In the Court of Criminal 

Appeals of Texas

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No. PD-0677-22

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LARRY JEAN HART,

Appellant

v.

THE STATE OF TEXAS

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On Appellant’s Petition for Discretionary Review

From the Fifth Court of Appeals 

Dallas County

═══════════════════════════════════════

YEARY, J., filed a dissenting opinion in which KELLER, P.J., and 

KEEL, J., joined.

The Court’s opinion abandons our usual posture of deference to a 

trial court’s broad discretion in admitting or excluding evidence. Clearly

the Court disagrees with the trial court’s decision. But the Court’s 
HART – 2

opinion fails to demonstrate that the trial court’s decision was outside 

“the zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 

372, 391 (Tex. Crim. App. 1990) (op. on reh’g). That is because it can’t—

because the trial court’s decision wasn’t outside that zone.

In Montgomery, the Court explained that, when reviewing a trial 

court’s decision to admit or exclude evidence under Rule 403 of the Texas 

Rules of Evidence, an “appellate court should not conduct a de novo

review of the record with a view to making a wholly independent 

judgment whether the probative value of evidence . . . is substantially 

outweighed by the danger of unfair prejudice.” Id. at 392. Instead, 

Appellate courts “should reverse the judgment of the trial court ‘rarely 

and only after a clear abuse of discretion.’” Id. (quoting United States v. 

Maggitt, 784 F.2d 590, 597 (5th Cir. 1986)). But the Court dispenses 

with both of those admonishments today. Although it pays lip-service to 

the abuse of discretion standard, in effect, the Court performs a de novo

review of the trial court record and concludes that, because it would not 

have admitted the evidence at issue, the trial court abused its discretion 

to do otherwise—and it was error for the court of appeals to affirm the 

trial court’s decision. 

I am convinced the court of appeals correctly upheld the trial 

court’s decision to admit Appellant’s rap videos and Facebook posts over 

Appellant’s Rule 403 objection. At the very least, the trial court’s 

decision fell well within the “zone of reasonable disagreement.”1 Id. at 

1 The Court concludes that the trial court’s admission of the rap videos 

alone warrants reversal of the court of appeals’ judgment in affirming that 

decision. However, under the Montgomery factors, I would hold that admission 
HART – 3

391. Both the State’s decision to offer the evidence and the trial court’s 

decision to admit it were fair responses to Appellant’s decision to 

introduce a fact question about whether he was too naïve to have 

formulated the mental state required to commit the offense alleged. I 

would therefore affirm the judgment of the court of appeals.

I. THE MONTGOMERY FACTORS

As the Court’s opinion notes, in Montgomery, we articulated 

factors that a trial court should consider in deciding whether the 

probative value of a piece of evidence is “substantially outweighed by a 

danger of . . . unfair prejudice[.]” TEX. R. EVID. 403; Montgomery, 810

S.W.2d at 389–91. Those factors include: (1) the “inherent 

probativeness” of the evidence, (2) the evidence’s “potential . . . to 

impress the jury in some irrational but nevertheless indelible way[,]” (3) 

the time required by the proponent to develop the evidence, and (4) the 

proponent’s need for the evidence. Id. Let us focus here, then, on those 

factors identified by the Court in Montgomery. 

A. Inherent Probative Value

The “inherent probative force” of an item of evidence refers to 

“how strongly it serves to make more or less probable the existence of a 

fact of consequence to the litigation[.]” Gigliobianco v. State, 210 S.W.3d

637, 641 (Tex. Crim. App. 2006). Addressing this factor, the court of 

appeals observed that the “primary disputed issue at trial” was 

Appellant’s intent to participate in a capital murder. Hart v. State, No. 

05-19-01394-CR, 2022 WL 3754537 at *8 (Tex. App.—Dallas Aug. 30, 

of both the rap videos and Appellant’s Facebook posts fell well within the zone 

of reasonable disagreement. 
HART – 4

2022) (mem. op., not designated for publication). In light of his claimed 

naïveté and lack of language comprehension skills, the issue crystalized 

into whether those conditions prevented him from forming the required 

mental state, or mens rea. Id.

