Marvin Terrill Curry v. State ( 2007 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00399-CR

MARVIN TERRILL CURRY,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2004-1333-C

concurring Opinion

      An opinion of an intermediate appellate court is not a form book for trial court proceedings.  We should not use an opinion to write rules or procedures to be used in the trial courts.  See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001) (“[W]e do not write rules by opinion.”).  This means an intermediate court of appeals really should not give suggested wording for the trial court’s charge.  Our task is to review what the trial court has done.  The inadvisability of an appellate court suggesting language results from the possibility of it then having to decide in a subsequent opinion some argument that it did not contemplate when suggesting the language.  The pitfall is aptly demonstrated by the fact that a number of the text for pattern jury charges, drafted by scholars who have thoroughly researched and collaborated to draft charge language, have subsequently been determined to be erroneous.  See Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 444 n.4 (Tex. 1989) (“The holding in this cause will require a change in PJC 71.07.”).

      Further, because something not done may be a “better practice,” Maj. op. at 10, _____ S.W.3d ____, ____ (Tex. App.—Waco 2007, no pet. h.), or that something else may be “the superior practice,” id., is irrelevant and has no place in this Court’s opinion, in particular in its determination of error.

      I find no error in the charge.  And while the majority talks about better and superior practices, they do not really explain what the error was in the charge that was actually given. 

      Notwithstanding these distractions in the majority opinion I find no error in the judgment of this Court and concur in it.  But, in doing so, I join no part of Justice Vance’s opinion, in which Justice Reyna joins, which is a clear and obvious attempt to state what they think the law should be, rather than merely deciding the issue before us, which is our proper constitutionally assigned task.

TOM GRAY

Chief Justice

Concurring opinion delivered and filed March 28, 2007

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