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222 S.W.3d 745

Curry v. State

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Texas Court of Appeals, 10th District (Waco) · decided 2007-03-28

Cited by 7 later decisions — most recently August 2016

6 state decisions

Relies on Lehmann v. Har-Con Corp. · Plas-Tex, Inc. v. U.S. Steel Corp.

Good law ✅— No negative treatment on recordhow we know

Decided 2007-03-28

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TOM GRAY, Chief Justice,

¶1concurring.

¶2An 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. HarCon 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 *756possibility 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.”).

¶3Further, because something not done may be a “better practice,” Maj. op. at 752, or that something else may be “the superi- or practice,” id.,is irrelevant and has no place in this Court’s opinion, in particular in its determination of error.

¶4I find no error in the charge. And while the majority talks about better and superi- or practices, they do not really explain what the error was in the charge that was actually given.

¶5Notwithstanding 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.

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