concurring and dissenting on appellant’s petition for discretionary review.
I agree with the majority opinion’s disposition of the vindictiveness and “ex post facto” claims. However, I disagree with some of the opinion’s reasoning regarding the “ex post facto claim,” and I disagree with the majority’s disposition of the admission of evidence claim.
I. THE EX POST FACTO CLAIM
The Due Process Clause of the Fourteenth Amendment prevents appellate courts from “achieving precisely the same result by judicial construction” that would be achieved by a legislature if it passed a law in violation of the Ex Post Facto Clause of Article I, § 10 of the United States Constitution. Bouie v. City of Columbia, 378 U.S. 347, 353-354, 84 S.Ct. 1697, 1702-1703, 12 L.Ed.2d 894 (1964). Whether the judicial construction of a criminal statute achieves this “same result” depends upon whether it is an “unforeseeable judicial enlargement” of the statute in question. Id. at 353, 84 S.Ct. at 1702 (emphasis added). By holding that Bouie applies to “a clarification of existing law,” the majority, in effect, reads the word “unforeseeable” out of the Supreme Court’s opinion. Yet, that Court’s use of the word was not accidental, as shown by its elaboration of the issue:
The fundamental principle that “the required criminal law must have existed when the conduct in issue occurred,” [citation omitted], must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,” it must not be given retroactive effect. [Citation omitted].
Id. at 354, 84 S.Ct. at 1703. The Supreme Court has reaffirmed numerous times the principle that a court’s construction or clarification of the law must be “unforeseeable” to implicate the Due Process Clause’s prohibition against retroactive judicial decisions. Douglas v. Buder, 412 U.S. 430, 432, 93 S.Ct. 2199, 2200, 37 L.Ed.2d 52 (1973). Hamling v. United States, 418 U.S. 87, 116, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). Mullaney v. Wilbur, 421 U.S. 684, 690 n. 10, 95 S.Ct. 1881, 1885 n. 10, 44 L.Ed.2d 508 (1975) (due process violated only where the appellate court’s “reinterpretation of a criminal statute was so novel as to be ‘unforeseeable’ and therefore deprived the defendants of fair notice of the possible criminality of their acts at the time they were committed”). Rose v. Locke, 423 U.S. 48, 53, 96 S.Ct. 243, 246, 46 L.Ed.2d 185 (1975). Splaum v. California, 431 U.S. 595, 601, 97 S.Ct. 1987, 1991, 52 L.Ed.2d 606 (1977) (“the elements of a statutory offense may not be so changed by judicial interpretation as to deny to accused defendants fair warning of the crime prohibited”). Brown v. Ohio, 432 U.S. 161, 169 n. 8, 97 S.Ct. 2221, 2227 n. 8, 53 L.Ed.2d 187 (1977). Osborne v. Ohio, 495 U.S. 103, 117, 110 S.Ct. 1691, 1700, 109 L.Ed.2d 98 (1990) (in Bouie, appellate court’s “expansion of the statute was unfore*538seeable and therefore the petitioners had no reason to suspect that their conduct was criminal”).
A judicial construction is “unforeseeable” if it conflicts with a prior, clearly established judicial construction of the statute. Marks v. United States, 430 U.S. 188, 195, 97 S.Ct. 990, 994, 51 L.Ed.2d 260 (1977) (relaxing judicially-imposed restrictions on obscenity laws). Ex Parte Scales, 853 S.W.2d 586, 587-588 (Tex.Crim.App.1993) (abandoning judicially-created “carving doctrine”). Bouie is also an example of this situation; the Supreme Court explained that the South Carolina Supreme Court’s construction of the statute was at odds with prior South Carolina decisions. 378 U.S. at 356-359, 84 S.Ct. at 1704-1706. A judicial construction may also be “unforeseeable” when its interpretation sharply diverges from the plain meaning of the language in the statute. See Id. at 352, 84 S.Ct. at 1701 (construction of “entry” on the property after notice prohibiting entry to include remaining on the property after a request to leave). Douglas, 412 U.S. at 432, 93 S.Ct. at 2200 (construction of “arrest” to include issuance of a traffic citation).
On the other hand, a construction which merely adds a “clarifying gloss” to the statute, making its meaning more definite, does not violate the due process proscriptions contained in Bouie. Hamling, 418 U.S. at 116, 94 S.Ct. at 2907. Such a “clarifying gloss” does not “make criminal ... conduct which had not previously been thought criminal.” Id. (ellipse inserted). For example, the judicial enumeration of specific categories that fulfill a general offense element does not violate due process. Id. (obscene material). See also Marks, 430 U.S. at 195 n. 11, 97 S.Ct. at 994 n. 11. Also, specific conduct that is fairly included within a generally worded statutory offense does not violate due process. Rose, 423 U.S. at 53, 96 S.Ct. at 245 (cunnilingus construed as fulfilling the statutory proscription of “crimes against nature”).
The majority makes no attempt to determine whether the judicial construction at issue here was “unforeseeable.” I would hold that our construction of the deadly weapon statute in Mixon v. State, 804 S.W.2d 107 (Tex.Crim.App.1991) was not “unforeseeable.” As the above cases illustrate, foreseeability is determined at the time of the allegedly criminal conduct. When appellant used a deadly weapon, the statute placed him on notice that using the deadly weapon would have adverse consequences on his parole eligibility. Appellant was obviously aware of the nature of the deadly weapon used. The fact that the rest of the world remained unaware of the deadly weapon’s nature does not mean that appellant was deprived of fair notice under the statute.
