dissenting.
Notwithstanding the desire of some members of this Court to change the facts of this cause, the facts are not, and have never been in dispute.
The facts of this cause reflect that the police obtained a search warrant, which was later found to be invalid as a matter of both State and Federal law, to search Sammy Joe Adkins’, henceforth appellant, motor vehicle. It did not contain a provision to also arrest appellant. A copy of the affidavit and the search warrant are attached to this opinion as “Appendix A”. Thereafter, acting pursuant to the warrant, police officers stopped appellant’s vehicle while appellant was driving same. The police officers then, pursuant to the warrant, conducted a search of the vehicle, which resulted in them finding certain unlawful contraband, for which appellant was arrested, charged, tried, and convicted for possessing.
On direct appeal, in a well written and reasoned opinion by Justice Osborn, the El Paso Court of Appeals, see Adkins v. State, 675 S.W.2d 604 (Tex.App.— 8th, original opinion dated August 1, 1984, State’s motion for rehearing denied on September 5, 1984 with opinion), after first finding that appellant was subjected to and received a punishment greater than that authorized by the provisions of the Controlled Substances Act, which punishment was assessed pursuant to an amendment to the Act which was declared unconstitutional by this Court, see Ex parte Crisp, 661 S.W.2d 944 (Tex.Cr.App.1983), “This alone would necessitate a reversal and remand for new trial” (675 S.W.2d at 606), Cf. Art. 44.29, Y.A.C.C.P., as amended, and then finding as a matter of both State and Federal law that the affidavit for the search warrant was invalid, thus rendering the search warrant nullius juris, and further finding that under State law the affidavit could not be supplemented because of this Court’s “four *788corner’s rule”, reversed appellant’s conviction and sentence.
The court of appeals also found that because there was no showing of exigent circumstances that would have prevented the police officers from securing a valid search warrant, reliance upon exigent circumstances by the State’s non-elected representatives was misplaced, so said the court of appeals.
Almost needless to say, the State’s non-elected representatives were not pleased with what the court of appeals had said and done regarding the search and seizure issue, apparently not because of what the court of appeals had actually stated and held, but because they concluded that they could not reprosecute appellant: “The State will not be able to re-try Appellant ... due to the death of a key police officer [whose death had nothing to do with this cause]”, so argued the non-elected representatives of the State in their petition for discretionary review. See State’s Petition for Discretionary Review, at page 6.
The State’s petition for discretionary was granted the first time in this cause so that this Court could review the decision of the court of appeals that concerned the validity of the search and seizure of appellant’s vehicle, after which a majority of this Court erroneously reversed the well reasoned and well written decision of the court of appeals, see Adkins v. State, 717 S.W.2d 363 (Tex.Cr.App.1986), and remanded the cause to the court of appeals for that court solely and only “to determine whether there were exigent circumstances.’’ (366). (My emphasis.)
In reversing the search and seizure decision of the court of appeals, this Court’s majority opinion appears to have ignored the fact that the court of appeals decided the search and seizure issue on both State and Federal law grounds.
The first majority opinion of this Court appears to have held that if an affidavit for a search warrant is found to be deficient, thus rendering the search warrant invalid, one should close his eyes to the obtaining of the search warrant and then consider the matter as though there never was a search warrant. In its first opinion, the court of appeals had rejected such thinking, “We cannot, with straight faces, find the warrant invalid and then find that the officers were confronted with exigent circumstances depriving them of an opportunity to secure a warrant.” (675 S.W.2d at 608). As seen, however, a majority of this Court can easily do this with straight faces.
By what it stated in its opinion on remand, see Adkins v. State, 726 S.W.2d 250 (Tex.App.— 8th 1987), the court of appeals makes it clear to me that it was terribly displeased at what this Court had done. The court of appeals, nevertheless, did its duty, but in doing its duty, unfortunately, exceeded this Court’s order of remand. See supra.
The court of appeals states the following in its opinion on remand: “We are then posed the question by the Court of Criminal Appeals of whether or not the facts of this case, in which the officers were able to secure and execute a warrant, present ‘exigent circumstances’ defined by the United States Supreme Court as a situation in which ‘it is not practicable to secure a warrant.’ (Citations omitted.)” (251). Thereafter, the court of appeals discussed and rejected, for reasons stated in its opinion, each of the cases cited, which this Court had also cited in its opinion, apparently to give the court of appeals some sort of guidance in resolving the issue, whether exigent circumstances existed.
