author: DAUGHTREY, Judge.

text:
    J. C. STRUNK et al., Appellants, v. LEWIS COAL COMPANY, Appellee.
    Court of Criminal Appeals of Tennessee.
    Sept. 2, 1976.

      W. P. Dougherty, Bernstein, Dougherty & Susano, Knoxville, for appellants.
    Don C. Stansberry, Jr., Baker, Worthing-ton, Crossley & Stansberry, Huntsville, for appellee.
   OPINION

DAUGHTREY, Judge.

This appeal results from the alleged violation of an injunction issued in a Morgan County labor dispute and prohibiting the defendants and others from engaging in violence and mass picketing against the plaintiff coal company. At the conclusion of the contempt hearing, the Chancellor found the defendants guilty by a preponderance of the evidence, and sentenced all but Russell to ten days in jail and fined them each $50.00. Russell was found guilty of multiple acts of contempt, sentenced to twenty days in the county jail, and fined $100.00. The Chancellor suspended one-half the jail term as to each defendant.

There is only one issue raised on appeal: whether the Chancellor applied the appropriate standard of proof in making his determination of the defendants’ guilt. The resolution of the substantive question seems clear. There can be little doubt that the alleged contempt was criminal rather than civil in nature, regardless of the fact that the original proceeding was brought in a court of equity. This conclusion is inescapable from a reading of State ex rel. Anderson v. Daugherty, 137 Tenn. 125, 191 S.W. 974 (1917), and the cases which have followed it. See, e.g., Nashville Corporation v. United Steelworkers of America, 187 Tenn. 444, 215 S.W.2d 818, 821 (1948); see also Gunn v. Southern Bell Tel. & Tel. Co., 201 Tenn. 38, 296 S.W.2d 843 (1956). Once it has been determined that the contempt is criminal in nature, the law requires that the defendants’ guilt be established beyond a reasonable doubt. State ex rel. Anderson v. Daugherty, supra; Nashville Corp. v. United Steelworkers of America, supra; Gunn v. Southern Bell Tel. & Tel. Co., supra; Robinson v. Air Draulics Engineering Co., 214 Tenn. 30, 377 S.W.2d 908 (1964). Here the Chancellor correctly recognized the criminal nature of the proceeding, but he explicitly invoked the wrong standard of proof. Thus, the appellants were denied due process of law guaranteed under both the state and federal constitutions and their assignment of error must be sustained.

This result follows despite the ap-pellee’s insistence that the evidence of the defendants’ guilt in this case is so overwhelming that they must stand convicted even under the higher standard of proof, and that the Chancellor’s error was therefore harmless under T.C.A. §§ 27-116 and 27-117. With this contention we are unable to agree. In the first place, a re-evaluation of the record by this Court utilizing the correct standard of proof would amount to a de novo review of the evidence at trial, a procedure available to the Court of Appeals under the provisions of T.C.A. § 27-303, but by implication not available to the Court of Criminal Appeals. We think that we are properly limited to a review of the sufficiency of the evidence on a preponderance basis only. The trier-of-fact is in a much better position than we are to determine such questions as witness credibility, which in a criminal proceeding involving potential loss of freedom may be crucial to the outcome of the case. In any event, we would be reluctant to hold that a constitutional error of this magnitude could ever be “harmless.”

More importantly, and in fact dispositive of the issue of what relief is to be granted in this case, is the Tennessee Supreme Court’s ruling in Shiflet v. State, 217 Tenn. 690, 400 S.W.2d 542 (1966). There the Court held that the trial judge’s error in applying the preponderance standard required reversal and a remand to the lower court. We think the same relief is mandated here.

•Unfortunately for our purposes, the Shi-flet opinion does not indicate what course of action the Supreme Court thought should be taken by the trial judge upon remand. We conclude that a trial de novo at this stage of the proceedings would be little availing, and that a redetermination of guilt or innocence from the existing record by the Chancellor who heard the case originally, using the correct standard of proof, will afford the defendants adequate protection of their right to a fair trial. In the event that the Chancellor again finds the defendants guilty, his order will of course be subject to review by this Court.

The judgment of the Chancery Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

DWYER and O’BRIEN, JJ., concur.

      The Shifíet court ordered a remand “because there is serious doubt in this record that the guilt of the plaintiff in error was established beyond a reasonable doubt.” 400 S.W.2d at 544. We do not interpret this as a redetermi-nation by the reviewing court of the sufficiency of the evidence below; taken with the remand order it is more likely an expression of reluctance to “second-guess” the trier-of-fact. The record before us would make such a task difficult, if not impossible, were we to decide to attempt it. In announcing his ruling the Chancellor said:
      The Court is a little bit perplexed, frankly, about what occurred on March 12th. The Court can conceive that it might be, it just might be possible that 50 or 60 people, some of whom had masks on, come into a strike situation from somewhere and take over. The Court can see that that might be possible, but . . . it’s not at all likely that it happened . . . and so the Court, in light of reason, is forced to the conclusion, in light of the other testimony, that certain of the defendants were involved in some of the acts of violence which occurred.
      As did the court in Shiñet, we conclude from the Chancellor’s statement that there is room for “serious doubt” as to the guilt of these defendants when judged by the correct eviden-tiary standard. But we expressly leave that determination to the trier-of-fact.


source: Caselaw Access Project

author: SAM D. JOHNSON, Justice. REAVLEY, Justice, GREENHILL, Chief Justice,

license: Public Domain

text:
    GENERAL DYNAMICS CORPORATION, Petitioner, v. Bob BULLOCK, Comptroller et al., Respondents.
    No. B-5887.
    Supreme Court of Texas.
    Dec. 31, 1976.
    Rehearing Denied Feb. 23, 1977.

      Clark, Thomas, Winters & Shapiro, Mary Joe Carroll and Michael L. Cook, Austin, for petitioner.
    John L. Hill, Atty. Gen., Steve Bicker-staff, Asst. Atty. Gen., Austin, for respondents.
   SAM D. JOHNSON, Justice.

General Dynamics Corporation brought this action to recover in excess of $2 million in franchise taxes paid pursuant to Article 12.01, et seq., Texas Taxation-General Annotated, to the State of Texas under protest for the years 1968 through 1971. General Dynamics maintained that this tax was not included within the Buck Act, United States Code Annotated, Title 4, Sections 105 — 110, and therefore could not be collected with respect to activities occurring within a federal enclave. The trial court, sitting without a jury, held that General Dynamics was entitled to recover these taxes. The court of civil appeals reversed and rendered. 533 S.W.2d 118. We affirm.

General Dynamics is a private corporation primarily engaged in the manufacture and sale of defense equipment and supplies. The Corporation conducts business at several locations in Texas, though the majority of its operations occurred on a federal enclave in Tarrant County which consists of about 428 acres of land known as Air Force Plant No. 4 Site. The land was leased to the Corporation by the federal government.

The dispute arose over the classification by the State of the gross receipts from General Dynamics’ operations within the federal enclave in Tarrant County as gross receipts arising in Texas. The Buck Act permits a state to collect an “income tax” on business activities, such as those of General Dynamics, within a federal enclave. The State contended that the Texas franchise tax is an “income tax” within the meaning of the Buck Act and, therefore, the taxes were due.

The single question to be resolved is whether the Texas franchise tax paid by General Dynamics is an “income tax” under the Buck Act and may be levied for business conducted on a federal enclave.

The court of civil appeals held that this court’s decision in Humble Oil & Refining Company v. Calvert, 478 S.W.2d 926, cert. denied, 409 U.S. 967, 93 S.Ct. 293, 34 L.Ed.2d 234 (1972), controlled the decision, that the tax levied in the instant case was an “income tax” as that term is used in the Buck Act, and that the State could therefore classify the gross receipts derived from the federal enclave as part of the gross receipts resulting from business activities in Texas.

Federal law governs the question of whether a tax is an “income tax” within the meaning of the Buck Act. Howard v. Commissioners of Louisville, 344 U.S. 624, 73 S.Ct. 465, 97 L.Ed. 617 (1953). When previously interpreting the Buck Act, this court has noted:

“The Congressional intent is strongly stated in the bill’s Senate Report where it is stated that ‘[t]his definition [of income tax] . . . must of necessity cover a broad field because of the great variations to be found between the different State laws. The intent of your committee in laying down such a broad definition was to include therein any State tax (whether known as a corporate-franchise tax, or business-privilege tax, or any other name) if it is levied on, with respect to, or measured by net income, gross income, or gross receipts’ Humble Oil & Refining Company v. Calvert, supra, at 929. [Emphasis added.]

Thus, this court must not only apply federal law but also interpret the Buck Act in light of the recognized congressional intent.

With respect to the Texas franchise tax, the courts of this state have held that it “is not a tax upon the property of the corporation nor one upon its income, though both are to be regarded in measuring such tax, but a charge made by the state against the corporation for the privilege granted it to do business in the state. . . . [I]t was the purpose of the Legislature to levy against the corporation a tax commensurate with the value of the privilege granted ..” United North & South Development Co. v. Heath, 78 S.W.2d 650, 652 (Tex.Civ.App.—Austin 1934, writ ref’d). Accord, Riveroaks Development Corp. v. Shepperd, 246 S.W.2d 236, 240 (Tex.Civ.App.—Austin 1952, writ ref’d); Sterling Oil & Refining Corporation v. Isbell, 202 S.W.2d 300, 302 (Tex.Civ.App.-Austin 1947, no writ); Houston Oil Co. of Texas v. Lawson, 175 S.W.2d 716, 723 (Tex.Civ.App.—Galveston 1943, writ ref’d).

The United States Supreme Court, citing the Texas decision in United North & South Development Co. v. Heath, supra, has held that the Texas franchise tax “is obviously payment for the privilege of carrying on business in Texas.” Ford Motor Co. v. Beauchamp, 308 U.S. 331, 334, 60 S.Ct. 273, 274, 84 L.Ed. 304 (1939).

