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Click here for the full text of this decision FACTS:The appellant was charged with driving while intoxicated. During voir dire, the state, anticipating that the evidence at trial would show that appellant suffered physical disabilities from polio, asked the jury panel the following questions: “There may be some evidence in the case, you may hear some evidence about physical disability. And my question is: will anyone here who is sensitive or just thinks that their thinking process lends them to feel the need to be more protective of people with physical disabilities? Is there anyone here who thinks they may have a hard time reaching a verdict based on the fact that there may be evidence of a physical disability?” Appellant objected that the prosecutor was attempting to commit the veniremen, and the trial court overruled his objection. The prosecutor continued: “Assuming that you have evidence beyond a reasonable doubt that a person’s lost the normal use of their physical faculties, if you’re selected as a juror mental faculties do you think you would have a bias in favor of or give more benefit to a person who was physically disabled? Do you think you would? Does anybody feel like they might do this or that they would do that? Anybody in the first row?” Appellant again objected and the trial court again overruled his objection. The only venireman who responded said, “Not unless that there was an establishment that the disability had something to do with what led others to believe.” This venireman was juror number 20; neither side used a peremptory strike against her, because the six-member jury was complete before reaching her number. The jury convicted appellant of driving while intoxicated, and the trial judge assessed punishment at 120 days in jail probated for one year. The court of appeals affirmed the trial court’s judgment. HOLDING:The court vacates the court of appeals’ judgment and remands this case to the court of appeals for further proceedings. Under Texas Rule of Appellate Procedure 44.2(b), reviewing courts should assess the potential harm of the state’s improper commitment questioning by focusing upon whether a biased juror-one who had explicitly or implicitly promised to prejudge some aspect of the case because of the state’s improper questioning-actually sat on the jury. The ultimate harm question is: was the defendant tried by an impartial jury, or, conversely, was the jury or any specific juror “poisoned” by the state’s improper commitment questions on a legal issue or fact that was important to the determination of the verdict or sentence? Factors to consider in determining whether a trial court’s error in permitting the state to ask improper commitment questions to an entire jury panel over the defendant’s objection is harmful might include: whether the questions were unambiguously improper and attempted to commit one or more veniremen to a specific verdict or course of action; how many, if any, veniremen agreed to commit themselves to a specific verdict or course of action if the state produced certain evidence; whether the veniremen who agreed to commit themselves actually served on the jury; whether the defendant used peremptory challenges to eliminate any or all of those veniremen who had committed themselves; whether the defendant exhausted all of his peremptory challenges upon those veniremen and requested additional peremptory challenges to compensate for their use on improperly committed veniremen; whether the defendant timely asserted that a named objectionable veniremen actually served on the jury because he had to waste strikes on the improperly committed jurors; and whether there is a reasonable likelihood that the jury’s verdict or course of action in reaching a verdict or sentence was substantially affected by the state’s improper commitment questioning during voir dire. The court points out that this is not an exhaustive or exclusive list. Depending upon the particular circumstances, a reviewing court might use additional or entirely different factors to assess the ultimate question of harm: was the defendant tried by a juror that had prejudged him or some aspect of his case because the state had improperly committed one or more veniremen to a verdict or course of action before hearing any evidence? OPINION:Cochran, J., delivered the opinion of the court, in which Keller, P.J., Price, Womack, Keasler and Holcomb, JJ., joined. Johnson, J., concurred in the result. Womack, J., filed a concurring opinion in which Keller, P.J., joined. Meyers and Hervey, JJ., are not participating. CONCURRENCE:Womack, J., filed a concurring opinion, in which Keller, P.J., joined. “I join the opinion of the Court with the understanding that the first two paragraphs in Part II of the opinion (ante, at 4) do not say that voir dire examination is justified by the second and third of the three”possible purposes’ that are mentioned. The author of the opinion has joined the view, which I have set out elsewhere, that the peremptory-challenge procedure does not justify a party’s questioning the jurors about matters other than their qualifications to serve. See Barajas v. State, 93 S.W.3d 36, 42 (Tex. Cr. App. 2002) (concurring opinion). And I feel sure that no member of the Court thinks that”indoctrinat[ing] the jurors’ is a legitimate purpose.”

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