Lackey v. State

ODOM, Judge,

dissenting.

I dissent to the majority’s disposition of appellant’s fourth ground of error, which challenges the validity of Carroll Johnson’s consent to search appellant’s house and pickup truck. It is conceded that the search was conducted without the authority of a search warrant. The burden was therefore on the State to establish the existence of an exception to the warrant requirement. The record does not show that the State met that burden.

The majority opinion, in an effort to avoid the conclusion that reversible error occurred, pursues no less than five different theories: (1) it is impossible to figure out what appellant’s ground of error is; (2) if it is possible to figure it out, it is multifarious and not subject to review; (3) even if it is a proper ground of error, the trial objection was not specific enough; (4) but if the trial objection was sufficient, appellant did not show the consent was involuntary, and, finally, (5) even if the trial court’s ruling was erroneous, the error was harmless beyond a reasonable doubt. I find none of these alternatives persuasive and would sustain the ground of error.

I.

The ground of error, as stated in appellant’s brief, is: “The trial court committed reversible error by allowing evidence obtained by an illegal search and seizure before the jury.” In his argument under this ground of error appellant accurately anticipates the State’s reliance on the claimed consent of Carroll Johnson as authority for the search. His argument then presents two fundamentally distinct arguments in support of his ground of error: that the State failed to prove Johnson had authority to consent and that it failed to prove her consent was voluntary. In conjunction with each of these two arguments appellant also advanced the additional contentions that the jury should have been charged on the matter. These two additional contentions are outside the scope of the ground of error as quoted above.

Stripped of the references to the jury charge, which are outside the scope of the ground of error, appellant plainly asserts a failure of the State to meet its burden of proof on the issue. The majority is too narrow in its reading of appellant’s argument under this ground of error.

II.

The majority opinion’s dismissal of the ground of error as multifarious is likewise inappropriate. The majority overlooks the closing mandate of Article 40.09(9), V.A.C. C.P., which provides:

“... if the court, upon consideration of such ground of error in light of the arguments made in support thereof in the brief, can identify and understand such point of objection, the same shall be reviewed notwithstanding any generality, vagueness, or any other technical defect that may exist in the language employed to set forth such ground of error.”

This provision requires consideration of issues raised in a multifarious ground of error if the Court can ascertain the complaint sought to be raised. Whittington v. State, *460 580 S.W.2d 845, 847 ; Bright v. State, 556 S.W.2d 317, 319 ; Kalmbach v. State, 481 S.W.2d 151 . The majority has no valid reason to avoid the ground of error.

Furthermore, even if there were no ground of error challenging the search and seizure, or even no brief on appeal, ample authority exists to require this Court to consider the search and seizure issue in the interest of justice. Art. 40.09(13), V.A.C. C.P. 1 In previous cases this Court has considered search and seizure issues in the interest of justice when the brief presented nothing for review because it was filed late, Booth v. State, 499 S.W.2d 129, 135 ; Green v. State, 490 S.W.2d 826 ; Christopher v. State, 489 S.W.2d 575 ; Stoodard v. State, 475 S.W.2d 744 ; Capuchino v. State, 468 S.W.2d 379 ; when the issue was first raised by a supplemental brief, Deal v. State, 508 S.W.2d 355 ; Johnson v. State, 436 S.W.2d 906, 909 ; when the brief raised no ground of error regarding the issue, Bodde v. State, 568 S.W.2d 344, 351-352 ; Armstrong v. State, 550 S.W.2d 25 ; Phillips v. State, 548 S.W.2d 44 ; Young v. State, 447 S.W.2d 911 ; and even when no brief was filed at all. Kaser v. State, 505 S.W.2d 806 ; Walthall v. State, 488 S.W.2d 453 . In several cases consideration of the search and seizure issue in the interest of justice and independently of any ground of error resulted in reversal of the conviction. Armstrong v. State; Phillips v. State; Kaser v. State; Stoddard v. State; Young v. State, all supra. In one of those cases the Court even relied on a record of the hearing on the motion to suppress that had not been included in the original record on appeal, and that was obtained by the Court sua sponte. 2

III.

The majority finds both the motion to suppress and the objections during trial were not sufficiently specific to preserve the issue for review.