The United States Supreme Court cases, Commissioner of Internal Revenue v. Glenshaw Glass Co., 348 U.S. 426, 431, 75 S.Ct. 473, 99 L.Ed. 483 (1955), and Old Colony Trust Co. v. Commissioner of Int. Rev., 279 U.S. 716, 49 S.Ct. 499, 73 L.Ed. 918 (1929), cited in the case of Humble Oil & Refining Company v. Calvert, supra, indicates that the federal courts would agree with the analysis of this court in that case as to what “income tax” means under the Buck Act. This court wrote:

“If the tax in question is based upon income and is measured by that income in money or money’s worth, as a net income tax, gross income tax, or gross receipts tax, it is an ‘income tax.’ ” 478 S.W.2d 926 at 930.

This court further described “income” as “an accession to wealth in the form of economic benefit, value in money or money’s worth.” 478 S.W.2d 926 at 930. Under the analysis in Humble Oil & Refining Company v. Calvert, supra, the granting of the privilege to transact business in the State of Texas represents the realization of gross income to the General Dynamics Corporation because an economic benefit flows to the Corporation.

These economic benefits which flow from the granting of the privilege include the opportunity to transact intrastate business and the right to invoke the protection of the local government. Ford Motor Co. v. Beauchamp, supra, 308 U.S. at 334-35, 60 S.Ct. 273. The formula used in the franchise tax is the valuation of the privilege granted by the Legislature. United North & South Development Co. v. Heath, supra; Riveroaks Development Corp. v. Shepperd, supra. Accordingly, the franchise tax can be viewed as a tax levied on the economic benefit which flows to General Dynamics Corporation as a result of the granting of the privilege to transact business in Texas.

The proposition that an economic benefit is received and that income is realized by the granting of a franchise is not a unique one. The federal courts have held that extension of a street railway franchise by a city in exchange for a bridge may result in the realization of a capital gain or loss, Philadelphia Park Amusement Co. v. United States, 126 F.Supp. 184, 130 Ct.Cl. 166 (1954), and that the sale of a franchise can generate capital gains, Baxter v. C.I.R., 433 F.2d 757 (9th Cir. 1970); Coca-Cola Bottling Co., 22 B.T.A. 686 (1931). Similarly, the federal courts have held that a loss may be realized when a franchise is terminated. The loss of an exclusive sales franchise, United States v. Hardy, 74 F.2d 841 (4th Cir. 1935), and the loss of the right to renew a liquor license due to Prohibition, Elston Co. v. United States, 21 F.Supp. 267, 86 Ct.Cl. 136 (1937), Best Brewery Co., 16 B.T.A. 1354 (1929), McAvoy Company, 10 B.T.A. 1017 (1928), William Zakon, 7 B.T.A. 687 (1927), have been allowed as deductions from gross income.

Furthermore, an analysis in terms of the formula employed by the State of Texas also leads to the conclusion that the franchise tax is an “income tax” within the meaning of the Buck Act.

The term “income tax” “means any tax levied on, with respect to, or measured by, net income, gross income, or gross receipts.” Section 110 of the Buck Act. [Emphasis added.]

Federal courts have described the Texas franchise tax in various terms. In Southern Realty Corporation v. McCallum, 5 Cir., 65 F.2d 934, 935-36, cert. denied, 290 U.S. 692, 54 S.Ct. 127, 78 L.Ed. 596 (1933), the court wrote:

“The [corporate franchise] tax is not laid on property or on income, though both are regarded in measuring it.” [Emphasis added.]

The fifth circuit has also written that the Texas franchise tax is “graduated according to capital strength of the corporation, which is its business potency.” Ford Motor Co. v. Clark, 100 F.2d 515, 517 (5 Cir. 1938), aff’d:, 308 U.S. 331, 60 S.Ct. 273, 84 L.Ed. 304 (1939). [Emphasis added.] Finally, in Ford Motor Co. v. Beauchamp, supra, 308 U.S. at 335, 60 S.Ct. at 275, the United States Supreme Court wrote that the franchise tax was “based upon the proportion of the capital employed in Texas, calculated by the percentage of sales which are within the state.” [Emphasis added.] On the basis of the language employed by the federal courts, it can be reasonably concluded that the Texas franchise tax is one “levied on” capital but “measured by . gross receipts.” Given the specific wording of the Buck Act, Section 110(c), and the congressional intent that the term “income tax” should include “any State tax measured by . . gross receipts,” it is reasonable to view the Texas franchise tax as an “income tax” within the meaning of the Buck Act. [Emphasis added.]

We hold that the Texas franchise tax is an “income tax” within the meaning of the Buck Act either because the privilege to transact business in Texas represents income or because the tax is “measured by gross receipts.”

The judgment of the court of civil appeals is affirmed.

REAVLEY, Justice,

concurring.

I do not regard the Texas franchise tax as an income tax within the meaning of the Buck Act. The sales within the federal enclave are taken into account only to apportion the corporation’s capital as between Texas and other jurisdictions. In that respect I agree with the dissent. For a similar reason I do not regard the franchise tax, or any part of it, as violative of Art. I § 8 of the United States Constitution. While Texas could not tax General Dynamics for the privilege of doing business within the enclave, Texas does and may properly tax General Dynamics for the privilege of doing business throughout the State. For that purpose the apportionment of the corporate capital may be made according to total statewide sales — including sales within the enclave. Werner Machine Co., Inc. v. Director of Taxation of New Jersey, 350 U.S. 492, 76 S.Ct. 534, 100 L.Ed. 634 (1956); Educational Films Corp. v. Ward, 282 U.S. 379, 51 S.Ct. 170, 75 L.Ed. 400 (1930).

GREENHILL, Chief Justice,

dissenting.

Under Article I, Section 8 of the U.S. Constitution, the Congress has the exclusive right to legislate over federal enclaves, such as the one in question. Taxation is accomplished by legislation; and, as I understand the Constitution, only the Congress can enact, or authorize, taxing legislation applicable to such enclaves.

The Congress has, in the Buck Act, authorized the collection by the states only of income taxes on revenues derived from the federal enclaves. The definition of “income tax” is broad; but it does not include a tax on capital. This Court made that distinction in Humble Oil & Refining Co. v. Calvert, 478 S.W.2d 926 (1972).

While in Humble the tax was called an “occupation tax,” the tax was based upon the market value of oil and gas as produced. When oil and gas are produced and have a value (as they do), there is an inflow of wealth, an accretion to wealth, and an economic gain. This, we said, “is the essence of an income tax.” 478 S.W.2d at 931. We therefore concluded in Humble that the tax on this economic gain or inflow of wealth, by whatever name, was an “income tax” within the meaning of the Buck Act. We held that the oil and gas when produced, and upon which the tax was levied, “could be considered as the money, or money’s worth, which comes during a definite period. It is to be distinguished from capital, which is a fund of wealth at a particular time.”

The substance of the tax sought to be collected in this case is upon the stated capital, surplus, and undivided profits of the corporation. By no stretch of the imagination could it be said to be a tax on any inflow of wealth or upon economic gain.

The fact that the formula for the amount of the tax which is to be paid has in it the factor of the amount of gross receipts does not, in my opinion, change it from a tax on capital into an income tax.

      . Section 106(a) of the Buck Act specifies:
      “No person shall be relieved from liability for any income tax levied by any State, or by any duly constituted taxing authority therein, having jurisdiction to levy such a tax, by reason of his residing within a Federal area or receiving income from transactions occurring or services performed in such area; and such State or taxing authority shall have full jurisdiction and power to levy and collect such tax in any Federal area within such State to the same extent and with the same effect as though such area was not a Federal area.”

      . Section 110(c) of the Buck Act defines the term “income tax” as follows:
      “The term ‘income tax’ means any tax levied on, with respect to, or measured by, net income, gross income, or gross receipts.”

      . Article 12.01, Texas Taxation-General Annotated, reads as follows:
      “(1) Except as herein provided, every domestic and foreign corporation heretofore or hereafter chartered or authorized to do business in Texas or doing business in Texas, shall file such reports as are required by Articles 12.08 and 12.19 and pay to the Comptroller a franchise tax for the period from May 1 of each year to and including April 30 of the following year which shall be based on whichever of the following Subsections (a), (b), or (c) shall yield the greatest tax:
      “(a) Basic Tax
      “(i) Two Dollars and Seventy-five Cents ($2.75) per One Thousand Dollars ($1,000) or fractional part thereof applied to that portion of the sum of the stated capital, surplus and undivided profits, the sum of which for the purposes of this Chapter is hereafter referred to as ‘taxable capital,’ allocable to Texas in accordance with Article 12.02 of this Chapter.
      “As used in this Chapter, the phrase ‘stated capital’ shall have the same meaning as defined in Article 1.02 of the Texas Business Corporation Act.” [Emphasis added.]
      Article 12.02, Texas Taxation-General Annotated, reads in pertinent part as follows:
      “(l)(a) Each corporation liable for payment of a franchise tax shall determine the portion of its entire taxable capital taxable by the State of Texas by multiplying same by an allocation percentage which shall be the percentage relationship which the gross receipts from its business done in Texas bear to the total gross receipts of the corporation from its entire business.”
      Article 1.02, Texas Business Corporation Act Annotated, defines “stated capital” as follows: “(11) ‘Stated capital’ means, at any particular time, the sum of:
      “(a) the par value of all shares of the corporation having a par value that have been issued, “(b) the- consideration fixed by the corporation in the manner provided by law for all shares of the corporation without par value that have been issued, except such part of the consideration actually received therefor as may have been allocated to capital surplus in a manner permitted by law, and
      “(c) such amounts not included in paragraphs (a) and (b) of this subsection as have been transferred to stated capital of the corporation, whether upon the issue of shares as a share dividend or otherwise, minus all reductions from such sum as have been effected in a manner permitted by law.” Article 1.02 of the Texas Business Corporation Act Annotated defines “surplus” as follows: “. . . the excess of the net assets of a corporation over its stated capital.”