Citing the State’s appellate brief, the court of appeals noted that 

the rap evidence, and the rap videos particularly, demonstrated 

Appellant’s “ability to easily communicate with words” and his 

“familiarity with criminal subject matter.” Id. Similarly, in contrast to

his claims that he did not own or have a gun and that he saw no one 

with guns on the night of the murder, Appellant’s Facebook posts 

suggested a familiarity with guns, an understanding of illicit uses of 

them, and an awareness of the need to hide them and to not “get 

kaught.”2 The court of appeals correctly decided that the “trial court 

2 In addition to the two rap videos, which the Court describes, see

Majority Opinion at 4–6, the State introduced four posts from Appellant’s 

Facebook page under the name “Block FrBndz Hart” as follows: 

• State’s Exhibit 80: “You know I draw down you draw attention 

slime.”

• State’s Exhibit 81: “Pull-up with them straps on me like Steve 

Urkel!!”

• State’s Exhibit 82: “[G]otta hide the blicky.”

• State’s Exhibit 83: “Best advice I kan give my lill niggas dont get 

kaught[.]”

The State failed to ask Appellant if “Block FrBndz Hart” was his account but 

had earlier asked Appellant, “Is there a reason why you have Block on all your 

social media?” Appellant responded: “It’s just a name I came up with.”

The Court asserts that State’s Exhibits 80, 82, and 83 are lyrics by other 

rappers. Id. at 7 n.4. The Court may be right, but it errs to cite facts outside 
HART – 5

reasonably could have concluded that the probative value of the evidence 

[was] high.” Id. I agree with the court of appeals: the probative value of 

the evidence with respect to Appellant’s friendliness, naïveté, and 

sophistication was high enough that the trial court could have, without 

difficulty, reasonably concluded that its value was not substantially

outweighed by any risk of unfair prejudice. And the Court does not 

dispute the court of appeals’ judgment with respect to this factor. See

Majority Opinion at 14. So far, so good. 

B. Improper Basis of Decision

The court of appeals observed that, while “the [rap] evidence did 

have [some] potential to impress the jury ‘in some irrational but 

nevertheless indelible way,’ [citation omitted] we cannot say the trial 

court’s balancing determination was a ‘clear abuse of discretion.’” Hart, 

No. 05-19-01394 at *8 (quoting Montgomery, 810 S.W.2d at 390). It 

seems to me that the court of appeals was focused on the right things. 

The logical probative force of the evidence at issue in this case 

was that Appellant’s willingness and ability to lip-sync, post, and write 

(or at least learn) rap lyrics about crime made it more likely that, when 

he was asked to be the driver in a burglary, he was actually aware that 

he was agreeing to facilitate a burglary and should have anticipated the 

resulting capital murder. The risk of unfair prejudice posed by this 

evidence was that the jury might conclude that Appellant’s mere 

familiarity with the criminal subject matter of the lyrics made it more 

likely that he participated in this crime—as a straightforward characterthe record in support of that assertion. See Johnson v. State, 624 S.W.3d 579, 

585 (Tex. Crim. App. 2021) (“An appellate court cannot consider an item [of 

evidence] that is not a part of the record on appeal.”).
HART – 6

conformity inference. Counterbalancing that risk, however, was: (1) 

defense counsel’s opportunity to rebut any impermissible inference 

during Appellant’s re-direct examination, (2) his opportunity to address 

the same in closing argument, and (3) his opportunity to request a 

limiting jury instruction—which Appellant did not do here, but could 

have if he had truly thought it was necessary.

The Court sees things differently. In its view, “this factor 

weigh[ed] heavily in favor of exclusion.” Majority Opinion at 19. In 

reaching that conclusion the Court appears to largely adopt Appellant’s 

argument that rap lyrics are so inherently inflammatory that, absent 

some factual nexus between the lyrics and the crime alleged, the risk of 

unfair prejudice will necessarily outweigh the probative value of the 

lyrics as evidence. Id. at 15–19; Appellant’s Brief at 30. This approach 

is flawed for a number of reasons. 

First, the Court’s arguments suggest a fundamental 

misunderstanding of the reason the State sought to admit the rap 

evidence in this case. In response to Appellant’s testimony on direct 

examination, the State argued, outside of the presence of the jury, that 

it had a right to rebut Appellant’s own evidence suggesting that he was 

just friendly and unsophisticated. Specifically, it argued: 

Your Honor, we believe that the Defendant in his 

testimony opened the door to character evidence. He 

previously testified that he’s a friendly person. 

