concurring in part and dissenting in part.
I join all but the final paragraph of the majority opinion and dissent to the remand of this cause. For the following reasons, I feel we should perform the harm analysis.
I.
The plain language of Tex.R.App.Proc. Rule 81(b)(2) requires the “appellate court” to perform the harm analysis. Rule 81(b)(2) provides:
If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.1
The Court of Criminal Appeals is an appellate court under our rules, our Constitution and in the common parlance of that term. Tex.R.App.Proc. Rule 3 provides: "... ‘Appellate court’ includes the courts of appeals, the Supreme Court and the Court of Criminal Appeals.”
Further, this Court is an appellate court under the Constitution. Art. V, § 5 provides: “The Court of Criminal Appeals shall have final appellate jurisdiction coextensive with the limits of the state....”
Finally, this Court meets the definition of an appellate court as defined by Black’s Law Dictionary 50 (5th ed. 1983).
A court having jurisdiction of appeal and review; a court to which causes are removable by appeal, certiorari, error or report. A reviewing court, and, except in special cases where original jurisdiction is conferred, not a “trial court” or a court of first instance.
As this Court is an appellate court, we are required to perform a harm analysis pursuant to Rule 81(b)(2) when we find error.
II.
Some argue, in support of a remand, that the court of appeals did not render a “decision” on the issue of harm, therefore, there is no decision for this Court to review. This argument is without merit. A harm analysis is an integral, nondivisible part of the determination of error. As Judge Overstreet correctly noted in Miller v. State, 815 S.W.2d 582, 585 n. 2 (Tex.Cr.App.1991), “harm is always an issue properly before this Court whenever error is discovered.” Consequently, we should not prematurely end our review with the determination of error and remand the case to the court of appeals.
There is no legitimate reason for remanding a case for a harm analysis when the court of appeals failed to recognize the error in the first instance. And it is unrealistic to expect the dictates of Rule 81(b)(2) to be fully realized by a court that failed to recognize error initially because the court of appeals implicitly found no harm by determining there was no error.
Moreover, we do not preempt the court of appeals when we perform a harm analysis. Tex.R.App.Proc.Rule 202(a) provides: “The Court of Criminal Appeals may review a decision of a court of appeals in a criminal case upon petition by the appellant or the State.” Black’s Law Dictionary 494-5 (5th ed. 1983) defines a decision as
A determination arrived at after consideration of the facts, and, in legal context, law. A popular rather than technical or legal word; a comprehensive term having no fixed, legal meaning.
Perhaps because there is no fixed legal meaning of what constitutes a “decision,” we have been less than consistent in our treatment of the cases where we found *31error after the court of appeals initially made a “no error” determination. There have been any number of cases where this Court performed a harm analysis in the first instance. In Gauldin v. State, 683 S.W.2d 411 (Tex.Cr.App.1984), we conducted a harmless error analysis on an issue that had previously been rejected by the Court of Appeals. Presiding Judge McCormick, writing for the majority, said, “Having concluded that the evidence was unconstitutionally obtained, we must now determine whether its introduction was sufficiently prejudicial to appellant so as to require reversal.” Id. at 415.
In Castillo v. State, 810 S.W.2d 180 (Tex.Cr.App.1990), we determined the Court of Appeals erroneously concluded the trial court properly admitted a wiretapped conversation. However, Judge Campbell proceeded to conduct the harmless error analysis in the first instance:
We must now determine whether the admission of the April 13,1987, conversation constituted reversible error. Rule 81(b)(2) of the Texas Rules of Appellate Procedure provides that an appellate court in a criminal case need not “reverse the judgment under review [if] the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or the punishment.”
Id. at 184.
In Fullbright v. State, 818 S.W.2d 808, 810 (Tex.Cr.App.1991), we said:
The determination that the trial court erred by denying appellant’s motion to quash the enhancement paragraph does not conclude our examination of the case; we must now conduct a “harmless error analysis” pursuant to Rule 81(b)(2) Tex. R.App.P. ...
These cases are but three examples of the many cases where this Court has conducted the harm analysis in the first instance.2
Even the United States Supreme Court does not remand every case to the courts of appeals for a harmless error analysis: “Although we are not required to review records to evaluate a harmless-error claim, and do so sparingly, we plainly have the authority to do so.” United States v. Hasting, 461 U.S. 499, 510, 103 S.Ct. 1974, 1981, 76 L.Ed.2d 96 (1983). In Hasting, the Court noted, “[s]ince this Court has before it the same record the Court of Appeals reviewed, we are in precisely the position of that court in addressing the issue of harmless error.” Id. at 510, n. 8, 103 S.Ct. at 1981, n. 8. The Supreme Court also performed a harm analysis in the first instance in United States v. Lane et al., 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986), and Yates v. Evatt, — U.S. —, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991).
III.
