concurring.
After having carefully read the opinion of the Dallas Court of Appeals and the authorities cited therein, the State’s petition for discretionary review, and the authorities cited therein, and having concluded that the opinion of the court of appeals correctly decided the issue, my vote is to refuse the State’s petition for discretionary review as having been improvidently granted. Nevertheless, I join the judgment of this Court.
Neither the State Prosecuting Attorney and his staff nor the local District Attorney and his staff disputes the fact that the State conceded at submission before the court of appeals that the search warrant that issued in this cause was invalid; thus, it was not necessary for the court of appeals to address the issue whether the search warrant was valid; the only issue then before that court was whether the improper admission of the photographs which were seized pursuant to the invalid search warrant was harmless error. I find that the court of appeals correctly concluded that the error was not harmless beyond a reasonable doubt as to the punishment that appellant was assessed; thus, there is no need for this Court to review the decision of the court of appeals. Also see, Tallant v. State, 658 S.W.2d 828 (Tex.App.2d Dist. 1983) (dis. rev. refused).
There is a paucity of cases discussing the subject of “confession of error.” See 8A Words and Phrases 67. This is probably because it is the rare instance when the party to the lawsuit who won in the trial court will on appeal confess error. However, it does happen from time to time, and I find that it happened in this cause.
In Ramiriz v. State, 155 Tex.Cr.R. 206, 233 S.W.2d 307 (1950), when this Court was a de novo reviewing court in both death penalty and non-death penalty cases appealed to this Court, based upon what Hon. George B. Blackburn, the then State’s Attorney, had stated in his brief, this Court concluded: “This is tantamount to confession of error on the part of the State, which we find to be well founded.” (307). This Court then reversed the defendant’s conviction. The opinion of this Court, however, does not actually reflect that it made an independent review of the defendant’s ground of error before concluding that the conviction should be reversed.1
What effect must a de novo reviewing court give a “confession of error” by a prosecutor? Because I find no decision by this Court holding to the contrary, I believe that such a court is entitled to hold that such “confession of error” warrants, but does not require, that the contention to which the “confession of error” relates should be sustained, without the necessity of making an independent review of the contention.2
In this instance, the court of appeals apparently chose to take the prosecutor at his word3 at oral argument that the search warrant was invalid and not write on the issue of the validity of the search warrant. Whether it independently reviewed the validity of the search warrant, after the ease was submitted, as it could have done, and thereafter concluded that the prosecutor’s “confession of error” was in all things correct, is not reflected in the opinion. In any event, I find nothing in our law or our rules that would permit this Court to review the *296State’s decision to “confess error” in the court of appeals, which is what I find the State’s representative before this Court is implicitly now asking us to do.
The following statement in the majority opinion provoked me to write: “While a motion for rehearing in the court of appeals is not a prerequisite for our granting discretionary review, Tex.R.App.Pro.Rule 200(d), there will be instances where it is a helpful tool for focusing attention on an adverse determination of an issue, see id., Rule 100(a), and if it draws a response opinion from the court so much the better, Rule 100(c).” (Page 5 of slip opinion.) This is an incomplete, but true statement; its incompleteness lies in not recommending that Rule 100 be rewritten.
The author of the majority opinion remarks that the State often does not file a motion for rehearing in the court of appeals even when it is dissatisfied with an opinion from that Court. I find from experience that this is also true of defense counsel.
Why doesn’t an attorney who is dissatisfied with the opinion of the court of appeals file a motion for rehearing in that court? I believe that it is probably because of the way Rule 100 is written. Interestingly, there has been no groundswell from either the justices on the courts of appeals or the members of the bench and bar to recommend that this Court and the Supreme Court rewrite the rule.
Nevertheless, I believe that a careful reading of the rule will convince almost anyone that it needs to be rewritten.
I find that most prosecutors and defense attorneys who appeal cases have interpreted the rule to mean that if the dissatisfied party files a motion for rehearing, it will generally be assigned to the same three judge panel that originally handed down the opinion, affirming or reversing the conviction. Of course, if a court of appeals consists of only three justices, it was actually the en banc court that decided the case. Thus, in that instance, it would probably be a waste of time to file a motion for rehearing, and the rule should be rewritten to take care of this situation. Likewise, if a panel of a court of appeals, which consists of more than three justices, given the assumption that in deciding the issues the members of the panel gave careful consideration to the contentions, and the fact of life that the filing of a motion for rehearing is usually discouraged and is rarely granted, it is no wonder that few motions for rehearing are filed in the courts of appeals-by either party to the lawsuit.
From my perspective, what this Court usually sees in the form of a petition for discretionary review is in actuality a motion for rehearing. Thus, the rule needs to be rewritten so that the dissatisfied party in a court of appeals that consists of more than three justices may be assured that his motion for rehearing will be decided by the en banc court and not the same panel who wrote the opinion with which he is unhappy-
Therefore, I highly recommend to the other members of this Court and the members of the Supreme Court that the two Courts get together and rewrite Rule 100 to provide as I have recommended. If this occurs, I do not believe that anyone would disagree that it will make for a more efficient and better system of appellate review in this State, as it should encourage the filing of more motions for rehearing in the courts of appeals, thus giving those courts an opportunity to correct any errors of fact or law that might be in their opinions before this Court reviews those opinions. Cf. Tex.R.App.Proc., Rule 86(e).
.Also see Hawkins v. State, 613 S.W.2d 720 (Tex.Cr.App.1981) and the cases cited on page 723; Gaines v. State, 556 S.W.2d 332 (Tex.Cr.App.1977); Keagan v. State, 618 S.W.2d 54, 58 (Tex.Cr.App. 1981); Bouie v. State, 528 S.W.2d 587, 588 (Tex.Cr.App. 1975).
. E.g. Arnott v. State, 498 S.W.2d 166, 179 (Tex.Cr.App.1973) (Douglas, J., dissenting opinion).
. Ms. Anne B. Wetherholt, who presently represents the State, is not this attorney.