We also believe that he opened the door to his level 

of sophistication. He said that he is not good with 

literature. Specifically, we know him to be a rapper where 

he does fluently form sentences and phrases and frequently 

writes raps. And we believe that that directly relates to his 

ability to understand what people are communicating to 
HART – 7

him and form his own opinions about things. 

The State did not offer the rap evidence in this case to prove 

Appellant was a criminal because he sang rap songs about crime. It 

offered that evidence only to rebut Appellant’s evidence—evidence that 

Appellant was not compelled to offer—that he was so naïve about and 

unfamiliar with crime, and so cognitively and linguistically limited, that 

he could not have intended to participate in a burglary on the night of 

the murder. Put simply, the rap evidence offered by the State here is 

just the kind of rebuttal evidence that Rule 404(a)(2)(A) explicitly 

permits. TEX. R. EVID. 404(a)(2)(A) (“In a criminal case, a defendant may 

offer evidence of the defendant’s pertinent trait, and if the evidence is 

admitted, the prosecutor may offer evidence to rebut it.”). 

Contrary to what the Court seems to argue, the probative value 

of this kind of evidence—Rule 404(a)(2)(A) rebuttal evidence—does not 

depend on any factual nexus between the rap lyrics and Michael 

Gardner’s murder. See Majority Opinion at 15–19.3 Whether Appellant 

was rapping about true events is beside the point. The point is that the 

lyrics tended to show that Appellant had the ability to communicate and 

understand sufficiently to form the intent to participate in the crime at 

issue. 

3 As Professor Imwinkelried has explained, at least as a general 

proposition when assessing the admissibility of extraneous offenses under Rule 

404(b), “[t]he test should be logical relevance rather than similarity. The better 

view is that the judge should demand proof of similarity only if the proponent’s 

theory of logical relevance assumes similarity.” 1 Edward J. Imwinkelried, 

Uncharged Misconduct Evidence § 2:13 (2023). I see no reason why the same 

considerations should not apply with equal force to the admissibility of rebuttal 

evidence under Rule 404(a)(2)(A). 
HART – 8

The courts that have held rap lyrics inadmissible have done so 

when those lyrics were offered to prove “motive, opportunity, intent,” 

etc., under Rule 404(b)(2). See, e.g., United States v. Bey, No. CR 16-290, 

2017 WL 1547006 at 1* (E.D. Pa. Apr. 28, 2017) (“The government 

moves to admit this music video under Rule 404(b)(2) to prove 

knowledge, intent, and absence of mistake[.]”);4 TEX. R. EVID. 404(b)(2). 

But this case is not like those cases. To illustrate, if the State had sought 

to admit the rap lyrics at issue during its own case-in-chief to prove that,

because Appellant sang about gun violence, he intended to participate 

in the murder of Michael Gardner, then requiring a closer link between 

the actions the lyrics described and the facts of the crime would make 

some sense. But when, as here, the evidence is only offered during crossexamination as trait-rebuttal evidence under Rule 404(a)(2)(A), any 

similarity (or lack of similarity) between the rap lyrics and the facts 

surrounding the charged crime is irrelevant. Consequently, the fact that 

the trial court did not require the State to prove some factual similarity

4 See also Baker v. State, 899 S.E.2d 139, 141 (Ga. 2024) (State 

introduced “a 33-second-long portion of a [rap music] video” to establish 

Baker’s identity, motive, and opportunity with respect to malice murder 

charge); United States v. Gamory, 635 F.3d 480, 488 (11th Cir. 2011) 

(Government introduced rap video to prove identity and Gamory’s connection 

to co-conspirators in federal drug and money-laundering charges); State v.

Skinner, 95 A.3d 236, 238 (N.J. 2014) (“[T]he State maintained that the [rap] 

lyrics helped to demonstrate defendant’s ‘motive and intent’ in connection with 

the offense because the rap lyrics addressed a street culture of violence and 

retribution that fit with the State’s view of defendant’s role in the attempted 

murder.”); Commonwealth. v. Gray, 978 N.E.2d 543, 560 (Mass. 2012) (“The

lyrics show no connection to the defendant that would suggest they were

biographical or otherwise indicative of his own motive or intent at the time of

the shooting.”).
HART – 9

between the rap lyrics and the crime at issue does not suggest that the 

trial court abused its discretion. 

