dissenting.
“Such is the irresistible nature of truth,” said Thomas Paine, “that all it asks, and all it wants, is the liberty of appearing.”1 That truth be given the “liberty of appearing” is essential to the administration of justice. Accordingly, because this Court follows a rule that excludes evidence bearing directly on the truth to be determined, *321and because that rule lacks a sound basis in policy or logic, I dissent.
In the instant case the automobile, with the license number and the vehicle identification number and its description, was reported stolen to the Midland Police Department. Officer Sellers saw a vehicle that matched the description of the stolen vehicle. Appellant was inside the automobile repairing a citizens band radio. Sellers further related:
“Well, I checked with the Defendant, and asked him what his name was. He identified hisself (sic). Also he showed me a traffic citation that was issued earlier in the day, for identification. Also I checked the vehicle identification number, and verified it with headquarters that this was the vehicle they were looking for.”
The vehicle was impounded at Permian Wrecker. The car was returned to Hueka-bay Chevrolet Company the same day that it was stolen.
The above testimony was admitted without objection. The majority, adhering to the rule that hearsay evidence has no probative value, disregards the officer’s testimony. As a result, the evidence is found insufficient to support the conviction.
The rule that hearsay evidence has no probative force and is, thus, no evidence whatsoever, is followed in Texas. 1 McCormick and Ray, Texas Law of Evidence, Section 31 (2nd Ed. 1956). All other American jurisdictions, with the exception of Georgia, accept the probative value of hearsay when it is admitted without objection. See An-not., 79 A.L.R.2d 890.
The basic fallacy of the Texas rule is the concept that because hearsay is inadmissible it is thereby “incompetent” and “totally lacking in probative force.” See Ex parte Martinez, 530 S.W.2d 578 (Tex.Cr.App.1975); Mendoza v. State, 522 S.W.2d 898 (Tex.Cr.App.1975); and 24 Tex.Jur.2d 51, Evidence, Section 557. One commentator has recently examined this fallacy and repudiated the rule.2
The rule is untenable; hearsay that is relevant has probative value. The commentator explains:
“The so-called hearsay dangers, which justify the exclusionary hearsay rule, are universally recognized to be the witness’ perception, memory, narration and sincerity. All of these revolve around the denial of the right of cross-examination, and the lack of opportunity to view the witness’ demeanor. No one has ever suggested lack of probative value as a hearsay danger. Perhaps the best argument in favor of the probative value of hearsay lies in the many exceptions to its exclusion. If hearsay were nonprobative there would not be so many courts and lawyers and commentators seeking excuses to admit it. There are no exceptions to the rule excluding irrelevant evidence which truly lacks probative value.”3 (footnotes omitted)
That hearsay evidence has probative force is reflected in many of this Court’s decisions. For example, hearsay evidence, not within any of the recognized exceptions to the hearsay rule, is proper proof of value in theft cases. Kirkland v. State, 489 S.W.2d 298 (Tex.Cr.App.1972); Gonzales v. State, 478 S.W.2d 522 (Tex.Cr.App.1972); Hermossilo v. State, 475 S.W.2d 252 (Tex.Cr.App.1971); Lucas v. State, 452 S.W.2d 468 (Tex.Cr.App.1970); DeLaO v. State, 373 S.W.2d 501 (Tex.Cr.App.1964), and Esparza v. State, 367 S.W.2d 861 (Tex.Cr.App.1963).
Further, admissible reputation evidence is in the nature of opinion based on hearsay. The reputation witness states his opinion based on that which he has heard from others concerning defendant. See Brown v. State, 477 S.W.2d 617 (Tex.Cr.App.1972), and Mitchell v. State, 524 S.W.2d 510 (Tex.Cr.App.1975).
In Ex parte Clark, 164 Tex.Cr.R. 385, 299 S.W.2d 128 (1957), petitioner was charged *322with felony theft and forgery. When those cases were called for trial, he pled guilty and waived his right to a jury trial. He also “ ‘waived the hearsay rule and the presence of witnesses to appear and testify against the defendant in each cause.’ ” To prove commission of the offenses charged, the State relied entirely upon hearsay evidence which consisted of ex parte affidavits by the prosecuting witnesses.
Petitioner subsequently instituted a habe-as corpus proceeding attacking the judgments and sentences. The thrust of his attack was that although the trial court did not err in admitting the statements, they were hearsay and, thus, had no probative force. This Court rejected that contention and held that the affidavits did constitute evidence of probative force since the right to confrontation and cross-examination had been waived.
