concurring.
Although there is merit in the dissenting opinion of Judge Clinton, I concur with the decision of the majority to dismiss the State’s petition in this case as improvidently granted because the issue of the relationship between fundamental error in the court’s charge and error in the court’s charge as contemplated by Article 36.19, V.A.C.C.P., has not been thoroughly briefed or argued by. either the State or the defense. Historically the advocacy system has served the judiciary well in charting the course of criminal jurisprudence in this state. If we are going to redefine fundamental error vis-a-vis the court’s charge to the jury, as perhaps we should, then let us do so when the issue is properly joined, either on motion for rehearing in this case or in a future case before the court. Because the dissent would raise and address the issue sua sponte in this case, I concur in dismissing the State’s petition.