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

W OMACK, 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.

Morales (concurrence) - 2 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 Publish