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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