Regarding these specificity issues, I agree with Judge Clinton that the motion to suppress and the repeated objections to the introduction of the fruits of the search were adequate to inform both the judge and opposing counsel of the basis of appellant’s challenge. Zillender v. State, 557 S.W.2d 515 . See also Darland v. State, 582 S.W.2d 452 ; Epperson v. State, 578 S.W.2d 398 .

The majority emphasizes that the motion to suppress merely states that the defendant did not consent, instead of contending that Johnson did not voluntarily consent. But placing such a hypertechnical and specific burden on a defendant when challenging a warrantless search significantly diminishes the protections afforded by the Fourth and Fourteenth Amendments to the U. S. Constitution, as well as Art. 1, Sec. 9 of the Texas Constitution. Furthermore, the majority position fails to acknowledge that these constitutional protections are fortified by the rule that warrantless searches are per se unreasonable. Nastu v. State, 589 S.W.2d 434 , cert. denied 447 U.S. 911 , 100 S.Ct. 3000 , 64 L.Ed.2d 862 ; Hudson v. State, 588 S.W.2d 348 ; Hooper v. State, 533 S.W.2d 762 . That is, once it is established that a search was conducted without a warrant, it is then incumbent upon the State to prove the application of an exception to the warrant requirement.

Appellant’s motion to suppress properly alleged the search to be warrantless and the *461 State’s burden of overcoming the per se rule was then triggered. If it were necessary for a defendant to also allege and deny each possible exception upon which the State may rely (and as the majority proposes, each element, i.e., “voluntariness”, of those exceptions), what would be the purpose of the per se rule? What would be the purpose of placing an affirmative burden of proof upon the prosecution? Hidden in the rule created by the majority is the requirement that a defendant’s counsel, when drafting his motion to suppress, exercise unlimited powers of anticipatory imagination whereby he must project not merely those unknown exceptions the State may in fact rely on but beyond that, he must imagine all possible evidentiary figurations under each of those possible exceptions. 3

As authority for its position on preservation of the issue for appeal, Martin v. State, 610 S.W.2d 491 , is cited as controlling. I agree that Martin is controlling, but my reading of the grounds upon which the defendant in Martin challenged the search is at variance with the conclusions of the majority. There is nothing in that opinion even to imply that an explicit challenge on the ground that the consent was involuntary is required. Indeed, the following quote from Martin indicates that the basis of the motion to suppress upon which the issue of voluntariness was reached on the merits is similar to the one filed by appellant in this case:

“At trial appellant filed a motion to suppress the seized evidence and the identification testimony on the theory that the search was conducted without a warrant and without consent.”

By reaching the merits of the issue of voluntariness on the basis of such a motion to suppress, the Martin court implicitly held such a motion sufficient to present the issue on appeal. The majority today takes a position in conflict with Martin .

Turning to the sufficiency of the objections during trial, the record establishes that at the first opportunity for challenging the State’s reliance on the consent exception, appellant’s counsel tendered an objection:

[Prosecutor:] “Q. And by what authority did you make a search of the residence that you led the search team to?

“MR. BROWN: Excuse me, Your Hon- or, at this time, we would like to lodge an objection as to any testimony concerning any search ... I believe he will testify that he had consent to search and I think there’s a real issue in this case as to the validity of any consent to search.

“THE' COURT: If there is, you can bring it out on cross examination. I mean, we’ll develop it if there is ... 4

“MR. BROWN: We ask that we be given a chance to take this up outside the presence of the jury.

“THE COURT: No. Denied.

“MR. BROWN: Please note our exception.

* % * * * *

[Prosecutor:] “Q. What authority did you conduct the search at the premises you searched?

[Officer Hargrave:] “A. A voluntary consent to search.”

*462 Appellant continued to object to each and every reference to the fruits obtained in the search of his residence on August 2nd. The majority holds that “it is fair to conclude that appellant’s objection at trial was interpreted by the trial officials as challenging the authority of Johnson to consent..." But the following objection clearly demonstrates that the challenge was to the officer’s authority to search:

[Prosecutor:] “Q. What kind of pieces of physical evidence?

[Officer Hargrave:] “A. Shingle off the house—

“MR. BROWN: Excuse me, Your Hon- or, before he finishes his answer, we’d object to any testimony about any evidence seized during the search and seizure of the residence in question in that at this time, such testimony would violate the 4th and 14th Amendments of the U.S. Constitution as well as Art. 1, See. 9 of the Texas Constitution because they have not shown authority to search, they only have hearsay. (Emphasis added.)

