THOMAS v. STATE

MORRISON, Judge.

This is an appeal from an order revoking probation.

Appellant was convicted of possession of marihuana on May 30, 1973, and his punishment was assessed at two years probated.

A motion to revoke probation was filed on January 17, 1975, alleging, among other things, that appellant had on January 11, 1975, possessed a controlled substance, to-wit: biphetamine.

Appellant's first contention is that the search of his automobile which resulted in the finding of the biphetamine capsules was without probable cause and we agree.

The record reflects that Dallas Police Officer Worth saw a 1974 Datsun automobile make a left turn at the intersection of Canada Drive and North Hampton Road where only a right turn is permitted. Worth and his partner, Officer Harrell, proceeded to stop the Datsun. The appellant was the driver and had no driver's license. The appellant was placed in the back seat of the patrol car while Officer Harrell sat in the front seat. At this point Officer Worth returned to appellant's car and looked through the window at some objects lying on the right front bucket seat. He was able to see large medical bottles with prescriptions on them. He opened the door and examined one bottle and found it to be cough medicine. He noted that an empty bottle had a prescription from Ft. Leonard Wood, Missouri. He then picked up a coat lying in the seat and in one of the pockets he found a bottle containing biphetamine pills. The possession of these pills is the basis for this revocation.

The appellant did not consent to the search. Appellant was clearly not in a position to leave or lunge for any weapon or to seize and destroy any evidence.

We have concluded that the trial court was in error in finding that the officers had probable cause to enter the automobile. They had no prior information about the appellant or his automobile. See Rushing v. State, Tex.Cr.App., 500 S.W.2d 667. The stop was for a traffic offense, and the appellant made no furtive gestures. See Wilson v. State, Tex.Cr.App., 511 S.W.2d 531. Cf. Borner v. State, Tex.Cr.App., 521 S.W.2d 852. The facts and circumstances within the officer's knowledge at the time of the initial stop and prior to the search of the automobile would not warrant the belief that the appellant had committed or was committing a crime other than the traffic offense. See Frazer v. State, Tex.Cr.App., 508 S.W.2d 362 (Opinion on Appellant's Motion for Rehearing).

The search of appellant's automobile was not a search incident to arrest. Worth testified that appellant was being detained while a traffic ticket was being written and was not placed under arrest until after the pills were found. Cf. Wussow v. State, Tex.Cr.App., 507 S.W.2d 792. Appellant was not in custody at the time of the search, and thus the search was not incident to arrest for the traffic violation. Cf. U.S. v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427.

The seizure of the pills cannot be upheld under the plain view doctrine. Prescription drugs are not inherently contraband, stolen goods or objects dangerous in themselves. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Cf. Hernandez v. State, Tex.Cr.App., 523 S.W.2d 410. The mere viewing of bottles with drugstore labels on them did not authorize the officers to enter the automobile and search the jacket or seize the pills.

Having so concluded, we find that the trial court abused its discretion in revoking probation.

The judgment is reversed and the cause remanded.

MORRISON, Judge.

ONION, Presiding Judge.

The State, with leave of this court, has filed a motion for rehearing in which the State argues that the court erred in reversing the probation revocation of the appellant which was based on evidence obtained from an illegal search and seizure. The contention, which is founded on a dissent in the original opinion, is advanced that the appellant waived his objection to this evidence by taking the stand and admitting possession of the items taken in the search. Based on our reevaluation of case law and the facts as shown in the record, the State's motion for rehearing is overruled and the judgment is reversed. In explanation of this result, we have set forth in some detail previous state law and the effects of our ruling today based on Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968).

