author: CLINTON, Judge.

text:
    Johnny Eugene HUDSON, Appellant, v. The STATE of Texas, Appellee.
    No. 57499.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 19, 1979.
    Rehearing En Banc Denied Oct. 31, 1979.

      J. T. Mora, Jr. and Ralph J. Bernsen, Sr., La Marque, for appellant.
    James F. Hury, Jr., Dist. Atty., Galveston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

Appellant was convicted of aggravated kidnapping and assessed a life sentence.

We are faced here with a warrantless search of an automobile by policemen investigating an offense, an issue with which the United States Supreme Court has struggled for over fifty years. We have examined the numerous cases of that Court for guidance, and have attempted to assimilate the principles therein as the basis for our decision.

Appellant was charged with kidnapping a six year old female, the daughter of his former girlfriend. Several witnesses found the child alone on a beach, and they almost collided with a car speeding from the area. When the police and the child’s mother arrived, the witnesses related a description of the car they had observed. The mother immediately recognized it as belonging to appellant, and the police were directed to his home.

The car was parked by appellant’s house. He was arrested inside his home. An unidentified man and woman were also present. An evidence technician was called, and he took photographs of the car. The photographs included the outside of the vehicle and several close-ups of the interior. On voir dire examination by defense counsel, the officer admitted opening the doors of the car to photograph the inside. At some later point the car was impounded and taken to the police station. A section of the seat cover and a separate section of the foam rubber seat cushion were cut out and chemically analyzed for possible blood stains. The kidnapping victim had received minor cuts and abrasions, and her blood type was shown to be group A. The chemical analysis revealed that there were type A blood stains on both the seat cover and foam cushion. The entire search was conducted without a warrant.

At trial the State introduced the photographs, seat cover, foam cushion and testimony of the chemist concerning the blood stains. Appellant’s counsel objected to the introduction of the evidence because it was obtained from an illegal search and seizure of the automobile.

As we perceive the questions presented, there are actually several searches or potential searches involved in this case: (1) the photographs taken of the outside of the car; (2) the photographs taken of the inside of the car after the officer opened the doors; (3) the impounding of the car and driving of it to the police station; and (4) the removal of the seat cover and cushion for the purpose of chemical analysis. We conclude that the taking of photographs of the car’s exterior did not constitute a “search” within the meaning of the Fourth and Fourteenth Amendments. The close-up photographs taken of the car’s interior were the product of a warrantless search, however, and they came within Fourth Amendment protection. The seizure of the car and its transportation to the police station required a showing that exigent circumstances existed at appellant’s home the night of the search. The taking of the seat cover and cushion at the police station was justified only if exigent circumstances existed at appellant’s home that would have allowed such a seizure at appellant’s residence. Finally, we conclude that the State failed to demonstrate that sufficient exigencies existed at the time appellant was arrested to justify a warrantless search and seizure of the car. Therefore the interior automobile photographs, seizure of the car, and taking of the seat cover and cushion were searches and seizures in violation of the Fourth and Fourteenth Amendments.

A.

It is of course fundamental that “unreasonable searches and seizures” are prohibited by the Fourth Amendment to the United States Constitution. The Supreme Court has determined that the focus of attention is not any particular constitutionally protected area, but is instead an “expectation of privacy.” Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The Amendment protects that which a person “seeks to preserve as private, even in an area accessible to the public . . . Id.

The Court has placed emphasis on the importance of a judicial issuance of a search warrant because “it provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer ‘engaged in the often competitive enterprise of ferreting out crime.’ ” United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 2482, 53 L.Ed.2d 538 (1976) [citing Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948)]. As a result the Court has consistently held that a warrantless search is unreasonable per se unless it comes within an exception to the warrant requirement. Almeida-Sanchez v. United States, 413 U.S. 266, 269, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. United States District Court, 407 U.S. 297, 314-21, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Vale v. Louisiana, 399 U.S. 30, 34-35, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Katz v. United States, supra 389 U.S. at 357, 88 S.Ct. 507; Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Johnson v. United States, supra 333 U.S. at 13-15, 68 S.Ct. 367; Agnello v. United States, 269 U.S. 20, 32, 46 S.Ct. 4, 70 L.Ed. 145 (1925).

The exceptions to the warrant requirement have been described as being “jealously and carefully drawn. . . .” Jones v. United States, supra. Those who assert an exception carry the burden of proving the need for it. United States v. Jeffers, supra. To meet that burden there must be “a showing . . . that the exigencies of the situation made that course imperative. . . . ” McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948). [Emphasis added].

One of the primary exceptions to the warrant requirement has been generally labeled the “automobile exception.” Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). “[L]ess rigorous war»rant requirements govern” cases involving searches of automobiles because “the inherent mobility of automobiles creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible” and “the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office.” South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976).

B.

The initial question is whether the photographs taken by the evidence technician constituted a “search” at all within the meaning of the Fourth and Fourteenth Amendments. As noted earlier, a distinction should be made between photographs of the car’s exterior and interior because of the different levels of intrusion involved.

The evidence technician took several photographs of the exterior of appellant’s automobile as it was parked outside the home. In our view the controlling case is Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1973). Police were investigating a murder, and they believed that the victim’s car had been pushed off an embankment by another automobile. The police had probable cause to believe that the defendant’s car was used in the offense. The car was parked in a public lot. The officers examined the tire tread and scraped paint samples off the exterior of the car for comparison to the crime scene. The Court framed the issue as follows:

“The evidence with which we are concerned is not the product of a ‘search’ that implicates traditional considerations of the owner’s privacy interest. It consisted of paint scrapings from the exteri- or and an observation of the tread of a tire on an operative wheel. The issue, therefore, is whether the examination of an automobile’s exterior upon probable cause invades a right to privacy which the interposition of a warrant requirement is meant to protect.” Cardwell v. Lewis, supra at 588-589, 94 S.Ct. at 2468.

The Court concluded that the “examination” was allowable because the defendant had no reasonable expectation of privacy that is protected by the Constitution. The Fourth and Fourteenth Amendments simply do not prohibit the type of examination conducted on the exterior of the vehicle.

It is true that the car was taken from a public parking lot in Cardwell, but that was not the basis of the Court’s decision. The gravamen of the holding was that the owner of the car had no reasonable expectation that the exterior of his car would not be examined. We conclude that the same reasoning applies to photographs taken of the exterior of appellant’s car.

The more difficult question is the photographs taken of the interior, after the officer opened the car doors, which revealed stains appearing to be blood. We find no cases directly addressing this question. Some guidance is provided from Cardwell v. Lewis, supra. The rationale provided for that case was not that the examination of the automobile’s exterior was allowable because of some exception to the warrant requirement. Rather, the Court decided as a matter of first impression that the type of activity itself was not intended to be prohibited by the Fourth and Fourteenth Amendments. The basis for that determination was that the exterior of an automobile is exposed to the public, and the intrusion into any expectation of privacy is so slight as to be beyond constitutional protection. That reasoning does not apply, however, when an officer opens the door of an automobile to examine its contents. “This is not to say that no part of the interior of an automobile has Fourth Amendment protection.” Cardwell v. Lewis, supra 417 U.S. at 591, 94 S.Ct. at 2470. The amount of intrusion is significantly greater, and the action does come within the protection of the Fourth Amendment. We see no significant difference in degree of intrusion between photographing the interior of a car, opened by the police for that purpose, and taking physical evidence from the interior. It is incumbent on the State to prove exigent circumstances and an exception to the warrant requirement to justify opening the doors and taking interior photographs. For purposes of this case, therefore, the photographs of the inside of the car must be justified by a showing of exigent circumstances at appellant’s home the night of his arrest.

C.

The next “search and seizure” involved in this case is the taking of the car and its transfer to the police station. There can be no question that the police had probable cause to believe that appellant’s car was the one used in the kidnapping. The matter we address here is whether probable cause to believe the car was used in the offense is enough alone to justify seizing it for transport to the police station, or whether a showing of exigent circumstances is also required.

This precise question was decided in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1970). Police arrested the defendant in his house and impounded his car. The Court described the issue as follows:

“The State’s third theory in support of the warrantless seizure and search of the Pontiac car is that the car itself was an ‘instrumentality of the crime,’ and as such might be seized by the police on Coolidge’s property because it was in plain view.” Coolidge v. New Hampshire, supra at 464, 91 S.Ct. at 2037.

The Court rejected that argument and held that the seizure was improper because there were no exigent circumstances proven.

The Court gave several reasons for its conclusion. “The first of these is that plain view alone is never enough to justify the warrantless seizure of evidence.” Coolidge v. New Hampshire, supra at 468, 91 S.Ct. at 2039. Plain view alone only increases the degree of probable cause, which is insufficient in absence of exigent circumstances. Id. “The second limitation is that the discovery of evidence in plain view must be inadvertent.” Id. at 469, 91 S.Ct. at 2040. When the police know the location of the evidence in advance and go to it with the intention of seizure, there is no “plain view.” Id. at 470, 91 S.Ct. 2022.

In Cardwell v. Lewis, supra, the police had probable cause to believe the seized car had been used in the offense. They found the car in a public parking lot. The Court did not adopt the “plain view” approach to the case, but instead determined that other exigent circumstances existed because of open access to the car at a public parking lot. The exigency of the situation justified the seizure.

In the present case, the police had probable cause to believe that the car was the “instrumentality of the crime,” but they went to appellant’s home in search of the car. There was no inadvertent discovery of evidence. The plain view doctrine is inapplicable. We therefore conclude that in order for the seizure of the automobile to be constitutional, the State must show exigent circumstances at the time the car was impounded at appellant’s home.

