(dissenting).
A majority of the Court now reverses this conviction after it was affirmed by a unanimous Court.
Conspiracy
The majority apparently reverses for the reason given in the following statement in its opinion: “A conspiracy was not pled, proven or briefed in this case.” In addition to the above statement taken from the motion for rehearing, counsel for appellant stated in his motion that conspiracy was not urged by the State.
At the outset we note from the record that Mr. Nelson, the assistant district attorney, argued in part as follows:
“All right. What is the evidence of possession? Renting a house under an assumed name— And through some marvelous ability Mr. Minton has testified to you that this really is of no significance. Is that really true ? Is that really true ? That this doesn’t mean anything to you at all? It’s your first evidence in point of time, folks, of a conspiracy in which the defendant Faubian and the defendant Arnott participated. If you don’t think it’s conspiracy, you have to believe that somehow each of them independently arrived at the name Orbitt and showed up there and gave his name. But they did get together, and you know they got together because they were going to rent a house, were going to use the name Or-bitt. And you will be Mrs. Orbitt and I will be Mr. Orbitt. And so Miss Faubi-an went down and approached the real estate agent and put down a $100 deposit and introduced herself to him as Mrs. Orbitt. And then on the 4th Mr. Orbitt, alias Arnott, showed up and signed the lease. And there are the terms. Remember those terms ? $100 deposit and a hundred and sixty dollars a month rent. Keep those in mind, will you?” (Emphasis supplied)
The theory of conspiracy was argued to the jury and was before the trial court and this Court.
The majority in its opinion does not recognize the difference between the substantive crime of conspiracy and the rules of evidence where people were acting together as principals or conspirators.
The appellant Arnott, Neal and Miss Faubian were indicted as principals. Ar-nott and Miss Faubian were tried jointly as principals. The theory of the State was that the three were acting together in the possession of the narcotics. The trial court submitted the charge to the jury on the law of principals and circumstantial *179evidence. Where principals are involved, a conspiracy is necessarily involved.
Article 65 of the Penal Code and the four succeeding Articles provide in substance that all persons acting together in the commission of an offense are principals. These Articles also provide in certain cases that those who agree to commit a crime and who are doing something during its commission are principals.
The substantive crime of conspiracy is an agreement to commit a felony offense. See Article 1622, Vernon’s Ann.P.C. One does not have to be named in an indictment as a conspirator before evidence of a conspiracy can be introduced. One does not have to be charged in an indictment as a principal before such evidence can be introduced.
Proof that two or more people acting together in the commission of a crime which is a conspiracy can be made and relied upon even though it is not alleged. A conspiracy is an agreement manifesting itself in words or deeds by which two or more persons confederate to do an unlawful act. Young v. State, 150 Tex.Cr.R. 378, 201 S.W.2d 46. A conspiracy can be established by circumstantial evidence. Roberts v. State, Tex.Cr.App., 375 S.W.2d 303; Westfall v. State, Tex.Cr.App., 375 S.W.2d 911; Price v. State, Tex.Cr.App., 410 S.W.2d 778; Rice v. State, 121 Tex.Cr.R. 68, 51 S.W.2d 364.
A conspiracy can seldom be established by direct evidence. Carter v. State, 135 Tex.Cr.R. 457, 116 S.W.2d 371, 382. Narcotic dealers, like other professional criminals, do not widely publicize their agreements or plans to officers.
It is not necessary for the State’s brief to contain a statement of every rule of law relied upon for the affirmance of a conviction if a case has been correctly tried. The matters we consider are the rulings of the trial court, not the reasons attorneys give to uphold their contentions. Briefs and arguments are only aids for reaching a just decision. Neither a confession of error by the State nor an admission by counsel for appellant that no reversible error is shown is binding on the Court. Even if a trial judge relies upon a wrong ground or gives the wrong reason for a ruling, this Court is not bound to limit its consideration to such a reason if the decision below is correct. O’Neal v. State, Tex.Cr.App., 491 S.W.2d 130; Parsons v. State, Tex.Cr.App., 271 S.W.2d 643. The Supreme Court of the United States recognizes this rule in Helvering v. Gowran, 302 U.S. 238, 58 S.Ct. 154, 158, 82 L.Ed. 224.
