The conviction is for burglary with a prior conviction for an offense less than capital alleged for enhancement; the punishment, 12 years.
In view of our disposition of this cause, a recitation of the facts will not be deemed necessary other than to observe that the appellant and Rodriquez were seen walking down Carrizo Street about 11:20 p. m. by Officers Mathis and Roberts, and that when the officers saw them Rodriquez turned his back toward them and shifted the can he was carrying in his right hand to underneath his left arm. A search was made of the person of both men and the tomato crate and other food containers they carried and testimony was admitted and a part of the fruits of the search was introduced as an exhibit for the State. Appellant objected to any evidence secured by the .search on the ground that the arrest of appellant was illegal and without a warrant, which objection was overruled by the ■court
The appellant did not testify or offer any evidence.
This conviction stands or falls upon the legality of that arrest. If the officers were authorized to arrest the appellant, the search of his person was authorized as an incident of his arrest. If they were not authorized to make the arrest without a warrant, then the search of appellant was unlawful, and proof of the finding of the fruits of the burglary was not authorized.
We have concluded that appellant’s arrest and search by the officers without a warrant were, under the facts presented, not authorized by Articles 212 and 215 Vernon’s Ann.C.C.P., and since no city ordinance authorized by Article 214, VAC C.P., was introduced into evidence, the testimony concerning the fruits of the search should not have been admitted. Articles 212, 215 and 727a V.A.C.C.P.; Lott v. State, Tex.Cr.App., 372 S.W.2d 325, and cases cited therein.
This is a far stronger case than that before this Court in Lott v. State, supra. In that case the officers knew that a robbery had occurred and were waiting for Lott at his apartment, while in the case at bar the officers, at the time of the arrest, were not aware that any burglary had occurred.
For the error of the court in admitting the evidence illegally obtained, the judgment is reversed and the cause remanded.
ON STATE’S SECOND MOTION FOR REHEARING
Rehearing overruled.