It has long been the rule of this state that the admission of improper evidence cannot be urged as grounds for reversal where the defendant gives testimony on direct examination which establishes the same facts as those objected to. Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App. 1975); Palmer v. State, 475 S.W.2d 797 (Tex.Cr.App. 1972). This principle is sometimes referred to as the doctrine of curative admissibility. 5A C.J.S. Appeal and Error § 1724(3)(b) at 954 (1958). A corollary to this rule is that the harmful effect of improperly admitted evidence is not cured by the fact that the accused sought to meet, destroy, or explain it by the introduction of rebutting evidence. McLaughlin v. State, 109 Tex.Crim. R., 4 S.W.2d 54 (1928); Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App. 1973); Alvarez v. State, 511 S.W.2d 493 (Tex.Cr.App. 1973); 5 Tex.Jur.2d, Appeal and Error Criminal, § 446. The distinction between these two rules was most clearly presented in Nicholas v. State, supra, at 174-175, where the following language was used:

" . . . the improper admission of evidence over objection is rendered harmless by the unobjected-to admission of other evidence Of substantially the same facts ; whereas, the introduction of evidence seeking To meet, destroy, or explain the erroneously admitted evidence does not render the error harmless. The rationale should be equally clear: if a fact be proven without objection, its erroneous proof over objection, although still error, is harmless error since the same facts have been proven without objection. On the other hand, presentation of Other evidence which does Not prove those facts erroneously admitted, but only tends to meet, destroy, or explain the erroneously admitted evidence, can hardly be considered to cure the error within the rationale of the first rule. . . . "

Thus if a defendant takes the witness stand to refute, deny, contradict, or impeach evidence or testimony properly objected to, no waiver of the objection occurs. But if a defendant in testifying admits or confirms the truth of the facts or evidence objected to, even if attempting to create a defense based on or beyond those facts, a waiver of the objection does occur. The one possible exception to this principle is that no waiver will be found where a defendant objects to evidence or testimony not tied directly or indirectly to the elements of the case and then in testifying himself admits those facts to be true. This exception is illustrated by Alvarez v. State, supra, in which a portion of a confession saying, "I always carry a pistol with me because I shot and killed a man in Lubbock not too long ago and am afraid of his people," was properly objected to as showing an extraneous offense. This court found that the objection was not waived when the defendant took the stand and admitted on direct examination that the statement was true in attempting to explain the incident. This was an extraneous offense, not evidence tied to the elements of the case but useful only to show the character of the defendant. However, this case appears to contradict Robbins v. State, 481 S.W.2d 419 (Tex.Cr.App. 1972); Cook v. State, 409 S.W.2d 857 (Tex.Cr.App. 1966), and Meadowes v. State, 368 S.W.2d 203 (Tex.Cr.App. 1963), all of which held that objection to improper evidence of an extraneous offense was waived when the defendant on direct examination confirmed such facts. We express no opinion now as to this point. However, where the defendant's testimony Refuted the State's extraneous offense evidence, Jackel v. State, 506 S.W.2d 229 (Tex.Cr.App. 1974), or where the extraneous offense was admitted on Cross-examination of the defendant, Autry v. State, 159 Tex.Crim. R., 264 S.W.2d 735 (1954), there was no waiver of the objection.

The distinction this court has drawn between when a defendant admits substantially the same facts thereby waiving proper objection to other testimony or evidence on those facts and when a defendant has merely sought to meet, destroy, or explain the erroneously admitted evidence and thus not waived his objection is best understood by examining the specific facts of individual cases.

The principle that a defendant can waive a proper objection by his own testimony confirming the same facts or evidence objected to was established early in Texas. In Dawson v. State, 38 Tex.Crim. R., 40 S.W. 731 (1897), in a trial for conspiracy to commit arson, a letter written by a third party which was sent but never received by the defendant was admitted into evidence. This court reversed the trial court even though the defendant, when he took the stand, confirmed the identity of the party who had written the letter and then attempted to explain the contents of said letter. This court noted that " . . . this did not render said letter admissible. It was admitted over his objections, and he was then driven to make the best shift he could to explain its contents." This case, standing for the principle that making Use of evidence objected to in order to refute the implication given to it by the State does not waive the objection, is similar to the more recent case of Nicholas v. State, supra, where the defense witness made use of a State exhibit, entered over proper objection, to show no penetration had occurred in the rape case. This court held there was no waiver because the Use of the exhibits was a predicate for rebutting their incriminating effect, i. e., that appellant was seeking to meet and destroy the evidence rather than admitting the State's allegations as truthful.

