stating that appellate court has discretion to consider unassigned error
How later courts described this case
- stating that appellate court has discretion to consider unassigned error
- holding that courts of appeals may not take on the role of fact-finder
- recognizing discretionary authority to address an unassigned error
- appellate court may, in its discretion, consider unassigned error
Written by the judges who cited it.
The opinion
PRICE, Judge,
concurring and dissenting.
I concur in the judgment of the majority, to the extent that it holds that it is a defense to prosecution under Tex. Health & Safety Code § 481.117(a), for possession of a controlled substance, that the substance was obtained pursuant to a valid foreign prescription and brought into this country in accordance with federal law.
However, I believe that in this specific case, the Court of Appeals instruction to the trial court to dismiss the indictment was appropriate. Because the jury was not instructed on the applicable “ultimate user” defense, the appropriate remedy would normally be to remand the case so as to allow appellant to present such a defense. But, as the Court of Appeals noted, appellant has established this defense as a matter of law. Wright v. State, 955 S.W.2d 393, 396 (Tex.App.-San Antonio 1997, pet. granted). Because dismissal of the indictment is appropriate in this instance, I dissent to the majority’s ultimate disposition as to this case.