For cases where a conspiracy was not alleged in the indictment and convictions were upheld on evidence of a conspiracy, see Aguero v. State, 164 Tex.Cr.R. 265, 298 S.W.2d 822. In that case the conviction was for the possession of heroin. Conspiracy was shown between Alvarez and Agüero. This Court held:
“The acts and declarations of one co-conspirator are admissible against other conspirators during the furtherance of the conspiracy.”
In Saddler v. State, 167 Tex.Cr. 309, 320 S.W.2d 146, the conviction was for the sale of marihuana. Conspiracy was not alleged. The Court held:
“Proof that the appellant and Brackins were acting together in selling the marijuana was sufficient to establish a conspiracy between them to commit the offense.” (Emphasis supplied)
and
“The rule is well settled that the acts and declarations of one conspirator during the furtherance of the conspiracy are admissible against the other conspirators. 4 Branch’s Ann.P.C. par. 2243, pages 602 and 603; Weston v. State, 164 Tex.Cr.R. 222, 297 S.W.2d 681; Aguero v. State, 164 Tex.Cr.R. 265, 298 S.W.2d 822, and Angle v. State [165 Tex.Cr.R. 305] 306 S.W.2d 718. This rule applies though the act or declaration occurred out of *180the presence and hearing of the conspirator on trial. Braley v. State, 156 Tex.Cr.R. 15, 238 S.W.2d 539.”
In Angle v. State, 165 Tex.Cr. 305, 306 S.W.2d 718, the substantive crime of conspiracy was not alleged. Angle complained because the court admitted evidence of ancillary offenses. The Court held the acts of the co-conspirator Nesbit were admissible. See the other cases cited in the opinion on original submission.
Under the authority of the above cases, even if the entries in the notebook were made by Neal, Faubian, or the appellant, or someone else connected with the offense, they would be admissible as an act during the conspiracy. See McElwee v. State, Tex.Cr.App., 493 S.W.2d 876.
The statement of the majority that a conspiracy was not alleged is incorrect because appellant was alleged to be a principal. The statement of the majority that a conspiracy was not proved is incorrect. The evidence heretofore and hereafter set out shows that Arnott, Neal and Miss Faubian were acting together.
It is hard to understand the attempted distinction of Parnell v. State, 170 Tex.Cr.R. 30, 339 S.W.2d 49, by the majority. The majority states in that case “the jury was charged on the law of conspiracy.” Is this some new rule or theory that where a charge on principals has been submitted to the jury the court must charge on conspiracy for the judgment to be valid? (Would such a charge be a comment on the weight of the evidence?) The Parnell case held as noted in the original opinion by this writer that even after the charge of the substantive crime of conspiracy had been dismissed from the indictment that this “did not deprive the State and jury of evidence tending to establish the conspiracy. . . . ” (Emphasis supplied)
Surely the majority is not holding that such a charge makes the evidence admissible. Does the holding mean that the theory of conspiracy must be spelled out more fully before the case is argued to the jury even when principals have been charged in an indictment?
Is the majority now changing the rules of the game (after it has been played) like from regular pool to call shot? The reversal now is apparently for the reason that conspiracy was not the called shot other than in the argument of the prosecutor before the jury and the trial court which is in the record before us. Does the majority now require that where principals have been charged in an indictment that the word “conspiracy” be included before evidence of a conspiracy can be relied upon for a conviction? If so, the majority is overruling the Parnell case, supra, and all the previous law on evidence of a conspiracy. The bench and bar should be informed just what cases are being overruled.
Connection With Notebooks and Contraband
The majority states that no connection between Arnott and the notebooks is shown and states that he did lease the premises prior to the date in question and was arrested in reasonably close proximity to the notebooks.
The record shows that Faubian made arrangements to rent the premises under the name of Orbitt and that Arnott rented the premises under the name of John Orbitt a day or two later and some two weeks before the search of the premises. Further, it is shown that when officers entered the residence to execute the search warrant both Faubian and Arnott were found in the back or southeast bedroom sitting around a small table upon which were found 39 capsules of heroin on a plate, three syringes, two spoons and cotton as well as other narcotic materials. Both had fresh needle marks on their arms. In the closet of- that same bedroom the duffel or barracks bag containing the notebooks was found.