“THE COURT: Overruled.”

Appellant’s counsel requested and received a “continuing objection to the entire line of questioning”, based upon the Fourth and Fourteenth Amendments and Art. 1, Sec. 9. Appellant had specified in his objection immediately preceding this request that the particular aspect of those constitutional provisions being relied on was the requirement of demonstrating authority to search. In addition to securing a running objection, counsel for appellant repeatedly objected to the introduction of exhibits constituting evidence obtained in the warrantless search. 5

The majority’s excerpt from Martin v. State, supra, in no way supports its position that appellant’s trial objection was deficient, which must be why no attempt is made to apply it:

“On appeal additional challenges to the lawfulness of the search are raised. It is asserted that Kimberly did not have authority to consent to a search of the room appellant occupied in the house. Some of the evidence was seized in his room and some in other parts of the house. No objection was made at trial directing the court’s attention specifically to those items seized from appellant’s room, nor was objection made to Kimberly’s authority to consent to a search of that particular room. Consequently, the record was not developed with attention on this issue. Nothing is presented for review in this matter. See Morrison v. State, 508 S.W.2d 827, n. 4 .”

If the majority supposes the Martin court required a specific objection to Kimberly’s authority to consent to a search, then the majority should take a closer look at the quoted excerpt. The Martin court actually held the defendant’s objection was not specifically directed to those items seized from his room. Exclusive reliance was placed on the rule that where part of evidence is admissible and part is not, objection must single out the inadmissible part. See Morrison v. State, as cited in the quote from Martin . In applying this rule, the Martin court stated that neither of two possible ways to satisfy that rule had been followed: “No objection was made at trial directing the court’s attention specifically to those items seized from appellant’s room, nor was objection made to Kimberly’s authority to consent to a search of that particular room.” (Emphasis added.) Either objection would have narrowed-the scope of the objection to the portion of the evidence under attack on appeal and would have satisfied the Morrison rule relied on in Martin . While professing to follow Martin , the majority actually misreads it and, as pointed out in reference to the sufficiency of the motion to quash, is in direct conflict with Martin .

*463 Finally, the majority concludes that “[n]ever, prior to the close of evidence, did appellant contend that the consent was involuntary or coerced, nor did he ever object on that ground.” Yet, as the majority concedes, the State “never attempted to establish the facts surrounding the consent,” and never introduced the written consent form. 6 Further, how was it possible for appellant’s counsel to object to Johnson’s direct testimony when the prosecutor never propounded a single question which would elicit testimony demonstrating voluntary consent? On cross-examination appellant’s counsel most certainly challenged voluntariness by establishing the coercive and intimidating nature of Johnson’s agreement to sign the form. Johnson’s testimony indicates at the very least that consent was given while she was in fear of having capital murder charges filed against her and that officer Hargrave had threatened to obtain a warrant. She had been interrogated for what “seemed like months” and was crying during the entire one and one-half hours of questioning. The State never sought to contradict this testimony, never sought to dispel the obvious implication of coercion. The challenge to voluntariness could not have been much more obvious.

This record clearly demonstrates that the “failures” of the State in not establishing the circumstances of the consent were not a result of vague and impalpable objections. Appellant’s counsel specifically challenged the State’s reliance on the consent exception and effectively questioned voluntariness in his cross-examination of Johnson. 7

IV.

The majority follows its discussion of the specificity of the objection with an alterna-five holding that the evidence on the merits of the consent issue supports a finding that the State’s burden of proof on voluntariness was satisfied. This conclusion is not the result of an application of the elements implicit in the State’s burden. In fact, the majority opinion completely fails to acknowledge or enunciate the rules formulated by this Court and the United States Supreme Court which define the State’s burden. An application of the following requirements will demonstrate the inaccuracy of the majority position.