        . The full description of the Texas franchise tax made in Southern Realty Corporation v. McCalium, supra, at 935-36, is as follows: “The [corporate franchise] tax is not laid on property or on income, though both are regarded in measuring it. It is laid on the privilege granted to the corporation, whether domestic or foreign, to do business for one year in Texas with the capital set-up which it has chosen to use. The tax for this opportunity to do the year’s business is directly measured by the business capital about to be used rather than by the income which it may afterwards appear was realized. The origin, form, and location of that capital, whether in or out of the state, is unimportant, provided it is to contribute to the corporation’s business power within the state. When the corporation is to do business in other states also, avoidance of a trespass on interstate commerce or on that done beyond the territorial jurisdiction of the taxing state is secured by apportioning the business potency of the corporation represented by its business capital according to the business actually done during the preceding calendar year in the taxing state as indicated by gross receipts, compared with all its business everywhere.” [Emphasis added.]


author: PER CURIAM.

text:
    Delmar E. WINDHORST, Petitioner, v. ADCOCK PIPE AND SUPPLY, Respondent.
    No. B-6424.
    Supreme Court of Texas.
    Jan. 26, 1977.
    Rehearing Denied March 23, 1977.
    Teveni, Mach & Clarke, Donald J. Mach, San Antonio, for petitioner.
    Bradford F. Miller, San Antonio, for respondent.
   PER CURIAM.

In this case a retailer unilaterally has charged to its customer’s open account a one and one-half percent per month “finance charge.” The customer, who did not agree to pay and in fact has not paid any such charge, has sued for penalties under the usury laws, claiming that the charging alone of excessive interest constitutes usury. The trial court and the court of civil appeals have held for the retailer. 542 S.W.2d 222.

Article 5069-1.06 provides that any person who “contracts for, charges or receives” interest in excess of the amount authorized by law shall be liable for the penalties set forth in the article. The court of civil appeals has held that “the ‘charging’ of interest in excess of the amount authorized is not actionable unless charged pursuant to agreement of the parties, or actually collected.” 542 S.W.2d 222 at 224. Such a holding is contrary to the plain meaning of Article 5069-1.06. By describing the conditions precedent to recovery of penalties in the disjunctive, the Legislature made it clear that only one such condition need occur to trigger penalties; either a contract for, a charge of or receipt of usurious interest. See Wall v. East Texas Teachers Credit Union, 533 S.W.2d 918 (Tex.1976). Article 5069-1.02 provides: “A greater rate of interest than ten percent per annum unless otherwise authorized by law shall be deemed usurious.” The transaction at issue here is not one of those exempted from the ten percent ceiling. By unilaterally charging the one and one-half percent per month “finance charge”, the retailer in this case charged more than ten percent per annum, and is, therefore, liable for penalties.

Pursuant to Texas Rule of Civil Procedure 483, we grant writ of error and, without hearing oral argument, reverse the judgments of the trial court and the court of civil appeals. The cause is remanded to the trial court for further proceedings consistent with this opinion.

      . References are to Texas Revised Civil Statutes Annotated. Article 5069-1.06 provides:
      (1) Any person who contracts for, charges or receives interest which is greater than the amount authorized by this Subtitle, shall forfeit to the obligor twice the amount of interest contracted for, charged or received, and reasonable attorney fees fixed by the court provided that there shall be no penalty for a violation which results from an accidental and bona fide error.
      (2) Any person who contracts for, charges or receives interest which is in excess of double the amount of interest allowed by this Subtitle shall forfeit as an additional penalty, all principal as well as interest and all other charges and shall pay reasonable attorney fees set by the court; provided further that any such person violating the provisions of this section shall be guilty of a misdemeanor and upon conviction thereof shall be punished by fine of not more than One Thousand Dollars. Each contract or transaction in violation of this section shall constitute a separate offense punishable hereunder.

      . The open account unquestionably fails to satisfy the rigid requirements of the Retail Installment Sales Act, Arts. 5069-6.01-.09, which permits the assessment of a l'/2% finance charge. There is no retail charge agreement (Art. 5069-6.01(g)) setting forth appropriate disclosures to the customer (Art. 5069-6.03(1)), and the unpaid balance exceeded $500, the maximum amount upon which the 1⅝% charge may be assessed (Art. 5069-6.03(3)). An individual open account which fails to meet the requirements of the Retail Installment Sales Act may provide for no more than 10% interest. Where there is no agreement upon interest rate, as is the case here, the statutory 6% interest from January 1 following the date the debt is incurred is “read into” the agreement by Art. 5069-1.03. In the instant case, the retailer charged l‘/2% before January 1 following the date of the debt — before any interest legally had accrued.


author: SAM D. JOHNSON, Justice.

text:
    Alfred E. FANT, Petitioner, v. Fred HOWELL et ux., Respondents.
    No. B-6142.
    Supreme Court of Texas.
    Feb. 9, 1977.

      J. W. Thomas, Jr., Temple, Raymond T. Palladino, Waco, for petitioner.
    Bowmer, Courtney, Burleson & Pember-ton, Zollie Carl Steakley and Tom Normand, Temple, for respondents.
   SAM D. JOHNSON, Justice.

This suit was brought by Alfred E. Fant against Fred and Bessie Howell for specific performance of a contract to convey property by general warranty deed and for compensation for a portion of the tract lost by adverse possession to third parties. The trial court rendered a directed verdict for the Howells and the court of civil appeals affirmed. 537 S.W.2d 350. We reverse and remand to the trial court.

On April 21, 1961 the Howells and Fant entered into a contract of sale for a tract of land in Bell County. The agreed purchase price was $30,000 and Fant made a down payment of $1,700. The $28,300 balance, with interest, was to be paid off in installments of $300 per month. Fant received “whatever physical possession the HOWELLS then had of the property” upon the execution of the contract and, according to the terms thereof, was to receive a general warranty deed from the Howells at a later date. At the time the contract was signed, third parties were in adverse possession of approximately 32.58 acres of the property in issue and this fact was known to both the Howells and Fant. It was stipulated that the third parties acquired limitation title by adverse possession to the 32.58 acres some three years after the contract was signed.

Subsequent to the acquisition of limitation title by the third parties, Fant tendered, in September 1964, a check for $21,-800, the amount then owing under the contract for the balance of the purchase price, and demanded a general warranty deed to the entire tract. The Howells refused to make such conveyance, asserting that because of Fant’s inaction title to a portion of the land had vested in third parties through adverse possession under the ten year statute of limitations. Instead, the Howells offered to execute a warranty deed which limited the terms of their general warranty to the date of the contract; it recited that the “FANTS agree that insofar as the warranty contained in such deed to them is concerned, HOWELLS expressly preserve, have and retain any defenses to an action against them on such warranty, if such defense arises from, or is based upon, any act or omission of FANTS, or action or inaction of FANTS, or either of them, which has occurred since April 21,1961, and the warranty is limited to that extent.” Fant would not agree to this limitation and instituted this suit which sought a general warranty deed covering the entire tract. By supplemental pleadings Fant now appears to be seeking partial specific performance in the form of a general warranty deed to the portion of the tract not lost through adverse possession and, in addition, compensation for the portion lost through adverse possession.

Upon the trial court’s initial consideration of this case, it rendered a summary judgment that Fant take nothing. The judgment further provided that upon payment by Fant of the full purchase price the Howells were to execute and deliver a warranty deed containing the limitation proposed by the Howells.

On appeal the court of civil appeals reversed and remanded on the issue of whether title to a portion of the tract had indeed been lost through adverse possession. 410 S.W.2d 294. The court of civil appeals wrote that if title had been lost through adverse possession after Fant went into possession then Fant could not recover against the Howells, and cited Whitaker v. Felts, 137 Tex. 578, 155 S.W.2d 604 (Tex.Com.App.1941, opinion adopted), and Leeson v. City of Houston, 243 S.W. 485 (Tex.Com.App.1922, jdgmt. adopted).

On remand Fant testified Howell promised to initiate a trespass to try title action against the third parties who were in possession of a portion of the tract and he offered as evidence of this promise a copy of a letter from Howell to Fant in which Howell agreed to file such an action if necessary. The trial court sustained Howell’s objection to the introduction of the copy of the letter but overruled his objection to Fant’s testimony. Fant also testified he made a demand upon Howell to file a trespass to try title action.

During this proceeding the parties also made the following stipulations of fact: (1) at the time of the contract of sale, April 21, 1961, the Howells and Fant knew that third parties were claiming a portion of the tract; (2) on the date of the contract Howell and his wife surrendered to Fant “whatever physical possession the HOWELLS then had of the property”; and (3) third parties had been in adverse possession of a portion of the tract for approximately seven years prior to April 21, 1961 and title was lost to this portion through adverse possession about three years later. On the basis of these stipulated facts and the court of civil appeals’ first opinion, the trial court rendered a directed verdict for the Howells on the grounds that Fant, as- a purchaser who went into possession, should bear any loss resulting from this adverse possession and that this proposition was the “law of the case.”

The court of civil appeals affirmed on the basis of Leeson v. City of Houston, supra, holding that “the purchaser under a contract of sale who goes into possession of the property acquires equitable title and by reason of the right receives any enhancement and must bear any detriment occurring without the fault of seller or purchaser.” 537 S.W.2d 350 at 351.

An initial issue to be resolved is whether this court is bound by the first opinion of the court of civil appeals under the doctrine of the “law of the case.” In Burchfield v. Markham, 156 Tex. 329, 294 S.W.2d 795 (1956), this court was faced with the following situation: The trial court rendered a summary judgment for Markham,the court of civil appeals reversed and remanded for a new trial; in its opinion the court of civil appeals gave its interpretation of a pertinent statute; this court refused an application for writ of error with the notation “no reversible error”; on remand the trial court rendered a judgment for Markham after a jury trial; and this judgment was affirmed by the court of civil appeals. Markham contended this- court had to affirm because the appeal from the second decision of the court of civil appeals was governed by the “law of the case” as established in the first opinion by the court of civil appeals. This court stated:

“While the Court of Civil Appeals does state in its opinion that under its interpretation of the Real Estate Dealers License Act a contract to divide a commission between an attorney at law and a real estate dealer was lawful, it was not shown in the summary judgment proceeding just what the facts were in the case. As the Court of Civil Appeals stated, ‘The facts and circumstances surrounding the transactions between the parties are disputed, and must be ascertained before their legal effect can be determined. The existence of any genuine issue of fact prevents the granting of summary judgment.’ [Burchfield v. Markham ], 267 S.W.2d 866, 867. By refusing the application for writ of error with the notation of ‘no reversible error’ the Supreme Court approved only the result reached by the Court of Civil Appeals and not the statements as to the law in the opinion.” 294 S.W.2d 795 at 798. [Emphasis added.]