After easily distinguishing the facts of the cases cited by this Court from the facts of this cause, the court of appeals stated the following: “Having made these observations, we now find, not as a per se rule but on the facts of this given case, that the record does not disclose exigent circumstances that made the securing of a warrant impracticable.” In other words, the court of appeals “closed” its eyes to the affidavit for the search warrant and the search warrant, and then looked to see if there were sufficient facts that might have warranted the police obtaining another search warrant. At this point, the court of appeals had carried out this Court’s order of remand, and probably should have quit *789writing. Being an extremely conscientious court of appeals, however, it unfortunately went forward.
The court of appeals thereafter, apparently ignoring the facts contained in the affidavit for the search warrant, and using the law of this State governing warrantless arrests, see Chapter 14 of the Code of Criminal Procedure, decided to engage in some strained and specious reasoning to uphold the search in this cause.
The court of appeals found that Officers Renfro and Bailey had “probable cause” to arrest appellant because appellant had committed in the officers presence either a felony offense or an offense against the public peace, thus justifying a warrantless arrest. The court of appeals, however, never expressly stated what felony or misdemeanor criminal offense appellant had actually committed in the officers’ presence, and if one ignores the facts set out in the search warrant affidavit, and any of the supplementation facts to the affidavit, clearly no criminal offense was shown to have been committed in the officers’ presence. The court of appeals stated the following: “We have concluded that Bailey’s [the officer who kept the scene under surveillance while his cohort, Officer Renfro, went to get a search warrant so that they could search appellant’s motor vehicle pursuant to lawful authority] corroborative evidence and the total information available to Renfro (although not all included in the affidavit [for the] search warrant) provided probable cause at the time of seizure. Thus, the warrantless stop and arrest of the Appellant was justified without strained resort to the exigent circumstances doctrine. The seizure of the money, drugs and weapons from the passenger compartment was therefore within the permissible scope of a search incident to the initial seizure.” (253).
Thereafter, a majority of this Court, apparently because it could not accept the reasoning of the court of appeals, or perhaps because it was fearful that other courts of appeals might adopt and apply the same reasoning to other cases, granted appellant’s petition for discretionary review.
Of course, appellant complained in his first “ground for review” in his petition for discretionary review that the court of appeals exceeded this Court’s order of remand, and then complained about the court of appeals’ finding that a crime had been committed in the officers’ presence, a necessary requirement before Art. 14.01, V.A. C.C.P., can be invoked and applied to a warrantless arrest or search case.
As to appellant’s first complaint, the majority opinion in this cause, citing a direct appeal death penalty case, Morin v. State, 682 S.W.2d 265 (Tex.Cr.App.1983), rules that appellant’s “ground for review is multifarious and presents nothing for review.” (Page 785 of maj. opinion.) My research to date has yet to reveal where this Court has applied the “rule or doctrine of multifariousness” to a petition for discretionary review case. This is understandable because this Court could have made that determination before it decided to grant appellant’s petition for discretionary review. I do not find where appellant has ever changed the wording of his “second ground for review” since the day he filed his petition for discretionary review. Of course, if there is nothing before this Court to review, because appellant’s petition for discretionary review is guilty of multifariousness, that ends the matter, doesn’t it? But the majority opinion, (in the interest of justice?), next states: “Due to the posture of this case, however, we will turn our attention to the question of whether a crime was committed within the presence of a peace officer so as to justify the war-rantless seizure and search in this cause.” (Page 785 of maj. opinion.)
As previously pointed out, the court of appeals made the determination which this Court asked it to make, finding that “the record does not disclose exigent circumstances that made the securing of a warrant impracticable.” (726 S.W.2d at 252). By this Court’s order of remand, appellant is clearly correct in what he asserts. See Garrett v. State, 749 S.W.2d 784, 795 (Tex.Cr.App.1986) (Teague, J., dissenting opin*790ion). However, obviously liking what the court of appeals thereafter did, even though that court exceeded this Court’s order of remand, the majority opinion approves what the court of appeals did on remand by stating the following: “[U]pon remand from this Court, the exercise of the reviewing function of an intermediate appellate court is limited only by its own discretion or a valid restrictive statute. Carter v. State, 656 S.W.2d 468 (Tex.Cr.App.1983).” (Page 784 of maj. opinion.) (My emphasis.)
Carter, supra, however, is no authority for the underscored. Besides, the author of the majority opinion, in stating what he states, has not only failed to give Judge Clinton, the author of the Carter, supra, opinion, credit for the statement, he has also failed to quote all of what Judge Clinton stated, i.e., he leaves out the first part of the quote, namely: “Once jurisdiction of an appellate court is invoked ...” (Carter, at 469). (Emphasis supplied.) Thus, the rule announced in Carter, supra, is only applicable to direct appeal cases and not petition for discretionary review cases.
