Rodgers, Warren Keith

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-645-05 WARREN KEITH RODGERS, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SIXTH COURT OF APPEALS

WOOD COUNTY

Price, J., delivered a concurring opinion.

CONCURRING OPINION

I agree with the Court that the court of appeals erred in ruling on the admissibility of the expert testimony in this case without considering the appellant's motion to strike and the evidence he adduced in cross-examination, for the reasons the Court gives in its opinion. However, rather than address that ultimate question of admissibility, as the Court goes on to do, I would remand the cause to the court of appeals to resolve that issue in the first instance. See, e.g., Lee v. State, 791 S.W.2d 141, 142 (Tex. Crim. App. 1990) ("In our discretionary review capacity we review 'decisions' of the courts of appeals.") That court should be the first to address the merits of the appellant's argument, taking into consideration all of the relevant evidence as determined by this Court. Because the Court does not remand the cause, I concur.

Delivered: May 3, 2006

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