dissenting.
This circumstantial evidence case was tainted with its trait of weakness from the moment Deputy Sheriffs Don Teague and Troy Adams independently and for different reasons surmised that the Earnhart brothers were culpable.
Teague said that the Earnharts became suspects when “they told me that no one else had been there;” for his part, Adams said they became suspects when it appeared, from the lack of blood in his pickup truck and all the blood inside the house that Elkins had not been hurt before he got to the house. Acting on their respective suspicions the deputies observed the body of the deceased — neither realizing that the deceased had been shot — engaged the brothers in conversation and made a limited inspection of the immediate area of the room where the body was found. It was the careful search the following day, along with detailed examination, of the premises which produced the forensic evidence and related testimony of the searching officers and expert witnesses. The facts and circumstances thus derived are summarized in the opinion in this case supplemented by the detailed statement in the case of brother James Earnhart.
From the testimony it seems that all conversation leading up to the Earnhart brothers being told they were under arrest occurred in the same room where the body of the deceased was found and examined. Whenever it appeared that the officers were going to take the brothers to jail and before either one had been given a Miranda warning,1 appellant expressed to Adams his desire to go to a back room and get a shirt; Adams accompanied him and as appellant picked up a shirt out of a “clothes box” Adams heard him say, “That’s got blood on it, I don’t want to wear that.2” Adams then asked, “Is that yours?” and appellant replied, “Yes” and, further saying he wanted a clean shirt, he obtained one.
Adams was responding to a question asking where else he had observed blood and when his response was given, appellant immediately objected “to all this testimony” stating, “The man was under arrest and has not received any warnings, and we would like the jury not to consider any of this testimony.” The trial court sustained that objection, instructed the jury not to consider the last answer “relative to what Mr. Earnhart said” and upon request of appellant instructed Adams just to answer the questions. The State obtained a bench conference after which the trial court excused the jury and asked the State to develop the “time factor” further. After some testimony and dialogue, during which the prosecutor represented, erroneously, as it turned out, that Teague had previously properly warned appellant, the State insisted that statements of appellant were spontaneous, res gestae of the arrest and not an oral confession; whereupon the trial court adjourned court to “take a look at this” and thereafter announced he would overrule the objection but let appellant clearly develop that at the time in question appellant “never had been warned of his rights.”
*451In his second ground of error, appellant complains, inter alia, of admission of his statements in the back or southwest bedroom, pointing to legislative concern reflected by Articles 15.17 and 38.22, V.A.C. C.P. and citing Lopez v. State, 384 S.W.2d 345 (Tex.Cr.App.1964). Conceding the point, still one problem confronting appellant and this Court is that in his final question to Adams on recross examination as to his questioning James Earnhart, appellant got a reply to the effect that Adams did not ask James anything, followed by a non-responsive reiteration that Adams “did ask John Ray if that was his shirt;” whereupon — without objection — the State asked Adams what was appellant’s reply to the last question and Adams quoted appellant as saying, “Yes, it was his.” Under the circumstances of earlier objections and the hearing and ruling of the trial court outside presence of the jury, Art. 40.09, § 6(d)(3), V.A.C.C.P., obviates renewing an objection in presence of the jury, Price v. State, 460 S.W.2d 420 (Tex.Cr.App.1970).
Admitting the statement of ownership of the shirt was error of constitutional dimension, Smith v. State, 507 S.W.2d 779 (Tex.Cr.App.1974). But the question remains whether error in admitting the statement was harmless beyond a reasonable doubt within the latitude afforded a reviewing court by Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) that is definitively analyzed in Bridger v. State, 503 S.W.2d 801, 804-805 (Tex.Cr.App.1974). Having thoroughly read the record and summarized its salient features elsewhere or by reference to the opinion in No. 57,138, I am persuaded that evidence of guilt of our appellant in this circumstantial case is only slightly above the level of insufficiency to convict his brother: his blood type on the rifle that was thought to be but, in view of expert testimony that all he could say about the fatal projectile was that it was .22 caliber, was not proved to be, the murder weapon; his seemingly but not necessarily inconsistent reports to peace officers as to arrival and cause of condition of deceased; his occupancy of the house in which a trail of blood spots suggest movement of Elkins from a chair in the living room to the bathroom and back to a bed in the living room — these factors, along with evidence of blood of deceased on the soiled shirt, appear to be highlights of what the prosecutor told the jury “is a difficult case and I am sure that your decision will be difficult.”
In these circumstances, I am not convinced that impact of evidence that appellant admitted ownership of the bloody shirt on the minds of the average jurors would be so slight as to be harmless beyond a reasonable doubt or that the verdict would have been the same had the tainted evidence not been admitted. To the contrary, there is more than a reasonable possibility that the evidence complained of contributed to the conviction; cf. Myre v. State, 545 S.W.2d 820, 827 (Tex.Cr.App.1977); Cunningham v. State, 500 S.W.2d 820, 824 (Tex.Cr.App.1973). See also Gonzales v. State, 581 S.W.2d 690 (Tex.Cr.App.1979). The majority would have it that because appellant picked up the green shirt and, upon observing its condition, cast it aside, his acts “clearly showed that the green shirt” was his. The majority perceives today what the deputy sheriff standing next to appellant that night plainly did not. Adams asking the question, “Is that yours?” belies the hindsight perception of the majority. I agree with Deputy Adams that, given the described condition of the house and its occupants that night, merely because appellant picked up a shirt out of a “clothes box” did not mean that it was his shirt. Just as Deputy Adams felt he had to ask the question in order to learn the fact of ownership, so we should deny him the fruits of the constitutionally impermissible inquiry.
For the violation of constitutional rights, I would reverse and remand.
. Adams admitted that he did not warn them but thought Teague may have; whereupon the prosecutor expressed a desire to call Teague to show a warning before appellant was moved from the “southeast” room; in his testimony Teague “couldn’t say” that either was warned in the house but that he had given the warnings when he “already had them in the car.”
. According to expert opinion, blood on the shirt was compatible with blood of deceased.