(dissenting).
I agree with the majority’s disposition of ground of error # 1 but I cannot agree with the remainder of the opinion.
In his second ground of error the appellant complains that there was no affidavit or complaint filed for the issuance of the search warrant on December 8, 1968, which was utilized for the search on December 10, 1968.
The majority summarily disposes of such alleged error by partially quoting from the search warrant dated December 8 and introduced before the court by the appellant1 *767and ignores the rest of the record, particularly the testimony of Officer Cordus Jackson, Jr.
The record reflects that an affidavit for a search warrant was presented to the Justice of the Peace on December 5, 1968, and a search warrant based thereon was issued on the same day. Also on the same date the warrant was returned to the magistrate unexecuted and was marked “unserved” and signed by the officer-affiant Jackson. At the trial the officer-affiant testified he returned the warrant unexecuted after surveillance of the premises. On December 8, 1968, the same officer-affiant appeared before the magistrate and requested that another search warrant be issued. He admitted that no new affidavit or complaint for the issuance of a search warrant was then presented to the magistrate, or that he had even acquired additional information. Whether the officer-affiant requested the magistrate to reconsider the affidavit or complaint filed before such magistrate on December 5 is not reflected by the record.
Nevertheless, the magistrate issued another search warrant dated December 8, 1968, and a search was executed pursuant thereto on December 10, 1968.
Article 18.15, V.A.C.C.P., requires that a search warrant be executed within three whole days after it has issued, exclusive of the day of issuance and the day of execution.
If the search warrant issued on December 5, 1968, had been retained and not returned “unserved” and had been utilized as the basis of the search on December 10, 1968, then the search here involved would have clearly been in violation of Article 18.15, supra. The search warrant would have been functus officio. Holman v. State, 111 Tex.Cr.R. 459, 14 S.W.2d 849; Swanson v. State, 113 Tex.Cr.R. 104, 18 S.W.2d 1082; Glenniwinkel v. State, 114 Tex.Cr.R. 188, 21 S.W.2d 514. Cf. Fletcher v. State, 171 Tex.Cr.R. 74, 344 S.W.2d 683. By the same token, if the search warrant issued on December 8, 1968, was not based on any affidavit or complaint at all, the search would be illegal. Fourth and Fourteenth Amendments, United States Constitution; Article I, Sec. 9, Texas Constitution; Articles 18.01 and 38.23, V.A.C.C.P.
In Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260, the Supreme Court wrote:
“The proceeding by search warrant is a drastic one. Its abuse led to the adoption of the Fourth Amendment, and this, together with legislation regulating the process, should be liberally construed in favor of the individual.
“The issue of a second warrant is essentially a new proceeding which must have adequate support. The fact that it is a second warrant gives the commissioner no privilege to dispense with the statutory conditions. These cannot be escaped by describing the action as a reissue. If the warrant is the old one, *768sought to be revived, the proceeding is a nullity, and if it is a new warrant, the commissioner must act accordingly. The statute in terms requires him before issuing the warrant to take proof of probable cause. This he must do by examining on oath the complainant and his witness and requiring their affidavits or depositions. The proof supplied must have appropriate relation to the application for the new warrant and must speak as of the time of the issue of that warrant. The commissioner has no authority to rely on affidavits which have sole relation to a different time and have not been brought down to date or supplemented so that they can be deemed to disclose grounds existing when the new warrant is issued. The new warrant must rest upon a proper finding and statement by the commissioner that probable cause then exists. That determination, as of that time, cannot be left to mere inference or conjecture. The purpose of the statute would be thwarted if by the simple expedient of redating, without more, the time for the execution of a warrant could be extended.”
Assuming that the affidavit stated probable cause, the officer-affiant after obtaining the search warrant and after further investigation returned the search warrant to the magistrate “unserved.” On December 8, the officer-affiant made no new affidavit nor does the record reflect he ever asked the magistrate to issue a new warrant based on the old one. If he acquired additional evidence relating to probable cause it is not shown to have been brought to the magistrate’s attention. Under these circumstances the issuance of the second search warrant which was utilized was essentially a new proceeding requiring adequate support, which was not available or shown by this record.
