concurring and dissenting.
Because I disagree totally with the content of Section III of the majority opinion, I must vigorously register my dissent. I find Section III to be objectionable for three reasons which I will set out below.
First, Section III is totally unnecessary to the resolution of the instant case. In Section III, the majority needlessly addresses the propriety of the State’s claim of appellant’s lack of standing. Clearly the majority is attempting to write an advisory opinion.1 The merits of appellant’s petition can be disposed of without an inquiry as to standing. Thus all of the language in Section III of the majority opinion is pure dicta and totally advisory. This Court has said time and time again that we will not issue advisory opinions. Warren v. State, 652 S.W.2d 779 (Tex.Cr.App.1983).
Secondly, standing is an inherent part of any inquiry pertaining to the Fourth Amendment. The majority categorizes the issue of standing as separate and distinct *737from the issue of whether a defendant’s Fourth Amendment rights have been violated. In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court asked “whether it serves any useful analytical purpose to consider a matter of standing, distinct from the merits of a defendant’s Fourth Amendment claim.” The Court answered the inquiry in the negative, concluding that “the better analysis forthrightly focuses on the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.” The Court reiterated this holding in Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed. 2d 633 (1980). See also Wilson v. State, 692 S.W.2d 667 (Tex.Cr.App.1985) (Opinion on Rehearing). Since standing is “invariably intertwined” with the Fourth Amendment inquiry, the issue of standing does not have to be specifically “raised” by the prosecution. It is always part of the inquiry. Thus in an attempt to suppress evidence because of an alleged violation of his Fourth Amendment rights, the defendant bears the burden of proving not only that the search or seizure was illegal but also that he had a legitimate expectation of privacy in the area searched. Rawlings v. Kentucky, supra; Rakas v. Illinois, supra. This burden exists whether the government “raises” it or not. Wilson v. State, supra. Where, as in the instant case, the evidence clearly shows that the defendant was apprehended while driving a stolen vehicle, a lack of standing on the part of the defendant is affirmatively demonstrated. As a result, the defendant is automatically put on notice that standing is an issue in the case just as surely as if the prosecution had verbalized the issue. Sullivan v. State, 564 S.W.2d 698 (Tex.Cr.App.1978). Logically, then, the government is not barred from arguing the issue of standing for the first time on appeal. Combs v. United States, 408 U.S. 224, 92 S.Ct. 2284, 33 L.Ed.2d 308 (1972) (per curiam); Sullivan v. State, supra. We would be remiss in our duties as appellate judges to ignore the defendant’s failure to prove a legitimate expectation of privacy in such a situation simply because the issue of standing had not been “raised” by the Government in the trial court. To hold the search and seizure illegal when the record before this Court and the trial judge showed that the defendant had no standing to challenge the search would be totally absurd. Sullivan v. State, supra.
Certainly, the government is not allowed to advocate contradictory positions regarding the defendant’s standing during the various stages of a case. This was the situation in Steagald v. U.S., 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) cited by Judge Miller in his dissenting opinion in this case. Although Steagald is not on point with the instant case, it is helpful to review it in order to distinguish the case at bar. The sole issue before the Court in Steagald was whether the government, in its brief to the United States Supreme Court, could successfully argue that Steag-ald had no standing to contest the search of the house in which the contraband was found because he did not own it when it had been the government’s position from the time of trial to the time of its brief contesting the grant of certiorari that Steagald owned the house. The holding in Steagald, which is clearly inapplicable to the case at bar, is that the government forgoes its right to contest standing at the appellate level when at earlier levels it has espoused the view that the defendant does in fact have standing.
Clearly, this is not the situation in the instant case. The State has never argued an inconsistent position. In its brief on original appeal, the State noted that during the hearing on the motion to suppress, the trial court ruled that all testimony regarding statements made by the appellant following his arrest would be excluded. It was the State’s contention on original appeal that no other evidence seized as a result of the alleged illegal arrest was admitted into evidence at trial and thus even if the trial court was in error in overruling the motion to suppress, it was harmless. In its brief in response to the appellant’s petition for discretionary review, the State *738reurged the same argument and interposed for the first time, the question of standing:
“As a threshold matter, it appears that the Court of Appeals needlessly addressed the merits of the appellant’s motion to suppress. The appellant’s oral statements made at the time of his arrest were suppressed by the trial court, and his pretrial motions did not request suppression of any other particular evidence other than that ‘seized as a result of the arrest’ [emphasis supplied], i.e., the stolen backhoe itself. But the appellant had no standing to complain of the inspection or seizure of the stolen backhoe, and the State offered no other items seized pursuant to his arrest.” State’s Brief in Response to Appellant’s Petition for Discretionary Review, pp. 2-3.