Finally, remanding cases for a harm analysis is an illusory display of respect and a meaningless squandering of judicial resources that our over-burdened appellate court system can ill afford. When we remand a case for a harmless error analysis we are certain to see the case again by way of a subsequent petition for discretionary review. That petition will require additional briefing by the parties,. review by the staff of this Court, and the time and attention of the individual members of this Court, further exhausting our limited resources.
The problems inherent in remanding cases for a harm analysis were given succinct and forceful expression in Woodfox v. State, 742 S.W.2d 408, 412-3 (Tex.Cr.App.1987) (Onion, P.J., dissenting):
I find it ridiculous to remand this cause to the Court of Appeals, keep this cause in the heavenly appellate orbit, delay the finality of the judgment, further exhaust judicial resources, the State’s money, and insure, in all likelihood that we will once again be able to open up the *32same appellate record and find ourselves right where we are today.
An example of the time consumed in appellate orbit appeared in Jones v. State, 720 S.W.2d 535, 536 (Tex.Cr.App.1986) (Onion, P.J., dissenting):
The record discloses that this offense occurred on August 28,1980. The indictment was returned on October 2, 1980. Trial commenced on April 26, 1982. After conviction, notice of appeal was given on June 18, 1982. The record reached the Court of Appeals on October 7, 1983. On May 15, 1985, the Court of Appeals handed down its opinion affirming the conviction. In connection with the said opinion the record reached the Court of Criminal Appeals on July 10, 1985. The said petition was originally refused on April 30, 1986, but appellant’s motion for rehearing and petition were granted on June 18, 1986. The cause was submitted on November 12, 1986. Now, over six years after the alleged murder offense, the majority is returning the cause to the Court of Appeals for another appellate round with every likelihood that another round will be had in this Court before any gong is sounded, if then.
Perhaps the most extreme example of the time consumed in appellate orbit was seen in Abdnor v. State, 808 S.W.2d 476 (Tex.Cr.App.1991):
Appellant was convicted in 1981. His original appeal seeking to establish indi-gency took five years. Abdnor v. State, 712 S.W.2d 136 (Tex.Cr.App.1986). His direct appeal on the merits was not resolved until 1988. Abdnor v. State, 756 S.W.2d 815 (Tex.App. — Dallas 1988). This case has been pending before this Court since that time. Today, the majority remands the cause for the Court of Appeals to conduct a harmless error analysis.
I believe justice would be better served if we conducted such an analysis instead of remanding this cause to the Court of Appeals....
... while I believe, for the reasons stated above, the Court of Appeals will find harm pursuant to Almanza [v. State], 686 S.W.2d 157 [(Tex.Cr.App.1984) ], in the event the Court of Appeals does not, we will certainly be called upon to address the remaining two grounds for review, and the disposition of the harm analysis pursuant to this remand. This would result in even greater appellate delay when such can be prevented by this Court at this time.
Abdnor v. State, 808 S.W.2d 476, 478-9 (Tex.Cr.App.1991) (Baird, J., concurring in part and dissenting in part). Although Abdnor was remanded to the Court of Appeals on May 15,1991, a harm analysis was not performed until October 9, 1992. See, Abdnor v. State, 845 S.W.2d 302 (Tex.App. — Dallas 1992).
Remanding cases to the courts of appeals for a harmless error analysis is a judicial luxury that our overburdened appellate court system simply cannot afford. The courts of appeals are asked to resolve approximately 8,500 cases each year.3 Rather than add to that number by remanding cases, we should address the issue of harm when we determine the court of appeals erroneously determined there was “no error.” Typically, we can conduct a harm analysis in relatively short order. Therefore, the harm analysis is not taxing when performed by this Court.
I do not advocate this position in order to usurp the authority of the courts of appeals, but because I feel that all of our judicial resources, including those of the courts of appeals, can be put to better use if this Court addresses the harm issue while the record is familiar to us and the issues are fresh. By consistently performing the harm analysis, we would eliminate the problem of “appellate orbit,” conserve judicial resources, and promote the finality of judgments.
For these reasons, I dissent to the remand of this cause to the Court of Appeals.
. Unless otherwise indicated, all emphasis herein is supplied by the author.
. There are many cases in which this Court has done the harmless error analysis in the first instance, e.g., London v. State, 739 S.W.2d 842 (Tex.Cr.App.1987); Brown v. State, 757 S.W.2d 739 (Tex.Cr.App.1988); McGary v. State, 750 S.W.2d 782 (Tex.Cr.App.1988); Webb v. State, 766 S.W.2d 236 (Tex.Cr.App.1989); Jamail v. State, 787 S.W.2d 380 (Tex.Cr.App.1990); Brewington v. State, 802 S.W.2d 691 (Tex.Cr.App.1991); Ramirez v. State, 802 S.W.2d 674 (Tex.Cr.App.1991); Anderson v. State, 817 S.W.2d 69, 72 (Tex.Cr.App.1991).
. Texas Judicial System, Annual Report, State Fiscal Year 1991, Office of Court Administration, states the total number of new cases filed during the fiscal year 1991 was 8,563.