While an affidavit need not bear exactly the same date as the search warrant to support the issuance thereof, the act or event upon which probable cause is based must have occurred within a reasonable time prior to the making of the affidavit. Hall v. State, 171 Tex.Cr.R. 227, 347 S.W. 2d 262. For an affidavit which has served as the basis for issuance of one search warrant to be utilized again and again for the issuance of future search warrants, even if such subsequent warrants have been obtained within the time limits prescribed by Article 18.15, supra, for the execution of the first or subsequent warrants, there must be a consideration of whether such affidavit states probable cause based on an act or event occurring within a reasonable time of the execution of the affidavit which will support the issuance of successive search warrants and whether the very spirit of the requirements of Article 18.15, supra, have been complied with.
The issuance of the second search warrant being essentially a new proceeding did not have the adequate support required by law. Reversal, for this reason alone, is thus necessary.
There is more. In his third and fourth grounds of error appellant contends the affidavit, if any, upon which the search warrant was based is insufficient to show the requisite probable cause under the decision of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, explicated in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. These contentions are based on the theory that if the search warrant of December 8 could have been legally issued based upon the affidavit of December 5, nevertheless, such affidavit is insufficient to reflect probable cause.
The State seeks to defeat such contention by urging that the affidavit is not properly in the record before us and that the question of the legality of the search is not presented for review. The State relies upon Lee v. State, 167 Tex.Cr.R. 608, 322 S.W.2d 260; Irwin v. State, Tex.Cr.App., 441 S.W.2d 203; and Doby v. State, Tex.Cr.App., 383 S.W.2d 418. We must therefore examine the record to determine if the affidavit is before us.
*769At the commencement of appellant’s trial on May 1, 1969, his counsel announced to the court he had not been able to take advantage of pre-trial hearings set by the court, but that he would object to certain evidence if it was introduced by the State. Shortly thereafter he orally objected to testimony sought to be elicited concerning the search and the jury was retired. Apparently at this time he filed a “Motion to Suppress and Objection to Introduction of Marihuana in Evidence.” 2
When such timely objection is made it is incumbent upon the State, under the facts, to produce and exhibit to the court a valid search warrant. If the State fails to do so and without more the appellant’s objection is overruled permitting evidence of the search and its fruits to be admitted, reversible error will result. Vines v. State, Tex.Cr.App., 397 S.W.2d 868; Nunez v. State, 168 Tex.Cr.R. 455, 329 S.W.2d 93; Brown v. State, 166 Tex.Cr.R. 322, 313 S.W.2d 297; Henderson v. State, 108 Tex.Cr.R. 167, 1 S.W.2d 300; Blackburn v. State, 145 Tex.Cr.R. 384, 168 S.W.2d 662. See also Chilla v. State, 434 S.W.2d 948 (Tex.Civ.App.); 11 Tex.Digest, Crim.Law, Sec. 394.5(1); 51 Tex.Jur.2d, Searches and Seizures, Sec. 42, p. 729.
This burden on the State is well explained in Jones, “Translating Recent Supreme Court Decisions Into Courtroom Reality,” 19 Baylor Law Review, No. 3, p. 371, 397, 398 (Summer — 1967). There it was written:
“The Fourth Amendment requires fruits of a search conducted by officers to be barred unless the search was reasonable.
“A predicate consisting of proof sufficient to show prima facie that the search was reasonable must be laid before fruits of the search will be admissible.
“The burden of laying that predicate is on the prosecution. Where that burden is not met and defendant interposes proper objection the judge will reversibly err if he admits before the jury testimony showing fruits of the search.
“The prosecution will discharge that burden if, in the hearing held by the judge out of the presence of the jury, there is adduced proof sufficient to show that the search was conducted pursuant to a search warrant valid on its face, # ⅜£ »
In James v. State, 146 Tex.Cr.R. 456, 175 S.W.2d 966, it was held that the State laid a proper predicate for the admission of the fruits of the search when the proof reflected the affidavit and warrant were examined by the judge even though the appellate record did not contain such instruments. When the State has produced and exhibited the search warrant and supporting affidavit to the trial judge, it will be *770presumed on appeal that they were regular if proof shows they were examined by the judge, evidence of the search permitted and such instruments do not appear in the appellate record. To secure an appellate review, it is incumbent upon the defense to see that such instruments are contained in the record or made part of an appropriate bill of exception.