Applying all of the above to the instant case, the evidence showed that appellant was driving a stolen tractor. It has been well-accepted by most jurisdictions, including Texas, that an occupant of a vehicle cannot be said to have standing by virtue of his presence if he is in possession of a stolen vehicle. Vidaurri v. State, 626 S.W.2d 749 (Tex.Cr.App.1981); United States v. Kucinich, 404 F.2d 262 (6th Cir.1968); State v. Harding, 137 Ariz. 278, 670 P.2d 383 (1983); People v. Pearson, 546 P.2d 1259 (Colo.1976); Sanborn v. State, 251 Ga. 169, 304 S.E.2d 377 (1983); State v. McKinney, 107 Idaho 180, 687 P.2d 570 (1984); People v. Henenberg, 55 Ind. 5, 302 N.E.2d 27 (1973); State v. Rivers, 420 So.2d 1128 (La.1982); State v. Hamm, 348 A.2d 268 (Me.1975); Graham v. State, 47 Md.App. 287, 421 A.2d 1385 (1980); Burns v. State, 438 So.2d 1347 (Miss.1983); State v. Damico, 513 S.W.2d 351 (Mo.1974); State v. McFarland, 195 Neb. 395, 238 N.W.2d 237 (1976); State v. Ellis, 88 N.M. 90, 537 P.2d 698 (1975); State v. White, 311 N.C. 238, 316 S.E.2d 42 (1984). Clearly, the affirmative evidence before us shows that appellant had no standing to contest the search and seizure of the tractor and the introduction into evidence of testimony regarding such at trial.
Finally, I believe the majority is in error when it asserts that different considerations apply when the issue of standing is raised for the first time on discretionary review. This Court is empowered to
“affirm the judgment of the court below, or may reverse and remand for a new trial, or may reverse and dismiss the case, or may reform and correct the judgment or may enter any other appropriate order, as the law and nature of the case may require.” Article 44.24, V.A.C.C.P. (emphasis added).
See also Article 44.25, V.A.C.C.P. This Court’s powers of discretionary review are not limited to the words imprinted on the paper which the Courts of Appeals hand down. Rather, it is this Court’s function to review the entire decision-making process as to each issue upon which we have granted discretionary review. This means we have the power and the responsibility to look behind the written words of the Courts of Appeal and review the rationale, the facts and the law underlying their decision.
In addition Tex.R.App.Proc. 90 provides that the Courts of Appeal must decide “every substantial issue raised and necessary to the disposition of the appeal.” In accordance with the above discussion regarding standing, Rule 90 must be interpreted to mean that the Courts of Appeal should consider and rule on the standing issue in every Fourth Amendment claim. Thereafter, this Court is empowered to review the decisions of the Court of Appeals both as to the law and facts underlying the decision. See also Tex.R.App.Proc. 200(c)(5) (this Court may grant discretionary review “where the justices of the court of appeals have disagreed upon a material question of law necessary to its decision”). As Judge Clinton wrote in Carter v. State, 656 S.W.2d 468 (Tex.Cr.App.1993):
“There is a fundamental proposition pertaining to appellate functions of the Judicial Department: A constitutional grant of appellate jurisdiction treats a right of appeal in criminal cases ‘as a remedy to revise the whole case upon the law and facts, as exhibited in the record,’ The Republic v. Smith, Dallam, 407 (Tex.), quoted approvingly by the Supreme Court of Texas in Bishop v. The *739State, 43 Tex. 390, 400 (1875).” 656 S.W.2d at 468.
Because the majority is attempting to curtail this Court’s powers of discretionary review and because the issue of standing was properly presented for our review, I must register my dissent to that portion of the opinion. Otherwise, I concur in the result.
ONION, P.J., and W.C. DAVIS, J., join this opinion. If it was essential to rule on the State’s contention regarding standing, why did the majority not write on another contention raised for the first time in the State’s response to appellant’s petition, that is, that the officers acted properly in seizing the backhoe under Article 18.16 V.A. C.C.P., which permits any citizen to prevent the consequences of theft by seizing stolen property. Although this contention was procedurally equivalent to the standing contention, the majority ignored it. Could it be that the majority is attempting to “plant seeds” on the issue of standing in hopes that this dicta will be misinterpreted by some as authoritative in the future? I think the answer is obvious.