D.

The final search involved in this case was the removal of the section of seat cover and seat cushion for chemical analysis after the car was impounded at the police station. In Chambers v. Maroney, the Court held that a warrantless search of an automobile is justified at the police station if such a search would have been proper at the place the car was seized. Chambers v. Maroney, 399 U.S. 42, 51-52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970). The validity of the seizure of the seat cover and cushion therefore depends, just as the interior photographs and the seizure of the automobile, on whether sufficient exigencies existed at appellant’s home to justify a warrantless search and seizure.

E.

We turn now to the determinative issue. Did the circumstances at appellant’s home on the night of his arrest bring this case within the “automobile exception” to the search warrant requirement? If not, then the searches and seizures discussed above were improper.

The automobile exception has been used as a general label for a variety of situations. There are at least six categories of searches in vehicles in which the Supreme Court has allowed police to proceed without a warrant. These categories include: (1) moving vehicles; (2) movable vehicles; (3) frisks during field stops ; (4) inventory searches; (5) open field searches ; and (6) plain view searches. Only the first two categories are actually within the “automobile exception” which is based on the dual rationale of mobility of the evidence and lessened intrusion into a privacy right. Cardwell v. Lewis, supra 417 U.S. at 590, 94 S.Ct. 2464. The State makes no claim that the third or fourth categories apply to this case, and we have discussed in section “C” why “plain view” is inapplicable. The “open field” doctrine is not raised here because the police did not observe appellant performing any act involving the car in an open field.

Since appellant’s car was not moving at the time it was encountered by the police, the only possibility available to the State is the “movable” automobile exception. The one case in which the exception was applied is Cardwell v. Lewis, supra. The police took the unoccupied car from a public parking lot. The reason we carefully distinguish between “moving” and “movable” vehicles is the readily apparent difference in exigencies involved. A car stopped on a public highway containing alerted occupants carries a high risk that “the car’s contents may never be found again if a warrant must be obtained.” Chambers v. Maroney, supra 399 U.S. at 51, 90 S.Ct. at 1981. That same exigency may arise with an unoccupied parked car under certain circumstances. The Court in Cardwell decided that sufficient exigent circumstances did exist for two reasons. First, “[h]ere, as in Chambers v. Maroney, . . . the automobile was seized from a public place where access was not meaningfully restricted.” Cardwell v. Lewis, supra 417 U.S. at 593, 94 S.Ct. at 2471. Second, there was evidence that the defendant “asked one of his attorneys to see that his wife and family got the car, and that the attorney relinquished the keys to the police in order to avoid a physical confrontation.” Id. at 595, 94 S.Ct. at 2471-2472.

In Coolidge v. New Hampshire, supra, the Court concluded that a parked and unoccupied car did not present sufficient exigencies to come within the exception. The primary difference, as emphasized in Card-well, was that the car was taken from the defendant’s home where there was less public access. As the Court stated:

“A person who had the keys and could slip by the guard could drive it away. We attach no constitutional significance to this sort of mobility . . . [I]f Carroll v. United States, . . . permits a warrantless search of an unoccupied vehicle, on private property and beyond the scope of a valid search incident to an arrest, then it would permit as well a warrantless search of a suitcase or a box. We have found no case that suggests such an extension of Carroll.” Coolidge v. New Hampshire, supra 403 U.S. at 461 n. 18, 91 S.Ct. at 2035 n. 18. See also, Stoddard v. State, 475 S.W.2d 744, 749-750 (Tex.Cr.App.1972).

The State’s sole contention in its brief is that this case should be governed by Carlton v. Estelle, 480 F.2d 759 (5th Cir. 1973). A parked car was seized from the defendant’s home, but the court distinguished the facts from Coolidge. The record clearly established two things that were considered significant: (1) the defendant’s mother was aware that the police were looking for him; and (2) the defendant’s wife, who was present during the arrest, “was clearly in a position to exercise dominion over the car for innocent reasons or otherwise.” Carlton v. Estelle, supra at 763. The State argues that the presence of the two persons at the house when appellant was arrested created a similar situation.

We need not decide whether to agree with Carlton because the case is distinguishable on its facts, even if correctly decided. There is no evidence in the record as to who the two unidentified people at appellant’s house were; that they had any knowledge as to why the arrest occurred; that they knew the car was used in the offense, or that they had access to any means of moving the car. On voir dire examination the police evidence technician testified as follows:

“Q: Did that automobile appear to you to be under the control of Detective Powell and Simmons?
A: Yes, sir.
Q: You did not have any reason to believe that automobile was going to leave anytime soon, did you?
A: No, sir.”

The State carried the burden of proving the exception, but no evidence of any exigency was presented. The automobile exception did not apply. The warrantless search was per se unreasonable. The complained of evidence should not have been admitted at trial, and it prejudiced appellant’s case.

For these reasons the judgment is reversed and the cause is remanded.

      . These issues are discussed in part “B” of this opinion.

      . See part “C”.

      . See part “D”.

      . See part “E”.

      . A second issue in Cardwell was the seizure of the car and the taking of it to the police station. On that issue the Court placed great emphasis that a public parking lot was involved. Cardwell v. State, supra at 593-595, 94 S.Ct. 2464. See the discussion of that issue in part “C” of this opinion.

      . Lower federal courts have dealt with situations in which police officers opened doors to obtain vehicle identification numbers of cars suspected to be stolen. Several cases have held the searches to be proper: (1) United States v. Graham, 391 F.2d 439 (6th Cir. 1968) [on the theory that police may obtain numbers of cars in their possession for bookkeeping and inventory purposes], (2) United States v. Polk, 433 F.2d 644 (5th Cir. 1970) [on the theory that the registration number was in “plain view”], and (3) United States v. Williams, 434 F.2d 681 (5th Cir. 1970) [on the theory that, obtaining the registration number is not a “search” within the meaning of the Fourth Amendment], But also see Glisson v. United States, 406 F.2d 423 (5th Cir. 1969), which reversed on the ground that obtaining the registration number did constitute a search, and that insufficient exigent circumstances were proven by the government to establish an exception to the warrant requirement.

      . There is no evidence from the State that this search was pursuant to an inventory. South Dakota v. Opperman, supra. Nor was any claim made that the police were removing “all valuables,” Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1967). The case does not fall into the facts of Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1972), in which police were searching for a lost service revolver to prevent it from falling into “improper hands.”

      . Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed.2d 543 (1925).

      . Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974).

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). If the officer has reason to believe that his life may be threatened by the presence of a weapon, a warrantless search in a car may be justified. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

      . South Dakota v. Opperman, supra. See also, Cady v. Dombrowski, supra.

      . U. S. v, Hester, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). See also, Jordan v. State, 576 S.W.2d 825 (Tex.Cr.App.1979).

      . Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1967). See also, Coolidge v. New Hampshire, 403 U.S. 443, 464— 473, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1970).

      . It is of course also true that a defendant may consent to a search, but the testimony of the police evidence technician showed no consent was given in this case. Additionally, there is a well established exception to the warrant requirement denominated “search incident to arrest” which might apply to some automobile searches. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). However, the Supreme Court has consistently held that the exception does not apply when the “accused is under arrest and in custody, then a search [is] made at another place . .” Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964). Chambers v. Maroney, 399 U.S. 42, 47, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1969).

      . In both Carroll v. United States, supra, and Chambers v. Maroney, supra, the cars were stopped on public roads with the defendants inside.


source: Caselaw Access Project

author: TOM G. DAVIS, Judge.

license: Public Domain

text:
    Juan A. GONZALEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 57485.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 26, 1979.
    Rehearing En Banc Denied Oct. 31, 1979.

      C. W. Robin Pearcy, San Marcos, for appellant.
    William Rugeley, Dist. Atty. and John L. Jackson, Asst. Dist. Atty., San Marcos, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for possession of more than four ounces of marihuana. Art. 4476-15, Sec. 4.05(a) & (b)(1), V.A.C.S. Trial was before the court and punishment was assessed at five years, probated, and a fine of $5,000.00.

Appellant challenges the constitutionality of the initial search of his residence, the subsequent arrest of his wife, and later search and seizure of marihuana at his home. These contentions require a detailed review of the evidence.

Warden Charles Talbert of the Texas Parks and Wildlife Department, testified that on January 7,1977, at about 6:30 p. m. he received a call from a rural property owner reporting rifle fire immediately behind the appellant’s house. Talbert stated that he had previously received reports of game violations concerning the appellant’s residence, but that he had never arrested the appellant for game violations nor found evidence of violations on the appellant’s property. Talbert called Warden Simpson to assist him, and the two drove to appellant’s residence. When they arrived at the residence, it was dark.

Talbert first observed the appellant’s property from the highway. From that vantage he observed no activity on the property. He then drove through an open gate to the residence and parked in the driveway. Talbert and Simpson got out of the car and knocked on the front door to determine if anyone was at home. Receiving no response, the game wardens went to the back door and knocked. Again they received no answer. No cars were parked near the residence nor were there other signs that anyone was inside.

Talbert was next asked, “what occurred then?" He responded:

“A. Then we began to just look around the place. We walked back around into the front yard and possibly back into the back yard. Just looking to see if we could find any evidence of game violations, whether there may be a deer hanging up, or one that had been freshly killed, or something of this order.”

Talbert and Simpson found no game violations.