The author of the majority opinion, however, does later cite and quote from this Court’s majority opinion of Garrett v. State, supra, on original submission, in which a majority of this court erroneously held that notwithstanding when this Court remands a cause to a court of appeals for a specific purpose, that court is free to disregard this Court’s remand order, withdraw its original opinion or opinions on rehearing, entertain new points of error, and do whatever it could have done when the cause was first submitted to it on direct appeal, i.e., if a cause is remanded to the court of appeals by this Court, that court is free to ignore this Court’s order of remand and do whatever it thinks justice demands should be done in the cause, and to achieve that result may start from scratch, as though this Court had never issued any order in the case. Also see this Court’s majority opinion of King v. State, 687 S.W. 2d 762 (Tex.Cr.App.1985), in which a majority of this Court held that even when this Court dismisses a direct appeal cause for want of jurisdiction, it is permissible for the defendant to ignore the provisions of Art. 11.07, V.A.C.C.P., and directly petition a court of appeals to grant him leave to file an out-of-time appeal, and it is not erroneous for that court to grant him an out-of-time appeal, notwithstanding the provisions of Art. 11.07, supra.
This Court should overrule Garrett, supra, and hold that when this Court remands a cause to a court of appeals, for that court to carry out a specific duty, it may not exceed the specific terms of the order of remand. The majority of this Court, unfortunately, fails to accept my invitation.
Therefore, it is necessary to consider and discuss the search and seizure issue, sans the facts set out in the affidavit, i.e., whether the court of appeals erred by finding that exigent circumstances did not exist. Interestingly, that decision has already been made by this Court. The State’s non-elected representatives also filed a petition for discretionary review, arguing that “The court of appeals erred by finding that exigent circumstances [outside of the affidavit for the search warrant] did not exist.” This petition was refused by this Court on December 2, 1987, on the same day that this Court granted appellant’s petition for discretionary review. Isn’t the bench and bar owed some explanation about this?
Appellant, in his petition for discretionary review, correctly points out the following: “The trial record is devoid of any crime being committed in Officer Bailey’s presence.” (Page 8, appellant’s petition for discretionary review.)
This Court’s majority opinion, in sustaining the arrest on the basis of Art. 14.01(b), supra, “A peace officer may arrest an offender without a warrant for an offense committed in his presence or within his view”, first acknowledges that by Legislative edict a peace officer in Texas may not make a warrantless arrest of an individual unless he has probable cause to arrest and an exception in Chapter 14 to a warrantless arrest is shown to exist. Thus, a peace officer in Texas, though he might have a ton of probable cause to arrest an individu*791al, may not arrest that individual without a warrant unless he also shows that some, exception found in Chapter 14 that authorizes a warrantless arrest exists.
As previously pointed out, this Court refused the State’s non-elected representatives’ cross-petition for discretionary review, in which they asserted that “The court of appeals erred by finding that exigent circumstances did not exist.”
Notwithstanding what it just stated, the majority opinion advises us that “However, Art. 14.01 arrests have previously been sanctioned when an individual’s conduct, while not overtly criminal by itself, is coupled with an officer’s prior knowledge so that the otherwise innocuous conduct reflects that an offense is then occurring. See Lunde [v. State, 736 S.W.2d 665 (Tex.Cr.App.1987)]; Miller v. State, 458 S.W.2d 680 (Tex.Cr.App.1970).” (Page 785 of maj. opinion.) Does this mean that what I cannot see, I really can see?
Miller, supra, and like cases, see Slaughter v. State, 314 S.W.2d 92 (Tex.Cr.App.1958), and Bridges v. State, 316 S.W.2d 757 (Tex.Cr.App.1958), represent the infamous “dropsy cases”, in which after or during when a peace officer was executing a search warrant, the defendant appeared on the scene and then “dropped” to the ground or tried to swallow what later turned out to be narcotics, and the police officer retrieved the object, and the defendant claimed on appeal that there was an unlawful seizure or the defendant merely claimed on appeal that the officer did not have “probable cause” to arrest him, not arguing that in addition to establishing probable cause to arrest, it was also necessary that the officer establish one of the Chapter 14 exceptions to make a warrant-less arrest.