It is fundamental that every citizen has a right to be secure in his home from war-rantless searches in all but a few limited instances, and that a search conducted without a warrant issued upon probable cause is “per se” unreasonable in violation of the Fourth and Fourteenth Amendments to the U.S. Constitution as well as Art. 1, Sec. 9 of the Texas Constitution. In order to consistently honor the safeguards of an individual’s privacy and security against arbitrary invasion by governmental officials, the per se rule is subject only to “a few specifically established and well-delineated exceptions.” (Emphasis added.) Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 ; Kolb v. State, 532 S.W.2d 87 ; Rice v. State, 548 S.W.2d 725 . Thus, the protections afforded by the Constitution may be waived by an individual who “effectively” consents to a search. Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 . How can the majority find voluntary consent without a clear recognition of the elements required to render consent “effective”? I strongly urge that upon proper application of the governing standards such a finding is not supported by the evidence in this case.

*464 There can be no question that the State bears an affirmative burden to demonstrate the voluntariness of consent. Schneckloth, supra; Bumper v. North Carolina, 391 U.S. 543 , 88 S.Ct. 1788 , 20 L.Ed.2d 797 . See also May v. State, 618 S.W.2d 333 ; Swink v. State, 617 S.W.2d 203 ; Nastu v. State, supra. Before consent can be effective, the State must present clear and convincing evidence that consent was freely and voluntarily given. Schneckloth, supra; Bumper, supra; Nastu, supra; Martin v. State, 610 S.W.2d 491 ; Gonzales v. State, 588 S.W.2d 355 ; Escamilla v. State, 556 S.W.2d 796 ; Armstrong v. State, 550 S.W.2d 25 . These cases also establish that consent must be shown to be positive and unequivocal, and there can be no physical or psychological coercion or duress, actual or implied. In determining whether these elements are satisfied, this Court has consistently considered the totality of the circumstances surrounding the giving of consent. See Nastu, supra; Kolb, supra; Doescher v. State, 578 S.W.2d 385 ; Villareal v. State, 576 S.W.2d 51 ; Brem v. State, 571 S.W.2d 314 . In evaluating the circumstances, consent is not to be lightly inferred. Green v. State, 594 S.W.2d 72 . See also 51 Tex.Jur.2d, Rev., Part I, Searches and Seizures, Sec. 42, p. 722.

The majority opinion fails to recognize the necessity of demonstrating the application of these rules and has refused to hold the prosecution to its affirmative burden of establishing voluntary consent with “clear and convincing evidence.” After a scrupulous examination of the evidence, how can the majority conclude the State clearly and convincingly sustained its burden when the only evidence introduced by the prosecutor was the officer’s conclusion that he acted pursuant to “voluntary consent to search,” and the State completely failed to examine the officer or Johnson with respect to the “circumstances” surrounding the consent? The cross-examination of Johnson suggests why the prosecutor avoided the issue. After appellant’s counsel controverted the officer’s testimony (that he acted after “voluntary” consent), the State again failed to establish circumstances which would support his testimony. The only evidence shedding light on the circumstances under which consent was given indicates that the atmosphere was tainted by, at the very least, implied psychological coercion.

This Court has examined the scope of the State’s burden in cases where voluntary consent was established by no more than an officer’s testimony that he was given “voluntary” consent. See McCallum v. State, 608 S.W.2d 222 ; Brem v. State, 571 S.W.2d 314 ; Rice v. State, supra; Jordan v. State, 506 S.W.2d 217 ; Lowery v. State, 499 S.W.2d 160 ; Silva v. State, 499 S.W.2d 147 ; Valerio v. State, 494 S.W.2d 892 ; Ainsworth v. State, 493 S.W.2d 517 .

In Ainsworth , the officer’s testimony that consent had been given was sufficient to justify a warrantless search because there was no evidence offered that was inconsistent with the State’s claim that consent to search was given. In Valerio , the evidence was undisputed that the defendant personally led officers to areas where contraband was found. The State satisfied its burden because no evidence was introduced as to force, threats, coercion or other influence exerted to obtain consent. Uncontroverted testimony that a defendant consented in Silva was likewise held sufficient to sustain the State’s burden of proof. In McCallum and Brem , the officer’s testimony specifically contradicted any testimony by the defendants that consent was given under duress or coercion, but in this case the contradicting evidence deemed sufficient to sustain the State’s burden was no more than a conclusory statement that voluntary consent was given. The officer in McCallum specifically testified that he did not threaten, coerce or force the consenting party. The defendant in Brem actually testified that he voluntarily signed a consent form.