The court concluded that “[ujnder the above facts it cannot be held that these statements of the Court of Civil Appeals [in its first opinion] setting forth its interpretation of the Act is the ‘law of the case’ binding on this Court,” 294 S.W.2d 795 at 798, and then reversed and rendered judgment for Burchfield. Here, the initial summary judgment rendered by the trial court was reversed and the cause remanded by the court of civil appeals and this court dismissed the application for writ of error for want of jurisdiction. Under the reasoning of this court in Burchfield v. Markham, supra, the statements by the court of civil appeals in its first opinion that the instant case is governed by Whitaker v. Felts, supra, or by Leeson v. City of Houston, supra, are not the “law of the case.”

Having concluded that the first opinion of the court of civil appeals did not establish the “law of the case,” the next issue to be resolved is whether Whitaker v. Felts, supra, or Leeson v. City of Houston, supra, does indeed control the instant case.

In Whitaker v. Felts, supra, the cause of action was based on a breach of a warranty deed. The court reasoned that no breach of a warranty deed exists when the purchaser has yielded to a title which is inferior to that which he received from the seller. In the instant case Fant has not brought an action based on a breach of a warranty deed; rather, Fant’s suit is for a breach of a contract to deliver a warranty deed to him. Thus, the reasoning of Whitaker v. Felts, supra, does not apply to the present action.

The case of Leeson v. City of Houston, supra, stands for the proposition that a purchaser under a contract of sale who goes into possession of a tract of land receives the benefit of any enhancement in the land and must bear any detriment, depreciation, or loss which is not the fault of either party to the contract. From the record and the stipulated facts in this case it is clear that Fant never went into possession of that portion of the tract which was being claimed by adverse possession by the third parties. Therefore, this proposition of law is inapplicable.

The decision which does control the instant ease is English v. Jones, 154 Tex. 132, 274 S.W.2d 666 (1955). English contracted to sell to Jones full title to a tract of land. At the time of the contract English only owned a ⅝⅛ undivided interest in the property and Jones was aware of this fact. The remaining %th undivided interest was owned by English’s children and at the time of the contract of sale the children were willing to join in a sale of the property. However, disagreements later arose due to English’s insistence as to the manner of sharing the proceeds of the sale and English was unable to convey full title. This court applied the general rule “that the purchaser, if he chooses, is entitled to have the contract specifically performed, as far as the vendor can perform it, and to have an abatement out of the purchase money or compensation for any deficiency in the title, quantity, quality, description or other matters touching the estate.” 274 S.W.2d 666 at 668. The court further held that under the circumstances of the case before it the fact Jones knew at the time of the contract that English did not have full title to the property did not bar his right to partial specific performance. In the instant case Fant was aware of potential difficulty in the fulfillment by the Howells of their promise to convey the property by general warranty deed. However, there is nothing in the record before this court to excuse the failure of the Howells to initiate a trespass to try title suit against the third parties in adverse possession of a portion of the tract and thereby remain capable of fulfilling their promise to Fant to convey the entire tract by general warranty deed. Accordingly, under the facts of the instant case, Fant is entitled to receive (1) an abatement of the purchase price in the amount of the market value as of April 21, 1961 of the acres lost to third parties through adverse possession; (2) the return of interest payments attributable to the amount of the purchase price abated; and (3) partial specific performance in the form of a general warranty deed covering the remaining portion of the tract.

The judgments of the courts below are reversed and the cause is remanded to the trial court for the purpose of ascertaining the amount of the abatement of the purchase price and of the interest to be returned, for partial specific performance in the form of a general warranty deed covering that portion of the tract not lost through adverse possession, and for the determination of the acreage to be covered by this general warranty deed.

      . Following the metes and bounds description of the tract, the contract recites “. . . containing 227 acres of land, more or less. (Sometimes called 252 acre tract).” A subsequent survey apparently showed the tract to contain 259.58 acres.

      . A special condition of the contract of sale provided that whenever two existing liens on the property were fully paid the Howells would then convey the land to Fant by general warranty deed, and Fant would execute a note in the amount of the balance owed and would also execute a deed of trust. The pertinent language of condition number 9(b) is as follows: “It is understood that the Federal Land Bank of Houston has a first lien on the property securing a note, the unpaid principal balance thereon being approximately $4,700.00, and that Eleanor Howell has an unrecorded lien securing the payment of $1,000.00 which Fred Howell has agreed to pay her at the time he conveys the above described property. Said $1,000.00 note does not bear interest. It is agreed that Seller will pay the annual installments on the Federal Land Bank lien as they mature. The Seller shall convey the property [by general warranty deed] to the Purchaser and take the Purchaser’s note, secured by vendor’s lien and deed of trust lien for the amount of the unpaid principal and interest which may still be owed at the time of such conveyance, whenever the above mentioned lien indebtednesses have been fully paid, . . [Emphasis added.]

      . Fant’s first supplemental petition recites: “That if the defendants are unable to perform said contract as agreed and convey to the plaintiff a General Warranty Deed as agreed, then the plaintiff is entitled to be compensated for the land they did not receive and that was lost through limitation title because of the fault of the defendants and that the amount of the compensation due the plaintiff should be based on the market value of the land at the time the General Warranty Deed should have been delivered, said value being $450.00 per acre and further, that plaintiff be given his General Warranty Deed regarding the true balance of the remaining land being approximately 227 acres, more or less.”

      . This court dismissed an application for writ of error for want of jurisdiction.

      . Leeson v. City of Houston, supra, at 488, recites: “By the great weight of authority it is now held that, although the legal title does not pass to the vendee under a contract of sale until actual delivery of a deed to the property still the vendee under such contract of purchase, especially where he goes into possession of the property, is invested with the equitable title from the date of the contract, or in any event, from the date he takes possession, and any increment, advantage, or enhancement to the property inures to his benefit, and any detriment, depreciation, or loss thereto without fault of either party must be borne by him.”

      . As stated by the court of civil appeals in its first opinion, 410 S.W.2d 294 at 295: “Appellant Fant went into possession of the property, except that portion adversely occupied


author: ROBERTS, Judge. DOUGLAS, Judge

text:
    Ronald Clifford BECK, Appellant, v. The STATE of Texas, Appellee.
    No. 50498.
    Court of Criminal Appeals of Texas.
    July 7, 1976.
    Rehearing Denied March 16, 1977.
    Gordon E. White and Sam R. Wilson, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Jim Ezer, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for possession of marihuana. Trial was before the court and the only issue was whether the contraband was seized as the result of an illegal arrest and search. The offense occurred on April 7,1972; trial was held on December 7,1972; and appellant was found guilty and given a three-year probated sentence.

The evidence surrounding appellant’s arrest and search is as follows. On April 7, 1972, Officers Wood and Fisher of the Houston Police Department were traveling westbound on Crane Street in Houston. They observed appellant, who was coming toward them on Crane in a 1965 pickup truck, turn right on Falls without signaling. The officers testified that they were about ten car lengths ahead of appellant when he made his turn and that there was traffic going in both directions on Crane at the time. The officers then turned left on Falls, behind appellant, and pulled him over.

As their respective vehicles were coming to a stop, the officers observed appellant make a move toward the glove compartment of his truck. Upon stopping, appellant got out of his truck and stood by the driver’s door. Fisher searched appellant and Wood opened the truck’s glove compartment, where he found the baggie of marihuana that is the subject of this prosecution.

Appellant first contends that his arrest was illegal since the evidence did not show that he had violated the traffic laws. In Willett v. State, 454 S.W.2d 398 (Tex.Cr.App.1970) and Hall v. State, 488 S.W.2d 788 (Tex.Cr.App.1973) convictions were reversed because they were based on evidence seized after traffic arrests for failure to signal a turn. At the times of the offenses in those cases, Art. 6701d, Sec. 68(a), V.A. C.S. required a turn signal only when other traffic in the area might be affected by the turn. Because of an insufficient showing of such effect on other traffic in those two cases this Court held that Willet and Hall were stopped illegally, and that the contraband subsequently seized was inadmissible.

Prior to the offense in this case, however, Art. 6701d, Sec. 68(a), V.A.C.S. was amended to read as follows:

“Sec. 68. (a) No person shall turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with safety. Except under conditions set out in Section 24(a) [not here applicable] no person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided.”

It thus appears that turn signals are now mandatory, regardless of the traffic conditions at the time of the turn. Appellant was therefore in violation of the law when he made his turn, and the officers were legally justified in effecting his arrest. Art. 6701d, Sec. 153, V.A.C.S. Tores v. State, 518 S.W.2d 378 (Tex.Cr.App.1975).

The more difficult question concerns the right of the officers to search appellant’s truck after the valid traffic arrest. This search was justified only if the search incident to appellant’s arrest was necessary for the officers’ protection and limited in scope to that purpose, United States Const., Amend. IV; Texas Const., Art. I, Sec. 9; Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Wallace v. State, 467 S.W.2d 608 (Tex.Cr.App.1971); Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.1975), or if the officers had independent probable cause to search the car. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); Trusley v. State, 505 S.W.2d 861 (Tex.Cr.App.1974). We conclude that the. facts of this case failed to establish a justification for the officers to conduct this search.

The warrantless search of appellant’s automobile can be upheld as incident to his lawful arrest if it was reasonably necessary to protect the officers from bodily injury during their brief detention of appellant. E. g. Garcia v. State, 440 S.W.2d 295 (Tex.Cr.App.1969). The case of Lewis v. State, 502 S.W.2d 699 (Tex.Cr.App.1973) is instructive here.