Moreover, I reject the Court’s apparent conclusion that because 

courts in other jurisdictions, and on different facts, have held rap music 

unfairly prejudicial, the trial court’s decision to admit the rap evidence 

in this case was “so clearly wrong as to lie outside the zone within which 

reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 

(Tex. Crim. App. 2008). A Rule 403 balancing test is necessarily a caseby-case analysis. Thus, it is not enough to say that, “because any song 

that glorifies criminality . . . is inherently prejudicial[,]” it was an abuse 

of discretion to admit the songs at issue here. Majority Opinion at 18.

Our rules of evidence require the exclusion of relevant evidence only if 

the danger of unfair prejudice substantially outweighs its probative 

value. And as Judge Keel astutely points out, this rebuttal evidence was 

certainly less inflammatory than the facts of the crime alleged—and so 

did not seriously risk luring the jury into finding Appellant guilty on an 

improper basis. Dissenting Opinion of Judge Keel at 2. 

In summary, I remain unpersuaded that the videos and lyrics the 

jury saw and heard in this case were so inherently inflammatory that 

they threatened to “‘to lure the factfinder into declaring guilt on a 

ground different from proof specific to the offense charged.’” Manning v. 

State, 114 S.W.3d 922, 928 (Tex. Crim. App. 2003) (quoting Old Chief v. 

United States, 519 U.S. 172, 180 (1997)). I have greater faith in our 

juries, and I am convinced that the court of appeals properly concluded 

that the trial court acted within its discretion to leave it to the jury to 

“evaluate the evidence’s probative force.” Hart, No. 05-19-01394 at *8. 
HART – 10

C. Time Needed to Develop the Evidence

The third Montgomery factor, as the Court correctly notes, “looks 

to the time the proponent will need to develop the evidence, during 

which the jury will be distracted from consideration of the indicted 

offense.” State v. Mechler, 153 S.W.3d 435, 441 (Tex. Crim. App. 2005); 

see Montgomery, 810 S.W.2d at 390; Majority Opinion at 14. But as the 

Court in Mechler pointed out, when the evidence under consideration 

“relate[s] directly to the charged offense, a jury [will] not be distracted 

away from the charged offense regardless of the required time to 

present” the evidence. 153 S.W.3d at 441. 

The rebuttal evidence presented by the State, here, consisted of 

two videos, each less than five minutes long (and of the second video—

“Off Days”—the record indicates that the State presented only 

Appellant’s own, approximately 45-second, solo), and four one-sentence 

Facebook posts. By the Court’s own calculation, of the fifteen pages of 

the record that make up Appellant’s cross-examination, less than half of 

them are devoted to the rap evidence. Majority Opinion at 15. And of the 

forty-five pages of testimony by Appellant, less than a third of those 

pages are devoted to the rap evidence. Id. Even on its own terms, then, 

I cannot agree with the Court that the rap evidence consumed “an 

inordinate amount” of trial-time. Id.

Moreover, it is far from clear to me that the number of pages of 

Appellant’s testimony spent on the rap evidence is the appropriate 

denominator. See id. In fact, it is probably not. The Court should instead 

focus on the entire trial, at least that part of the trial involving the 

presentation of evidence relating to the question of Appellant’s guilt. By 
HART – 11

my count, the presentation of the evidence relating to guilt consumed 

three volumes of the reporter’s record, and those volumes contained 

roughly 265 pages of testimony. Of those 265 pages, only nineteen, 

according to the Court, were devoted to the rap evidence. See id. As the 

court of appeals observed, the State devoted much more time to 

establishing the facts of the murder and investigation, “including the 

video of the premises on the night of the offense, police officers’ 

testimony of the crime scene, the search for the car used in the offense, 

the medical examiner’s testimony, and appellant’s recorded interview 

with police.” Hart, No. 05-19-01394 at *9.

And even more critically, this factor did not weigh in favor of 

excluding the rap evidence, regardless of the time required to develop it, 

because it related directly to the charged offense. See Mechler, 153 

S.W.3d at 441. Appellant’s primary defensive theory at trial was his 

contention that his naïveté and difficulties with language prevented him 

from forming the intent to participate in a burglary or from anticipating

the resulting murder. If the rap evidence was probative of those issues—

and even the Court admits that at least the rap videos were—then the 

time used by the State in presenting its rebuttal evidence was not a 

distraction at all; rather, it was time devoted to one of the critical issues 

at trial. See Majority Opinion at 14–15. Or, at least the trial court could 

reasonably have thought so. Consequently, I cannot agree with the 

Court that this factor weighed in favor of exclusion. 