In Clayton v. State, 172 Tex.Cr.R. 595, 361 S.W.2d 385 (1962), the conviction was for the offense of murder without malice under Article 802c of the former code. The offense occurred when defendant, who was intoxicated, crashed his automobile into the deceased’s truck. The conviction was largely due to the testimony of Mrs. Hamilton, a witness for the State. After she testified and the defense rested, defendant requested that the jury be instructed not to consider a portion of Mrs. Hamilton’s testimony if they found and believed it “ ‘was based upon what is commonly called hearsay, or what someone else told her.’ ”
On appeal, defendant challenged the trial court’s refusal to give the requested instruction. This Court, overruling his challenge, stated that:
“ . . .If appellant desired to have the witness’ statement which he regarded as hearsay withdrawn, he should have objected to its admission or moved the court to withdraw it at the time. James v. State, 169 Tex.Cr.R. 526, 335 S.W.2d 603. The court did not err in refusing the requested charge.”
1 McCormick and Ray, Texas Law of Evidence, supra, contains a discussion of the Texas rule. Therein it is stated that:
“As stated earlier a failure to make proper objection to evidence which is inadmissible because in violation of one of the exclusionary rules operates as a waiver of any complaint based upon the admission of the evidence. But it may have a more serious consequence. In most jurisdictions such evidence, if relevant to some issue, stands upon the same footing as admissible evidence, i.e., it may be relied upon to the extent of its probative value and may support a finding of fact or verdict. Texas cases, however, contain frequent statements to the effect that inadmissible evidence may never support a finding of fact or verdict even though it was received without objection.
“This broad statement is inaccurate. An analysis of the cases shows that as to secondary evidence of a writing and testimony of an incompetent witness, the courts are in line with the majority elsewhere, permitting the use of evidence in support of a finding or verdict. But inadmissible hearsay and opinion evidence, admitted without objection, may not be used for any purpose. This position seems to be based upon the assumption that such evidence is entirely without probate value. The assumption is unsound and the result has been effectively criticized.
“Evidence which is totally lacking in relevance is to be distinguished. The failure to object to it can add nothing to its probative value and it will not, of course, support a finding or verdict. . ” (Emphasis added) (footnotes omitted).
From the reasons set out, hearsay evidence does have probative value. The Texas rule blurs the distinction between inadmissible evidence and incompetent evidence.
Further, this rule reduces the administration of justice to a game. If hearsay evidence is objected to at the proper time, then the State may be able to offer other evidence in its place. But if the hearsay is admitted without objection, and is uncon-tradicted, then the State will often be precluded from introducing other, repetitious *323proof because of the various practical constraints under which it operates at trial. Thus, the rule allows the accused to lull the State into a false sense of security concerning the status of its proof and then on appeal to argue that the evidence is insufficient to support the verdict.
An accused occupies one of three possible positions with respect to hearsay evidence offered by the State: (1) he does not have sufficient information to know whether it is true or false; (2) he knows it is false; (3) he knows that it is true. In any case, if the accused occupies either of the first two positions he can be expected to object to the proffered hearsay. If he fails to object, the inference can be drawn that such failure results from two possible motives: (1) a tacit admission that the hearsay is true, in which event the court should give the evidence its full probative effect, or (2) he is playing a game for appellate purposes, which does not deserve court sanction.
There is no authority for the proposition that a more stringent hearsay rule must be applied in criminal than in civil eases. See the discussion contained in United States v. Williams, 447 F.2d 1285 (5th Cir. 1971), cert. denied, 405 U.S. 954, 92 S.Ct. 1168, 31 L.Ed.2d 231, rehearing denied, 405 U.S. 1048, 92 S.Ct. 1308, 31 L.Ed.2d 591. Application of the Texas rule deflects the truth-finding process and, hence, often frees the guilty. In the instant case, appellant, convicted of theft of property of the value of over $200.00, is reversed because the testimony of a witness, admitted without objection and uncontradicted, is “shorn” by the majority. When appellant failed to object to the testimony he either assented to its accuracy or played games with the court. The rule encourages the latter and, thus, should be abandoned.
. Paine, 354 (1945). 1. Foner, The Complete Writings of Thomas
. Black, Hearsay Admitted Without Objection — A Defense of Its Probative Value, 17 So.Tex.L.J., 69 (1975).
. Id. at pp. 71-72.