concurring in part and dissenting in part.
The conviction here is for aggravated rape of a child under the age of 14 years which was shown to have occurred on January 22, 1982. The jury assessed punishment at life imprisonment and a fine of $10,000.00.
On appeal appellant raised eleven points of error. The Dallas Court of Appeals found the evidence sufficient to sustain the conviction, but in considering the two points that the trial court erred in overruling. appellant’s motion to suppress evi*297dence, the court found the trial court erred in admitting photographs seized under the authority of an invalid search v/arrant. The Court of Appeals found the error harmless as to the guilt stage of the trial, but as to the “punishment phase” the court could not conclude the error was harmless beyond a reasonable doubt. The cause was reversed and remanded. Tallant v. State (Tex.App. — Dallas 1984 — No. 05-82-00794-CR) (unpublished opinion). We granted the State’s petition for discretionary review to determine the correctness of the holding of the Court of Appeals.
The Court of Appeals briefly summarized the facts as follows:
“The evidence given during the guilt/innocence phase of the trial showed that the complainant was a twelve-year-old female child. About four years before the date of the alleged offense the complainant’s natural mother and father had divorced. The mother and appellant had married and the complainant lived with them until immediately following the alleged offense on January 22, 1982, when the offense was reported to her natural father and law enforcement authorities. It appears that two days before January 22, 1982, the appellant, the complainant’s mother and the complainant journeyed to Mexico where the defense maintained that the appellant and the complainant’s mother were divorced and the appellant and the complainant were then married. The complainant testified in essence that she did not voluntarily marry the appellant but that while in Mexico she was taken up some stairs into a room where ‘they’ made her sign a paper and then the three returned to Dallas. After returning to Dallas on January 22, 1982, the appellant made the complainant take her clothes off and then had sexual intercourse with her. She testified that she had never been the wife of the appellant. The complainant also testified that in the year and a half before January 22, 1982, the appellant had had sexual intercourse with her about one hundred times and had taken nude photographs of her.
“During the punishment phase of the trial the appellant testified that he had indeed had sexual intercourse with the complainant on January 22, 1982, in order to consummate the marriage that he maintained took place in Mexico. He denied having intercourse with her before the alleged marriage. He admitted taking the photographs seized under the search warrant. He appears to claim that the pictures had been taken because he was in fear of the Mafia or ‘mob.’ He further admitted having the complainant commit oral sodomy on him and then photographing the complainant in that position on several occasions.”
The record shows that prior to trial the appellant filed a motion to suppress all evidence seized as a result of a search on January 23, 1982, including the photographs in question. Appellant alleged in the motion he would “show the Court that there was no showing of probable cause in the Affidavit as required by Texas Code of Criminal Procedure Article 18.02.” At the hearing on the motion to suppress the affidavit and search warrant as well as an affidavit and arrest warrant were introduced. No other evidence was offered. Appellant argued to the trial court that the statutes (Articles 18.01 and 18.02, V.A.C. C.P.) list the various reasons why a search warrant may issue, and that property in the form of “nude photographs of M_ M_, a white female twelve years of age” possessed at the suspect’s premises as set forth in the search warrant affidavit did not show a violation of the law. The prosecutor countered with the argument the affidavit for search warrant, read as a whole, was valid under Article 18.02(6), V.A.C.C.P., as “obscene materials,” and further that the issuance of the search warrant was valid under Article 18.021, V.A.C.C.P. (Issuance of search warrant to photograph injured child). The appellant’s counsel rebutted the State’s argument by contending that Article 18.021 did not apply to photographs in existence and applied only to photographs to be taken to document injury to a child, and that “nude photographs” as such were not obscene and that Article 18.02(8), V.A.C.C.P., did *298not apply because the photographs were not “property the possession of which is prohibited by law.” No other argument was advanced. At the conclusion of argument the trial court overruled the motion to suppress.
At the guilt stage of the trial, after the complaining witness testified that appellant had intercourse with her approximately 100 times, and that he had taken nude photographs of her after makeup had been applied, Dr. Ali Toofanian related he had examined her on January 23, 1982, and found dead sperm in her vagina, and concluded sexual intercourse had probably occurred more than twelve hours before his examination. The doctor concluded from an examination that M_M_had had multiple sexual intercourse.
Dallas Police Officer Grady C. Ford testified that on January 23, 1982, he executed the search warrant in question at the apartment where appellant lived with M_ M_’s mother and found 1,036 nude photographs of M_M_When the photographs (State’s Exhibit No. 1) were offered into evidence, appellant objected as follows: “We would have the same objection made previously regarding the search, Your Honor.” The objection was overruled and the photographs were admitted at the guilt stage of the trial.
At the penalty stage of the trial the State offered no evidence and the appellant was the only witness called by the defense. Appellant, a hairdresser, testified when he lived in Shreveport, Louisiana, he had been threatened, a shotgun pointed at him and kicked in the ribs by a man connected with the “Mafia” or “Mob” who wanted pictures of M_M_dealing with sex. He related he reported the matter to the “government” in Louisiana and talked to a lawyer in Dallas when he returned there.
On cross-examination he admitted he had taken nude and obscene photographs of M_ M_, and that he had taken a thousand more than those found and given them to the man from the “Mafia.” He admitted that he had her put her mouth on his penis and photograph that, but denied sexual intercourse with M_M_ex-cept on the date alleged in the indictment after the Mexican marriage; that he did that only on the advice of the “judge in Mexico” and a Dallas lawyer in order to consummate the marriage and end the custody dispute with her natural father.
Still further on cross-examination he denied that M_M_cried or asked him not to take photographs of her in the nude. He related she at times enjoyed “this” and loved to show off and “didn’t mind” the photographic sessions.