The factual setting in Lowery , however, is most instructive when compared to the record before us today. The State introduced no evidence about how consent was obtained, how it was requested or what, if any, conversation took place between the officers and the consenting party. The officer merely testified that she consented to *465 a search of the apartment. Other evidence, however, demonstrated that at least five officers were in the room with pistols and shotguns and one officer testified that he heard her say she had no objection to him going through the apartment. The court held that the State had not demonstrated that consent was free and voluntary.

It is true that there is no evidence in the instant case that appellant was faced with the identical pressure of armed officers, but it can hardly be argued that a case must be a factual twin in order that it constitute persuasive authority. The case is instructive in that the allegation of consent was controverted by the defendant with evidence of coercion. Unlike McCallum and Brem , this evidence was never rebutted by the State. The only State’s evidence was the officer’s controverted conclusion that consent was given. Although his testimony may have been sufficient standing alone, the controverting evidence forces the State to affirmatively prove the underlying circumstances supporting the officer’s claim of consent, a task that should have been attempted at an earlier stage of the trial. 8 Instead, appellant’s counsel was allowed to establish facts demonstrating involuntariness during the course of the trial on cross-examination.

Johnson testified that officer Hargrave asked her to accompany him to the station for questioning. The interrogation 9 lasted for what “seemed like months,” between one and a half and two hours, and Johnson endured only with constant crying. She testified that at the time she signed the consent form for the search of the house, she was fearful for her children and had been threatened by the officers that if appellant was found guilty she could be charged with capital murder. The officer told her they could get a warrant if she did not consent. After the form was signed, they took her to the residence and there asked for “another form concerning the pickup truck.” She signed the form while under the same pressures and intimidation as existed at the station house. Additionally, there is no evidence in the record that she was informed by Hargrave that she had a right to refuse consent. 10

The response by the majority to the existence of these coercive and intimidating factors is to treat each of them as though they existed in solitary. The opinion never views the “totality” of these circumstances; rather, it is stated, for example, that the claim that a warrant would be obtained is insufficient to render consent involuntary. To that I agree. But to the blind application of that rule to this case I must dissent. If the State had introduced other evidence that consent was voluntary, this threat would not render it ineffective. But the record contains unrebutted evidence of a multitude of coercive factors.

The majority finds that the officer’s threat to file charges related not to the giving of consent, but to the officer’s attempt to establish the facts surrounding the murder, as it was mentioned earlier in the interview. The existence of the threat during the interrogation is certainly a circumstance closer in time to the giving of con *466 sent than are some of the factors cited by the majority in support of voluntariness. The majority lists several factors that are far removed in time from the circumstances surrounding the giving of the consent. Specifically, it is noted that Johnson had previously given consent to search the house two days earlier. Further, it is noted by the majority that Johnson had a “previous association” with Ward, but this “association” was ten years earlier. By comparison, the threat of charges was posed during the questioning at the station house, no more than one and a half to two hours earlier, and Johnson testified that it was a pressure existing at the time she consented to both searches.

The majority next notes that Johnson’s emotional state at the time of consent is not a controlling factor, citing United States v. Mendenhall, 446 U.S. 544 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 , and noting that she “never indicated that she did not know that she was consenting to a search.” The issue is not whether she knew she was giving consent, but rather whether she consented voluntarily. Also, in Mendenhall there was no evidence of threats or force and the defendant was twice expressly told that she was free to decline to the search, and only thereafter explicitly consented to it. Thus, the fact that the defendant was upset and shaken did not render an otherwise voluntary consent ineffective. Again, the majority is treating the fact that Johnson cried continuously as if it were the only factor indicating coercion and intimidation. The majority also relies on Martin v. State, supra, for its generalization that “emotional” circumstances will not render consent ineffective. In that case, as distinguished from the record before us today, there was no evidence indicating that consent was involuntary and no evidence of coercion.

The majority then discounts the fact that Johnson was fearful for her children because “[tjhis was a subjective fear of Johnson’s not related to police conduct.” The following quotation from Schneckloth, supra, demonstrates the significance of this factor:

“In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.” (Emphasis added.)

Despite the fact that there is uncontro-verted evidence of these several coercive factors, the majority has refused to consider their synergistic impact under the totality of the circumstances. Having “divided and conquered” each isolated coercive factor, the majority next lists several factors indicating “free choice.” The effect of this position is to place a burden on the defendant to establish physical abuse and resistance even though it is not his burden to prove involuntariness.