Talbert then testified that:

“A. I found something that caught my attention. There was a weeded area. What would have been the back yard at one time was fairly high in grass and weeds which had not been mowed or anything, only a beaten path where automobiles had been driving around behind the house, also in front of the house; with the exception of a beaten path, a well-beaten path that was beat out to an old outdoor toilet.
“Q. All right.
“A. This caught my attention as to why so much traffic had been going to an old outdoor toilet which was in poor condition.
“Q. Did you go down that beaten path?
“A. Yes. I did.
“Q. When you arrived at the old outhouse, what did you discover or find, if anything?
“A. When I arrived there, I noticed the door was shut and the beaten path led immediately into the door of the outdoor toilet. Immediately on the ground, in front of that was residue which I believed to and knew to be marijuana leaves and marijuana stems, laying in front of the door.
“Q. Did you see any other marijuana on the premises at that time?
“A. Yes. The building was in such condition that it had cracks, and holes, and so forth on it. I shined my flashlight in through a crack at the door, and inside was a large quantity of marijuana stacked in bags inside the building.”

Talbert and Simpson left the residence and took up a surveillance position some 600 yards from the house. Talbert then radioed Hays County Deputy Sheriff Cary Young.

Deputy Young met Talbert and Simpson near the residence. Before Young’s arrival, however, the appellant’s wife and a friend had returned to the residence. Talbert and Young went to Judge Hoard’s office in Dripping Springs to obtain a search warrant based on what Talbert had seen. Simpson continued the surveillance of the house.

While Young and Talbert were obtaining the warrant, the appellant’s wife left the residence in her car accompanied by the friend. Talbert testified that:

“A. The search warrant was in the process of being issued at the time that we received the radio call back from Warden Simpson, that the car that we had seen and its occupants that had arrived at the house shortly there previous to this, was leaving the premises. I, myself, left the Judge’s office in Deputy Young’s automobile and proceeded back towards the house to assist the officer in the apprehension of the vehicle that was leaving the house. I encountered that vehicle and him in pursuit just west of Dripping Springs, what would be the western edge of Dripping Springs. They were east bound on 290 as I was going west bound.”

Appellant’s wife was stopped by Warden Simpson.

Warden Talbert, Deputy Young, and Hays County Deputy Sheriff Alfard Hoh-man all testified that they were not present when appellant’s wife was stopped by Simpson. All three of these officers arrived later, but did not stay, nor did they testify as to what occurred on the highway where the appellant’s wife was stopped. Each stated that while they were at the place where appellant’s wife was stopped, they saw no one search the car.

Appellant’s wife, Sylvia Gonzalez, testified that she was stopped by Warden Simpson. Simpson came to the window of the car and asked for her driver’s license. He also inquired whether she knew that she was speeding. At that time Patrolman Fort of the Department of Public Safety arrived and parked in front of Sylvia’s car.

According to Sylvia, Simpson then asked her to get out of the car. Sylvia complied and followed Simpson around to the other side of the car. Sylvia testified that another officer who had arrived in the same car as Patrolman Fort then began searching her car. This officer searched Sylvia’s purse, which had been on the floorboard of the car, and found another valid driver’s license in her maiden name in addition to the one she showed Simpson. The officers asked Sylvia to follow them to Judge Hoard’s office.

Sylvia testified that she did not think that she was free to drive off and continue on her way once she was told to follow the officers to the judge’s office. Deputy Young testified that she was under arrest when she came to Judge Hoard’s office. Deputy Hohman testified that she was not placed under arrest until the subsequent search of her residence described below. Neither Patrolman Fort nor Warden Simpson testified at the hearing or trial.

Once at the judge’s office, Sylvia was charged and fined for possession of two valid driver’s licenses. See, Art. 6687b, Sec. 32(a)(5), V.A.C.S. According to her, she was asked to sign a consent to search form and was told by Deputy Young that if she did not sign the officers would “break into” her house anyway. At this time, Sylvia was in the judge’s office with the judge and six other police officers. She signed the consent to search form.

Officer Young testified that he never told Sylvia that he would break into her house regardless of whether she consented to the search. He could not remember whether anyone told her the officers had already procured a warrant or would search the house regardless of her consent. Young stated that it was possible that someone told her. It is undisputed that prior to signing the form she was told that the officers had reason to believe that there was marihuana at her house.

Deputy Hohman testified that he had shown Sylvia the consent to search form and informed her that she did not have to sign it. There was conflicting testimony from the officers concerning at what point in the above events Sylvia was finally placed under arrest. There was also conflicting testimony at to when she was given the warnings provided for in Art. 15.17, V.A.C.C.P.

Six peace officers then drove to the house escorting Sylvia in her car. The officers searched the house and outbuildings, including the outhouse, and found approximately 30 pounds of marihuana at different locations. According to the officers, the search was conducted pursuant to the consent to search form, signed by Sylvia at Judge Hoard’s office. Appellant was subsequently arrested and convicted of the present offense.

Appellant contends that the initial search by Talbert and Simpson was illegal. The State responds that the search of the premises was authorized by V.T.C.A. Parks and Wildlife Code, Sec. 12.103, and the marihuana found in plain view.

Sec. 12.103, supra, provides:

“To enforce the game and fish laws of the state and to conduct scientific investigations and research regarding wild game or fish, an authorized employee of the department may enter on any land or water where wild game or fish are known to range or stray. No action may be sustained against an employee of the department to prevent his entering on land or water when acting in his official capacity.”

Both parties rely on the same Attorney General’s opinion in support of their contentions. Tex.Atty.Gen.Op.No. V-22 (1947) interpreted provisions of Art. 919, V.A.P.C. (1925, repealed 1975), which are now contained in Sec. 12.103, supra. This opinion, as applicable here, stated that game wardens could enter upon any lands for the purposes enumerated in the statute without a search warrant. The opinion further stated, however, that the statute did not enable game wardens to search a dwelling or things connected therewith, such as gardens or outhouses, without a warrant. While Attorney General’s opinions can be persuasive, they are not binding authority on the courts. Tussey v. State, Tex.Cr.App., 494 S.W.2d 866.

Regardless of the breadth of the statute relied upon by the State, every search must pass constitutional muster. The precise question presented here is whether the warden’s warrantless search at the appellant’s residence and the immediate surrounding buildings and land was unreasonable. To determine the reasonableness of the search, we must first characterize the intrusion.

Talbert testified that he initially went on the land to determine whether anyone was home. According to this testimony, he was not searching for anything, but instead trying to contact the occupants to investigate the report that had come to his attention.

To find that a search is unreasonable, we must first determine that the' intrusion was in fact a search. We need look no further than our decision in Long v. State, 532 S.W.2d 591, for a definitive answer to this inquiry. In Long, the sheriff had gone to a rural residence to investigate several suspicious airplane flights from Long’s property. The sheriff parked in the driveway and went to the front door and knocked. He received no response. He then went to the back door, and again received no response to his knock. As he came around the house to leave, he passed an open window from which the odor of marihuana was emanating. The sheriff procured a search warrant and returned to search the house.

This Court held that the initial inquiry in Long was not a search. That holding is applicable in the instant case. The wardens’ attempt to contact the inhabitants of the house is not a search for contraband or evidence of the crime. See, Long, 532 S.W.2d at 594-95. Had the warden in the instant case seen the contraband as he returned to his car, Long would indicate that there was no illegal search. The warden did not turn to leave after receiving no response to his inquiries. The present case and Long clearly diverge at this point. As is shown by Talbert’s testimony, instead of leaving, he initiated a search for game violations.

We are not faced with the question of whether the warden would enter open fields or waterways to search. See, Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898; Ochs v. State, Tex.Cr.App., 543 S.W.2d 355. The initial search by the wardens involved the back yard at appellant’s house. It has been held that the private property immediately adjacent to a home is entitled to the same protection against unreasonable search and seizure as the home itself. See, United States v. Anderson, 8 Cir., 552 F.2d 1296; Fixel v. Wainwright, 5 Cir., 492 F.2d 480; Wattenburg v. United States, 9 Cir., 388 F.2d 853. Therefore, we must determine whether this war-rantless search of the area immediately behind appellant’s house is constitutionally valid under the mandates of the United States Constitution and Texas Constitution. If the search is constitutionally invalid, reliance on Art. 12.103, supra, is of no avail.

In Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1972, 26 L.Ed.2d 409 (1970), the Supreme Court was faced with the war-rantless search of a residence incident to arrest. The Supreme Court observed that:

“ . . . our past decisions make clear that only in ‘a few specifically established and well-delineated’ situations, Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576, may a warrantless search of a dwelling withstand constitutional scrutiny, even though the authorities have probable cause to conduct it. The burden rests on the State to show the existence of such an exceptional situation. Chimel v. California, supra, 395 U.S. [752] at 762, 89 S.Ct. [2034] at 2039, 23 L.Ed.2d 685; United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59; McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153.”

Accord, McDole v. State, Tex.Cr.App., 579 S.W.2d 7. As noted above, the term “residence” extends further than just the physical structure of the house. See, Fixel v. Wainwright, supra. The exceptions delineated in Vale are:

(1) consent;
(2) response to an emergency;
(3) hot pursuit of a fleeing felon;
(4) contraband in the process of being destroyed;
(5) contraband about to be removed from the jurisdiction.

399 U.S. at 34-35, 90 S.Ct. 1969.

In the present case, the State does not contend, nor do we find, that any of these exceptions existed at the time of the warden’s initial intrusion.

The burden of proving the reasonableness of a warrantless search is on the State. DeLao v. State, Tex.Cr.App., 550 S.W.2d 289; Hooper v. State, Tex.Cr.App., 533 S.W.2d 762. The evidence at both the hearing and the trial is insufficient to discharge this burden. We find that the game warden’s initial search of the grounds immediately surrounding the appellant’s residence was unconstitutional under both the Fourth Amendment of the United States Constitution and Art. I, Sec. 9, of the Texas Constitution.

