The opinion
MORRISON, Judge
(dissenting).
I recognize now that I should have been more alert and should have dissented when the original opinion in this case was written. I must do so now even though somewhat belatedly. My dissent in Lane v. State, Tex.Cr.App., 424 S.W.2d 925 is consistent with my dissent here. See also the dissents in Adair v. State, Tex.Cr.App., 427 S.W.2d 67 and Pace v. State, Tex.Cr.App., 461 S.W.2d 409 .
From a closer examination of the record it appears that counsel took the position from the beginning that the fruits of the search were inadmissible. He so contended at the hearing on the motion to suppress and during the trial. Counsel was intent on preserving his error and for that purpose incorporated the evidence heard at the motion to suppress at the time of the trial. I am now convinced that there was no waiver as to the merits. When two officers approach an automobile and one engages the driver in conversation while the other begins to search the automobile and nothing more has occurred than appears in the record here, an unlawful search has taken place. A re-examination of the arresting officer’s testimony convinces me that he was not acting to protect his own safety but was proceeding routinely in what he thought was a valid search. While it might be proper to uphold a similar search where the record indicates that the officer’s reason for making the search was for his own safety, this record clearly shows that, although the officer had many reasons why he made the search, fear for his own safety was not one of them.
My brethren overrule the motion for rehearing without written opinion, and for the reasons stated, I dissent.