*181The appellant’s brief states that the duffel bag was found in a closet near the back bedroom. The drawing referred to in the testimony of the officers is not a part of the record. W. R. Webb, one of the officers who conducted the search, was asked where he found the exhibits. He answered:
“A. In the — what we havé referred to as, I believe, the back bedroom where the two defendants were found. A- — the green barracks bag
“Q. That bedroom ?
“A. That bedroom, a green barracks bag I found in the closet just to the left upon entering into the kitchen.
“Q. Are you then referring to the southeast bedroom and speaking of a closet on the north wall of that southeast bedroom?
“A. That is correct. And to the west of the door entering into the kitchen.
“Q. You found the duffel bag?
“A. The duffel — the barracks bag or duffel bag, which is the green one.
“Q. Were all of the exhibits in the duffel bag?
“A. Yes, the brown haversack bag was in the green barracks bag. Everything was in there together
On cross-examination by Mr. Clinton, appellant’s attorney, concerning the duffel bag or haversack and the included materials, the following occurred:
“Q. . . . there was nothing in there at all to identify the defendant Faubian or the defendant Ar-nott in connection with those bags, is there ?
“A. May I say, too, this was in there.
“Q. Well, whatever the exhibits were that have been admitted here into evidence, there was not, was there ?
“A. Other than it was in their bedroom and, of course, there were some other items that were in there.
“Q. I am asking you about what’s in evidence here as coming from the duffel bag that’s now in evidence?
“A. No, sir. It was just in their room.”
Webb was asked if he found any capsules similar to those on the plate in the southeast or back bedroom, and he answered :
“We have other — there are other displays here that was in the haversack.
He also testified that he went immediately to the back bedroom on arriving, and “There is a closet right here in this bedroom, just to the right of the door. From this closet I got this barracks bag containing the brown haversack. . . . ” He also testified, “[i]n this closet there were clothes and — both girls’ and men’s clothes.”
From the above testimony it appears that the duffel bag containing the exhibits in question was found in the closet in the room where Arnott and Miss Faubian were found. See Frazier v. State, Tex.Cr.App., 480 S.W.2d 375.
The heroin found in the duffel bag in the back bedroom of Arnott and Faubian, each exhibit of heroin found on the table in that bedroom and the heroin found in Neal’s room were 20.5% heroin. All of the heroin found in the house was of the same consistency whether it was in the capsules or in the balloons. There were empty capsules found in the duffel bag. Traces of heroin were found on the narcotics paraphernalia in the back bedroom and in Neal’s front bedroom.
A similar contention that there was no connection with the evidence was made in *182Flores v. State, 89 Tex.Cr.R. 506, 231 S.W. 786, cited in the opinion on original submission. In that case a piece of iron that could have been used as a weapon not shown to be directly connected with either of the principals was found in the jail after the jailer was killed. The Court held it admissible. See the quoted part in the original opinion.
Also the Parnell case, supra, gives the correct rule that the State could offer evidence tending to establish the conspiracy.
After the original opinion in this case was written, Presiding Judge Onion wrote for this Court in Alba v. State, Tex.Cr.App., 492 S.W.2d 555. There the conviction was for the possession of heroin. Contraband was found in a cemetery east of Austin. Alba complained that the court ■ erred in admitting an exhibit containing heroin which was found two days prior to his arrest. None of the surveilling officers had seen Alba or his co-defendant at the exact location where the exhibit was buried nor had they seen the exhibit in the physical possession of the appellants. This heroin was approximately 2/3 of the total amount discovered. All of the heroin was packaged alike and the heroin (like in the present case) contained the same molecular structure indicating that each exhibit came from the same origin. This Court wrote:
“In some cases, as in the one at bar, possession must be proved by the introduction of circumstantial evidence. Such evidence must affirmatively link the person accused to the narcotic which he allegedly possessed. Haynes v. State, 475 S.W.2d 739 (Tex.Cr.App.1972). This affirmative link is established by showing additional independent facts and circumstances which indicate the accused’s knowledge and control of the narcotic. Collini v. State, supra [Tex.Cr.App., 487 S.W.2d 132]
“The evidence presented shows that there were additional independent facts and circumstances affirmatively linking the appellants to the heroin contained in State’s Exhibit 14.”
Doesn’t this evidence connect Ronald Arnott with the duffel bag, narcotics, and paraphernalia and the notes more than the exhibit buried in a cemetery connected Alba to that heroin ?