Normally, to insure that the record will clearly show that the warrant and supporting affidavit have been produced and exhibited to the trial judge, the State will have such instruments marked for identification and introduced into the record before the court. Such instruments should not, however, be introduced before the jury. Such action might result in reversible error. See 51 Tex.Jur.2d, Searches and Seizures, Sec. 42, p. 729. As earlier noted, though, the State is not required to introduce such instruments.
In the case at bar, when the objection . was interposed the jury was removed, and without waiting for the State to lay the proper predicate the appellant took one of the witnesses on voir dire and then called other witnesses in an effort to show the illegality of the search. At such hearing the affidavit or complaint in question was handed to two officer-witnesses who identified it in the presence of the trial judge as the affidavit filed by them on December 5, 1968, in support of the search warrant issued that same day. Such search warrant was admitted into evidence and it contained the phrase “which complaint is hereto attached and expressly made a part hereof.” Whether the affidavit or complaint was a part of the search warrant at the time of the warrant’s admission into evidence is not reflected by the record. Subsequently, the search warrant dated December 8, 1968, was introduced by the appellant into evidence before the court. Still later, appellant’s counsel read to the trial court from the affidavit and then argued at length that the same did not meet the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, 732 and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. His objection was overruled.
The State in its brief, while pointing out that the affidavit was never introduced, states that “its provisions were recited to the court by the counsel for the defendant” and that the affidavit was “quoted * * * to the court.” Even the page numbers of the record where such action occurred are called to our attention by the State.
Upon discovering that the affidavit in question as a separate instrument was not a part of the record, appellant’s counsel objected to the approval of the record for the failure of .the clerk to include the same. It does not appear that upon such objection the appellant was accorded a hearing on the same by the court as required by Article 40.09, Sec. 7, V.A.C.C.P. Further, appellant sought to utilize a formal bill of exception to reflect the affidavit had been introduced or exhibited to the trial judge. See Article 40.09, Sec. 6, V.A.C.C.P. To such bill of exception appellant attached a photostatic copy of the affidavit in question reflecting the original signature of the Justice of the Peace acting as a magistrate taking the oath thereto and the exact time noted on the affidavit at which the search warrant based thereon had been issued. Such affidavit reflects the written notation, “Reissue 12-8-68.”
The trial judge refused such bill of exception stating that the affidavit in question had not been introduced at the separate hearing or at any time during the trial. He did not assert that the same had not been exhibited to him or read to him, and the State makes no claim that the photostatic copy of the affidavit attached to and made a part of the formal bill of exception is not the affidavit in question. The trial judge found the formal bill of exception “to be incorrect in the following particulars” — that the affidavit had never been introduced. Not to leave anything to chance, appellant set out in part the essen*771tial part of the affidavit in question in his appellate brief filed in the trial court.
In Doby v. State, Tex.Cr.App., 383 S. W.2d 418, cited by the State, the instruments in question were attached only to a motion for rehearing filed in this Court and did not appear in the record. In Lee v. State, 167 Tex.Cr.R. 608, 322 S.W.2d 260, the Court noted Lee’s counsel had not perfected his bill of exception by transmitting to this Court the instruments in question, and in Irwin v. State, Tex.Cr.App., 441 S.W.2d 203, on original submission, it was noted that the instruments were only attached to a motion to suppress. On rehearing in Irwin the instruments were considered, a supplemental transcript having been filed.
If there was any question as to the affidavit made a part of the formal bill of exception being the affidavit in question, we could, in light of the constitutional question presented, remand this cause to the trial court for a further development of the facts if the same is necessary for a proper disposition of this cause. See Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408; Hullum v. State, Tex.Cr.App., 415 S.W.2d 192.
The State, however, does not challenge the appellant’s assertion that the affidavit brought forward is the affidavit upon which the search warrant was based, but merely contends it is not properly brought forward in the record.
Article 44.23, V.A.C.C.P., provides in part:
“ * * * and no affirmance or reversal of a case shall be determined on mere technicalities or on technical errors in the preparation and filing of the record on appeal.”
To rely upon the State’s contention for affirmance under the particular circumstance presented would bring about the following situation.