“An ‘officer should be permitted to take every reasonable precaution to safeguard his life in the process of making an arrest.’ State v. Riley, 240 Or. 521, 402 P.2d 741, 743 (1965); Wallace v. State, 467 S.W.2d 608, 610 (Tex.Cr.App.1971). All searches incidental to arrest cannot be justified on this theory, for to do so would allow wholesale fishing expeditions whenever a legal arrest is made. United States v. Tate, [D.C.], 209 F.Supp. 762 (1962). See also Adair v. State, 427 S.W.2d 67, 75 (Tex.Cr.App.1968) (dissenting opinion). If, however, from the totality of the circumstances presented to the officer he has reasonable grounds to believe that he is in danger of bodily harm or injury or that the person he encounters is armed or dangerous, justification for a search for weapons exists. Brinegar v. State, 97 Okl.Cr. 299, 262 P.2d 464 (1953); State v. Scanlon, 84 N.J.Super. 427, 202 A.2d 448 (1964); Elliott v. State, 173 Tenn. 203, 116 S.W.2d 1009 (1938).” Id. at 702.

The test of the constitutionality of such a search was put another way in Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974), relied upon by the State, in the following words:

“So long as the officer is entitled to make a forcible stop and has reason to believe that the suspect is armed and dangerous, the officer may conduct a weapons search limited in scope to the purpose of enabling the officer to pursue investigation without fear of violence.” Id. at 306.

In any event, the officer’s apprehensions must be reasonable.

There was testimony at the trial that the search was for the officers’ self-protection, but at no time did either officer testify that he was in fear of danger to himself or others. In fact, the reasons for such apprehension would have been sparse indeed. _ The time was 8:00 p. m. and “it wasn’t quite dark.” The neighborhood was not a high crime area. The officers outnumbered the appellant. Neither officer suspected appellant to be intoxicated or under the influence of drugs. Most importantly, both officers testified that appellant could not have reached the glove compartment from where he was standing. This case is thus distinguishable from Imhoff v. State, 494 S.W.2d 919 (Tex.Cr.App.1973); Madeley v. State, 488 S.W.2d 416 (Tex.Cr.App.1972), and Lewis v. State, 490 S.W.2d 846 (Tex.Cr.App.1973) in which the defendants in those cases could have lunged for weapons in their cars.

As to the question of the reasonableness of the officers’ apprehensions, the case of Keah v. State, 508 S.W.2d 836 (Tex.Cr.App.1974) is closely in point. There, officers stopped an automobile around midnight for failure to signal a right turn and observed appellant lower his left shoulder as if to place something under the seat. Outside of the stopped car, they observed a large bulge in appellant’s left pocket after he removed his hand therefrom. After receiving no reply to questions concerning the nature of the bulge in the pocket, one of the officers reached in appellant’s pocket and retrieved a plastic bottle containing amphetamines. This Court held that the facts of Keah were insufficient to justify a self-protective search for weapons. The present case is distinguishable from Keah, supra, in that there was no hint that the officers there felt any apprehension, but the bulge in Keah’s pocket, alone, was more forboding than any of the facts sought to justify the self-protective search in this case.

This record presents nothing that would have given the officers reasonable grounds to believe that they were in danger of bodily harm or injury or that the person they encountered was armed or dangerous. The hour was not late; the area was not dangerous; the appellant did not appear intoxicated and did not cause any trouble; there was no suspicion of criminal activity or any evidence of such activity in plain view. The case is thus distinguishable from the other cases cited above. The search herein was not reasonably incident to appellant’s arrest.

Wilson v. State, 511 S.W.2d 531 (Tex.Cr.App.1974) appears to be dispositive of the probable cause aspects of this case. That case also involved a routine traffic arrest and the movement of an arm on the part of the defendant. Wilson was detained behind his car by one officer while the other searched the car and discovered the contraband. As in this case, the defendant was not in a position to lunge for any weapon in the car and there was no express testimony that the officers feared for their physical safety. This Court held that the defendant’s gestures, alone, did not give the officers sufficient probable cause to search the car. There is nothing more in this case except the officers’ unexplained belief that a protective search was necessary. See also Keah v. State, supra, and Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972), and In re S. E. B., 514 S.W.2d 948 (Tex.Civ.App.—El Paso 1974). We therefore conclude that the search of appellant’s truck in this case was unsupported by probable cause.

For the foregoing reasons, the judgment is reversed and the cause remanded.

DOUGLAS, Judge

(dissenting).

The majority reverses this conviction because officers making a search after a valid arrest for a traffic violation did not state that they were in fear of danger to themselves or others. The majority holds that an officer, upon stopping an offender and sees him place something in a glove compartment, cannot search that compartment for his protection because it is unreasonable for the officer to think that the offender might have been hiding a gun.

Officer M. R. Wood testified that at about 8:00 o’clock at night he arrested appellant because he made a turn without giving a signal. As appellant was pulling to the curb, he reached with an outstretched arm toward the glove compartment. After being stopped, appellant “. jumped out of the truck, and my partner searched him for weapons, and I went to the location where I saw him reach to the box” to see if he had placed a weapon or contraband there. Appellant was standing by the door of the truck. He found a plastic bag that appeared to be marihuana. He related that it was a protective search and “. . . if he had placed a weapon in there, then after the search when we’d leave, he could have gone back to the box, retrieved whatever he placed there and done whatever harm he had on his mind if he had any” and “I was not looking for the fruits of this crime just for my own protection.” B. C. Fisher, another officer, testified about their stopping appellant and seeing appellant reaching toward the glove compartment as if to put something there or retrieve something, possibly some type of weapon.

The majority reasons that he could not harm the officers while he was outside the truck and the search for their protection was not reasonable. The testimony of Officer Wood that appellant might get a weapon out of the glove compartment and do whatever harm he wanted is sufficient to show the search was reasonable.

The Constitutions of the United States and State of Texas only prohibit unreasonable searches. In my opinion this search was reasonable. One with a gun" can kill just as easily after he gets back into his vehicle as he could before alighting. See Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975), where this Court wrote:

“. . . the search of the area where the occupants were seated was for the protection of the officers. The Supreme Court of the United States authorizes searches after an arrest for the protection of officers for any weapon that might be readily obtained. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). . . (Emphasis supplied)

Mr. Justice Black, speaking for the Supreme Court of the United States in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, wrote:

“The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer

It should not be necessary for an officer to be required to be in fear of his life or that he searched for his protection. The officer in the present case testified that he searched for his protection. If he had not been at least apprehensive or in fear of bodily injury, he would not have conducted the search. The Supreme Court of the United States upheld the search of a person after an arrest for a traffic violation based upon probable cause that Robinson was violating a traffic regulation of the District of Columbia in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). The Court wrote:

“It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment.”

Prior to the Supreme Court decision, the Court of Appeals for the District of Columbia in United States v. Robinson, 153 U.S.App.D.C. 114, 471 F.2d 1082 (1973), had held the same search was unreasonable. The Court of Appeals noted that there was no suggestion that a wadded up cigarette package in Robinson’s pocket was believed to be a weapon or that the officer believed himself to be in danger. The officer in that case, according to the Circuit Court opinion, did not have any specific purpose in mind when he made the search. “I just searched him. I didn’t think about what I was looking for. I just searched him.” The wadded up cigarette package contained heroin. The Circuit Court held that “Officer Jenks exceeded the permissible scope of a limited frisk for weapons,” and stated that a search after an arrest for violating a mere motor vehicle regulation was illegal. The Supreme Court held otherwise.

In Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), the Supreme Court of the United States upheld a search of one who was arrested for not having a driver’s license. Gustafson was convicted for the possession of marihuana. After observing an automobile being driven or weaving across the center line of a road several times, officers followed and stopped it. Gustafson, the driver, was unable to produce an operator’s license and was arrested. The Supreme Court wrote:

“Though the officer here was not required to take the petitioner into custody by police regulations as he was in Robinson, and there did not exist a departmental policy establishing the conditions under which a full-scale body search should be conducted, we do not find these differences determinative of the constitutional issue. . . . ‘The authority to search the person incident to .a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.’ ” (Emphasis supplied)

The Supreme Court held that there was probable cause for the arrest in the Robinson case. There Officer Jenks learned that Robinson did not have a valid license to operate an automobile. When the officer later saw him driving, the arrest was authorized.

The Uniform Act Regulating Traffic on Highways, Article 6701d, Section 153, Y.A. C.S., provides:

“Any peace officer is authorized to arrest without warrant any person found committing a violation of any provision of this Act.”

This includes the right to arrest for making an illegal turn under the Act.

The majority recognizes that appellant was under arrest. The right to a reasonable search follows the right to arrest.

In Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974), the driver of a car was arrested for a traffic violation. Wood, a passenger, had difficulty keeping his eyes open and the officer thought he was under the influence of alcohol or drugs. The officer patted down Wood, felt what he thought was a knife and found three rolls of coins and some currency. He radioed for assistance and then searched and found two pistols in the car. Even though the passenger was outside the car, this Court held the search to be reasonable. Wood could not have reached the guns from outside the car. In Wood, this Court wrote:

“. . . So long as the officer is entitled to make a forcible stop and has reason to believe that the suspect is armed and dangerous, the officer may conduct a weapons search limited in scope to the purpose of enabling the officer to pursue investigation without fear of violence. . . . ”

In the Wood case the officer did not testify that he was afraid. He stated that it is a dangerous situation when one is alighting from a vehicle in any traffic situation at that time of night. Is the majority overruling Woodl

In Borner & Ebeling v. State, 521 S.W.2d 852 (Tex.Cr.App.1975), both Borner and Ebeling were in the car when officers stopped the car to arrest the driver for speeding. The passenger in the car moved something from above the dash to between the passenger and the driver. The officer could not tell what it was. When the officer was asked if he saw anything that aroused his suspicion, he answered that the officers saw the passenger shuffling around and trying to hide something on the seat. Both Borner and Ebeling were outside the car and were searched. One officer searched the inside of the car and, among other things, found a pistol and marihuana. Even though the two men were outside the car and could not have at that time reached the gun, this Court held that the search was authorized. There was no direct testimony that the officers in that case were in fear of danger.

