            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. PD-0048-19



                              THOMAS DIXON, Appellant

                                             v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE SEVENTH COURT OF APPEALS
                           LUBBOCK COUNTY

       H ERVEY, J., filed a concurring opinion in which K EASLER and N EWELL JJ.,
joined.

                               CONCURRING OPINION

       I join the Court’s opinion because I agree that the admission of the historical CSLI

records in this case was harmless under the Fourth Amendment exclusionary rule. But I

write separately to address the court of appeals’s analysis and our decision in Love v.

State, 543 S.W.3d 835, 845 (Tex. Crim. App. 2016), which the lower court relies on.
                                                                                              Dixon–2

        Love dealt with Article I, Section 9 of the Texas Constitution 1 and whether text

messages should have been suppressed under Article 38.23(a) of the Texas Code of

Criminal Procedure—not the Fourth Amendment—as is the issue here.2 And while it is

true that we analyzed the statutory error in Love for constitutional harm, we were wrong

to do so and should disavow that part of the Court’s opinion.3


        1
            Article I, Section 9 states that,

        The people shall be secure in their persons, houses, papers and possessions, from
        all unreasonable seizures or searches, and no warrant to search any place, or to
        seize any person or thing, shall issue without describing them as near as may be,
        nor without probable cause, supported by oath or affirmation.

TEX . CONST . art. I, § 9.
        2
            In relevant part, Article 38.23(a) states that,

        No evidence obtained by an officer or other person in violation of any provisions
        of the Constitution or laws of the State of Texas, or of the Constitution or laws of
        the United States of America, shall be admitted in evidence against the accused on
        the trial of any criminal case.

                                                *      *      *

TEX . CODE CRIM . PROC. art. 38.23(a).
        3
        Harm analysis is governed by Rule 44.2 of the Texas Rules of Appellate Procedure. In
relevant part that rule states that,

        (a) Constitutional Error. If the appellate record in a criminal case reveals
        constitutional error that is subject to harmless error review, the court of appeals
        must reverse a judgment of conviction or punishment unless the court determines
        beyond a reasonable doubt that the error did not contribute to the conviction or
        punishment.

        (b) Other Errors. Any other error, defect, irregularity, or variance that does not
        affect substantial rights must be disregarded.
                                                                                           Dixon–3

        We use a constitutional-harm standard to determine whether a Fourth Amendment

violation is harmful because the federal exclusionary is constitutional in nature, inherent

in the Fourth Amendment. Hernandez v. State, 60 S.W.3d 106 (Tex. Crim. App. 2001);

see T EX. R. A PP. 44.2(a). Unlike the Fourth Amendment, however, we have held that

there is no suppression remedy inherent in Article I, Section 9. Hulit v. State, 982 S.W.2d

431, 437 (Tex. Crim. App. 1998) (citing Welchek v. State, 247 S.W. 524 (1922)). Instead,

the remedy for an Article I, Section 9 violation is to invoke one of Texas’s statutory

exclusionary rules.4

        That brings me to the problem with Love. Violations of statutes are reviewed for

non-constitutional harm, not constitutional harm.5 Thus, we erred when we analyzed the

statutory error in that case for constitutional harm. Consequently, we should overrule that

part of our opinion at our earliest opportunity. Erroneously assessing harm under the




                                          *      *       *

TEX . R. APP . P. 44.2(a)–(b).
        4
        The majority of suppression claims rely on the general suppression remedy in Article
38.23(a), but there are other more specific statutory suppression rules that can be relied on. See
TEX . CODE CRIM . PROC. art. 18A.205 (“The state may not use as evidence in a criminal
proceeding information gained through the use of an interception device installed under this
subchapter if authorization for the device is not sought or is sought but not obtained.”).
        5
         Presiding Judge Keller has reached the same conclusion. In Hernandez, she wrote in
dissent that “Article 38.23 is a statutory mechanism, not a constitutional one, and any error
predicated thereon must be analyzed under the standard of harm for non-constitutional errors.”
Hernandez, 60 S.W.3d at 116 (Keller, P.J., dissenting).
                                                                                      Dixon–4

much higher constitutional-harm standard unfairly punishes the State.6

       With these comments, I join the opinion of the majority.

Filed: January 15, 2020

Publish




       6
         Clark v. State, 365 S.W.3d 333, 338 (Tex. Crim. App. 2012) (“[C]onstitutional and non-
constitutional errors are subject to vastly different analyses on appeal.”).