Moreover, even if ignorance of the weapon’s nature were somehow subject to Bouie’s requirements, I would nevertheless hold that Mixon was not an “unforeseeable judicial enlargement” of the statute. There is no prior caselaw conflicting with Mixon — that is, no prior decisions have held that an affirmative finding cannot be made if the only description of the deadly weapon involved is “an unknown object.” The question then becomes whether the judicial construction is unforeseeable in light of the plain language of the statute. Applicant’s eligibility for parole is governed by V.AAC.P., Art. 42.12 § 15(b) (1979),1 which provides in relevant part:
[I]f the judgment contains an affirmative finding under § 3f(a)(2) of this Article, he is not eligible for release on parole until his actual calendar time served, without consideration of good conduct time, equals one-third of the maximum sentence or 20 calendar years, whichever is less ...
The applicable “affirmative finding” statute provides in relevant part:
... when it is shown that the defendant used or exhibited a deadly weapon as defined in Section 1.07(a)(ll), Penal Code, during the commission of a felony offense or during immediate flight therefrom. Upon affirmative finding that the defendant used or exhibited a deadly weapon during the commission of an offense or during immediate flight therefrom, the tri*539al court shall enter the finding in the judgment of the court. Upon an affirmative finding that the deadly weapon the defendant used or exhibited a firearm, the court shall enter that finding in its judgment.
V.AC.C.P., Art. 42.12 § 3f(a)(2) (1979). A deadly weapon is defined as:
(A) a firearm or anything that is manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
VA.P.C., § 1.07(a)(ll). Nothing in the language of these statutes suggests that a deadly weapon must be a “known” or specifically described object. While the statutes do not expressly sanction alleging a deadly weapon as “an unknown object,” it is not unforeseeable that the statute would be interpreted to allow such a pleading.
II. HARMLESS ERROR ANALYSIS
The majority remands this cause to the Court of Appeals to conduct a harm analysis regarding the admission of evidence of appellant’s prior misconduct. While this is normally the proper method of proceeding, under certain rare occasions, we should conduct the harm analysis ourselves. We have conducted a harmless error analysis to further “judicial economy” where the case had already been remanded once. Newton v. State, 784 S.W.2d 689, 690 (Tex.Crim.App. 1990). We have also conducted a harmless error analysis in the first instance where harm was conclusively established on the record. Gipson v. State, 844 S.W.2d 738, 741 (plurality opinion) & 742 (Benavides, J. concurring) (Tex.Crim.App.1992).
Whether this Court should ever conduct a harmless error analysis in the first instance has been subject to dispute and does not appear to be clearly resolved. In a footnote contained in a majority opinion, this Court has opined that we should never conduct a harmless error analysis in the first instance. Owens v. State, 827 S.W.2d 911, 917-918 n. 7 (Tex.Crim.App.1992). However, footnotes— even in majority opinions — are generally not binding precedent. Young v. State, 826 S.W.2d 141, 144 n. 5 (Tex.Crim.App.1991). In concurring and dissenting opinions, several judges on this Court have argued that we should sometimes conduct a harmless error analysis in the first instance rather than always remanding the case to the intermediate appellate court. Owens, 827 S.W.2d at 918 (Overstreet, J. concurring and dissenting). Abdnor v. State, 808 S.W.2d 476, 478 (Tex.Crim.App.1991) (Baird, J. concurring and dissenting). DeVaughn v. State, 749 S.W.2d 62, 74 (Tex.Crim.App.1988) (Teague, J. concurring and dissenting).
The United States Supreme Court has adopted the position that conducting a harmless error analysis in the first instance is appropriate on rare occasions. Yates v. Evatt, 600 U.S. 391, 402, 111 S.Ct. 1884, 1892, 114 L.Ed.2d 432 (1991). Pope v. Illinois, 481 U.S. 497, 604, 107 S.Ct. 1918, 1923, 95 L.Ed.2d 439 (1987). Rose v. Clark, 478 U.S. 570, 584, 106 S.Ct. 3101, 3109, 92 L.Ed.2d 460 (1986). United States v. Lane, 474 U.S. 438, 450, 106 S.Ct. 725, 732, 88 L.Ed.2d 814 (1986). United States v. Hasting, 461 U.S. 499, 510, 103 S.Ct. 1974, 1981, 76 L.Ed.2d 96 (1983). While the Court held that such review should be exercised “sparingly,” see Pope, Rose, Lane, and Hasting cited above, it is appropriate to exercise such review, on occasion, to serve the interests of judicial economy. Yates, 500 U.S. at 402, 111 S.Ct. at 1892. I agree with the approach taken by the Supreme Court. On some rare occasions, following the usual practice of remanding for a harmless error determination would merely produce unnecessary delay and waste of judicial resources. On those occasions, we should conduct the harmless error analysis ourselves.
If ever a case merited expeditious treatment, this is the case. This murder was committed almost seventeen years ago; two trials have been conducted. Moreover, the erroneously admitted evidence, consisting of the fact that appellant once took his clothes off and, uninvited, got into bed with an ex-girlfriend, is so obviously harmless that to remand the case to the Court of Appeals would cause a needless delay of justice. If this Court is ever justified in conducting a harm analysis rather than remanding a case *540to the Court of Appeals, we should do so in this case.
Because I believe that error in the admission of evidence of the prior misconduct was harmless, I would affirm the judgment of the Court of Appeals.
With these comments, I join the majority opinion as to appellant’s ground for review two (vindictiveness), I concur as to ground three (“ex post facto”), and I dissent as to ground one (admission of evidence).
McCORMICK, P.J., joins.. The applicable law is that in existence at the time the offense was committed. See V.A.A.C.P., Art. 42.18 (Supp. 1996), Historical and Statutory Notes, p. 281, quoting Acts 1987, 70th Leg., ch. 1101, § 18(b) &(d).