The opinion
PHILLIPS, Judge,
dissenting.
In affirming the appellant’s conviction, the majority brushes aside constitutional error in a warrantless search and holds that the officers’ search of appellant’s residence was valid. In so doing, the majority ignores the circumstances surrounding the “voluntary” consent to search.
Because the circumstances of this war-rantless search are critical, emphasis on relevant facts is necessary. At approximately 1:30 p. m. on February 6,1976, the bodies of two females, appellant’s wife and grown daughter, were found in the trunk of a car. Both had been shot. Seeking the original location of the murders, several officers proceeded to appellant’s home. Once there, the officers waited for the appellant’s grandchildren to return home from school. According to testimony at trial, the officers never attempted to obtain a search warrant.
Somewhere between 3:00 and 3:30 p. m., the two grandchildren approached the house.. The officers asked them several questions concerning their identity and where they lived. Finally the officers told the children that their mother and grandmother had been killed. Officer Branch, who knew the family, testified that the girls became upset and started crying. An officer then asked the oldest child, Kim, who was 15 years old, if they could search the house. She said yes.
The children were taken to a friend of the family, a Mr. Smith. Officer Branch dictated a consent to search form to Smith and Kim signed it. The written consent form was taken to the police station.
The record does not reveal whether the search was conducted before or after the written consent. However, one officer testified that the search probably was conducted “before and after” the written consent. Among the items seized in the warrantless search of appellant’s resident were: several blood samples taken from various parts of the house; a .38 caliber slug found in the garage; a knife with human blood stains on the handle; and several photographs of appellant, seized from appellant’s trunk and used in a photographic display. In addition, the officers took several photographs of blood stains in the house. All of these items were admitted at trial over appellant’s objections.
*494 When consent to search is in issue, the burden is upon the state to prove by clear and convincing evidence that the consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543 (1968); Nastu v. State, 589 S.W.2d 434 (Tex.Crim.App.1979); Ferguson v. State, 573 S.W.2d 516 (Tex.Crim.App.1978). The state must show the consent given was positive and unequivocal, and there must not be duress or coercion, actual or implied. Ferguson, supra; Evans v. State, 530 S.W.2d 932 (Tex.Crim.App.1975).
Under the circumstances of this case, the state failed to establish a voluntary consent to search the house. Several officers questioned 15-year old Kim and her younger sister. The girls were told that both their mother and grandmother had been shot and killed. In the grief and shock that followed, the officers obtained an oral consent to search. Kim and her younger sister were then taken to a family friend, Mr. Smith. Officer Branch, a personal friend of the family, asked Kim to sign a written consent to search form. Branch dictated the consent form to Smith, Kim signed it, and Smith witnessed it. The consent form was signed less than an hour after Kim learned of the two murders. There is evidence which indicates that the search was commenced before the written consent was obtained. Under the circumstances, the officers’ actions can only be viewed as psychologically coercive.
I would hold that the state failed to prove by clear and convincing evidence that the consent was freely and voluntarily given. Therefore, the warrantless search of appellant’s house was unlawful, and the evidence obtained as a result of the search should have been suppressed. See Gonzalez v. State, 588 S.W.2d 355 (Tex.Crim.App.1979); Hooper v. State, 533 S.W.2d 762 (Tex.Crim.App.1976, Opinion on Appellant’s Motion for Rehearing); compare May v. State, 582 S.W.2d 848 (Tex.Crim.App.1979); Ferguson v. State, 573 S.W.2d 516, 520 (Tex.Crim.App.1978).
In addition to the questionable “voluntar-iness” of the consent, there is the issue whether Kim had the authority to consent to a warrantless search of her grandfather’s private bedroom.
The majority contends that the issue was not properly raised at trial and therefore is not before the Court. However, appellant made numerous objections and filed several motions to suppress regarding the evidence obtained in the search. In particular, appellant filed a motion to suppress the in-court identification of appellant based upon photographs seized from appellant’s private bedroom. The motions and objections were overruled.
I cannot follow the majority’s strict approach. It is my opinion that the appellant fairly raised the question of a third party’s capacity to consent to the search of appellant’s private bedroom. See Darland v. State, 582 S.W.2d 452 (Tex.Crim.App.1979); Armstrong v. State, 550 S.W.2d 25 (Tex.Crim.App.1977, Opinion on State's Motion for Rehearing); Article 40.09(9), V.A.C.C.P. Moreover, the issue is of sufficient constitutional magnitude to require review in the interest of justice. Article 40.09(13), V.A.C. C.P.; Armstong, supra. Such constitutional issues should not be summarily dismissed, but resolved. Deal v. State, 508 S.W.2d 355 (Tex.Crim.App.1974).
Finally, I note that whatever reliance the majority places on the “murder scene exception” to the warrant requirement is wholly unwarranted for the reasons expressed in my dissent to Pearson v. State, 587 S.W.2d 393, 396 (Tex.Crim.App.1979).
For these reasons, I dissent.