









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. 1650-03


TY WAYNE JOHNSTON, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS

CALDWELL  COUNTY



 Johnson, J., filed a concurring and dissenting opinion.

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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