Other early opinions include Attaway v. State, 41 Tex.Crim. 395, 55 S.W. 45 (1900), in which the State's witness, in an attempt to show motive for the murder, testified to what the deceased had said he would tell as a witness against the appellant in another case. The defendant objected to this testimony as hearsay. The court held that the objection was not waived by the defendant introducing a witness who rebutted the testimony of the State's witness as to what the deceased would have said. Thus there was no confirming of the facts, but a refutation of them. The court therein commented, "Of course, after illegal testimony was admitted, the defendant could but make the best of the situation, and then offer other testimony if he had it, and rebut or destroy the effect of the illegal testimony. . . . "

The first case to use the often quoted phrase "meet, destroy, or explain" was McLaughlin v. State, supra. This case led to much confusion as to the meaning of the word "explain," in regard to whether a defendant can admit as truthful evidence he objects to and still claim his objection on the ground he is "explaining" those facts. A careful reading of the case clearly shows this is not proper and waiver occurs. On its facts, the defendant objected to the use of the evidence of intoxicating beverages seized under an improper search warrant. However, the defendant took the stand and admitted that he had on hand 420 bottles of beer, a 50 gallon barrel in which to make it, and some 200 empty bottles. His defense was that he was making and had the beer to be used by himself and wife as medicine. The court affirmed the conviction on the ground the defendant had waived the objection to the improper search and seizure noting that "None of those cases, and in fact no others known to us, hold that the accused can admit the truth of the very testimony to which he is objecting and thereafter claim injury or hurt of a reversible character arising by virtue of the admission of the testimony originally objected to."

Other cases in which no waiver of a proper objection occurred where the defendant's testimony only refuted and did not confirm the evidence objected to include Trollinger v. State, 153 Tex.Crim. R., 219 S.W.2d 1018 (1949) (Statement made by defendant to jailer which was improperly admitted over objection and objection was not waived where defendant took the stand and gave his version of conversation which refuted or rebutted jailer's version. The difference between "I hope all the sons-of-bitches are dead" and "They may die" is apparent and would affect the jury in their deliberation.), and Lovell v. State, 525 S.W.2d 511 (Tex.Cr.App. 1975) (State introduced over objection the confession of defendant that he had hit child. Information elicited by defense counsel of defense witnesses mentioned the child beating but was intended to show that defendant's conscious appreciation was affected by previous glue sniffing at the time of the alleged incident. This court held that appellant did not waive the objection since the questions were directed to the appellant's state of mind, i. e., his use or non-use of glue or drugs, a fact not mentioned in the confession.)

A number of recent cases have shown that waiver of a proper objection to improper evidence occurs if the defendant admits the existence of those facts or evidence even though he is trying to "explain" the circumstances of those facts: Parker v. State, 384 S.W.2d 712 (Tex.Cr.App. 1964) (Defendant testified he had the capsules in his hand thus waiving his objection, even though he went on to explain that he had just picked them up off the floor of his truck and did not know what they contained); Baity v. State, 455 S.W.2d 305 (Tex.Cr.App. 1970) (Defendant testified on direct examination he had stated to officer he had a money box in his possession and that it had come from the Piccadilly Cafeteria, thus waiving his objection to the police officer's testimony to those same facts.); Batiste v. State, 464 S.W.2d 149 (Tex.Cr.App. 1971) (Defendant waived challenge to illegality of search producing eyeglasses introduced into evidence where on direct examination defendant testified that he had the glasses, though he claimed the officer had placed them on him.); Moulton v. State, 486 S.W.2d 334 (Tex.Cr.App. 1971) (Question of legality of search producing checks was waived when defendant admitted he had possession of checks at home even though he tried to explain that his wife had brought the checks home as scratch paper for children to play with.); Creel v. State, 493 S.W.2d 814 (Tex.Cr.App. 1973) (Challenge to items obtained in search of car waived when defendant took stand and admitted items were in his car and then attempted to explain them away.); Warren v. State, 514 S.W.2d 458 (Tex.Cr.App. 1974) (Legality of search producing tires admitted into evidence did not have to be determined when defendant took stand and admitted the presence of the tires in his storeroom.); Lester v. State, 498 S.W.2d 927 (Tex.Cr.App. 1973) (Guns taken from defendants challenged as fruits of an illegal search and seizure waived when the defendants testified on direct examination that they had the guns in their possession and admitted having an exchange of gunfire with the officers.). However, all of these cases, with the exception of Alvarez v. State, supra, were decided before or without considering Harrison v. United States, supra.