When one has rented and has control of the premises, expecially a closet in his bedroom, with apparently his name on the exhibit, is not this enough to connect him with it? How much more is the State required to prove? Under the ruling of the majority, which holds that the evidence does not show Arnott connected with the items found in the closet in his bedroom, the State would have insufficient evidence to connect and convict one for the possession of contraband found in his bedroom closet. Surely the majority does not intend to go this far.
In Williams v. State, Tex.Cr.App., 498 S.W.2d 340, this day decided, this Court held that where the accused had rented a trailer house some six days before and heroin and other contraband were found in his bedroom the evidence was insufficient to support the conviction. Williams was in the kitchen; he had needle marks on his arm (the officer did not testify as to their freshness). The majority reversed because no connecting link was shown. In the present case they reversed because the connecting link was shown. Which rule does the trial court follow ?
The reasoning of the majority that evidence such as complained of here can be admitted in circumstantial evidence cases, but not strong circumstantial evidence cases, and only in those cases where one admits possessing a container but not knowing what the container contains, will not be discussed because this writer does not understand it nor does he see how a trial court can follow such reasoning, especially in view of the past decisions of this Court which are not distinguished.
This Court has held even on pleas of guilty where direct evidence has been of*183fered that other circumstances may he shown. In Asay v. State, Tex.Cr.App., 456 S.W.2d 903, this Court held:
“ . . . The State’s right to introduce evidence is not restricted by entry of a plea of guilty by the defendant, or by his admission of facts sought to be proved. Brookens v. State, Tex.Cr.App., 438 S.W.2d 577; Whan v. State, Tex.Cr.App., 438 S.W.2d 918, 56 Tex.Jur.2d, Trial, Sec. 130; Beard v. State, 146 Tex.Cr.R. 96, 171 S.W.2d 869. There is no limit, either by statutory direction or judicial interpretation, upon the kind, character or amount of relevant testimony which the State may introduce upon a plea of guilty. Whan v. State, supra; Brooker v. State, 124 Tex.Cr.R. 562, 63 S.W.2d 1033.”
See Beard v. State, 146 Tex.Cr.R. 96, 171 S.W.2d 869 (1943), to the same effect. This case has been cited too many times to set out here. It has not been overruled.
If the State is not limited in the amount and extent of proof when a defendant has pled guilty, why should it be limited in the amount of relevant evidence where a defendant has entered a plea of not guilty? The reason for such a different rule would be more erroneous in the present case where Arnott wanted the notebook found near Neal introduced in an effort to show that Neal possessed all of the contraband. Those notes contained the name of “Ron” and showed Neal paid $80, one-half of the first month’s rent for the house, and other connecting evidence.
How would a trial judge rule in a similar case in the future? In the present case the trial judge was cited three cases as authority of the introduction of the evidence.
The trial court was well acquainted with the first of those cases, Windham v. State, 169 Tex.Cr.R. 448, 335 S.W.2d 221, where the prosecution was for the possession of whiskey, gin, vodka and malt liquor for the purpose of sale. In that case the landlady testified that Windham and Jerry Ray James came to see her about renting an apartment. James did the talking and Windham furnished the money for the first month’s rent.
With a search warrant, the officers found 314 half-pints of whiskey and other containers of gin, vodka and malt liquor. At the time of the search, officers found beer in an automobile in the apartment garage. James and Windham were in jail at the time. The Court found that the evidence showed that the two occupied the apartment and had joint control over the contents.
Windham objected to the introduction of three pieces of paper found in the apartment. One of the pieces of paper was definitely not in Windham’s handwriting, but this Court held it was admissible to show that he shared the apartment with Jerry James. One piece of paper read:
“April 29 5 cases 286.00
May 1 5 cases 277.00
May 1 16 Jax 68.00”
This was not shown to have been in Windham’s handwriting. The conviction was affirmed in part on the basis of harmless error. However, on motion for rehearing, this Court held that the three pieces of paper found by the officers in their search of the apartment were a part of the res gestae of the transaction and the evidence was admissible as such. The majority now does not distinguish or overrule Windham.
There were several connecting links in this case — much more than in the Alba case, supra.
Extraneous Offenses
The majority adds an apparently new restriction on the rule against the admission of extraneous offenses. Even though it recognizes that appellant’s defense was that the narcotics belonged to Neal.