The State argues that although the initial search by Wardens Talbert and Simpson may have been unconstitutional, the subsequent search in which the marihuana was seized was lawful in that appellant’s wife consented to the search. Appellant responds that the consent given by his wife was involuntary and the result of an illegal arrest.

Not all evidence which is the “fruit of the poisonous tree” requires application of the exclusionary rule. The test is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. If consent is sufficiently an act of free will to purge the primary taint and produce the requisite degree of attenuation, the evidence will be admissible. Armstrong v. State, Tex.Cr.App., 550 S.W.2d 25; Houlihan v. State, Tex.Cr.App., 551 S.W.2d 719. The State has the burden of showing that the evidence was untainted by the initial illegal search. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176; Armstrong v. State, supra.

In the instant case, the evidence is undisputed that appellant’s wife signed the consent to search form after she was told by Officer Hohman that there was reason to believe that marihuana was in her home. The offense report prepared by Deputy Hohman was introduced into evidence. The report recites in pertinent part:

“After Trooper Fort finished with Mrs. Gonzalez, I talked to her and asked her if she would sign a consent to search her property. She wanted to know why and I told her that we had reason to believe and did believe that there was marijuana on the property.”

The State offered no evidence that the marihuana would have been discovered by means independent of the initial search or the consent. Furthermore, the State has failed to demonstrate any attenuating circumstances between the initial illegal intrusion and the subsequent consent to search. We conclude that the consent was the result of the continuous exploitation of the initial unconstitutional search; Therefore, we hold that appellant’s motion to suppress the evidence seized by officers from his residence and outbuildings should have been granted.

The judgment is reversed and the cause remanded.


author: DOUGLAS, Judge. ROBERTS, Judge,

text:
    Beth Davidson GILLETT, Appellant, v. The STATE of Texas, Appellee.
    No. 57303.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 17, 1979.

      Gerald Applewhite, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Robert A. Shults and Thomas L. Royce, Jr., Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

The conviction was for the theft of a sweater of the value of over $20.00 and under the value of $200.00 as denounced by V.T.C.A., Penal Code, Section 31.03. The trial was before the judge. Punishment was assessed at thirty days in jail and a fine of $50.00, probated for six months.

Appellant contends that there was an illegal search by a security officer and evidence obtained as a result of the search should have been suppressed, and that the evidence is insufficient to show that she took the property without the consent of Foley’s. We overrule these contentions and affirm.

Karen Boysen was a security officer for Foley’s Department Store, but she was not a peace officer. While she was working at the Memorial City store near Spring Branch, she saw Beth Gillett pick up a red velour sweater, look about for a while and take it to a fitting room. The three fitting rooms or stalls had doors in the front and the partitions between them lacked at least one and one-half feet from reaching the floor. A sign was posted on the mirror which read: “Three garments per customer in the fitting room”, and “These fitting rooms are under surveillance by female security.” Another sign in the room read, “We prosecute shoplifting.”

After Gillett entered a fitting room, Boy-sen entered an adjoining room, got down on her hands and knees and looked into the stall occupied by Gillett and saw her try on the sweater, roll it up, place it in her purse and leave the fitting area. Gillett passed twelve cash register locations and through several departments of the store without attempting to pay for the sweater. Boysen stopped appellant, took her to the security office, retrieved the sweater and held her until police officers arrived.

Appellant contends that the observation by Boysen in the fitting room was an illegal search under Article 38.23, V.A.C.C.P., which provides:

“No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”

At the outset, there has been no violation of the Fourth Amendment to the Constitution of the United States which provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The exclusionary rule under the Fourth Amendment applies only to governmental action. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). There are many cases so holding. See Annot., Admissibility, in Criminal Case, of Evidence Obtained by Search by Private Individual, 36 A.L.R.3d 553 (1971). In The Fourth Amendment Inapplicable Vs. The Fourth Amendment Satisfied: The Neglected Threshold of “So What”, by Judge Charles E. Moylan, Jr., Southern Illinois University Law Journal, Volume 1977, Number 1, it is written:

“Lest any doubt the continuing vitality of Burdeau v. McDowell, the Supreme Court gave it a clean bill of health in 1971 in Coolidge v. New Hampshire [403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564]:
“ ‘Had Mrs. Coolidge, wholly on her own initiative, sought out her husband’s guns and clothing and then taken them to the police station to be used as evidence against him, there can be no doubt under existing law that the articles would later have been admissible in evidence. Cf. Burdeau v. McDowell. . . .’
“On this particular point, Justice Stewart spoke for a unanimous Supreme Court.”

The State contends that since neither the Federal nor State constitutional provisions, nor the Texas law, were violated, Article 38.23, supra, does not apply.

It is not necessary to pass on that contention in this case because we hold that no right to privacy has been violated.

What people seek to preserve as private, even areas accessible to the public, may be constitutionally protected by the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Further, areas such as public toilet stalls are private to the extent they are offered to the public for private, although temporary, use. Katz v. United States, supra; Britt v. Superior Court, 58 Cal.2d 469, 24 Cal.Rptr. 849, 374 P.2d 817; State v. Bryant, 287 Minn. 205, 177 N.W.2d 800. Such constitutional protection, however, extends only to the limits that the design, purpose and plan of the public facility affords so that, when the design is such that there is no right to expect absolute privacy, there can be no invasion of privacy. Buchanan v. State, 471 S.W.2d 401 (Tex.Cr.App.1971), cert. denied 405 U.S. 930, 92 S.Ct. 984, 30 L.Ed.2d 804.

In the present case, the posted sign on the mirror which would under nearly all circumstances be looked at by female occupants of a fitting room was notice that one could not expect privacy. This room was for use by the public on conditions established by the business. If appellant did not want to use the fitting room under the posted conditions, she was not compelled to do so. Her testimony that she did not see the sign did not have to be believed by the trial judge. The same is true about her testimony concluding that she expected privacy. See Green v. State, 566 S.W.2d 578 (Tex.Cr.App.1978).

In short, Foley’s did not have to furnish her a place so that she could commit theft in private.

In the cases relied upon by appellant where it has been held that a right to privacy exists are not controlling because in those cases the places were public and there was no notice that one would be watched while in a booth or stall.

Appellant also contends that the State did not prove that she took the sweater without the owner’s consent. Irene Ott testified that she was “security” assistant manager at the store and that the sweater belonging to Foley’s was taken out of appellant’s purse. It had four tags on it which meant that it had not been paid for. She related that no one gave appellant permission to take it and she did so without the effective consent of Foley’s. The evidence is sufficient to show lack of effective consent of Foley’s as alleged in the information.

No error is shown. The judgment is affirmed.

ROBERTS, Judge,

dissenting.

This appeal presents a question that this Court never has addressed directly: Are the fruits of an unreasonable search made by a private person inadmissible under V.A.C. C.P., Article 38.23? The Court avoids the question by holding that “no right to privacy has been violated.” In reaching that result the majority opinion engages in reasoning that is unacceptable to me. I also take the opportunity to comment on the applicability of Article 38.23 to private searches.

I.

A. Was there a search?

When a person has gone into an enclosed booth to disrobe, and an investigator gets down on her hands and knees and peers under the wall to watch the person surreptitiously, there has been a search (in the plain meaning of that word) unless the person’s normally justified expectation of privacy in such a place was abrogated. The majority opinion is too abrupt in finding such an abrogation in this case.

The majority opinion summarizes its holding by saying, “In short, Foley’s did not have to furnish [the appellant] a place so that she could commit theft in private.” This may have the virtue of wit, but it has nothing to do with the applicable law. One might as well say that Sears did not have to furnish an appellant with a place to commit sodomy in private; of course, a restroom having been furnished, the law is that the appellant had a reasonable expectation of privacy in it. Buchanan v. State, 471 S.W.2d 401 (Tex.Cr.App.1971) (opinion by Douglas, J.), cert. denied, 405 U.S. 930, 92 S.Ct. 984, 30 L.Ed.2d 804 (1972). The same law would compel the conclusion that when a person has gone into a fitting room in a department store and closed the door, he has a reasonable expectation of privacy, and it is an unreasonable search for concealed guards to observe him by looking over or under walls or through cracks. People v. Randazzo, 220 Cal.App.2d 768, 34 Cal.Rptr. 65, 66 (1963); United States v. Lima, 25 Crim.L. 2095 (D.C.Super.1979); People v. Diaz, 85 Misc.2d 41, 376 N.Y.S.2d 849 (Crim.Ct.N.Y.1975); State v. McDaniel, 44 Ohio App.2d 163, 337 N.E.2d 173 (1975); W. La-Fave, 1 Search & Seizure, Section 2.4(c) (1978). The majority opinion holds that this law does not apply for two reasons.

First, says the majority opinion, “[I]n those cases the places were public.” This is puzzling. One would think that this purported distinction would undercut, not support, the majority’s position; “in those cases [where] the places were public” the expectation of privacy logically must be less than in those cases where the places are private. But I shall not linger over this curiosity. It seems plain to me that there is no difference in the public natures of a dressing room in Foley’s and a toilet stall in Sears.

Second, the majority notes that in the cited cases, “there was no notice that one would be watched while in a booth or stall.” While this is the determinative factor, it is not analyzed correctly in the majority opinion.