In my view, many of these factors are irrelevant. The fact that the questioning occurred in the afternoon is meaningless in light of the fact that the questioning occurred indoors. Why is a station house interrogation conducted inside any less coercive at 4:00 in the afternoon? 11 The fact that Johnson agreed to go to the station house has no controverting effect on the intimidating circumstances immediately surrounding the consent. 12 Further, the absence of physical abuse is not “indicative that consent given was voluntary” in that subtle and implied coercion will clearly defeat a finding of voluntariness:

“It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in *467 that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound that in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.”

Schneckloth, supra, citing Boyd v. United States, 116 U.S. 616 , 6 S.Ct. 524 , 29 L.Ed. 746 .

The majority in two of its irrelevant factors relies on events far removed in time from the circumstances surrounding the giving of consent. First it relies on what the majority characterizes as previous consent by Johnson to search the house. The record actually reveals that appellant had previously consented, and that neither appellant nor Johnson had prevented the officers from looking around. Even if the evidence supported the majority’s assertion that “consent” had previously been given by Johnson, I would question its significance since that event was two days before the search now at issue. The other factor suffering temporal displacement is the majority’s reliance on Johnson’s previous work association with Ward ten years earlier (when Johnson was 15 years old), which she did not even remember until reminded by Ward. It is rank speculation for the majority to claim, in the face of Johnson’s unre-butted description of the true events, that this forgotten “association” would make the situation “less intimidating.”

The majority also notes that when Johnson became upset, the questioning ceased and a female officer brought her coffee to calm her, citing a case where a consenting party got some sleep before giving consent. This factor borders on insignificance because the female officer was apparently unsuccessful in attempting to calm Johnson. She testified that she never stopped crying and that at the time the consent was given, she was fearful of charges and was still upset and crying.

The majority states that a “person acting against her self-interest is less likely to be acting voluntarily” for the proposition that Johnson’s consent was voluntary because she was not acting against her self-interest. First of all, there is no testimony that Johnson thought she was acting in accordance with her self-interest when she consented. Secondly, in Mendenhall the Supreme Court rejected the argument that a defendant would not voluntarily consent to a search where it was obviously against his self-interest. The Court stated:

“And in response to the argument that the respondent would not voluntarily have consented to a search that was likely to disclose the narcotics that she carried, we repeat that the question is not whether the respondent acted in her ultimate self-interest, but whether she acted voluntarily.’’ (Emphasis added.)

As further indicia of voluntariness, the majority notes that “the State and Johnson were working together” because the district attorney’s office provided her with a place to stay on the evening following the consent. It is further noted that once consent was given, the interests of both the State and Johnson coincided. This is based on the assumption that Johnson acted voluntarily in the first place! There is no evidence that she “actively” aided the State. In fact, the record establishes that she had lied to the officers, was threatened with a polygraph examination and was precluded from refusing to testify because the State obtained an order of immunity when she was called to testify. In any event, her subsequent status as a witness called by the State will not retroactively render her consent voluntary.

Finally, the majority finds her consent to be effective because she never testified to the contrary: specifically, she never stated that consent was involuntary or that she would not have given consent but for the coercive environment. The majority notes that she did testify and that although ap *468 pellant could have asked her these questions, he chose not to. This position typifies the overall fallacy in the majority’s position. The burden is simply not on the defendant to prove coercion. It is much more significant to again note that the State never attempted to controvert the testimony of Johnson indicating the coercion under which she consented.

The State failed to prove affirmatively with clear and convincing evidence that Johnson’s consent was voluntary, positive and unequivocal, not the product of actual or implied psychological or physical coercion or duress. The majority simply ignores the fact that the burden of proof is on the State, and fails to view the coercive factors together as the totality of the circumstances bearing upon the voluntariness of the consent. The search and seizure violated the Federal and Texas Constitutions. I must dissent.

V.

As its fifth and final alternative holding employed to save the State from the reversal this record clearly demands, the majority proposes to find the erroneous admission of the fruits of the unlawful search and seizure was harmless beyond a reasonable doubt. The applicable test was stated by this Court in Jordan v. State, 576 S.W.2d 825 :

“The test for harmless constitutional error is not whether a conviction could have been had without the improperly admitted evidence, but ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1976).”