If the majority of the Court is holding contrary to previous decisions that a search is legal where there is a movement that could indicate that the driver was hiding something, possibly a gun, it should so state. If the majority is holding that there can be no search of a car after a traffic arrest, it should say so.

The viewpoint of the writer of this opinion has been expressed in the concurring opinion in Wood, and in the dissenting opinion in Wilson v. State, 511 S.W.2d 531 (Tex.Cr.App.1974). An officer has a right to check any place in an automobile that a driver or passenger might reach when he re-enters the automobile after being legally stopped. If a fugitive is allowed to enter a car where a gun is accessible, he may kill the officer to prevent being arrested for a more serious offense such as robbery or murder. The driver, after being arrested for a traffic offense, knows that the officer has his name from his license to operate the car, and if the officer checks to see if he is wanted, it could lead to his earlier detention and arrest. Too many officers are being killed after arresting people for traffic offenses. See the dissenting opinion in Wilson, supra, for the number of officers killed after making traffic arrests at the time that opinion was written.

The statutes of Texas authorize the arrest of an offender of the traffic laws and taking him into custody. This Court has upheld the search of the person after an arrest as well as a limited search of his car. The Supreme Court has upheld the arrest for traffic regulation violators and the search of their persons even though the arresting officer was not in fear of his life. It also recognizes the right of the officer to search in the vicinity of where the arrest has been made.

The search in the present case is not unreasonable.

The judgment should be affirmed.


author: ODOM, Judge. ONION, Presiding Judge,

text:
    Ex parte Arturo GARCIA.
    No. 53074.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1977.
    Rehearing Denied March 16, 1977.

      Miguel Solis, El Paso, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, Davidson Smith, Asst. County Atty., El Paso for the State.
   OPINION

ODOM, Judge.

This is an appeal from an order of the Judge of the County Court at Law No. 2 of El Paso. County refusing to discharge appellant after a hearing on his application for writ of habeas corpus.

Appellant contends that the State failed to introduce sufficient evidence to show probable cause for his continued detention. The record reflects that Garcia was arrested and charged by complaint and information with the offense of reckless conduct, V.T.C.A., Penal Code Sec. 22.05, a Class B misdemeanor.

The evidence introduced by the State consisted solely of the complaint and information filed against Garcia and the capias that was issued thereon. Art. 23.04, V.A.C. C.P. Garcia produced no evidence.

Appellant relies on Ex parte Wright, 138 Tex.Cr.R. 350, 136 S.W.2d 212. In that case the accused petitioner challenged the existence of probable cause for his confinement. The State showed a complaint and warrant of arrest, but nothing more. With reliance on Art. 155, C.C.P. (1925), now Art. 11.43, V.A.C.C.P., which provides that in the hearing of a habeas corpus writ, “No presumption of guilt arises from the mere fact that a criminal accusation has been made before a competent authority”, the Court in Wright found the complaint and arrest warrant insufficient to show probable cause for confinement and ordered the petitioner discharged.

The State relies on Ex parte Livingston, 155 Tex.Cr.R. 218, 233 S.W.2d 503. Specifically, the State relies upon that portion of the opinion in Livingston that states what evidence was not presented:

“Upon the hearing of the writ, the state introduced in evidence three complaints showing that appellant was charged with three separate violations of the liquor laws of this state. No information upon these complaints was offered in evidence. No capias or warrant of arrest upon the complaints was shown.”

In Livingston the petitioner was ordered discharged upon authority of Wright, supra, the Court stating:

“In Ex parte Wright, 138 Tex.Cr.R. 350, 136 S.W.2d 212, the rule is announced that when one is held in custody, under complaint, and seeks release by habeas corpus, it is incumbent upon the state to introduce against him sufficient evidence to show probable cause for holding him in custody.”

The State argues from the Court’s statement in Livingston of what instruments were not introduced in that case (i. e., no information and no capias or warrant of arrest) that introduction of those instruments would be sufficient to meet the State’s burden to show probable cause. We find the language in the Livingston opinion does not admit of such a construction.

If the complaint alone is insufficient, as it is, then the prosecutorial act of filing an information upon that complaint (Art. 21.-20, V.A.C.C.P.) adds- nothing in the way of evidence of probable cause to believe the accused to be guilty of a criminal act. Likewise, the issuance of a capias upon a misdemeanor charge, being a ministerial act (Art. 23.04, V.A.C.C.P.), adds nothing toward the proof of facts showing probable cause.

We find Ex parte Wright, supra, controlling, and hold appellant is entitled to be discharged.

The concurring opinion in this case, expressing the views of two members of this Court, raises serious issues that deserve a response. The position taken in that opinion would rest the decision in this case and all like it solely upon the sufficiency of the allegations in the criminal accusation (the complaint and information in this case) to show probable cause, despite the mandate of Article 11.43, supra, and would diminish protections erected by the citizens of Texas to safeguard their liberties.

After acknowledging that Ex parte Wright, supra, would require the discharge of petitioner under controlling State law that remains on the statute books today as it was in 1940, the concurring position would dismantle the requirements of that State law with the observation, “While the decision in Wright was correct, it should be remembered that much water has passed under the bridge since that decision.” Although evolving federal constitutional standards are evidenced by the United States Supreme Court decisions cited by the concurrence, the State law foundation for Wright remains unrepealed on the statute books.

Article 11.43, V.A.C.C.P. (Art. 144, V.A.C.C.P. (1925) at the time of Wright), still mandates that in a habeas corpus proceeding, “No presumption of guilt arises from the mere fact that a criminal accusation has been made before a competent authority.” Despite how sparse or how abundant the probable cause stated in a complaint and information, the fact remains that the information is a criminal accusation within the prohibition of Art. 11.43. See Art. 21.20, V.A.C.C.P.

The issue before the Court is not one of probable cause to issue a warrant for arrest. Petitioner, after an unchallenged and presumably valid arrest, challenges the existence of probable cause for his continued detention to answer the criminal accusation. By definition, it would appear axiomatic that a challenge to probable cause to hold to answer such an accusation cannot be defeated by the mere showing of the existence of such an accusation. Article 11.43 by its terms confirms this axiom by legislative mandate, and has done so in similar form since the 1856 Code of Criminal Procedure. Petitioner was entitled to a judicial determination of the existence of probable cause to hold him to answer the criminal accusation against him.

Barnes v. Texas, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818 (1965) is cited in the concurring opinion for the proposition that “The affidavit or complaint must set forth a sufficient basis upon which an independent finding of probable cause can be made by the magistrate before the issuance of an arrest warrant.’’ (Emphasis added.) Petitioner, as stated above, does not challenge the probable cause for issuance of a warrant for arrest, nor for his arrest: he challenges probable cause for his continued detention.

It is well established that there are different standards for sufficient probable cause that vary according to the degree of infringement of personal liberty: less is required for a temporary detention for purposes of further investigation than is required for a full custodial arrest. Likewise, probable cause for issuance of a warrant to arrest does not necessarily satisfy the standard required for continued detention to answer the charge when such detention is challenged by habeas corpus.

Chapters 14 through 17 of the Code of Criminal Procedure govern arrest, commitment and bail; i. e., the decision-making process pursuant to which the State takes a citizen into custody and determines what restraints should or should not be placed on him after arrest. The State performs these functions through two agents: the peace officer and the magistrate. The peace officer has some discretion, but the primary and ultimate decision to restrict the citizen’s liberty must be made by a neutral and detached magistrate. This fact is fundamental to our system of criminal justice. Whether the arrest is made with or without warrant, one of the arresting officer’s first duties after arrest is to have the arrested person taken before a magistrate (Arts. 14.06, 15.16, 15.17, V.A.C.C.P.), and the magistrate must then inform the accused of his right to an examining trial (Art. 15.17, supra).

Chapter 16 governs the examining trial, which is a proceeding “to examine into the truth of the accusation made” (Art. 16.01, V.A.C.C.P.). It is clear from the provisions of this chapter, from those of the preceding chapter, and from the very language stating the purpose of the examining trial, that the truth of the accusation may not be based upon the accusation alone: such a conclusion, if valid, would render the examining trial a useless thing, a mere reenactment of the earlier determination of whether the arrest warrant should issue. In contrast to this principle being an implied underpinning of the examining trial process, when probable cause for continued detention is challenged by habeas corpus, the same principle is stated expressly in Art. 11.43, supra, to-wit: “No presumption of guilt arises from the mere fact that a criminal accusation has been made before a competent authority.” In habeas corpus, as at an examining trial, to allow the continued commitment to rest solely upon the original accusation is to render the hearing a useless thing. The purpose of such a hearing would then be equally satisfied by merely attaching the affidavit to the respondent’s return, and dispensing with the hearing altogether. The issue would be reduced to one of whether a lawful arrest warrant had issued, rather than whether probable cause for his continued detention existed independently of the accusation (Art. 11.43, supra).

The concurrence’s position, then, would effectively repeal Art. 11.43 and, in instances where a valid arrest warrant or capias on complaint and information was issued, render meaningless the mandate of Art. 1.08, V.A.C.C.P., and Section 12 of the Texas Bill of Rights (Art. 1, Sec. 12, Texas Constitution) declaring “The writ of habeas corpus is a writ of right, and shall never be suspended.”

The concurring position, by abandoning applicable State statutes in deference to less stringent federal constitutional standards, would deprive the citizens of Texas of the protections secured them through acts by their representatives in the Texas Legislature through repeal by decree of the dictate of Article 11.43, supra, and would allow the Great Writ to be suspended by holding that any citizen may be held in confinement for trial solely on the basis of an ex parte affidavit.

By authority of Article 11.43, supra, the evidence in this case is insufficient as a matter of State law to discharge the State’s burden. We conclude that the State has failed “to discharge the burden of proving the existence of facts from which it appeared that the appellant was guilty of any criminal act . . . .” Ex parte Guynn, 116 Tex.Cr.R. 121, 32 S.W.2d 187.

The judgment of the trial court is reversed and petitioner is ordered discharged.

ONION, Presiding Judge,

concurring.

