The Texas Court of Criminal Appeals regarded Mincey as changing the law. Pearson v. State, 587 S.W.2d 393 (Tex.Crim.App. 1979), cert. denied, 446 U.S. 912, 100 S.Ct. 1844, 64 L.Ed.2d 266 (1980). Nevertheless, it declined to give Mincey retrospective effect, relying on this language from United States v. Peltier, 422 U.S. 531, 535, 95 S.Ct. 2313, 2316, 45 L.Ed.2d 374 (1975):
Corbett v. State, 493 S.W.2d 940 (Tex.Cr.App. 1973); Tocher v. State, 501 S.W.2d 921 (Tex.Cr.App. 1973); Brown v. State, 475 S.W.2d 938 (Tex.Cr.App. 1971). This rule was abolished by the United States Supreme Court in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), which this Court has held is not retroactive. Pearson v. State, 587 S.W.2d 393 (Tex.Cr.App. 1979). Because both the search and the trial took place before the decision in Mincey, when Brown was still the law, the trial court did not err in admitting the handle of the fishing rod. Pearson v. State, supra.
Furthermore, it appears the search conducted here was of the murder scene. Although the record is not fully developed, it appears that the "common law `exigency rule' " of Brown v. State, 475 S.W.2d 938, 948-950, and Pearson v. State, 587 S.W.2d 393, would apply because the search and trial in this case occurred before the decision in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Pearson, supra.
The two cases which mentioned border searches in relation to state law did not make a determination of whether or not such a search is an exception to the probable cause requirements of the Texas Constitution. (1) Pearson v. State, 587 S.W.2d 393 (Tex.Crim.App. 1979), cert. denied, 446 U.S. 912, 100 S.Ct. 1844, 64 L.Ed.2d 266 (1980); (2) Duff v. State, 546 S.W.2d 283 (Tex.Crim.App. 1977); (3) Tamez v. State, 534 S.W.2d 686 (Tex.Crim.App. 1976); (4) Sanders v. State, 482 S.W.2d 648 (Tex.Crim.App. 1972); (5) Guadian v. State, 420 S.W.2d 949 (Tex.Crim.App. 1967); (6) Aycock v. State, 828 S.W.2d 516 (Tex.App.-Houston [14th Dist.], vacated, 842 S.W.2d 292 (Tex.Crim.App. 1992); (7) Fuentes v. State, No. 14-83-00252-CR (Tex.App.-Houston [14th Dist.] September 18, 1986) (not designated for publication); and (8) Uribe v. State, No. 14-83-100-CR and 14-83-101-CR, (Tex.App.-Houston [14th Dist.] December 22, 1983), reversed on other grounds, 688 S.W.2d 534 (Tex.Crim.App. 1985), overruled, 833 S.W.2d 134 (Tex.Crim.App. 1992). (1) Pearson v. State, 587 S.W.2d 393 (Tex.Crim.App. 1979), cert. denied, 446 U.S. 912, 100 S.Ct. 1844, 64 L.Ed.2d 266 (1980); (2) Duff v. State, 546 S.W.2d 283 (Tex.Crim.App. 1977); and (3) Sanders v. State, 482 S.W.2d 648 (Tex.C
However, Brown and the others cited in the margin are more properly regarded as a "murder scene exception" fashioned by the Court from the common law "exigency rule," and we now know from Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) that there is not any such exception in Fourth Amendment law. See Pearson v. State, 587 S.W.2d 393 (Tex.Cr.App. 1979). What we must determine is the meaning of the socalled "emergency doctrine," its vitality in Texas criminal jurisprudence and whether the circumstances shown in this record triggered its operation.
The Court of Criminal Appeals of Texas relied on Peltier to refuse to apply Mincey to a warrantless "homicide scene" search conducted in good faith before Mincey was decided. Pearson v. State, 587 S.W.2d 393, 396 (1979). The State urges a similar approach in the case before us.
In Mincey, the Supreme Court of the United States held that there is no "murder scene exception" to the Fourth Amendment and that the warrantless search of a defendant's apartment was not constitutionally permissible simply because a homicide had recently occurred there. In Pearson v. State, Tex.Cr.App., 587 S.W.2d 393, this Court concluded that the holding of Mincey would not be applied retroactively to a search and trial which had been conducted prior to the time of the decision in Mincey on June 21, 1978. In the instant case, the complained of search was conducted some six months before the decision in Mincey while the trial was held six months after the decision.
Although those cases conflict with Ybarra, supra, and are no longer the law, at the time of the search in this case they were still good law. Cf. Pearson v. State, Tex.Cr.App., 587 S.W.2d 393. In the opinion in Pearson we set out a lengthy excerpt from United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), which examined the policy considerations that militated against giving retroactive effect to Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).
However, since both the search involved in this case and the trial of the case occurred before Mincey was decided, the rule of Mincey is not applicable to this case. In Pearson v. State, 587 S.W.2d 393 (Tex.Cr.App. 1979), it was held in a case where the search and the trial of the case occurred prior to the decision in Mincey, that that decision would not be held to be retroactive and that Mincey v. Arizona, supra, did not apply. In Swink v. State, 617 S.W.2d 203 (Tex.Cr.App. 1981), the search was conducted some six months before the decision in Mincey while the trial was held six months after the decision.