Lunde, however, is not very substantial authority for the majority opinion’s holding, especially given the fact that only three judges of this Court joined the majority opinion, with five judges of the Court only concurring in the result reached. I was one of those who concurred. From the facts that were presented, it was obvious to me then, and is still obvious to me, that the facts of that cause implicated a Terry stop” and that the illegal contraband was discovered during the “Terry stop”. Thus, given the facts of Lunde, supra, it is a far cry from being authority to support an Art. 14.01, supra, finding in this cause.
The majority opinion advises us to “see also Delgado v. State, 718 S.W.2d 718 (Tex.Cr.App.1986); Whaley v. State, [686 S.W. 2d 950 (Tex.Cr.App.1985) ]", in addition to Miller, supra, and Bridges, supra, which I have done, and find them not to be authoritative to support an Art. 14.01, supra, finding in this cause.
For the reasons expressed in Judge Clinton’s dissenting opinion that he filed in Delgado, supra, Delgado is clearly another aberration in our law that governs warrant-less arrests.
If Whaley, was decided pursuant to federal law, it may have been correctly decided, because, to make a warrantless arrest under federal law, all that is necessary is to establish probable cause for the arrest, and no exception to a warrantless arrest need be shown. That, however, is not true under our Texas statutory law.
The issue in this cause is governed by State law, not federal law, and the issue thus is not whether the State might have established “probable cause to make an arrest”; the issue is whether as a matter of state law, ignoring the facts set out in the affidavit for the search warrant, the State presented sufficient facts to show not only that “probable cause” for appellant’s arrest existed but also showed that sufficient facts existed that would satisfy a Chapter 14 exception. The facts of this cause clearly do not establish the latter, although it might support the former. If the facts do not establish the latter, it is unnecessary to discuss the former.
Because I find that Judge Clinton has so clearly and succinctly set forth the State law on the subject, I must quote most of the dissenting opinion that he filed in Delgado, supra, if for no other reason than the following words, hopefully, might accomplish today what they did not accomplish on September 24, 1986, almost two years ago:
*792The majority concludes that a warrant-less arrest authorized by Art. 14.01(b), V.A.C.C.P., may be justified by ‘probable cause.’ However, by its terms, Article 14.01(b), allows an officer to arrest ‘an offender’ and requires that the offense be ‘committed in his presence or within his view.’ (emphasis supplied) (emphasis in original.)
‘That language clearly implies that all the elements necessary to be proved to sustain a conviction of the accused must exist to give a police authority the authority to arrest him without a warrant.’ Heath v. Boyd, 141 Tex. 569, 175 S.W.2d 214, 216 (1943). ‘[A] peace officer has no authority to make an arrest without a warrant except when the offense is committed in his presence or within his view_,’ King v. State, 132 Tex.Cr.R. 200, 103 S.W.2d 754 (1937). Compare Steverson v. State, 109 Tex.Cr.R. 11, 2 S.W.2d 453, 454-455 (1928), with January v. State, 117 Tex.Cr.R. 223, 34 S.W.2d 1097 (1930)* (Asterisk deleted.)
Therefore, to make a valid warrantless arrest under Article 14.01(b), a peace officer needs more than probable cause. The offender must actually commit an offense in his presence or view.
Is the majority opinion, however, not just another example of what happens when an aggressive and assertive majority of this Court does not agree with what the Legislature of this State has enacted, and thus rewrites the involved legislation to suit their personal preference view points? For an example of this, see Eisenhauer v. State, 754 S.W.2d 159 (Tex.Cr.App.1988).
In the dissenting opinion that he filed in Jackson v. State, 718 S.W.2d 724, 728 (Tex.Cr.App.1986), Judge McCormick stated the following: “The majority today puts on its legislative caps and overrules precedent and in contravention of specific legislative intent.” Also see the dissenting opinion that Judge McCormick filed in Long v. State, 742 S.W.2d 302, 331 (Tex.Cr.App.1987), in which he stated the following: “This Court has the obligation not to act as a super-legislature, substituting our opinion for that of the second branch of government.”
In this instance, both what Judge Clinton stated, see ante, and what Judge McCormick stated, see ante, are truly applicable to this cause.
For the foregoing reasons, I respectfully dissent to the aggressive and assertive “super-legislature” of this State re-writing Art. 14.01(b), supra, to now read “A peace officer may arrest an individual without a warrant if he observes conduct, which is not overtly criminal by itself, provided that the peace officer has an articulate hunch that the individual is committing or about to commit a crime.”
Ben Sargent, do you by chance read this Court’s opinions? If not, I believe you should, because I believe that majority opinions like this one can give you new ideas on drawing cartoons.
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