*184When the notebooks were admitted they were admitted for all purposes. The majority asks the question, “What was the inference to be drawn from the admission of the notebooks as circumstantial evidence?” To answer that question, it is obvious that the most logical inference to be drawn was that some person was dealing in narcotics and that person was the appellant. The majority recognizes the rule that evidence of extraneous offenses may be introduced to show knowledge and cites McCormick & Ray, Texas Law of Evidence, Section 1521, and Gonzales v. State, Tex.Cr.App., 410 S.W.2d 435. The majority then adds “one restriction on the use of evidence in possession cases,” that is, such evidence should not be introduced as a part of the State’s case in chief unless the case is based upon circumstantial evidence. This case was based upon circumstantial evidence and the court so charged. Each attorney for the State and the defense argued that this was a circumstantial evidence case. No doubt a reversal would be had if there had not been a charge on circumstantial evidence. See Denny and Forfar v. State, Tex.Cr.App., 473 S.W.2d 503; Ramos v. State, Tex.Cr.App., 478 S.W.2d 102.
The majority opinion by dictum adds a novel rule that further restricts the admission of such evidence to instances where the accused admits possession but denies that he knows the substance was narcotics. Under this new rule, evidence in many cases which has been admissible to show the connecting link between the accused and the reason for its possession is no longer admissible. See Alba v. State, Tex.Cr.App., 492 S.W.2d 555, 560, and Phenix v. State, Tex.Cr.App., 488 S.W.2d 759, and the cases there cited. I see no reason for such a rule as the majority would adopt.
It has always been the impression of the writer where the State has evidence that is admissible whether it be direct or circumstantial it is admissible on the case in chief. It appears that the majority holds that it connected him too much with the notebooks and then later says that the connection was too remote and for the undue prejudice the evidence should not be admitted. Under which theory do they rely?
There is an attempt to distinguish Phe-nix v. State, supra, where initials were used and the note was shown to establish the ownership link. The Court held it was harmless in the Phenix case because there was an abundance of other evidence that suggested that Phenix was dealing in marihuana.
In the present case the other notebook found in Neal’s room was introduced with the statement that there was no objection. This notebook contained the name “Ron” and showed similar transactions to those shown in the notebooks found in the closet. Isn’t Neal’s notebook enough evidence to adequately establish the appellant as a dealer in narcotics? The State in the argument to the jury stated that he was a dealer and that Miss Faubian rented or leased the premises so that they could set up a wholesale operation. Counsel for appellant made no objections apparently thinking that this was a reasonable deduction from the evidence. For cases approved by this Court where a large amount of narcotics has been shown and the argument was to the effect that it was for the purpose of sale see Ware v. State, Tex.Cr.App., 467 S.W.2d 256, and Archer v. State, Tex.Cr.App., 474 S.W.2d 484. The jury no doubt realized the narcotics were possessed for the purpose of sale.
Is the majority reversing this case because the proof was not good enough or on the ground that it was too good ?
It is also hard to understand that because the evidence might be prejudicial it should not be admitted. Relevant admissible testimony is prejudicial or there is no need for it to be introduced into evidence. If one made statements to other people that he was selling narcotics, that would be admissible. Sutton v. State, 343 S.W.2d 452. If one writes statements that he is *185selling narcotics, why is this not admissible? The evidence of the whole transaction should be admissible. Evidence extracted and placed in a vacuum is of little or no benefit to a jury.
In Alba v. State, Tex.Cr.App., 492 S.W. 2d 555, it was contended that “this large quantity of heroin allowed the prosecution to infer that the appellants were heroin suppliers and dealers, thus prejudicing the jury.” The Court quoted from Miller v. State, Tex.Cr.App., 469 S.W.2d 180, 181:
“In a prosecution for possession of illegal drugs or narcotics, other illegal drugs or narcotics found at the same time and place are admissible, as they are part of the res gestae of the offense. Beeler v. State, Tex.Cr.App., 374 S.W.2d 237, cert. denied, 379 U.S. 847, 85 S.Ct. 88, 13 L.Ed.2d 51.”
