                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00407-CR


THE STATE OF TEXAS                                                          STATE

                                         V.

FRANK EMPEY                                                             APPELLEE


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              FROM 271ST DISTRICT COURT OF WISE COUNTY
                       TRIAL COURT NO. CR17613

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                          CONCURRING OPINION

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      Because I agree that Appellee has not established that the statute always

operates unconstitutionally—the standard that the court of criminal appeals has

directed us to apply with regard to facially unconstitutional challenges like the

one presented here—I join with Chief Justice Livingston’s opinion in both

reasoning and result. I write separately only to express that while I share the

concerns regarding the statute raised by the trial court in its findings of fact and
conclusions of law and by Justice Dauphinot in her dissenting opinion, I believe

that the facts and arguments in this case do not present an opportunity to

address the concerns raised.

                                                 /s/ Bonnie Sudderth

                                                 BONNIE SUDDERTH
                                                 JUSTICE

PUBLISH

DELIVERED: August 4, 2016




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