate a witness and his testimony and decide if he’s being truthful without automatically dismissing his testimony because of some criminal history?” The court held that the question was a commitment question because it asked the jurors to resolve witness credibility (issue) based on the knowledge that the witness had a criminal history (particular fact). The court held that the prosecutor did not ask whether the venire members could impartially evaluate testimony, but instead asked the venire members to resolve an issue in the case based on a particular fact. Similarly, the question in this case is a commitment question. The state sought a commitment on an issue in the case (i.e. culpability of conduct) from the venire member based on a particular fact (i.e. an officer putting false information in a police report). Although the state asked whether the venire member believed there was “anything wrong” with this particular kind of falsehood, direct committal language is not necessary. Commitment questions may contain words such as “consider,” “would,” and “could.” Additionally, the question is improper because it does not include only those facts necessary to test whether a venire member is challengeable for cause. The state did not ask whether the venire member could impartially apply the law, which is a proper commitment question that would give rise to a valid challenge for cause. Furthermore, even if the question was construed to give rise to a challenge for cause, the state’s question was rendered improper by the use of facts beyond those necessary to sustain a challenge for cause. The law refers to a “person” and a “government record,” while the state’s question unnecessarily included “police officer” and “police report.” Texas Penal Code �37.10(a)(1). Therefore, the trial court abused its discretion in allowing the State’s improper commitment question. Except for certain federal constitutional errors deemed “structural,” no error is categorically immune from a harmless error analysis. Gonzales v. State, 994 S.W.2d 170 (Tex. Crim. App. 1999). Since the U.S. Supreme Court has never held that erroneously restricting proper questions during voir dire or that erroneously allowing improper commitment questioning is structural error of a federal constitutional nature, the court applies a harm analysis. The Court of Criminal Appeals has applied the same harm analysis to voir dire error that does not constitute structural error of a federal constitutional nature. The harm analysis “traditionally applied to the erroneous denial of a defendant’s challenge for cause also applies to the erroneous prohibition of proper questioning of individual prospective jurors.” Anson v. State, 959 S.W.2d 203 (Tex. Crim. App. 1997). Under this analysis, a defendant is harmed only if 1. he exhausts all of his peremptory challenges; 2. he requests more challenges; 3. his request is denied; and 4. he identifies an objectionable person seated on the jury on whom he would have exercised a peremptory challenge. This harm analysis is equally appropriate where the trial court erroneously allows improper commitment questioning of individual prospective jurors. Where the prospective juror is allowed to make an improper commitment, the prospective juror becomes biased with regard to that issue, as he will seek to abide by the commitment made during voir dire. Thus, whether the error is the denial of a challenge for cause or the allowance of an improper commitment question, a juror challengeable for cause is left on the panel. Under the harm analysis traditionally applied to voir dire error, the trial court’s error in allowing improper commitment questioning of prospective jurors was harmless because the appellant failed to exhaust all of his peremptory challenges, to request additional peremptory challenges, or to identify an objectionable person seated on the jury. The venire member remained on the jury because the appellant chose not to exercise a peremptory challenge. The appellant’s other points of error are overruled. OPINION:Lopez, C.J.; Lopez, Stone and Green, JJ.

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