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Johnston v StateSeptember 15, 2004No. 1650-03 Concurring & dissenting opinion by Judge Johnson Link to Majority opinion by Judge Cochran
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 Publish This information is made available as a free public service for your personal, non-commercial use. While every effort has been made to provide accurate material at this site, it is provided "as is" and no representations are made that it is free of mistakes or inaccuracies. This file was derived from the text posted on the web site of the Texas Court of Criminal Appeals, by the automatic operation of conversion software, and may contain errors.
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