The majority does not discuss whether the erroneously admitted evidence might have contributed to appellant’s conviction. In fact, the majority does not even say what the erroneously admitted evidence was. Instead, the majority merely recites the items that were not the product of the illegal search, and concludes that because those items of evidence would have been sufficient to support the conviction, the constitutional error was harmless. Mere sufficiency is not the test for harmless constitutional error. The issue is whether the erroneously admitted evidence might have contributed to the conviction. The majority opinion never even discusses this issue, never even recites the many items of erroneously admitted evidence, the impact of which is decisive of the issue. To this omission I must dissent.

The majority commits another serious omission in its reliance on the harmless error doctrine. In reciting the few items of evidence that were not products of the illegal search, the majority overlooks the fact that the court instructed the jury that Carroll Jean Johnson was an accomplice witness as a matter of law. Therefore, before the jury could consider her testimony it had to find sufficient corroboration from the other evidence. Art. 38.14, V.A.C.C.P. This requirement must be given consideration in any correct application of the harmless error doctrine. In deciding whether there is a reasonable possibility that the erroneously admitted evidence might have contributed to appellant’s conviction, the instructions under which the jury reached its verdict must be considered. The majority ignores the high probability that the erroneously admitted evidence was used by the jury in its determination of the corroboration issue.

When the corroboration issue is not ignored, the evidence relied on by the majority that was not the result of the illegal search consisted of: appellant’s fingerprint was found on a cigarette pack in the deceased’s bed, a person fitting appellant’s general description in a truck similar to appellant’s in appearance was seen driving from the deceased’s residence in the early morning hours of the night of the offense, and a woman was slumped over in the front seat, blood on appellant’s boot matched deceased’s type, semen from the deceased was from a person of blood type matching appellant’s, hairs found on the deceased were similar to appellant’s, and a heel print on the victim’s apartment door was similar to *469 prints made by appellant’s boot. In sum, the majority relies on a fingerprint not shown to have been left at the time of the offense, blood type matches, similarities in appearance near the time and place of the crime, and similarity of hair appearance and boot print.

The evidence seized in the illegal search of appellant’s house and truck, on the other hand, was substantial and furnished the basis for many scientific tests and comparisons, and the resulting expert testimony. The witness testified to his opinion that leaves found on the deceased’s face and on the floormat of appellant’s truck were very similar and could have come from the same plant; that known head hair from the deceased and hair taken from the side of the truck were very similar and could have come from the same individual; that sweepings from appellant’s and the investigator’s vacuum cleaners and hair from the deceased were very similar and could have come from the same individual; that some of the hair collected underneath a throw rug in a bedroom inside the appellant’s house and head hair from the deceased were very similar and could have come from the same person; that a stain on a piece of wood from appellant’s porch was type A human blood (the same as deceased’s); that stains on a rug, on boxspr-ings cuttings, on cuttings from a denim chair, and on a cutting from a mattress in appellant’s bedroom were type A human blood; that a stain on a piece of cellophane from a trash can taken from appellant’s house was type A human blood; that a stain ón a shingle taken from the exterior of appellant’s house was type A human blood; and that stains found on the frame portion of the interior of appellant’s truck were type A human blood. This evidence, then, shows blood type matching and similarity of leaves and hair that serve as circumstantial inferences to link the deceased to appellant’s truck and house.

The weight of this improperly admitted circumstantial evidence is at least as great as that of the circumstances relied on by the majority. I find it inconceivable that the erroneously admitted evidence did not contribute to the judgment of conviction. There is much more than a reasonable possibility that such evidence might have contributed to the verdict, either in the finding of sufficient corroboration or in the finding of guilt independently of Johnson’s testimony. It is, objectively viewed, a virtual certainty that the erroneously admitted evidence contributed to the verdict.

I find none of the majority’s five alternative holdings persuasive. Established law properly applied requires reversal of this conviction. I therefore am compelled to dissent to the majority’s refusal to adhere to established law in its consideration of appellant’s fourth ground of error.

ROBERTS and TEAGUE, JJ., join this opinion.