One step in the majority’s analysis is the axiom that the trial court could have disbelieved the appellant when she said that she did not see the sign and that she expected privacy. This is true, but irrelevant. The dispositive question is not whether a person has a subjective expectation of privacy, but whether a person has an objectively justified right to privacy. It is an unreasonable transgression on the objective right that constitutes an unreasonable search. If the test were a subjective one, a searcher like Orwell’s Big Brother could rather easily eliminate our subjective expectations of privacy simply by announcing his intention to search us. His searches would be unreasonable, nonetheless, because they would have violated our objectively justified right to privacy. (Conversely, an unjustified expectation of privacy, no matter how fervently it is subjectively held, can not render a search unreasonable.) See W. LaFave, 1 Search & Seizure, Section 2.1 (1978); Amsterdam, “Perspectives on the Fourth Amendment,” 50 Minnesota Law Review 349, 384 (1974). This Court has applied this objective test correctly to a Fourth Amendment question in Green v. State, 566 S.W.2d 578, 583 (Tex.Cr.App.1978) (opinion by Douglas, J.). That case certainly did not present the incorrect analysis for which it is cited in the majority opinion.

The proper question is whether the sign makes a person’s expectation of privacy objectively unjustified. The only thing that the majority opinion has to say about the sign is that “the posted sign on the mirror would under nearly all circumstances be looked at by female occupants of a fitting room . . . .” (I suppose that this is an implied holding that the judgment would be reversed if the occupant had been male and, hence, less apt to look at mirrors.) The quaint remark in the majority opinion is not a sufficient analysis of the problem of the sign.

First, the sign is poorly designed to give notice that there may be an intrusion on the occupant’s privacy. It is small: about six by twelve inches. It is poorly worded: “Three garments per customer in the fitting room and these fitting rooms are under surveillance by female security.” The notice that the “rooms are under surveillance by female security” is not prominently displayed, but is appended to another notice. The sign is not placed outside the room so that it might be read before the customer begins undressing, but is fixed to a mirror inside the room so that the customer might not notice it until she had undressed (if she noticed it at all).

Second, and more importantly, it appears that people expect privacy in the fitting room even though they are fully aware of the sign. The security investigator, who had been trained in this method of surveillance and who used it in this case, testified nonetheless that when she went into a fitting room to try on clothes she expected privacy and she did not anticipate that anyone would be watching her. I think that the investigator’s expectation of privacy was justified, as was the appellant’s. Accordingly, I would hold that there was a search when the security guard got down on her hands and knees to peer under the wall into the closed fitting room where the appellant was disrobing.

B. Was the search consented to?

The only other fact mentioned in the majority’s analysis is the observation that the fitting room was made available under posted conditions which the appellant could have avoided by not using the room. Although the majority opinion does not use the term “consent,” it seems to be saying that the appellant, by her use of the room, impliedly consented to be searched. Of course, this would be relevant only if there was a search. If the majority were completely satisfied with their holding that there was no search, they would not need to add this makeweight suggestion that the search was consented to. But more must be said of this “consent factor.”

Some courts have raised the question of consent in analyzing searches of airplane passengers and jail visitors who were confronted with signs similar to the one in this case.

“Even though it . [is] somewhat easier to fit cases of the type just described within the consent category, it is neither necessary nor desirable to do so. Consent in any meaningful sense cannot be said to exist merely because a person (a) knows that an official intrusion into his privacy is contemplated if he does a certain thing, and then (b) proceeds to do that thing. Were it otherwise, the police could utilize the implied consent theory to subject everyone on the streets after 11 p. m. to a search merely by making public announcements in the press, radio and television that such searches would be undertaken. And there are other problems. . . . These difficulties can be avoided by simply asking whether these inspection activities meet the reasonableness requirement of the Fourth Amendment, an inquiry in which it will nonetheless be relevant that advance notice was given of the circumstances in which a search may occur.” W. LaFave, 2 Search & Seizure, Section 8.2(I) (1978) (footnotes omitted).

As long as the majority opinion is tacitly admitting that there was a search in this case, it should analyze the search in terms of reasonableness rather than consent.

C. Was the search reasonable?

“Unfortunately, there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.” Camara v. Municipal Court, 387 U.S. 523, 536-537, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967). Unquestionably, Foley’s has a need to prevent theft. This need must be distinguished from the activity of gathering evidence of crime for the purpose of prosecution. See, e. g., United States v. Davis, 482 F.2d 893, 910-912 (9th Cir. 1973). To be reasonable, a search should be no more intrusive than is necessary to achieve its legitimate purpose. W. LaFave, 3 Search & Seizure, Section 10.7 (1978). In this case, Foley’s could have satisfied its need to prevent theft had the investigator simply waited outside the fitting room to see that the appellant emerged with the sweater that she took in, and to see that the sweater was replaced on the rack. Instead, the investigator chose to gather evidence by engaging in a very intrusive search. Searches that are personal in nature and aimed at discovering evidence of crime involve a higher degree of invasion of privacy than mere inspection activities. See Camara v. Municipal Court, 387 U.S. 523, 537, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

Assessing intrusions that were virtually identical to those presented by the instant case, courts have concluded that the searches were unreasonable. People v. Randazzo, 220 Cal.App.2d 768, 34 Cal.Rptr. 65, 66 (1963); State v. McDaniel, 44 Ohio App.2d 163, 337 N.E.2d 173 (1975).

Notice in advance that a search might occur is a factor to be considered in determining the reasonableness of a search like the instant one. This factor is rather a weak one in this case. There was no proof that the appellant actually had notice that she would be searched if she went into the fitting room, and the sign was not sufficient to eliminate a reasonable expectation of privacy.

In summary, the need to search was clear but not overwhelming, the invasion of privacy was great, the search was more intrusive than the legitimate purpose justified, and the advance notice was unsatisfactory. On balance, I would hold that the search was unreasonable.

I recognize that judges could disagree in evaluating the facts of this case, but the approach to the analysis of the case should be mandated by the legal principles that I have discussed. The unfortunate feature of this case is that the holding of the majority opinion would apply equally well if this search had been made by a police officer. If it is applied to Professor LaFave’s hypothetical, in which the police search everyone found on the street after 11 p. m. after announcing their intention to do so, the only logical result will be to hold that there was no search because there was no subjective expectation of privacy. Under the majority opinion, any Orwellian invasion of privacy could be held not to be a search, so long as a small, cryptic sign has been posted in advance. I have every hope that, when faced with such cases, the Court will return to a proper analysis; I wish that it had done so today.

II.

As a matter of federal law, the Fourth Amendment to the United States Constitution is a restriction only on government action. Burdeau v. McDowell, 256 U.S. 465, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1921). A majority of courts hold that the exclusionary rule of the Fourth Amendment does not bar the admission of evidence acquired unlawfully by private persons. Annotation, 36 A.L.R.3d 553 (1971).

Of course, states are free to establish laws that afford greater protections than the minimum requirements of the federal constitution. See Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Milton v. State, 549 S.W.2d 190, 192 (Tex.Cr.App.1977); Olson v. State, 484 S.W.2d 756, 762 (Tex.Cr.App.1972); Brennan, “State Constitutions and the Protection of Individual Rights,” 90 Harvard Law Review 489 (1977). Texas has exercised this freedom more than once in its constitutions and laws.

Therefore, in our determination of the admissibility of evidence acquired by private persons, we are not limited by Fourth Amendment doctrines if state law establishes stricter standards. At a time when some judges are displaying hostility to the constitutional exclusionary rule (if not to the Fourth Amendment itself), it is important to remember that the legislative representatives of the people of Texas enacted and repeatedly reenacted a broader, statutory rule of exclusion long before it was required by the federal courts.

In its first paragraph, Article 38.23, V.A. C.C.P., provides: “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” This statute goes much beyond the exclusionary rule of the Fourth Amendment. C. McCormick & R. Ray, 1 Texas Law of Evidence, Section 473 (2d ed. R. Ray & W. Young 1956). It is on this statute that the appellant relies.

Formal sources of the legislative history of Texas statutes have been nearly non-existent until recent years. See M. Boner, A Reference Guide to Texas Law and Legal History, chapter 4 (1976). The legal and historical context of this statute and its predecessors is tolerably clear, and a review of it is helpful.

The statute was born in the prohibition era. Although statewide prohibition did not come to Texas until 1919, prohibition on the “local option” of counties, precincts, towns, and cities had been allowed since 1876. See Texas Constitution, Article 16, Section 20 (1876, amended 1891, 1919, 1933, 1935, 1970). When statewide prohibition was adopted, 199 of the (then) 252 counties in Texas already had been voted “dry” as a local option, and 43 more were practically dry. A. Thomas & A. Thomas, “Interpretive Commentary,” 3 Vernon’s Annotated Constitution of the State of Texas 198, 199 (1955). The long Texas experience with local option and prohibition included militant activity by a number of prohibitionist organizations. A. Thomas & A. Thomas, supra. Among these organizations were “Law and Order Leagues,” comprising private persons who pledged to use all efforts within their power to secure testimony and otherwise to aid officers in convicting persons charged with violating the law, especially the local option law. See Counts v. State, 78 Tex.Cr.R. 410, 181 S.W. 723 (1916); Deadweyler v. State, 57 Tex.Cr.R. 63, 121 S.W. 863 (1909). The opinions of this Court indicate that it was not a rare event for private persons to join peace officers in searching for, and seizing, alcoholic beverages. See, e. g., Bolt v. State, 112 Tex.Cr.R. 267, 16 S.W.2d 235 (1929); Stach v. State, 97 Tex.Cr.R. 280, 260 S.W. 569 (1924); Cadan v. State, 95 Tex.Cr.R. 645, 255 S.W. 428 (1923); West v. State, 93 Tex.Cr.R. 288, 247 S.W. 534 (1922).

