(dissenting).
The following proposed opinion was prepared by Commissioner Quentin Keith. I fully agree therewith and would reverse the conviction for the reasons set out. Therefore, I adopt the opinion as my dissent to the affirmance of this cause.
“Appellant and one Earlean Taylor were jointly indicted with the felony offense of possession of heroin. The accusation against his co-defendant was severed and appellant was put to trial first. The jury found him guilty as charged and assessed his punishment at confinement for a period of two years.
“The sufficiency of the evidence is not challenged and appellant comes forward with a single ground contending that the search warrant was invalid because the affidavit upon which it was based ‘was insufficient to state probable cause for the issuance of the search warrant.’
“Officer Jackson of the Houston Police Department, armed with a search warrant and accompanied- by several other police officers, entered the apartment of Earlean Taylor in the City of Houston. No consent was given the officers to enter the apartment and they entered only after breaking the door open. Upon entry, the *588officers found three persons in the apartment: appellant, Miss Taylor, and another male. Miss Taylor had a cigarette case which she attempted to hide behind her back and the officers observed such maneuver. -Three small packets of a substance later identified as heroin were found in the case. She then told the officers where other heroin was secreted in the apartment and it was likewise seized.
“Appellant was then asked to produce some written identification; and, when he opened his billfold to comply with the request, Officer Jackson saw three packets therein which were similar in appearance to those just taken from the possession of Miss Taylor. The packets seen in appellant’s billfold were seized and appellant placed under arrest. It was shown upon the trial that the three packets found in appellant’s possession contained heroin. Appellant’s counsel made timely and appropriate objections to the receipt of this evidence; but, in each instance, the objection was overruled. Appellant did not testify.
“We quote the relevant portions of Officer Jackson’s affidavit supporting the issuance of the search warrant:
“ ‘On September 10, 1971, affiant talked to an informer who stated that Nikki Taylor lived at 2214 Cleburne Street, in apartment # 3, and that she had heroin in her possession for the purpose of sale and use. Informer further stated they were at this location inside the apartment when an unknown Negro male came to this apartment and asked Nikki Taylor for some heroin. Nikki Taylor then went into the back bedroom, returned after a short period of time with a small bundle of small wax paper packages containing a brown powder which she gave to the unknown Negro male, and the Negro male gave her an unknown amount of paper money. Nikki Taylor then told the unknown Negro male, “If you see anyone else who wants to buy some heroin, send them to me.” The informer also stated that before they left the apartment Nikki Taylor showed the informer several small wax paper packages containing brown powder which Nikki Taylor stated was heroin. Nikkie Taylor then placed these packages in her purse. Nikki Taylor also told the informant, “If you see anyone who wants to buy some heroin, bring them to me.” Affiant has received information concerning violations by certain individuals on several previous occasions from this informer and on each occasion the information has proven to be true.’
“Appellant now places primary reliance upon this Court’s opinions in Heredia v. State, 468 S.W.2d 833 (Tex.Cr.App.1971), and Nicol v. State, 470 S.W.2d 893 (Tex.Cr.App.1971).
“A specific date or time is given in only one place in Officer Jackson’s affidavit, he talked with the informer on September 10. There is no time indicated as to any other bit of information contained therein. For aught that appears, the events could have occurred on September 10, 1971, or at any other date anterior thereto. In order for an affidavit to show adequate probable cause, it must set forth facts which ‘must be so closely related to the time of the issuance of the warrant as to justify a finding of probable cause at the time.’ Heredia v. State, supra (468 S.W.2d at 835); Hall v. State, 171 Tex.Cr.R. 227, 347 S.W.2d 262. In our case, just as in Garza v. State, 120 Tex.Cr.R. 147, 48 S.W.2d 625, 627 (1932), quoted at length in Heredia, ‘Nothing in the statement conveys any definite idea as to when the incident he describes took place.’ Under the authorities cited in Heredia, the affidavit in this case was insufficient to warrant the issuance of the search warrant.
“The statement in the affidavit that Nikki Taylor showed the informer several small wax packages containing brown powder ‘which Nikki Taylor stated was heroin’ is hearsay. This facet of the case is ruled *589by Nicol v. State, supra, wherein the Court said:
“ ‘In the instant case, the language in the lower portion of the affidavit reflects hearsay on hearsay, the affiant having been told by the informant that appellant possessed what he (the informant) was told was marihuana. While the informant had seen appellant in possession of certain packages, which the informant had been told contained marihuana, the affidavit shows neither that the informant possessed personal knowledge of the contents of these packages nor that the informant’s source was reliable.’ (470 S.W.2d at 894).
“We have examined the only authority cited by the State, Christopher v. State, 489 S.W.2d 575, 577 (Tex.Cr.App.1973), and do not find it in point in the case at bar.
“The trial court fell into error in admitting the evidence seized under the invalid search warrant.”
I dissent.
ONION, P. J., joins in this dissent.