D. State’s Need for the Evidence

This Court has said that, “[w]hen the proponent has other 

compelling or undisputed evidence to establish the proposition or fact 
HART – 12

that the extraneous misconduct goes to prove, the misconduct evidence 

will weigh far less than it otherwise might in the probative-versusprejudicial balance.” Montgomery, 810 S.W.2d at 390. However, as the 

court of appeals observed, before the State proffered the video and 

Facebook evidence, the jurors had only heard Appellant’s own testimony 

from which he would have had its members infer his traits of 

friendliness, naïveté, and language comprehension difficulties. Hart,

No. 05-19-01394-CR at *8. Beyond the substance of his testimony, the 

jury had also observed Appellant frequently ask his counsel to repeat 

questions and Appellant’s apparent difficulty in answering—which was 

evidently so pronounced that, at one point, the trial judge excused the 

jury to inquire into Appellant’s competence. Id.5 Thus, the court of 

appeals reasonably concluded that the trial court was justified in finding 

the State’s need for evidence “was considerable[.]” Id.

Here, the Court suggests five alternative pieces of evidence the 

State could have used to prove Appellant’s mental state at the time of 

the offense: 

• “Appellant’s statement that Mondo told him they were 

going to ‘break in’ to his uncle’s house[;]”

5 During Appellant’s direct examination, defense counsel asked 

Appellant, “[Y]ou understand that this trial is about what—what it looks like 

some people did that you gave a ride to. Do you understand that?” When 

Appellant responded by asking, “Can you repeat that?” the trial court excused 

the jury to have Appellant evaluated for competency. Appellant was evaluated 

by Dr. Lisa Clayton, a forensic psychiatrist, who testified outside the presence 

of the jury that Appellant was competent but of “below average” IQ. When the 

defense’s direct examination of Appellant resumed, Appellant testified that he 

understood that he was on trial because the people he had transported had 

killed someone.
HART – 13

• “inconsistencies or ‘evasiveness’ in the same 

statement[;]”6

• “surveillance footage of Appellant pulling the car 

around the parking lot prior to letting the other 

individuals out of the car[;]”

• “Appellant’s internet-search activity in the days 

following the murder[;]” and

• “the fact that Appellant subsequently visited the 

apartments again despite being purportedly ‘scared to 

death’ at the time of the shooting.” 

Majority Opinion at 19. But each of these pieces of evidence was either 

equally consistent with Appellant’s defensive theory of the case or 

occurred after the crime. 

First, Appellant’s statement that Mondo told him they were going 

to break into his uncle’s home was a key piece of evidence of Appellant’s 

guilt, and one that the State used. But Appellant also testified that he 

had not believed that Mondo had meant what he had said. Thus, the 

State needed other evidence probative of Appellant’s mental state to 

rebut that notion after it was injected into the trial by Appellant. 

That Appellant gave inconsistent or evasive testimony about 

Mondo’s statement does seem to support the inference that Appellant 

was lying when he said he did not believe Mondo meant to break into 

6 It is unclear, here, whether the Court’s allusion to Appellant’s “same 

statement” refers to his police interview or his trial testimony. In either case,

the point remains the same—Appellant’s apparent evasiveness or 

inconsistency in either setting could imply that he was being untruthful. But 

it could also imply that he cannot communicate clearly or understand what 

others say to him, as he claimed at trial.
HART – 14

anyone’s home. It is equally consistent, however, with Appellant’s 

defensive theory of the case—namely, that Appellant cannot effectively 

communicate or comprehend what others say to him. Thus, the State, 

again, needed other evidence to rebut that testimony. And the trial court 

could have reasonably concluded that the State’s need for the additional 

evidence it proffered to prove Appellant’s mental state, was, as the court 

of appeals put it, “considerable[.]” Hart, No. 05-19-01394-CR at *8.

Similarly, the surveillance footage showing that the car Appellant 

drove circled the parking lot of the victim’s apartment complex before 

parking down the street was evidence of Appellant’s guilt. But it was not 

“compelling or undisputed evidence” that Appellant knew at the time of 

the incident that he was participating in a crime. Appellant, after all, 

might have circled the lot merely at the direction of the others in his 

vehicle—which, again, would be equally consistent with his defensive 

theory that he was unwittingly lured into serving as a getaway driver

and did not know what he was actually doing. 

