dissenting.
In an unpublished opinion the court of appeals affirmed the judgment of conviction for possession of marihuana over four ounces, based on a jury verdict that found appellant guilty, assessed punishment at seven years confinement and recommended probation. Juarez v. State (Tex.App.-El Paso No. 08-84-00277-CR, delivered May 1, 1985).
*784The offense was discovered after officers made a warrantless stop of the vehicle occupied by appellant and a companion. Though appellant challenged the stop for want of probable cause, because he thereafter signed a consent to search the Court of Appeals applied the following proposition:
“With the consent, the search was authorized even without a warrant, regardless of any impropriety in the initial stop. Lopez v. State, [663 S.W.2d 587 (Tex.App.-Houston [1st] 1983), PDR refused]; Myers v. State, 680 S.W.2d 825 (Tex.App.—Amarillo 1984, PDRR).” *
Without digressing now to analyze either Lopez or Myers, supra, I would point out that only recently this Court found just the contrary, viz:
“We need not reach that issue because the consent, valid or not, was the result of an illegal stop and thus fatally tainted by the illegality of the stop. United States v. Glass, [741 F.2d 83 (CA5 1984)]; United States v. Ballard, 573 F.2d 913, 916 (CA5 1978).”
Daniels v. State, 718 S.W.2d 702 (Tex.Cr.App.1986), cert. denied, Texas v. Daniels, 479 U.S. 885, 107 S.Ct. 277, 93 L.Ed.2d 252 (1986).
The expressed reason for decision of the El Paso Court is erroneous as a matter of law. As the majority recognizes, “The El Paso Court of Appeals concluded that the warrantless consent search was authorized regardless of any impropriety in the stop [.] ” At 783. And in saying the El Paso Court “reached the right result,” id., at 783, the majority also acknowledges that conclusion of law, the reason for decision of the El Paso Court, is incorrect.
As the Court has done in similar circumstances on countless occasions, and just recently in this precise situation, Brick v. State, 738 S.W.2d 676 (Tex.Cr.App.1987), we should vacate its judgment and remand the cause for reconsideration in light of Daniels v. State, supra, as explicated in Brick v. State, supra, n. 7 and accompanying text at 680-681.
But rather than remand the 'cause the majority opts to undertake the job of the court below, and along the way pauses to set up Daniels as a strawman to bash a “per se rule.” See at 780, n. 3.
That Daniels did not create any such per se rule is made clear in Brick v. State, supra, viz:
“... This holding should not be interpreted to mean that any consent obtained following an illegal detention or arrest will be deemed inadmissible per se.... Rather, we simply determined on the facts of Daniels that the defendant’s permission to search ... was fatally tainted irrespective of whether it was voluntary. Compare Florida v. Royer, [460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)].”
Id., at 680, n. 7.
The majority somehow divines that the Court overruled Daniels sub silentio in Miller v. State, 736 S.W.2d 643 (Tex.Cr.App.1987). However, there is no indication in Miller that the Court had Daniels on its mind, and nothing in the opinion suggests that Daniels was wrongly decided.
Indeed, in the instant majority opinion is a long excerpt from LaFave, patron saint of search and seizure law, At 776, in which at the end he points out:
“But, while it is thus true that a consent which fails the voluntariness test because of a prior illegality may just as convincingly be said to be a fruit of the prior illegality, the fruit of the poisonous tree doctrine also extends to invalidate consents which are voluntary.”
3 LaFave, Search and Seizure (2d Ed.1987) § 8.2(d), at 189-190 (emphasis by LaFave). In Miller v. State, supra, along with other authorities, the Court directed attention to the same § 8.2(d) in that treatise. Likewise, in Brick v. State, supra, we quoted from § 8.2(d) and discussed other decisions of the Court to conclude:
“... We now hold that before it can be determined that evidence derived from a warrantless but consensual search following an illegal arrest is admissible, it *785must be first found, by clear and convincing evidence, not only that the consent was voluntarily rendered, but also that due consideration of the additional factors listed above [by LaFave] militates in favor of the conclusion that the taint otherwise inherent in the illegality of the arrest has dissipated. The burden, of course, is on the State.”
Id., at 681.
Thus my primary disagreement with the majority concerns the proper reviewing role of this Court, and is essentially conceptual in nature. In my view this Court was granted jurisdiction, power and authority to determine to review, and to review, decisions of courts of appeals on matters of law that constitute the reasons given for decision. Article V, §§ 5 and 6; Articles 4.03, 4.04, § 2, 44.45(a), (b) and (c), V.A.C. C.P.; Tex.R.App.Pro, Rules 90(a), 200(a), (b) and (c), 202(a), (d)(4) and (5), and 223(a); see Degrate v. State, 712 S.W.2d 755 (Tex.Cr.App.1986). Once this Court decides, as here, that the reason for decision given by a court of appeals is erroneous as a matter of law, Constitution, statutes and rules all contemplate that the cause be returned to the court of appeals for it to exercise the unique power and authority retained by that court under Article Y, §§ 5 and 6 and other provisions cited above.
Accordingly, my dissent is to the refusal of a majority to remand the cause to the El Paso Court of Appeals for further proceedings not inconsistent with the applicable rale of law we have laid down.
All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.