ON MOTION FOR REHEARING
HECHT, Justice,concurring.
On motion for rehearing, the State urges us to consider whether the trial court’s erroneous refusal to instruct the jury as required by article 38.23, Texas Code of Criminal Procedure, was harmless under Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984) (opinion on rehearing). The majority do not apply Almanza because the court of criminal appeals did not do so in Stone v. State, 703 S.W.2d 652 (Tex.Crim.App.1986) (en banc), a case very similar to ours decided after Almanza. I would hold that Almanza must be applied.
By both its language and its logic, Al-manza applies to an erroneous refusal to give an article 38.23 instruction. Why the court of criminal appeals did not apply Al-manza in Stone I do not know. Importantly, however, Stone does not hold Almanza inapplicable to the charging error considered there and which we now have before us. Almanza speaks. Stone is silent. Almanza should be heard.
I agree with the majority that under Almanza, the error in this case is not harmless. The evidence as to whether Jacobs was intoxicated came from three sources. The arresting officer testified that she saw Jacobs’ pickup weaving down the highway, and that, based upon her observation of Jacobs and Jacobs’ failure of. *707several field sobriety tests, Jacobs was intoxicated. Jacobs testified that he had been drinking beer and eating from about 6:30 p.m. to 11:30 p.m., but denied that he was intoxicated or that he was weaving on the road. The breath test result of 0.11 percent showed Jacobs to be intoxicated.
We have previously found the evidence to raise an issue as to whether the officer had reasonable suspicion to stop Jacobs. The jury might well have concluded she did-not. Had they been properly instructed, they would have been required to disregard all evidence illegally obtained, including the officer’s testimony of everything after the stop and the breath test result. The only remaining evidence of intoxication would have been the officer’s testimony that Jacobs’ was weaving on the road and Jacobs’ testimony that he had been drinking, evidence which well might not have been sufficient for conviction. Therefore, the failure to instruct the jury properly was calculated to and probably did injure Jacobs.