IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

 


NO. 1521-99

STEVEN TROY CURRY, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE EIGHTH COURT OF APPEALS

HARRIS COUNTY


Johnson, J., filed a dissenting opinion, in which Meyers, J., joined.



D I S S E N T I N G  O P I N I O N



I agree with the majority that once the state alleged aggravated kidnapping "by using and threatening to use deadly force namely, a firearm," it was required to prove that allegation. I also agree that the sufficiency of the evidence must be analyzed using this allegation. However, I respectfully dissent from the final disposition

In the instant case, the court of appeals concluded that the hypothetically-correct jury charge did not include the phrase "by using and threatening to use deadly force namely, a firearm, on the Complainant." Curry v. State, 1 S.W.3d 175, 180-81 (Tex. App.--El Paso 1999). The majority finds that this was error, and that the hypothetically-correct jury charge would include this phrase. Ante, at ___ (slip op. at 20-23). Thus, the court of appeals is found to have applied the wrong standard in its sufficiency analysis. The majority then performs its own sufficiency analysis using the proper hypothetically-correct jury charge. Ante, at ___ (slip op. at 24-26).

Such action is inconsistent with our precedents See, e.g., Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (judgment of court of appeals vacated and cause remanded for that court to apply correct standard of review in analyzing sufficiency of the evidence); Curry v. State, 975 S.W.2d 629 (Tex. Crim. App. 1998) (judgment of court of appeals vacated and cause remanded for reconsideration of defendant's sufficiency claim in light of Malik); Blanco v. State, 962 S.W.2d 46 (Tex. Crim. App. 1998) (judgment of court of appeals vacated and cause remanded for reconsideration in light of Malik). As we have previously stated, our jurisdiction is limited to review of decisions by the courts of appeals. Garcia v. State, 15 S.W.3d 533, 536-37 n.5 (Tex. Crim. App. 2000); see also Tex. Code Crim. Proc. 4.04, 2; Tex. R. App. P. 66.1. Because the court of appeals did not apply the appropriate sufficiency analysis, the majority's application of the appropriate standard is not a review of the court of appeals' decision; it is an application of that standard in the first instance. We should remand this cause and allow the court of appeals to conduct the appropriate sufficiency analysis. To do otherwise is beyond our authority.

Johnson, J.









Date delivered: September 20, 2000



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