The record before us shows that appellant objected to the biphetamines being admitted into evidence for the reason that they were obtained as a result of an illegal search and seizure. After the trial court erroneously overruled the objection, the record shows the following exchange on direct examination of the defendant by his counsel:

"Q. Where did you find that (the bottle of biphetamines)?

"A. On the floorboard of the car.

"Q. . . . Would you state whether or not you were in the process of returning those pills to Sherry Rose?

"A. Yes, I was."

Thus appellant made no offer to rebut or refute the facts and evidence shown by the State. He merely confirmed that the pills were in fact in his car as found by the police, but he attempted to set up a defense based on the fact that he innocently acquired possession of the pills from his girlfriend. Under our prior view, this situation would most likely fall under the doctrine of curative admissibility and appellant's objection to the illegal search and seizure would have been deemed waived. McLaughlin v. State, supra; Creel v. State, supra; Warren v. State, supra.

However, it has been suggested by Judge Morrison in his concurring opinion in Alvarez v. State, supra, that the case of Harrison v. United States, supra, alters the doctrine of curative admissibility. In that case, the prosecutor had introduced three illegal confessions at a previous trial, the substance of which showed that the defendant had gone to the victim's house intending to rob him and that the victim had been killed while resisting entry into his home. The defendant took the stand and testified that he had gone to the victim's home hoping to pawn a shotgun and that the victim was accidentally killed while the petitioner was presenting the gun to him for inspection, rebutting the State's evidence. Upon reversal and retrial, the prosecutor introduced into evidence the testimony of the defendant from the first trial. The Supreme Court, speaking through Mr. Justice Stewart, reversed, based on the reasoning that petitioner might have given the testimony placing him at the scene of the killing "in order to overcome the impact of confessions illegally obtained" so that "his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible." The Court found that the burden was on the Government to show that its illegal action in obtaining and introducing the confessions had not impelled the petitioner's testimony and that the Government had failed to do so. The Court's ruling is thus an extension of the exclusionary rule and attenuation concept, which excludes the fruits of illegal evidence unless the prosecutor is able to demonstrate that the knowledge is gained from an independent source or the evidence has been obtained by means sufficiently distinguishable from the underlying illegality to be purged of the primary taint. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Under Harrison, the "question is not Whether the petitioner made a knowing decision to testify, but Why. If he did so in order to overcome the impact of the confessions illegally obtained and hence improperly introduced," the testimony is tainted by the same illegality that rendered the confessions themselves inadmissible.

We find that Harrison does in fact add a corollary to the doctrine of curative admissibility, i. e., the harmful effect of improperly admitted evidence which is obtained by illegal police practices is not cured when a defendant gives testimony on direct examination which establishes the same or similar facts unless the State can show that its illegal action in obtaining and introducing the evidence did not impel the defendant's testimony. We did not here consider the issue whether this corollary should be extended to apply to testimony impelled by mere evidentiary hearsay evidence. See United States v. Bohle, 475 F.2d 872 (2nd Cir. 1973).

In applying this rule, or corollary, to the present facts, we find that appellant properly objected to the improperly admitted evidence which was obtained by an illegal search and seizure by the police and there is no showing by the State that its illegal action did not impel appellant's testimony. In fact, it is apparent that appellant would not have taken the stand if the illegally obtained evidence had not been admitted because that was the only evidence the State introduced. Appellant did not, therefore, waive his objection.

The State's motion for rehearing is overruled.

VOLLERS, J., not participating.