The question presented by this appeal is whether the introduction alone of an affidavit, information and capias issued at a habe-as corpus hearing is sufficient to detain an individual accused of a misdemeanor who challenges his detention by application for habeas corpus.

The record reflects that the State offered only the complaint and information filed against the appellant and the capias subsequently issued. See Article 23.04, Vernon’s Ann.C.C.P. The appellant offered no evidence, but contended the evidence offered by the State was not sufficient to show probable cause for his continued detention.

Article 11.46, Vernon’s Ann.C.C.P., provides:

“Where, upon an examination under habeas corpus, it appears to the court or judge that there is probable cause to believe that an offense has been committed by the prisoner, he shall not be discharged, but shall be committed or adxnit- . ted to bail.”

In a habeas corpus proceeding to test the legality of an arrest and detention, the State has the burden of showing the lawfulness thereof, and unless that is shown the applicant is entitled to his discharge. Ex parte Hagler, 161 Tex.Cr.R. 387, 278 S.W.2d 143 (Tex.Cr.App.1955); Ex parte Wright, 138 Tex.Cr.R. 350, 136 S.W.2d 212 (1940).

When one is held in custody under a complaint and seeks release, it is incumbent upon the State to introduce against him sufficient evidence to show probable cause of holding him. Ex parte Villareal, 80 Tex.Cr.R. 23, 187 S.W. 214 (1916); Ex parte Guynn, 116 Tex.Cr.R. 121, 32 S.W.2d 187 (1930).

The appellant relies upon Ex parte Wright, supra, in which the only evidence offered by the State to show probable cause for detention was the complaint charging burglary and the warrant of arrest. Noting the provisions of then Article 155, Vernon’s Ann.C.C.P., 1925 (now Article 11.43, Vernon’s Ann.C.C.P., 1965, unchanged) that “no presumption of guilt arises from the mere fact that a criminal accusation has been made before a competent authority” and relying upon the decision in Ex parte Guynn, supra, this court found that the complaint and arrest warrant were insufficient to show probable cause for confinement and ordered the petitioner Wright discharged.

The State calls our attention to Ex parte Livingston, 155 Tex.Cr.R. 218, 233 S.W.2d 503 (1950), where upon a hearing of writ of habeas corpus the State only introduced into evidence three complaints charging three separate violations of the liquor laws. The opinion noted “No information upon these complaints was offered in evidence. No capias or warrant of arrest upon the complaints was shown.” The State seizes upon this language to argue that if the informations and arrest warrant had been introduced the evidence would have been sufficient to have detained Livingston. We cannot agree with such construction. The court in Livingston relied upon the authority of Ex parte Wright, supra, noting that the Wright opinion held it was incumbent upon the State to introduce against an individual held in custody upon a complaint sufficient evidence to show probable cause for holding him in custody.

If the affidavit or complaint, like the ones in Wright and Livingston, do not state probable cause itself, then it alone is insufficient. The mere filing of an information based upon such complaint adds nothing in the way of evidence of probable cause. Likewise, the ministerial act of the issuance of a capias or warrant of arrest adds nothing toward the proof of facts showing probable cause.

In light of the foregoing, I concur in the result reached by the majority, but I do so on the basis that the affidavit or complaint upon which the information was based does not on its face reflect probable cause. If the affidavit or complaint in the instant case had stated probable cause, then a different result would be called for. While the decision in Wright was correct, it should be remembered that much water has passed under the bridge since that decision. In Barnes v. Texas, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818 (1965), the United States Supreme Court, in light of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), held that the affidavit or complaint must set forth a sufficient basis upon which an independent finding of probable cause can be made by the magistrate before the issuance of an arrest warrant. This is at least an essential requirement as to the admissibility of the fruits of any search incident to the execution of such arrest warrant. In this regard there is no difference between the requirements for the issuance of arrest and search warrants. Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Lowery v. State, 499 S.W.2d 160, 162 (Tex.Cr.App.1973).

At the time of the decision in Ex parte Wright, supra, it was not the normal practice to have the affidavit or complaint for the issuance of an arrest warrant or capias reflect probable cause as we now understand it. Further, even since the decisions in the foregoing cases, this court has held that the rules relating to the necessity of stating facts constituting probable cause in a complaint or affidavit for issuance of a warrant of arrest used as a basis for a search, or for the issuance of a search warrant, have no application to a complaint made for the purposes of prosecution only. Vallejo v. State, 408 S.W.2d 113 (Tex.Cr.App.1966); Cisco v. State, 411 S.W.2d 547 (Tex.Cr.App.1967); Aguirre v. State, 416 S.W.2d 406 (Tex.Cr.App.1967); Chapa v. State, 420 S.W.2d 943 (Tex.Cr.App.1967); Lujan v. State, 428 S.W.2d 336 (Tex.Cr.App.1968); Dusek v. State, 467 S.W.2d 270 (Tex.Cr.App.1971); Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973); Wells v. State, 516 S.W.2d 663 (Tex.Cr.App.1974). It has been said that requisites of an affidavit or complaint to support a prosecution under an information are not as stringent as the requirements of an affidavit or complaint for a search warrant, Wells v. State, supra, and that the purpose of such complaint filed for prosecution only is to apprise the accused of facts surrounding the offense with which he is charged to permit him to prepare defense to such charge. Chapa v. State, supra.

As a result of the former practice and this court’s ruling that the complaint for the issuance of an arrest warrant need not state probable cause where used for the purposes of prosecution only as well as the problem of draftmanship in the filing of affidavits so as to reflect adequate probable cause, many of such affidavits filed do not reflect probable cause. Where such an affidavit not reflecting probable cause is used in connection with an information based thereon and the capias issued are the sole basis for detaining a petitioner at a habeas corpus application hearing, the petitioner is entitled to be discharged.

If, on the other hand, the affidavit or complaint states probable cause and it is properly introduced, the petitioner is not entitled to be discharged. To this extent, in my opinion, the decision in Wright should be modified.

While Article 11.43, supra, provides that in habeas corpus proceedings “No presumption of guilt arises from the mere fact that a criminal accusation has been made before a competent authority” (Emphasis supplied), the introduction of an affidavit or complaint reflecting on its face probable cause demonstrates far more than the mere fact of accusation.

For the reasons stated, I concur.

DOUGLAS, J., joins in this concurrence.

      . In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the Supreme Court of the United States held that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint on liberty following arrest.

      . In a hearing on a writ of habeas corpus the State is not required to call all its witnesses and develop its entire case. Moses v. State, 168 Tex.Cr.R. 409, 328 S.W.2d 885 (1959).

      . See Article 21.20, Vernon’s Ann.C.C.P.

      . Said affidavit reads:
      “I, J. Martinez, do solemnly swear that I have good reason to believe and do believe that heretofore, to wit, on or about the 4 day of June A.D. 1976, in the County of El Paso, State of Texas, Arturo Garcia, Mario Gonzalo Ortega Ramirez, and Juan R. Ortega, acting together did then and there recklessly engage in conduct that place (sic) George Foster in imminent danger of serious bodily injury by then and there pointing a knife at the said George Foster, against the peace and dignity of the State.”
      The affidavit was signed and sworn to by J. Martinez. The affidavit does not reflect that the affiant’s belief was based on personal knowledge or whether it was based on hearsay information received from another unidentified source. If it was the latter, the affidavit does not reflect how the unidentified source received his information. The affidavit does not reflect probable cause. See Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App. 1973).


author: DALLY, Commissioner.

text:
    Jackie Eugene HINSON, Appellant, v. The STATE of Texas, Appellee.
    No. 52352.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1977.
    Rehearing Denied March 16, 1977.

      George R. Milner, Ronald L. Gorans on, on appeal only, Dallas, for appellant.
    Joe Smith, Dist. Atty., Seminole, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of possession of more than four ounces of marihuana; the punishment is imprisonment for 8 years and a fine of $5,000.

The appellant asserts that evidence admitted, over his counsel’s timely objection, was obtained by an unlawful arrest, search, and seizure made in violation of his constitutional rights. We agree; the judgment must be reversed.

Soon after midnight of January 17, 1975, Sheriff Guy Kinnison and his deputy Jim Nance, using the flashing red lights and spot light of their patrol car, stopped a U-Haul van type truck as it was leaving the Dawson County Airport. At Kinnison’s request the appellant, who was driving the truck, exhibited to Kinnison a license to operate a motor vehicle. In response to the Sheriff’s questions, the appellant said he had had trouble with his airplane and that he was hauling its cargo of clock parts to Dallas in the truck. Kinnison testified that he smelled the strong odor of marihuana while he was in conversation with the appellant near the rear of the truck. The Sheriff searched the truck and found that it was loaded with over 1200 pounds of marihuana. Although it was disputed by the appellant, Kinnison said the appellant gave oral consent for the inspection of the contents of the truck. Our disposition of this appeal is such that we need not inquire further or decide whether the consent to search was voluntary or whether the Sheriff had probable cause to search after he stopped the truck.

From the facts and circumstances, which we find in the record and will discuss, it is obvious that the Sheriff did not have probable cause to stop and arrest either the appellant or his passenger, and the Sheriff did not have probable cause to search the truck before it was stopped. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).

The State makes no contention that the arrest was for the violation of traffic laws or that the truck was stopped to inspect the operator’s license of the driver. See Leonard v. State, 496 S.W.2d 576 (Tex.Cr.App.1973). Although there had been thefts committed at the airport, there was not even a hint of suspicion that the appellant was involved in these activities. The only-reason for stopping the appellant was the information furnished to the Sheriff by Bernie Williams and the Sheriff’s own knowledge and observation after receiving that information.

Bernie Williams was a local businessman whom the Sheriff had known for many years. Williams operated a U-Haul rental agency. For our purpose here we may and do assume that Williams was a credible and reliable informer. At about 11:50 p. m. on January 17, 1975, Williams came to the Sheriff’s office in the courthouse; he told Sheriff Kinnison that he, Williams, had just rented a U — Haul van type truck to two men of whom he was suspicious. The men had told Williams that they had encountered trouble with their airplane, which was at the airport, and that they were renting the truck so they could take to Dallas clock parts they had in the plane. Williams told the Sheriff he was not satisfied with the story the men told and that “they were very suspicious acting.” Williams did not give the Sheriff any more specific information as the basis for his suspicion of the men.