The Court also wrote:
“The introduction of State’s Exhibit 14 was ‘harmful [to the appellants] in the sense that all evidence tending to show guilt is harmful.’ Smith v. State, 474 S.W.2d 486 (Tex.Cr.App.1971); Archer v. State, 474 S.W.2d 484 (Tex.Crim.App.1971).”
See Wright v. State, 168 Tex.Cr.R. 645, 330 S.W.2d 620, where the Court held that evidence that a companion of Wright possessed 4½ pints of liquor in a liquor case was admissible as res gestae.
In the present case the facts are interwoven and one transaction is shown just as it was shown in Alba’s case.
A case submitted to the trial court was Gonzales v. State, Tex.Cr.App., 410 S.W.2d 435. There, Gonzales complained of proof that narcotic addicts and users were seen entering and leaving his apartment because it showed or tended to show the sale of narcotics. This Court wrote and held:
“Even so, proof of the purpose for which the narcotics were possessed was admissible. The rule against admitting evidence of other crimes by the accused is inapplicable if such evidence logically tends to show his guilt of the crime charged, and is not too remote.”
It can readily be seen that the trial court had ample authority to admit the notebooks in evidence at the time he ruled. These authorities have not been distinguished.
Another case which holds that relevant circumstances may be introduced to show that marihuana was being possessed for the purpose of sale and therefore had probative value is Collier v. State, 167 Tex.Cr.R. 534, 321 S.W.2d 584. Collier entered a plea of guilty to the possession of marihuana. He complained that since he admitted the offense the State should not have been permitted to prove matters which constituted an extraneous offense that he was the seller of narcotics. This Court overruled this contention and cited Hemmeline v. State, 165 Tex.Cr.R. 583, 310 S.W.2d 97, which held that even though an accused pleads guilty, legal evidence is always admissible to enable the jury to know what punishment should be assessed within the sliding scale of penalty fixed by the statute to the offense charged.
The holding or dictum by the majority that, if there is strong circumstantial evidence that an accused possessed narcotics in addition to needle marks on his arm, the State should not be allowed to make further proof of the circumstances is not in line with previous decisions of this Court. These decisions have not been distinguished or overruled. When new rules are established, the older cases should be overruled.
Harmless Error
Nothing more should be necessary, but other circumstances of the case should be noted to see if the error as the majority holds was harmless. Let us look to the details before State’s Exhibits 16, 17 and 18, the questioned notebooks, were introduced.
*186During its direct examination of Deputy Webb, the State first sought to introduce these notebooks as res gestae of the offense. The trial judge, after conducting a hearing outside the presence of the jury, ruled them inadmissible. The State did not pursue the matter further. Then on cross-examination, the first question asked Deputy Webb by appellant’s counsel was:
“Q. (By Mr. Clinton) Deputy Webb, have all of these exhibits, beginning with the State’s Exhibit 9 what you have called a haversack, and the exhibits that were in the haversack, and then, as I say, the haversack and the duffel bag and the materials that were in the duffel bag, have all of those exhibits that have been presented up here, coming from the duffel bag, there is nothing in there at all to identify the defendant Faubian or the defendant Arnott in connection with those bags, is there ?
“THE WITNESS : A. May I say, too, this was in there.
“Q. Well, whatever the exhibits were that have been admitted here into evidence, there was not, was there ?
“A. Other than it was in their bedroom and, of course, there were some other items that were in there.
“Q. I’m asking you about what’s in evidence here as coming from his duffel bag that’s now in evidence ?
“A. No, sir. It was just in their room.”
Counsel was attempting to prove that appellant had no connection with the contents of the duffel bag.
At a later point in the cross-examination of Webb concerning the papers which had been found in the front room where Neal had been arrested, counsel for Arnott requested and obtained a hearing outside the presence of the jury. The following occurred :
“MR. CLINTON: Your Honor, when the State offered the Exhibit 21 series, we—
“THE COURT: Let me see those again.
“MR. CLINTON: Yes. I want to hand them up to the Court. We did not object because they were found, according to the witness’ testimony, in the front bedroom and we thought, bearing Mr. Neal’s name on at least three of them, that that was some indication with respect to Mr. Neal, and we considered it as an important part of the defense of Mr. Arnott that at least the matters in the front bedroom be shown, from our point of view. And for that reason we didn’t object. Now, that sort of sets the stage, I guess, for—
“MR. MINTON: (Counsel for Miss Faubian) Well, the problem, of course, that I hope Mr. Clinton is anticipating is that counsel for the State is immediately going to say, ‘You are not going to put in these books in the front room and try to try the man who is gone here today and tell me I can’t get these books in the back bedroom,’ and I would respectfully suggest to Mr. Burton and Mr. Clinton they think about it before they start withdrawing objections.