Appellant’s second point of error upon which the reversal by the Court of Appeals was apparently based was, as earlier noted, that “the trial court erred in overruling the motion to suppress.” Under such point appellant argued in his appellate brief that the search warrant could be sustained only under Article 18.02(10), Y.A.C.C.P., as an evidentiary search warrant and it was not valid on this basis because it was issued by a “magistrate” and not by “a judge of a statutory county court, district court, the Court of Criminal Appeals, or the Supreme Court” as required by Article 18.01(c), V.A. C.C.P. He argued that the evidentiary search warrant was “cloaked in the disguise of a standard (paragraph 1 through 9) search warrant and does not meet the requirements of an evidentiary search warrant” issued under Subsection 10 of Article 18.02. It is observed that this argument was raised for the first time on appeal. It was not alleged in the motion to suppress and never presented to the trial court at the suppression hearing nor presented as an objection at the trial on the merits. Of course, he cannot prevail under such point of error since the complaint or objection now urged on appeal was not the same as presented to the trial court. See Lejeune v. State, 538 S.W.2d 775 (Tex.Cr.App.1076); Bouchillon v. State, 540 S.W.2d 319 (Tex.Cr.App.1976); Simpkins v. State, 590 S.W.2d 129 (Tex.Cr.App.1979); Nelson v. State, 607 S.W.2d 554, 555 (Tex.Cr.App.1980); Vanderbilt v. State, 629 S.W.2d 709 (Tex.Cr.App.1981); Hodge v. State, 631 S.W.2d 754 (Tex.Cr.App.1982); Cravens v. State, *299687 S.W.2d 748 (Tex.Cr.App.1985).1 Clearly the trial court did not err in overruling the motion to suppress as it was presented to the court.
However, an examination of the search warrant shows that it was issued by “Tom Boardman, Magistrate, Dallas County, Texas.” No other title or designation is reflected.
Article 18.02, supra, provides:
“A search warrant may be issued to search for and seize:
“(i) * ⅜ *
“(10) property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense; or **(11) ⅜ * *”
Article 18.01(c), provides:
“(c) A search warrant may not be issued pursuant to Subdivision (10) of Article 18.02 of this code unless the sworn affidavit required by Subsection (b) of this article sets forth sufficient facts to establish probable cause: (1) that a specific offense has been committed, (2) that the specifically described property or items that are to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense, and (3) that the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched. Only a judge of a statutory county court, district court, the Court of Criminal Appeals, or the Supreme Court may issue warrants pursuant to Subdivision (10), Article 18.02 of this code.”
On appeal the State in its brief did not agree that the trial court erred in overruling the motion to suppress, but did agree that the search warrant was in fact an evidentiary search warrant, see Article 18.-02(10), supra, and that the warrant had been issued by a magistrate rather than by one of the judges designated by statute as authorized to issue such an evidentiary search warrant, and that the “appellant’s premise may be correct.” The Court of Appeals also concluded that the warrant was an evidentiary search warrant not issued by the proper authority, see Article 18.01(c), supra, and held that since the warrant was invalid and the photographs were seized under such warrant that they were erroneously admitted.
There can be no question but what the warrant was an evidentiary search warrant and because of the defect discussed its issuance was void ab initio. Since there was fundamental error, no objection at trial was necessary to preserve error for review. It was on this basis that the Court of Appeals reversed the conviction though the language of the opinion may not have made that clear. The Court of Appeals did not hold that the trial court erred in failing to grant the motion to suppress but only used the argument advanced under the point of error claiming such error as the basis for reversal. The Court of Appeals in effect found the photographs were not properly admitted because the search warrant was void ab initio.
The Court of Appeals then determined beyond a reasonable doubt that the erroneously admitted photographs did not contribute to the conviction obtained at the guilt stage of the trial in light of the testimony of the complaining witness and the doctor. However, the Court of Appeals could not conclude that the error committed at the guilt stage of the trial was harmless beyond a reasonable doubt as to punishment *300in light of the severity of the punishment assessed.
It is true that the complaining witness at the guilt stage of the trial and the appellant at the penalty stage of the trial testified to the taking of the photographs. And the State argues that where proper evidence concerning facts is admitted at trial, the introduction of improper evidence will not cause the cause to be reversed. Lovell v. State, 525 S.W.2d 511, 515-516 (Tex.Cr.App.1975), and cases there cited. See also Collins v. State, 602 S.W.2d 537, 538-539 (Tex.Cr.App.1980). Nevertheless, after considering the testimony with the nature of the 1,036 photographs and the State’s jury argument regarding such photographs, I, like the Court of Appeals, cannot say that the error was harmless beyond a reasonable doubt as to punishment. Therefore, I concur in the result reached by the majority.
I am deeply distressed, however, by the approach taken by the majority in this and other recent cases in adopting a warped policy of discretionary review that unduly and unlawfully restricts the authority of this Court of last resort in reviewing decisions by the Court of Appeals. This policy was never constitutionally intended. I heartily endorse the remarks of Judge McCormick made on this subject in his dissenting opinion.
. In Nelson v. State, supra, this Court applied such rule noting that neither the motion to suppress nor the trial court objection invoked the laws of this state, but sought only protection by federal constitutional law. Nothing was presented for review when the invocation of state law was raised for the first time on appeal. In Martinez v. State, 504 S.W.2d 897 (Tex.Cr.App.1974), where the defendant did not raise at the trial the alleged invalidity of the search on the basis of inconsistency between the address of the premises as stated in the affidavit and the address as stated in the search warrant, it was held the question was not preserved for review when raised for the first time on appeal. See also Reynolds v. State, 506 S.W.2d 864 (Tex.Cr.App.1974).