After receiving this information from Williams, the Sheriff and his deputy immediately went to the airport. They observed the U-Haul truck on a public road at the airport leaving the flight line area. They made a U-turn, followed the truck, and stopped it. We quote a portion of the Sheriff’s testimony which he gave concerning the stopping of the truck.

“Q. Did he [Williams] give you any basis for suspicion? Did he tell you anything that would form his conclusion?
“A. No, sir. Not anything specifically.
“Q. All right. So, it is fair to say then the information he revealed to you is that he had rented a U — Haul truck to two men who told him that they wanted to haul some clock parts from Lamesa to Dallas, having had plane trouble?
“A. Yes, sir.
“Q. Now, that is a lawful explanation for their purpose, is it not?
“A. I suppose so, yes, sir.
“Q. He told you they were not so suspicious that he did not accept the money for the truck, did he?
“A. No, sir.
“Q. Now, after receiving that you went directly to the airport?
“A. Yes, sir.
“Q. When you got to the airport did you see anything unloaded from any airplane?
“A. No, sir.
“Q. All right. The first thing you saw then was the U-Haul truck leaving the airport property onto the north-south road?
“A. This would be correct, yes, sir.
“Q. Now, that is a public municipal airport, is it not?
“A. Yes, sir.
“Q. And it is not illegal to be there at any hour of the day, is it?
“A. No, sir.
“Q. Up to the point I have covered here did you see any unlawful act?
“A. No, sir.
“Q. All right. After that what did the U-Haul truck do?
“A. Well, it left the airport property onto the county paved road running north and south and turned south.
“Q. All right. And what did you as the driver of the patrol car do?
“A. Well, we met the vehicle on the airport property, so we had to turn around. We turned around and followed the truck south and stopped the truck down at the next road intersection on the south side of the airport.
“Q. All right. That would then be at the southeast corner of the airport?
“A. Yes, sir.
“Q. All right. Now, during the drive by the U — Haul truck did you observe any violation of any traffic laws?
“A. No, sir.
“Q. Did you observe any suspicious conduct on the part of the U — Haul truck?
“A. No, sir.
“Q. Now, when you made the U-turn at that time you intended to stop and see what was in the U — Haul truck, had you not, Sheriff?
“A. Well, we intended to stop the truck. Like I say, it was very — it was very suspicious to us at this time of night.
“Q. All right. You had been told why the truck was there, had you not, Sheriff?
“A. We had been told a reason, yes, sir.
“Q. Is it fair to say that you expected to find a truck at the airport?
“A. Yes, sir.
“Q. And what was suspicious about finding what you expected to find?
“A. Well, to me, a truck, a U-Haul truck, a large one hauling clock parts is very unusual to me.
“Q. Have you ever seen clock parts hauled?
“A. No, sir.
“Q. What would be unusual about it in your judgment?
“A. Well, it is just much too large a vehicle to haul clock parts unless you had a whole lot of clock parts.
“Q. Isn’t it fair to say, though, Sheriff, that you had a hunch there was something there besides clock parts?
“A. I couldn’t say.
“Q. Well, isn’t that the very reason you stopped and searched the truck?
“A. That is not the reason I searched the truck, no, sir.
“Q. Well, isn’t that the very reason you stopped the truck?
“A. We stopped the truck to see who was in it.
“Q. And to see what was in the truck, did you not, Sheriff?
“A. Not necessarily, no, sir.”

It is the State’s contention that the evidence in this record, including the testimony of Kinnison, justified the appellant’s arrest under the provisions of Article 14.03, V.A.C.C.P., which provides:

“Any peace officer may arrest, without warrant, persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws.”

We reject the State’s contention since we find the evidence and circumstances in the record to be insufficient for the appellant’s arrest under the provisions of Article 14.03, V.A.C.C.P.

The protection of the Fourth Amendment to the Constitution of the United States and Article 1, Section 9 of the Constitution of this State against unreasonable searches does not prevent a law enforcement officer in appropriate circumstances from stopping and detaining a person to investigate suspected criminal activities though there is not probable cause to make an arrest. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Hernandez v. State, 523 S.W.2d 410 (Tex.Cr.App.1975); Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976). To determine that an officer was justified in making such an intrusion upon the freedom of the citizen stopped and detained, the court must find that the officer in light of his experience and general knowledge had specific articulable facts which taken together with rational inferences from those facts would reasonably warrant the intrusion on the freedom of the citizen stopped for further investigation. Terry v. Ohio, supra; Hernandez v. State, supra; Thompson v. State, 533 S.W.2d 825 (Tex.Cr.App.1976); Mann v. State, 525 S.W.2d 174 (Tex.Cr.App.1975).

We have concluded that the evidence in this record shows no more than a mere suspicion and that the evidence in this record does not show specific and articula-ble facts which reasonably warranted the stopping of the appellant for further investigation. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972); Talbert v. State, 489 S.W.2d 309 (Tex.Cr.App.1973); Leighton v. State, 544 S.W.2d 394 (Tex.Cr.App.1976). It is, of course, established by authority too well known to require citation, that the results of a search cannot be considered to determine whether there was probable cause for the search in the first place.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


text:
    Mateo N. VILLARREAL, Appellant, v. The STATE of Texas, Appellee.
    No. 52800.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1977.
    Rehearing Denied March 16, 1977.
    Richard Meyer, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Gordon V. Armstrong, Sharon MacRae and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vol-lers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of voluntary manslaughter; the punishment is imprisonment for 15 years.

The appellant asserts that inflammatory and prejudicial photographs were admitted in evidence, over his timely objection, which require the reversal of this conviction.

The court admitted three photographs (State’s Exhibits Nos. 10, 11, and 12) which portray the same scene, but which were taken from different places within the lounge where the offense was committed. The photographs are black and white and measure approximately eight inches by ten inches. They depict a bloodstained floor, a chalk outline of the victim on the floor where he fell, some bloody clothing, a cartridge, a liquor bottle, and furniture. When the officers who made the photographs arrived, other officers had secured the area to prevent tampering with the evidence. The victim was still alive, and paramedics were attempting to save his life. The officers did not feel it appropriate to take photographs and make measurements at the scene while the paramedics were at work trying to save the victim’s life. The victim was removed and the chalk outline of his body was made on the floor. The clothing in the photographs is not that of the victim but is that of bystanders who had apparently attempted to comfort the victim as he lay mortally wounded.

It is argued on behalf of the appellant that the photographs do not solve any issue in the case and the probative value of the photographs is outweighed by their inflammatory and prejudicial nature.

In Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972) it was said:

“A determination as to the admissibility of photographic evidence is made upon the same basis as is a decision on the admissibility of other types of evidence and must rest largely in the discretion of the trial judge. Lanham v. State, Tex.Cr.App., 474 S.W.2d 197 (1971).
“Black and white photographs of the scene of a crime are admissible as an aid to the jury in interpreting and understanding the testimony adduced at the trial. Smith v. State, Tex.Cr.App., 460 S.W.2d 143; David v. State, Tex.Cr.App., 453 S.W.2d 172; Turner v. State, Tex.Cr.App., 462 S.W.2d 9; Rivera v. State, Tex.Cr.App., 437 S.W.2d 855. The fact that blood spots are depicted does not automatically rule out their admissibility. We find nothing in the two photographs which represent the scene of the homicide in the instant case which would inflame a reasonable person sitting as a juror and no abuse of. discretion by their admission. Smith v. State, supra; David v. State, supra; Kindle v. State, 162 Tex.Cr.R. 395, 285 S.W.2d 740.
* * * % * *
“We hold that if a photograph is competent, material and relevant to the issue on trial, it is not rendered inadmissible merely because it is gruesome or might tend to arouse the passions of the jury, unless it is offered solely to inflame the minds of the jury. If a verbal description of the body and the scene would be admissible, a photograph depicting the same is admissible.
“In this case a verbal description of the body and the scene are admissible, therefore, it was not error to admit the photographs.”

In the later case of Terry v. State, 491 S.W.2d 161 (Tex.Cr.App.1973) we held inadmissible the photographs of parts of the body made after an autopsy had been performed which showed what was done when the autopsy was performed rather than the wounds inflicted by the defendant. These photographs showed a massive mutilation of the body caused by the surgery in performing the autopsy. We concluded there that the photographs made of the body after the autopsy clearly served to inflame the minds of the jury and that the trial court abused its discretion by not sustaining the appellant’s objections to their admission.

Numerous cases have been decided since Martin v. State, supra, and Terry v. State, supra, see e. g., Bailey v. State, 532 S.W.2d 316 (Tex.Cr.App.1976); Gonzales v. State, 532 S.W.2d 343 (Tex.Cr.App.1976); Sloan v. State, 515 S.W.2d 913 (Tex.Cr.App.1974); Cherry v. State, 488 S.W.2d 744 (Tex.Cr.App.1972) in which we have not seen fit to disturb the ruling of the trial court admitting photographs. It was emphasized in both Martin v. State, supra, and Terry v. State, supra, that a great deal of discretion is lodged with the trial court in determining whether photographs should be admitted in evidence.

When we apply the law of Martin v. State, supra, Terry v. State, supra, and subsequent cases, we find no abuse of discretion in the present case in the admission of the photographs about which the appellant complains. The photographs depict the area where the offense was committed; they helped the jury understand the testimony of the witnesses, and thus they were beneficial in aiding the jury in solving disputed issues in the case. It has not been shown that the photographs are so inflammatory and prejudicial as to outweigh their probative value. The fact that the victim’s body had been removed in an attempt to save his life did not disturb the scene and change it to such an extent as to render inadmissible the photographs taken after the body was removed. See Bailey v. State, supra. We do not find that the bloody clothing, which had been placed over or under the victim by bystanders in their attempt to render assistance and aid to him, render the photographs inadmissible.

The judgment is affirmed.

Opinion approved by the Court.