After the issuance of the mandate in this case the appellant will be placed in 'the Texas Department of Corrections. He will then be able to file a post conviction writ of habeas corpus in the convicting court. See Article 11.07, V.A.C.C.P., as amended 1967; Ex parte Young, Tex.Cr.App., 418 S.W.2d 824. If he properly alleges his conviction resulted from an illegal search, he will be returned by bench warrant to the convicting court at the expense of the taxpayers. If he is then indigent and unable to employ counsel, the same will be furnished him at county expense. If at such hearing he introduces the affidavit in support of the search warrant and shows it defective, then the record will have to be transcribed and forwarded to this Court with the trial judge’s findings and conclusions. If the affidavit is shown to be the same as now set forth in his formal bill of exception, then the matter will be set for submission, oral arguments will be permitted, and then this Court will have to write another opinion, setting aside the conviction which is today affirmed. This would be nothing more than judicial wheel spinning which we can ill-afford.
Further, there is a federal constitutional question here involved, and if this matter ever reaches a federal court it will be the arbiter of the federal question and will not be impressed with nicety or technicality of the state procedural rule relied upon by the prosecutor and rightly so.
Therefore, considering that the affidavit in question is in the record before us, I think it should be reviewed.
The affidavit reads as follows:
“THE STATE OF TEXAS X
“COUNTY OF BELL X
“Before me the undersigned authority, on this day personally appeared Cordus Jackson, Jr., who, after being duly sworn on oath deposes and says: That I have good reason to believe and do believe that on or about the 5th. day of December, 1968, in the county and state aforesaid Jose A. Mattei did then and there possess a *772narcotic drug, to-wit, Marihuana and dangerous drugs. And that I have good reason to believe and do believe that said narcotic drug is now concealed by Jose A. Mattei in the said county and state at 925 West Rancier Ave., Apt. #5 Killeen, Texas which said premises are occupied and under the control of Jose A. Mattei.
“That my belief of the foregoing facts is based upon information received from reliable, credible and trustworthy citizens of Bell County, Texas, which information is as follows, to-wit: That I have information from a reliable source, that source being the United States Army Criminal Investigation Division Ft. Hood, Texas, that marihuana and/or dangerous drugs are possessed, stored and concealed by the above named person at the above address. This information I believe to be true and correct.
“That the above information has been given to the undersigned and to other peace officers by this and other sources of information.
“That because the source of information mentioned in the foregoing paragraph has given information to the undersigned on previous occasions that was correct, and because this same information is given by other sources the undersigned has, just reason to believe and does believe that the above described illicit property is being secreted in the above said person.
“Wherefore, I ask that a warrant to search the above described place be forthwith issued in accordance with the law in such cases provided.
/s/ Cordus Jackson, Jr.
“Sworn to and subscribed before me this the 5 day of Dec., 1968.
/s/ A. M. Turland_ JUSTICE OF THE PEACE Precinct No. 4 Place_ Bell County, Texas.”
It is clear from reading the affidavit that if there is probable cause it is based upon hearsay unaided by any independent corroboration, surveillance or any direct personal knowledge or observation of the affiant.
Therefore, we must determine whether the affidavit in question meets the two pronged test of Aguilar.
In Aguilar the Court wrote:
“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U. S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233, the magistrate must be informed pf some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, was 'credible’ or his information ‘reliable.’ Otherwise, ‘the inferences from the facts which lead to the complaint’ will be drawn not ‘by a neutral and detached magistrate,’ as the Constitution requires, but instead by a police officer ‘engaged in the often competitive enterprise of ferreting out crime,’ Giordenello v. United States, supra, 357 U.S. [480] at 486, 78 S.Ct. [1245] at 1250, 2 L.Ed.2d [1503] at 1509; Johnson v. United States, supra, 333 U.S. [10] at 14, 68 S. Ct. [367] at 369, 92 L.Ed. [436] at 440, or, as in this case, by an unidentified informant.”
