IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
FROM THE THIRD COURT OF APPEALS
CALDWELL COUNTY
CONCURRING AND DISSENTING OPINION
While I join the majority's opinion in parts "A" and "B," I respectfully dissent to the Court's opinion in part "C." I write separately to express my disapproval of the failure to remand the case to the court of appeals for a harm analysis. This Court's function is to review the decisions of the lower appellate courts, and as the court of appeals has not yet performed a harm analysis, I believe we must allow that court to pass on the question first. "It is not our duty to preemptively execute the function of a lower tribunal, and the preservation of our system of appellate review dictates that we must forbear from the temptation of appropriating the rightful duties of the courts of appeals in the name of judicial economy." Owens v. State, 827 S.W.2d 911, 917 n.7 (Tex. Crim. App. 1992).
Johnson, J.
Filed: September 15, 2004
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