State v. Frank Empey ( 2016 )

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-14-00407-CR THE STATE OF TEXAS STATE V. FRANK EMPEY APPELLEE ---------- FROM 271ST DISTRICT COURT OF WISE COUNTY TRIAL COURT NO. CR17613 ---------- CONCURRING OPINION ---------- 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 2