It was such a case, in which private “gentlemen” joined with officers on a search for whisky, that gave rise to Article 38.23, V.A. C.C.P. The case was Welchek v. State, 93 Tex.Cr.R. 271, 247 S.W. 524 (1922). In that opinion, this Court announced that it would not follow the exclusionary rule of such cases as Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921), and Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), under which the federal courts suppressed evidence seized in violation of the Constitution. The opinion was the subject of much discussion. We have expressly noted that the intent of the 39th Legislature was to change the Welchek rule when it enacted two statutes, one of which was the predecessor of Article 38.23. Odenthal v. State, 106 Tex.Cr.R. 1, 290 S.W. 743, 748-749 (1927); see C. McCormick & R. Ray, 1 Texas Law of Evidence, Section 473 (2d ed. R. Ray & W. Young 1956).

The first of these statutes provided:

“Sec. 1. * * * No evidence obtained by an officer or other person in violation of any provision of the constitution or laws of the State of Texas, or of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
“Sec. 2. The fact that there has been used against citizens of this State evidence obtained in violation of the constitution of the State, and that there is now no statute expressly forbidding the same, creates an emergency . . . .” 1925 Texas General Laws, Chapter 49 (emphasis supplied).

Section 1 is substantially identical to the first paragraph of the present Article 38.23.

The other statute began by reciting Article I, Section 9 of the Texas Constitution. It then made it a misdemeanor, punishable by six months in jail and a fine of from $100 to $500, “for any person or peace officer, or State ranger, to search the private residence, actual place of habitation, place of business, person or personal possessions of any person, without having first obtained a search warrant as required by law.” 1925 Texas General Laws, Chapter 149, Sections 2 and 3 (emphasis supplied).

These statutes evince the intent of the Legislature to make the prohibition of unreasonable searches and seizures applicable to all persons, whether officers or not.

The 41st Legislature repealed the act that made it a crime to conduct a warrantless search, because it was “retarding and hindering the enforcement of the Criminal laws . . . and . . . hampering and embarrassing the Peace officers . ,” A companion act reenacted the statutory rule of exclusion. The language that excluded evidence obtained unlawfully “by an officer or other person” was retained. The only change was the insertion of the words “Constitution of the” before the words “United States of America.” The effect of the change was to make admissible evidence that was obtained in violation of federal laws. The statute continued to exclude evidence obtained in violation of the federal constitution or the constitution or laws of the state.

When it was held that this amendment made admissible wiretap evidence obtained in violation of the Federal Communications Act, the 52nd Legislature promptly reacted. It reinstituted the ban against evidence obtained in violation of federal laws, which restored the substance of the original statute. This 1953 version provided:

“Sec. 1. No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the United States or of this State shall be admitted in evidence against the accused on the trial of any criminal case.
“Sec. 2. The fact that the present law authorizes evidence obtained in violation of the laws of the United States to be used in evidence against an accused upon trial for a violation of the laws of this State, creates an emergency . . . .” 1953 Texas General Laws, Chapter 253.

Once again, the language that excluded evidence obtained unlawfully “by an officer or other person” was retained.

The language was retained again when the current Code of Criminal Procedure was adopted in 1965 after a comprehensive reco-dification. Only grammatical changes were made, and a second paragraph was added.

It is significant that the application of the statute to “other persons” did not change when the statute was amended (and a companion act repealed) in 1929, nor when the statute was amended in 1953, nor when the statute was amended in 1965. Not merely once, but four times, has the Legislature chosen to exclude evidence that would otherwise be admissible under doctrines of the federal constitution. Not merely once, but four times, has the Legislature expressly made this statute applicable to the acts of officers and other persons alike, if their acts are in violation of our constitutions or laws.

The question of the applicability of this statute to the acts of private persons has not been discussed by this Court, although there is an illuminating contrast between the opinions in Gaines v. State, 95 Tex.Cr.R. 368, 251 S.W. 245 (1922), and Ramirez v. State, 123 Tex.Crim. 254, 58 S.W.2d 829 (1933). In the former case (decided before the enactment of the statute in question), we wrote, of the fruits of an illegal search and seizure, “[I]t would seem that the information obtained by the post office inspector, he not being a state officer, would not preclude the use of the facts acquired by him by the state authorities in trying the case.” 95 Tex.Crim. at 374, 251 S.W. at 248. In the latter case, two United States Immigration Service inspectors made an illegal search and seizure. Although they, like the post office inspector, were not officers under our laws, we did not hesitate to apply the statute in question (which was enacted in the interim between the cases).

The Constitution and laws of the State of Texas provide that, “The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches . . . .” The State argues that an unreasonable search or seizure by a private person is not in violation of these provisions because they apply only to officers, as does the Fourth Amendment. The State thus would have us hold that Article 38.23 does not exclude evidence obtained by the unreasonable search and seizure of a private person. By this reasoning, Article 38.23 would have no effect on the unreasonable searches of private persons. To adopt this reasoning would be to ignore one of the evils that the legislative history shows the Legislature intended to remedy. This we should not do. See Article 10(6), V.A.C.S.; Article 5429b-2, Section 3.03, V.A.C.S. Article 38.23 was enacted at a time when private persons frequently made unreasonable searches and seizures, and it was a specific response to this Court’s holding in a case that involved a search in which private persons joined. To give full effect to the statute, we must hold that it applies to evidence obtained through unreasonable searches or seizures that are made by officers or other persons alike.

In this case, the security investigator testified that her duty was to protect the assets of Foley’s in any way that she could. However that may be, the Legislature has imposed on the courts of this State a different duty: to exclude evidence obtained through unreasonable searches or seizures by officers or other persons. It was error for the trial court to deny the motion to suppress the evidence. Therefore, I dissent.

PHILLIPS and CLINTON, JJ., join in this dissent.

      . I cannot avoid thinking that the appellant’s actions in stealing the sweater are rather strong corroboration of her testimony that she expected privacy in the booth.

      . While testifying, the security investigator twice read the sign aloud. Both times it appears as one long sentence. The court approved the record without objection. A photograph of the sign was admitted into evidence, but the words are too small to be read.

      .I note that the purpose of the first part of the sign is to inform the customer that she may take only three garments into the fitting room. This makes even more curious the placement of the sign inside the fitting room, for the customer will already have selected a number of garments and brought them into the room, and the sign will not have had the intended prophylactic effect.

      . “Q When she took her blouse off what could you see? Was there a brassiere underneath there?
      “A Uh-huh. You can see all the way up”

      . See part B above.

      . See part A, above.

      . See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

      . Some courts and commentators have taken the position that private security guards, especially if they are licensed and have authority to arrest, are de facto officers of the government and subject to the Fourth Amendment. United States v. Lima, 25 Crim.L. 2095 (D.C.Super. April 16, 1979); People v. Eastway, 67 Mich.App. 464, 241 N.W.2d 249 (1976); People v. Diaz, 85 Misc.2d 41, 376 N.Y.S.2d 849 (Crim.Ct.N.Y.1975); Sutherland, “Use of Illegally Seized Evidence in Non-Criminal Proceedings,” 4 Crim.L.Bull. 215 (1968); 51 B.U.L.Rev. 464 (1971); 19 Stan.L.Rev. 608 (1967). See DeCarlo v. Joseph Horne & Co., 251 F.Supp. 935 (D.C.W.D.Pa.1966). See also People v. Zelinski, 24 Cal.3d 357, 594 P.2d 1000, 155 Cal.Rptr. 575 (1979) (state constitution violated). This remains a minority view. Because I believe that state law calls for reversal, I do not think it necessary to address this constitutional question.

      . See, e. g., Texas Constitution, Article I, Section 10 (requiring indictment by grand jury in felonies although states are not subject to the indictment requirement of the Fifth Amendment); Whisenant v. State, 557 S.W.2d 102 (Tex.Cr.App.1977) (Texas procedure for revoking probation affords far greater protections than those required by Fourteenth Amendment); Butler v. State, 493 S.W.2d 190 (Tex.Cr.App.1973) (Article 38.22, V.A.C.C.P., more strict than Fifth Amendment regarding oral confessions).

      . See, e. g., California v. Minjares, - U.S. -, 100 S.Ct. 9, 61 L.Ed.2d 892 (1979) (Rehnquist, J., in chambers); Wilkey, “The Exclusionary Rule: Why Suppress Valid Evidence?” 62 Judicature 215 (1978).

      . The second paragraph requires that the jury be instructed to disregard any evidence that it believes (or has a reasonable doubt) was obtained unlawfully. This paragraph was added when the current Code of Criminal Procedure was adopted (1965 Texas Gen.Laws, Chapter 722). The paragraph is not material to this case.

      . See Rowan, “Admissibility of Evidence Obtained in Violation of Constitutional Rights,” 2 Texas L.Rev. 208 (1924); 2 Texas L.Rev. 249 (1924); 1 Texas L.Rev. 473 (1923).

      . “The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.”

      . 1929 Texas Gen.L., Second Called Session, Chapter 44 (Senate Bill 20).

      . 1929 Texas Gen.L., Second Called Session, Chapter 45 (Senate Bill 21).

      . Schwartz v. State, 158 Tex.Cr.R. 171, 246 S.W.2d 174 (1951), aff'd. sub nom. Schwartz v. Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231 (1952).

      . 1 S.Tex.L.J. 69 (1954).

      . 1965 Texas Gen.L., Chapter 722, Section 1, Article 38.23.

      . See note 11, supra.