“MR. NELSON: (Assistant District Attorney) They want to have the cake and eat it too. That’s usual. Your Honor, what I was wanting to bring up was that now, whereas we abided the Court’s ruling, excluding all of these papers in the first instance on Direct, Mr. Clinton has pressed further and asks the witness Webb, and he, of course, heard your ruling, and obviously from his — he doesn’t know how to handle it because he knew you would exclude it in the papers, and Mr. Clinton asked the question, in substance, was that there was nothing in this bag that identified the defendant Arnott or Faubian, and now I believe *187he has opened the door, because there certainly is the name, Ron, mentioned in the papers that were found in the bag, and where as it was just zero at first, Mr. Clinton has now turned the Court’s ruling into something that has put us in bad shape, and I believe he has opened the door for the admission of those notebooks that were in the duffel bag.”
The record reflects that Mr. Clinton did object to the admission of the Exhibit 21 series when they were first offered. Immediately upon Mr. Burton’s objection in behalf of Miss Faubian to the admission of Exhibits 16, 17, 18 and the 21 series, Mr. Clinton said: “We direct our objections to the Exhibits 16, 17 and 18, and adopt the statements and objections made by counsel.”
Exhibit 21c of the 21 series (from Neal’s room), which was admitted, was a larger spiral notebook. Counsel indirectly, if not directly, withdrew his objection and in effect asked that it be admitted. It contained the name “Ron”, among others, as did the notebooks comprising State’s Exhibits Nos. 16, 17 and 18. Co-counsel Min-ton recognized the admissibility of the notebooks found in the duffel bag if the papers and notebooks found in the front bedroom were admitted.
The court then admitted the notebooks from the duffel bag in question on the theory that they were res gestae and on the theory of co-principals and for all purposes. Counsel had left the jury with the impression that there was no evidence in the duffel bag to connect either Faubian or Arnott with its contents, when in fact there was. The State may rebut such an inference with legally admissible evidence.
No abuse of discretion is shown by this record. A hearing was held outside the presence of the jury. The trial judge issued a ruling in favor of appellant. At the request of ■ appellant’s counsel a second hearing was conducted outside the presence of the jury. The trial judge then admitted the disputed notebooks as well as those to which defense counsel wished to make clear that he was not objecting or acquiescing in an objection to exclude the notebook and papers found in the front room where Neal was arrested.
Did the appellant invite or make harmless the admission of the notes from the duffel bag when he in effect requested the admission of the notes found in the front bedroom ?
The first page of that notebook reads, in part: “Ron $105, Gene $5, Rick $5, Mark $2, $4⅜ Missing 44 piH let with R©».” The second page shows transactions, according to Officer Webb’s testimony, in narcotics. At the top of the page an entry reads “Ron $105.” At the bottom of the page appears:
“Ron $30 for rug $75
$25 for speed
$30 paying the $30 dollar for Tom $105
$15 $40 for food
$10 $50 for G
$ 4⅜ dollar payment on 3 pills that were lost
$25 worth of pill $75
$ 15 for three pill 9/11/70
total $135
2 pills $10 9/11/70
2 pills $10 9/11/70
This adds up to $105, apparently paid to Ron.
It appears the notebook objected to contained the same type of evidence that was *188admitted at the wish of appellant. He cannot now complain. See 5 Tex.Jur.2d, Section 446, and the cases there cited.
This evidence introduced for appellant’s defense also connected the appellant and Neal with the narcotics and proved a conspiracy.
The cases cited in the original opinion all hold that evidence tending to connect an accused with the crime is admissible, even evidence of sales or evidence tending to show sales or evidence to show motive for which the items are possessed.
It appears that the new rule of the majority is that evidence tending to show sales cannot be admitted if there is a lot of the evidence which might show one to be a large dealer or wholesaler because it is too prejudicial.
For all of the above reasons and authorities, and too many more to mention, and the reasons in the opinion on original submission, the conviction should be affirmed.
MORRISON, J., joins in this dissent.