In 53 California Law Review 840, the Supreme Court’s Aguilar rule where sufficient corroboration is absent was discussed. There it was said: “[T]he ‘underlying circumstances’ of both the informer’s conclusion of guilt and the officer’s conclusion that the informer is reliable must be put forth before the reviewing magistrate.” (at page 833) (emphasis supplied)
*773“The Aguilar synthesis combined the requirement that he have an adequate basis for his allegations, emphasizing the need for ‘underlying circumstances’ in support of each element.” (at page 844) (emphasis supplied)
A reading of the affidavit reflects that it fails to set forth any of the “underlying circumstances” necessary to enable the magistrate to independently judge the informant’s conclusion that the narcotics and drugs were where he or they said the narcotics and drugs were. The affidavit merely states that affiant received information from “the United States Army Criminal Investigation Division, Ft. Hood, Texas; that marihuana and/or dangerous drugs are possessed, stored and concealed by the above named person at the above address.” The magistrate was not told how the affiant’s source received his or its information nor is it alleged that the informant personally observed the appellant in possession of such narcotics and drugs or had been in the apartment in question and had observed the same. If the informant came by the information indirectly he or it did not explain why his sources were reliable. Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345; Spinelli v. United States, supra. There is no statement in the affidavit setting forth the manner in which the information was gathered. The magistrate had no way of knowing whether he was relying upon anything “more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Spinelli v. United States, supra.
The affidavit, then, falls short of the standards set forth in Aguilar since it does not meet the first prong of the test set forth in that decision. The sufficiency of the affidavit is not saved by the printed form portion of the affidavit which asserts “that the above information has been given to the undersigned and to other peace officers by this and other sources of information.” This is so because both or each element of the Aguilar test must be supported by “underlying circumstances.”
Therefore, even if I were to conclude that the affidavit in question could, if it stated probable cause, be used for the issuance of the second or subsequent search warrant here involved, I cannot agree that it states sufficient probable cause.
For the reasons stated, I dissent as vigorously as I know how.
. The search warrant dated December 8, 1968, reads in its entirety as follows:
“THE STATE OF TEXAS TO THE SHERIFF OR ANT PEACE OFFICER OF BELL COUNTY, SAID STATE, GREETING:
“Whereas, complaint in writing, under oath, has been made before me by Cordus *767Jackson, Jr., which complaint is hereto attached and expressly made a part hereof, and said complaint having stated facts and information in my opinion sufficient to establish probable cause for the issuance of this warrant; You are therefore commanded to forthwith search the place therein named and described where a narcotic drug is alleged to be concealed and if you find that for which you are directed to search you will seize the same and bring it before me at Killeen, in said county on the_day of Instanter, 19_; and you will also arrest and bring before me, at said place and time, the said Jose A. Mattel accused of concealing said narcotics. Herein fail not, and due return make hereof to me at the place and time above named. “Witness my signature on this the 8th day of December, 1968.
/s/ A. M. Turland Justice of the Peace Precinct No. 4 Bell County, Texas”
Such warrant reflects that without an address and a description of premises in some affidavit the officers executing the warrant would not have known what place they were authorized to search.
. Prior to the 1965 Code of Criminal Procedure there was no statutory provision for a motion to suppress evidence and a denial of such motion was not error. Dominguez v. State, 161 Tex.Cr.R. 124, 275 S.W.2d 677; Johnson v. State, 111 Tex.Cr.R. 395, 13 S.W.2d 114. The defendant was required to make objections to the evidence at the trial on the merits under the procedural requirements laid down in Rosales v. State, Tex.Cr.App., 399 S.W.2d 541; Ramos v. State, Tex.Cr.App., 395 S.W.2d 628, 629; and Pritchett v. State, 152 Tex.Cr.R. 432, 214 S.W.2d 623. Article 28.01, V.A.C.C.P., 1965, dealing with pre-trial hearings, is the only statute wherein any mention of a motion to suppress is found, and in Bosley v. State, Tex.Cr.App., 414 S.W.2d 468, the difference between such statute and Rule 41 of the Federal Rules of Criminal Procedure was discussed, it being held that a Texas motion to suppress was not a prerequisite to the right to object during the trial. While the statutory motion to suppress appears to be only a pre-trial motion whether the objection made during trial is termed an “objection” or “motion to suppress,” or both, appears to be immaterial. Nothing in Article 28.01, supra, authorizes a change in the burden of proof or persuasion when objection is made during trial from that long recognized and established in this state.