      . “The Texas statute lays down a rule far broader than that existing in any other state and goes much beyond the doctrine of the Boyd and Weeks cases. In the first place, while the federal rule excludes only evidence illegally obtained by federal officers, and those cooperating with them, the Texas statute makes a clean sweep and excludes evidence thus obtained by anyone.” C. McCormick & R. Ray, 1 Texas Law of Evidence, Section 473 (2d ed. R. Ray & W. Young 1956).

      . Texas Const., Art. 1, Sec. 9; Art. 1.06, V.A. C.C.P.

      . “In all interpretations, the court shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil and the remedy.” Article 10(6), V.A.C.S.
      “In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the
      (1) object sought to be attained;
      (2) circumstances under which the statute was enacted;
      (3) legislative history;
      (4) common law or former statutory provisions, including laws upon the same or similar subjects;
      (5) consequences of a particular construction;
      (6) administrative construction of the statute; and
      (7) title, preamble, and emergency provision.”
      Article 5429b-2, Sec. 3.03, V.A.C.S.


author: TOM G. DAYIS, Judge. PHILLIPS, Judge,

text:
    Paul Jackson LUCK, Appellant, v. The STATE of Texas, Appellee.
    No. 57365.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 24, 1979.

      Paul J. Chitwood, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., W. T. West-moreland, Jr., Douglas J. Mulder and Jon Sparling, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S MOTION FOR REHEARING

TOM G. DAYIS, Judge.

Appeal is taken from a conviction for murder. After finding appellant guilty, the jury assessed punishment at life.

The deceased, Robert William Elledge, was killed by appellant in Dallas on January 9, 1976. The offense took place in appellant’s home after an argument which culminated in the deceased being killed as a result of knife wounds and being shot in the head.

Fearing that his family would soon be home and discover the body of the deceased, appellant decided to dispose of the body. Being unable to move the body, appellant, with the aid of a hatchet and butcher knife, dismembered the body into nine pieces. He then loaded the pieces into his van and disposed of them in various locations in Dallas and Tarrant Counties.

The following day, appellant was arrested at his parents’ home in Arlington. With his assistance, police officers were able to recover all portions of the body except for one thigh.

In his first ground of error, appellant maintains that testimony presented during cross-examination of a State’s witness was perjured. He contends that the State knew of such perjury and took no actions to correct the witness’ testimony.

During its case in chief, the State called the wife of the deceased, Margie Elledge. On direct examination, she testified concerning her husband’s employment and the events on the day of the offense. On cross-examination, she denied any type of romantic involvement with appellant. She further denied authorship of several love letters addressed to appellant introduced into evidence by the defense.

The trial court appointed an attorney to counsel with the witness concerning the consequences of giving false testimony. The court further ordered the witness to give a handwriting exemplar. A questioned documents examiner testified that in his opinion, the letters in question were written by Elledge. Lastly, in an uncontra-dicted statement, the prosecutor informed the court outside the presence of the jury that two weeks prior to trial, he had told defense counsel that Elledge would deny authorship of the letters. At no point during her testimony on direct was the witness questioned by the State concerning her relationship, if any, with appellant.

The State is not allowed to obtain a conviction through the knowing use of perjured testimony. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217. Furthermore, reversal must follow if the prosecutor presents a false picture of the facts by failing to correct its own testimony when it becomes apparent that it was false. Napue v. Illinois, supra; Means v. State, 429 S.W.2d 490, Tex.Cr.App. Lastly, the appellant bears the burden of showing that the testimony used by the State was in fact perjured. See, Williams v. State, 513 S.W.2d 54, Tex.Cr.App.; Nelson v. State, 511 S.W.2d 18, Tex.Cr.App.

We need not address the issue of whether the witness’ testimony was in fact perjured. Appellant has failed to meet the threshold issue of demonstrating that the State used such alleged perjured testimony in obtaining his conviction. As noted above, the testimony to which appellant complains was developed solely during his cross-examination of the witness. At no time did the State present any evidence of the presence or absence of a romantic involvement between appellant and Elledge. We find appellant’s first ground of error to be without merit.

In his second ground of error, appellant contends that the trial court erred in admitting into evidence six photographs depicting various portions of the victim’s body. Appellant maintains that such photographs were admitted solely to inflame the jury and prejudice appellant.

Officer J. W. Johnson of the Dallas Police Department testified that the photographs accurately portrayed various body parts found in locations throughout Dallas and Tarrant Counties.

A photograph is merely a graphic portrayal of oral testimony; thus, if a verbal description of the body at the scene of a homicide is admissible, then a photograph of the scene described is also admissible. Welch v. State, 576 S.W.2d 638, Tex.Cr.App.; Cerda v. State, 557 S.W.2d 954, Tex.Cr.App.; Martin v. State, 475 S.W.2d 265, Tex.Cr.App. A verbal description of the body is admissible to throw light on the transaction and reveal its general nature. Campbell v. State, 525 S.W.2d 4, Tex.Cr.App. We find that the photographs in question depicting the physical condition of the body as well as the locations in which portions of the body were found were properly admitted into evidence. No error is shown.

In his third ground of error, appellant contends that the trial court erred in failing to submit his specially requested charge on the issue of voluntary manslaughter. Appellant maintains that the issue was raised when Officer Johnson related the sequences of events leading up to the murder as told to him by appellant.

Officer Johnson stated that appellant told him that on the day of the offense, the deceased came to appellant’s home and accused appellant of having an affair with the wife of the deceased. After the deceased made this accusation, he pulled out a knife and told appellant that he was going to kill him. The deceased then stabbed appellant. The two men then scuffled with appellant eventually breaking away and going into the bathroom to obtain his gun. The deceased took the gun away from appellant and hit him on the head with the butt. At this point, appellant was able to get the knife away from the deceased and stab him. When the deceased dropped appellant’s gun, appellant picked it up and shot the victim in the head. Johnson related that at no point did appellant indicate that he was in fear of the deceased. Appellant did not testify at trial.

On original submission, the panel concluded that the trial court erred in failing to submit appellant’s requested charge on the issue of voluntary manslaughter. In its motion for rehearing, the State contends that the evidence only presented the defensive issue of self-defense and that a charge on voluntary manslaughter was not required.

V.T.C.A. Penal Code, Sec. 19.04 provides:

“(a) A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.
“(b) ‘Sudden passion’ means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.
“(c) ‘Adequate cause’ means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.”

A charge on voluntary manslaughter is mandatory only when there is evidence that the defendant acted under the immediate influence of sudden passion arising from an adequate cause. Cerda v. State, supra; McCartney v. State, 542 S.W.2d 156, Tex.Cr.App. Where the issue of murder without malice is raised by the evidence, the fact that the evidence also raises the issue of self-defense and the accused is granted a requested instruction on the same does not deprive the accused of his right to an instruction on murder without malice. Ray v. State, 515 S.W.2d 664, Tex.Cr.App.; Monroe v. State, 501 S.W.2d 639, Tex.Cr.App. However, when the evidence only raises the issue of self-defense, a defendant is not entitled to a charge on voluntary manslaughter unless there is evidence that the offense occurred under the influence of sudden passion arising from an adequate cause. See, Jones v. State, 504 S.W.2d 906, Tex.Cr.App.; Foster v. State, 493 S.W.2d 812, Tex.Cr.App.

In the instant case, we can find no evidence presented at trial which would raise the issue that at the time of the offense, appellant was acting under the immediate influence of sudden passion arising from an adequate cause. While the initial attack by the deceased raised the issue of self-defense, there was no showing that appellant stabbed and shot the deceased under circumstances which would constitute the offense of voluntary manslaughter. We conclude that absent such evidence, the trial court did not err in refusing appellant’s requested charge on voluntary manslaughter. Appellant’s third ground of error is overruled.

In his fourth ground of error, appellant contends that the trial court erred in overruling his objection to the charge given to the jury concerning self-defense. Appellant maintains that the charge was erroneous in that it did not inform the jury that the State had to disprove beyond a reasonable doubt the issue of self-defense.

Appellant relies on Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 589. In Mullaney, the Supreme Court held that a Maine law which required the defendant to establish by a preponderance of the evidence that he acted in the heat of passion on sudden provocation, in order to reduce murder to manslaughter, violated due process requirements. The Court held that the due process clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case. Mullaney v. Wilbur, supra at 704, 95 S.Ct. 1881. In footnote 28 of Mullaney, supra, the Supreme Court stated: “Many states do require the defendant to show that there is ‘some evidence’ indicating that he acted in the heat of passion before requiring the prosecution to negate this element by proving the absence of passion beyond a reasonable doubt. . . . Nothing in this opinion is intended to affect that requirement.” At 701, 95 S.Ct. at 1891.

Self-defense is a justification excluding criminal responsibility under V.T.C.A. Penal Code, Sec. 9.31. As a justification, self-defense is likewise a defense. See, V.T.C.A. Penal Code, Sec. 9.02. Under V.T.C.A. Penal Code, Sec. 2.03(d), when a defense is submitted to the jury, the court is to instruct the jury that a reasonable doubt on the issue requires that the defendant be acquitted. The Practice Commentary to Sec. 2.03(d) notes:

“. . . The effect of Subsection (d) is to require the state to disprove a defense beyond a reasonable doubt after the issue has been properly raised by the evidence. In other words, the defendant has the burden of producing evidence to raise a defense, but the prosecution has the final burden of persuasion to disprove it.”

In the instant case, the charge of the court required the jury to acquit appellant if they believed that he was acting in self-defense or the jury had a reasonable doubt thereof. The court further instructed the jury that the burden of proof beyond a reasonable doubt was on the State. Lastly, the court instructed the jury on the presumption of innocence.

