(1)“If the error at trial was in admitting evidence under a nonconstitutional rule—Tex. Code Crim. Proc. art. 38.23— shouldn’t harm be assessed under the non-constitutional harm standard in Tex. R. App. P. 44.2(b)?”
(2) “If the non-constitutional “substantial rights” standard applies, was the error harmless?”
Police were investigating the murder of a man connected to Holder. They obtained Holder’s cell phone records through the Stored Communications Act, which did not require probable cause or a warrant. Following Holder’s indictment, he moved to suppress the cell site location information (CSLI) the police had obtained. The trial court denied his motion. On his conviction for capital murder, Holder argued the Texas Constitution required probable cause and a warrant. He ultimately prevailed in the Court of Criminal Appeals. The Court remanded the case to the intermediate court of appeals to determine harm. That court held, in reliance on Love v. State, 543 S.W.3d 835 (Tex. Crim. App. 2016), that it was bound by precedent to apply the constitutional harm standard to an error under the Texas Constitution. Under that standard, the court of appeals held that admission of Holder’s CSLI was harmful because it connected him to the crime scene around the time the State argued the victim had been murdered and showed that Holder lied to police about his whereabouts that day. The court of appeals concluded the CSLI was “a crucial part—if not the crucial part—of the State’s case.”
The State argues the nonconstitutional harm standard applies because there was no violation of the Texas Constitution at trial, only a violation of the statutory exclusionary rule—Tex. Code Crim. Proc. art. 38.23. Although police violated the Texas Constitution by obtaining Holder’s cell records without probable cause, the Texas Constitution (unlike the federal constitution) has no built-in exclusionary rule that would make it a violation of the Texas Constitution to admit evidence of that illegal search and seizure at trial. While admission of that evidence violated the statutory exclusionary rule, that is merely a statutory error, not a constitutional one. The State argues that Love is misleading and should be corrected. It also contends admission of the CSLI data was harmless under the lower harm standard. It argues the court of appeals dismissed or minimized other significant evidence against Holder, including evidence of motive, opportunity, and the testimony of the man Holder brought with him to the crime scene after the murder and gave incriminating statements to.