Further, Appellant’s actions after the incident—including his 

internet searches and returning to the apartment complex where he

encountered Mondo—do not necessarily bear on his mental state at the 

time of the incident. Appellant’s internet search history proves only that 

he learned about the murder sometime after the fact; it does not prove 

that he knew he was acting as a driver for a burglary at the time of the 

incident. Likewise, Appellant might have returned to the apartment 

complex where, according to his testimony, he was approached by 

Mondo, for any number of reasons. Some of those reasons might imply 

that Appellant was aware that he was acting as a getaway driver, but 
HART – 15

others of those reasons would be consistent with Appellant’s defensive 

theory of the case. 

Finally, Appellant testified on direct examination that he was 

“scared to death” on the night of the incident because of traffic speeding 

past his vehicle as he idled on the street—undercutting the implication 

that he was scared because he knew that his companions were 

perpetrating a crime while he waited for them.7 For that reason, the 

State, once again, needed other evidence to rebut Appellant’s suggestion 

that he could not have formed the required mental state at the relevant 

point in time. 

The Court has failed to identify other compelling or undisputed 

evidence that the State could have used to rebut Appellant’s evidence 

that he had not intended to participate in a crime with his companions. 

7 On direct examination Appellant had the following exchange with his 

defense counsel: 

Q. You remember talking about how another car zipped past you? 

A. Yes, sir. 

Q. So was that—did that have any connection do you think, with the 

people that you had taken?

A. No. No, sir.

Q. Well, you remember the questioning about it on the video as far 

as you saying that it scared you?

A. Yes, sir. 

Q. So if it wasn’t connected, why would it scare you?

A. It just was like a car was so close to me—well, it was close with 

cars flying that same day. Yes, sir.
HART – 16

Consequently, I cannot agree with the Court that this factor weighs in 

favor of exclusion. 

E. Weighing the Factors

Considering all of these factors together, I am convinced that the 

court of appeals was correct in its assessment: at most, only the 

improper-basis factor might have weighed in favor of excluding the rap 

lyric and Facebook evidence at issue in this case. The trial court acted 

well within its appropriately broad discretion in deciding to admit the 

evidence when it did so. See Montgomery, 810 S.W.2d at 389 (“trial 

courts should favor admission in close cases”). And the court of appeals 

was correct to conclude that the trial court’s decision to admit the State’s 

rebuttal evidence was firmly within the “zone of reasonable 

disagreement.” Id. at 391.

I personally find the Court’s arguments for reaching the opposite 

conclusion today utterly unpersuasive. More troublingly, it seems to me

that the Court has simply concluded that, because it would not have 

admitted the evidence at issue had it stood in the trial court’s place, the 

trial court ipso facto abused its discretion in doing otherwise. I cannot 

agree that, as a purely objective matter, the “zone” within which 

“reasonable” minds could “disagree” is nearly so narrowly 

circumscribed. 

II. CONCLUSION

I would affirm the judgment of the court of appeals. The Court 

does otherwise without proper regard for our role as a reviewing court 
HART – 17

and on the basis of a flawed Rule 403 analysis.8 I dissent.

FILED: May 8, 2024

PUBLISH

8 Ordinarily, the Court does not determine questions of harm in the first 

instance, absent a decision on harm in the court of appeals. Holder v. State, 

639 S.W.3d 704, 707 (Tex. Crim. App. 2022). “We ‘[n]ormally’ only do so when 

the error is so ‘plainly harmless’ that principles of judicial economy support 

resolving it ourselves.” Id. (quoting Johnston v. State, 145 S.W.3d 215, 224 

(Tex. Crim. App. 2004)). Today the Court conducts a harm analysis for the first 

time on discretionary review without attempting to explain why that is 

appropriate. It is at least not clear to me that any harm from the “error” the 

court finds would be “plain.” See Jordan v. State, 593 S.W.3d 340, 353 (Tex. 

Crim. App. 2020) (Yeary, J., dissenting) (“[T]he question of harm seems, at 

least, debatable—not, as the Court would have it, so self-evident as to obviate 

our usual practice to remand the cause for that analysis.”). I dissent on that 

basis as well.