. The “interest of justice” provision of Art. 40.09, supra, was amended in the 1981 session of the Texas Legislature, but is still the law for all appeals pending in this Court on September 1, 1981, as was the case at bar. Acts 1981, 67th Leg., p. 820, ch. 291, sec. 149.

. “On original submission from the record before us it clearly appeared that there was a serious question as to the legality of the search and there was evidence that there had been a hearing on a motion to suppress which it was concluded might shed some light on the search question which is of constitutional dimension. Fourth Amendment, United States Constitution; Article 1, Sec. 9, Texas Constitution. The judge assigned the cause requested the transcription of hearing on suppression motion from the trial court through a staff member of this court. When this matter was brought to the attention of the entire court, the majority approved the action taken in light of the original record forwarded to this court.” Armstrong v. State, 550 S.W.2d 25 , 29 n. 1 (on motion for rehearing).

. The majority misperceives the object of this paragraph. While the sufficiency of trial objection is discussed later in this opinion, it is the majority’s attack on the motion to suppress that is here examined. The shortcomings of its attack are exemplified in the majority’s emphasis on the appellant’s failure to allege that Johnson did not voluntarily consent. This position would require a defendant to list an unlimited number of persons from whom police officers may have sought consent without knowing the State’s theory for subsequently justifying the search at trial. For example, if a defendant resided with a number of people, would it be necessary for counsel to specifically negate consent by each of them? As is the case with the majority argument on the merits, see infra, this position shifts the burden to the defendant to plead and prove the nonexistence of a justification for the warrantless search when that burden has been consistently placed on the State.

. It appears that even the trial court was placing the burden on appellant to negate the existence of voluntary consent instead of on the prosecution to prove it.

. Although the remainder of those objections were reduced to recitation of the applicable constitutional provisions, counsel had already specifically stated to the court that the validity of the consent was in question and that the State had failed to prove that the search was authorized. As Judge Clinton notes in his dissent, the defendant in Smith never specified with such particularity the grounds upon which the evidence objected to violated the cited constitutional provisions. Thus, the majority’s implication that Smith would have to be overruled in order to find appellant’s objection sufficient is without merit.

. The majority makes note that the written consent recited that the signing party, Johnson, understood that she need not consent and that the consent was made freely and voluntarily. Because the form was not introduced or admitted at trial, I fail to see how this can be considered on appeal.

. Recognizing that the only testimony regarding the circumstances of the consent is through Johnson, the majority makes note of the fact that her statements are in response to “leading questions” propounded by appellant’s counsel. 1 fail to fathom the significance of this statement, particularly in light of this Court’s consistent approval of the rule allowing cross-examination to be conducted with leading questions. It seems that the State acknowledged the permissibility of counsel’s tactics in that no objection to the questions was tendered at trial.

. Early development of the issue when first raised was precluded by the trial court’s ruling that appellant develop the matter on cross-examination. See text at footnote 4, above.

. The focus of the investigation had certainly shifted to Johnson in that Miranda warnings had been given and a polygraph examination was suggested. At one point, Johnson apparently became so upset that a female officer arrived in an unsuccessful attempt to calm her.

. It is true that when the circumstances support a finding of voluntary consent, the State is not required to prove that such a warning was given. Potts v. State, 500 S.W.2d 523 ; Allen v. State, 487 S.W.2d 120 ; Cole v. State, 484 S.W.2d 779 ; DeVoyle v. State, 471 S.W.2d 77 . In other words, if other factors indicate that consent was free and voluntary, and that a reasonable person would realize he didn’t have to consent, then the absence of a warning should not render consent ineffective. Schneckloth v. Bustamonte, supra. See also Chase v. State, 508 S.W.2d 605 , cert. denied 419 U.S. 840 , 95 S.Ct. 71 , 42 L.Ed.2d 68 ; Ribble v. State, 503 S.W.2d 551 . But when the absence of the warning is combined with an assertion that a warrant would be obtained anyway, the officer is, in effect, informing the party that he has no right of refusal.

. In light of the fact that Johnson worked the 7 p. m. to 7 a. m. shift, it could be supposed that 4 p. m. would be “in the middle of the night" for her, comparable to 4 a. m. for someone working the day shift.

. Authority cited by the majority only supports the proposition that a defendant is precluded from complaining about the station house environment as inherently coercive when in fact he agreed to be questioned at that site. It does not give carte blanche to whatever occurs at the station house.