Clearly, when the charge is viewed as a whole, it placed the burden on the State to show beyond a reasonable doubt that appellant was not acting in self-defense. We find that the trial court did not err in overruling appellant’s objection to the charge on self-defense. No error is shown.

In his fifth ground of error, appellant contends that the trial court erred in failing to give his requested instruction limiting the jury’s consideration of an alleged extraneous offense. Appellant maintains that the evidence presented concerning the dismemberment and disposal of the victim’s body constituted the extraneous offense of abuse of a corpse under V.T.C.A. Penal Code, Sec. 42.10(a)(1).

Where an offense is one continuous transaction, or another offense is part of the case on trial or blended or closely interwoven, proof of all such facts is proper. Welch v. State, 543 S.W.2d 378, Tex.Cr.App.; Johnson v. State, 510 S.W.2d 944, Tex.Cr.App. Such an extraneous offense is admissible to show the context in which the criminal act occurred; this has been termed the “res gestae,” under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence. Albrecht v. State, 486 S.W.2d 97, Tex.Cr.App. Therefore, it is not necessary to give a limiting instruction on an extraneous offense which constitutes a part of the res gestae of the offense for which an accused is on trial. King v. State, 553 S.W.2d 105, Tex.Cr.App.; Arivette v. State, 513 S.W.2d 857, Tex.Cr.App.

Appellant’s reliance on Sparks v. State, 366 S.W.2d 591, Tex.Cr.App.; Springfield v. State, 172 Tex.Cr.R. 341, 356 S.W.2d 940; and Ernster v. State, 165 Tex.Cr.R. 422, 308 S.W.2d 33, is misplaced. In each of these cases, an extraneous offense was admitted on a theory other than to show the context in which the charged offense occurred.

We conclude that in the instant case, evidence concerning dismemberment and disposal of the deceased’s body was properly admitted as res gestae of the murder. Such being the case, the trial court was not required to give appellant’s requested instruction. Appellant’s fifth ground of error is overruled.

In his sixth ground of error, appellant contends that the trial court erred in refusing to submit his specially requested charge on circumstantial evidence.

Officer Johnson testified that following his arrest, appellant stated that he killed the deceased. Johnson related that appellant told him that he stabbed the deceased twice and then shot him in the head.

A charge on circumstantial evidence is required only when the evidence of the main fact essential to guilt, is purely and entirely circumstantial. Ransonette v. State, 550 S.W.2d 36, Tex.Cr.App. When there is an admission or confession to the criminal act, such evidence is direct, thereby relieving the court of the necessity of giving a charge on the law of circumstantial evidence. Sloan v. State, 515 S.W.2d 913, Tex.Cr.App.; Hurd v. State, 513 S.W.2d 936, Tex.Cr.App. Such an admission or confession must unequivocally admit the facts charged. Martinez v. State, 151 Tex.Cr.R. 316, 207 S.W.2d 387. If it is only by process of inference from an admission that it can be determined that the accused was a guilty participant, a court should give a circumstantial evidence charge. Ridyolph v. State, 545 S.W.2d 784, Tex.Cr.App.

In the instant case, there is direct evidence of appellant’s commission of the offense. This evidence is a result of the admission appellant made to Officer Johnson. We find that such evidence being present, the trial court was not required to submit appellant’s requested charge on circumstantial evidence. No error is shown.

The State’s Motion for Rehearing is granted and the judgment is affirmed.

PHILLIPS, Judge,

dissenting.

I dissent to the majority’s conclusion that there was no evidence presented at trial to raise the issue of voluntary manslaughter.

Officer Johnson testified as follows concerning statements that appellant made to him during an interview at appellant’s parents’ house:

Q Why did [appellant] say he killed Mr. Elledge?
A You want me to start at the first?
Q Yes.
A He stated that he was home, that he took his daughter to school, had car trouble, came home, fixed his car, and he was waiting until lunch time to go to work, and he stated that he was inside his home, and Mr. Elledge came over and knocked on the door, and he went to the door and saw who it was and asked him in, and he said Mr. Elledge accused him, or told him he knew he had been going with his wife.
THE COURT: Excuse me a moment. When you relate this story, could you be more specific as to who the hes and hims are, as best you could, just use the names because after awhile we kind of hear outself [sic] coming back.
THE WITNESS: Yes, sir. Paul Luck said he heard a knock at the door, and he went to the door and he saw Robert Elledge at the door, and Paul Luck asked Mr. Elledge — invited him into his home, into the living room area. Paul Luck said Robert Elledge told him that he had something he wanted to talk to him about, and Paul Luck asked Robert Elledge what this was, and Robert Elledge told Luck that he knew he had been going with his wife, Margie Elledge, and he stated that he pulled out a knife, and said he was going to kill him.
THE COURT: Wait a minute. Luck said who pulled out a knife, and who was going to kill him.
THE WITNESS: I am sorry. Paul Luck said Robert Elledge pulled out the knife and Robert Elledge told Paul Luck that he, Robert Elledge, was going to kill him, and stated he stabbed him once in the chest, at this time.
Q (BY MR. CHITWOOD) All right, what did he tell you happened after that?
A He stated — Paul Luck stated that he and Robert Elledge scuffled around in the living room, and that he ran through the kitchen into the bathroom to get his gun, and he stated he picked up his gun and looked around. He looked up and Robert Elledge was coming for him, and he said Robert Elledge took the pistol away from him and hit him in the head— Paul Luck stated he took the knife away from Robert Elledge and stabbed him one more time. Paul Luck stated that Robert Elledge dropped the pistol and Paul himself, Paul Luck picked the pistol up and shot him one time in the head, and stated that Robert Elledge fell to the bathroom floor.
Q All right, now, Officer, isn’t it a fact that Paul Luck told you that he was stabbed by Mr. Elledge?
A That’s correct.
Q And that thereafter, he went into the kitchen, hurriedly, of course, and found the butcher knife?
A That’s correct.
******
Q Do you know — did he tell you whether or not, at the time he shot El-ledge, whether he was standing up, sitting down or what position he was in?
A He said Robert Elledge was standing up when he shot him in the head.
Q Was standing up when he shot him in the head?
A That’s what he said.
Q In the bathroom?
A Yes, sir.
******
Q And had he not, during these conversations, told you that he was having an affair with Mrs. Elledge?
A He did.
Q And that he had reason to fear Mr. Elledge because of this?
A He didn’t say that he feared him, he called Mr. Elledge by name though.
Q Well, did he — incidentally, how big a man — you saw Mr. Elledge, how big a man would you estimate him to be from what you saw?
A From the standpoint of height and weight, it would just be purely a guess. I would say 245 to 250.
Q 245 to 250 pounds?
A Yes, sir, that would be my rough estimate.

In Ray v. State, 515 S.W.2d 664 (Tex.Cr.App.1974), we stated:

The testimony of the defendant alone is sufficient to raise the issue [of murder without malice] and, once it is raised, the court, without determining the weight or the truth or falsity of the testimony is bound to submit the issue for jury determination. Lee v. State, Tex.Cr.App., 504 S.W.2d 504; Monroe v. State, Tex.Cr.App., 501 S.W.2d 639; McGee v. State, Tex.Cr.App., 473 S.W.2d 11; Lewis v. State, 89 Tex.Cr.R. 345, 231 S.W. 113. Where the issue of murder without malice is raised by the evidence, the fact that the evidence also raises the issue of self-defense and the accused is granted a requested instruction on the same does not deprive the accused of his right to an instruction on murder without malice. Monroe v. State, Tex.Cr.App., 501 S.W.2d 639; Lewis v. State, 89 Tex.Cr.R. 345, 231 S.W. 113.

The evidence in Ray showed that as a result of a disagreement the complainant attacked the defendant which led the defendant to fear for his life. The Court held that the issue of assault with intent to murder without malice was raised. We have reached the same conclusion in other cases that involved similar facts. See, e. g., Armentrout v. State, 515 S.W.2d 297 (Tex.Cr.App.1974); Monroe v. State, 501 S.W.2d 639 (Tex.Cr.App.1973); Lewis v. State, 89 Tex.Cr.R. 345, 231 S.W. 113 (1921).

The testimony of Officer Johnson shows that appellant was in immediate danger of losing his life at the hands of a man much larger than he. The man was clearly enraged about his wife’s affair with appellant. Anyone in appellant’s position would have been terrified for his life in the face of such a ferocious and determined attack. Photographs taken of appellant after the attack show multiple stab wounds on his head, chest, and left arm. To say that the evidence does not raise the issue of whether appellant killed Elledge under the immediate influence of sudden passion arising from an adequate cause, namely terror, is to wholly ignore the circumstances surrounding Elledge’s death. It is also to ignore the express terms of the voluntary manslaughter statute. See Section 19.04 of the Penal Code.

Appellant’s failure to testify that he was in fear for his life does not preclude a charge on voluntary manslaughter. This Court long ago held that it is not necessary that the accused testify to the passion that is required to establish the offense, so long as the facts in evidence raise the issue. Thompson v. State, 96 Tex.Cr.R. 87, 256 S.W. 279 (1923); Steen v. State, 88 Tex.Cr.R. 256, 225 S.W. 529 (1920).

This case cannot be distinguished on its facts from Ray, supra, or its predecessors that I cited. The majority seems to be overruling these cases sub silentio.

I dissent.

ROBERTS and CLINTON, JJ., join in this opinion.

      . At a hearing out of the presence of the jury the court determined that appellant’s oral statement to Johnson was voluntarily made and that it contained facts, found to be true, which conduced to establish the appellant’s guilt.