           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-1086-15



                             JEREMY THOMAS, Appellant

                                            v.

                                 THE STATE OF TEXAS



               ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                       FROM THE FIRST COURT OF APPEALS
                                HARRIS COUNTY

        Y EARY, J., filed a concurring opinion.

                               CONCURRING OPINION

        I join the Court’s opinion, except for the subsection designated “Preservation of

Error.” Majority Opinion at 10-12. I see no occasion for this Court to pass on the question

of whether error was preserved in this case. The Court ultimately concludes that any error

that may have been preserved was not reversible in any event because it was harmless. It

therefore affirms the court of appeals’s judgment, which had affirmed the judgment of the

trial court.
                                                                                 Thomas — 2


       It is true that we have said, on any number of occasions, that issues of error

preservation are systemic in the intermediate courts of appeals. See Darcy v. State, 488

S.W.3d 325, 327 (Tex. Crim. App. 2016), and cases cited therein. We have also explained

that what we mean by that is that a court of appeals should never reverse a conviction

without addressing any potential question of procedural default—even sua sponte, in the

event that the appellee does not raise it. See id. at 327-28, and cases cited therein.

       Here, the State did argue that error was not preserved. The court of appeals disagreed,

and reached the merits of Appellant’s claim, concluding that the trial court erred. Thomas v.

State, 470 S.W.3d 577, 586-87 (Tex. App.—Houston [1st Dist.] 2015). But the court of

appeals went on to hold the error harmless, id., at 588, and this Court now agrees.

       The court of appeals did not reverse the conviction without inquiring into potential

procedural default. It affirmed the conviction despite having concluded that error was

preserved, after concluding that the error was harmless. We did not grant discretionary

review to examine the court of appeals’s preservation analysis. Instead, we granted

discretionary review to examine its harm analysis. We have no need to say anything about

whether error was preserved in this case.

       It might be different had we found it necessary to reverse the judgment of the court

of appeals with respect to issue of harm. But we did not. To even speak to the issue of error

preservation in an opinion on discretionary review under these circumstances is purely
                                                                         Thomas — 3


gratuitous and unnecessary. It does not impact the bottom line at all.




FILED:        November 9, 2016
PUBLISH
