concurring in part/dissenting in part.
The majority’s treatment of appellant’s sixth ground of error1 seems to reject the contention because “the police officer ... had probable cause to arrest the appellant ... pursuant to what he believed to be a valid arrest warrant.” While I agree that the existence of probable cause and the procurement in good faith of an arrest warrant are highly probative of “the purpose and flagrancy of the official misconduct,” the issue does not turn on this consideration alone; indeed, the Court has rejected application of a “good faith exception” in cases such as this. See Green v. State, 615 S.W.2d 600 (Tex.Cr.App.1981) (Opinion Dissenting to Denial of State’s Motion for Leave to File Motion for Rehearing Without Written Opinion).2 But, the majority has placed virtually all emphasis on this factor, along with warnings given appellant, without considering that, under the facts recited in the opinion, there were no “intervening circumstances” between the arrest and confession, or the “temporal proximity” of the arrest and confession was only three and a half hours.
I am also unable to agree with the majority’s disposition of appellant’s third ground of error which alleges error in the trial *953court’s failure to submit an instruction on the specific intent to kill. According to the majority, an instruction “on the law concerning accident” was adequate because such a charge “is inclusive of the question of intent.”
Only a few months ago we unanimously determined,
“[tjhere is no law and defense of accident in the present penal code.... The function of the former defense of accident is performed now by the requirement of V.T.C.A. Penal Code, Section 6.01(a), that, ‘A person commits an offense only if he voluntarily engages in conduct.’ * * In the former law of accident, the term ‘intentional’ meant something like ‘voluntary.’ Therefore, the correct meaning of the former term ‘accident’ was that the actor did not voluntarily engage in conduct.” [Emphasis supplied] Williams v. State, 630 S.W.2d 640, 644 (Tex.Cr.App.1982).
Appellant’s contention cannot be construed to involve a denial he engaged in voluntary conduct. Instead, the genesis of this contention and-the cases cited is the “presumption” of the intent to kill which purportedly arises from the use of a deadly weapon per se.
In view of Flanagan v. State (Tex.Cr.App., No. 60,580, delivered December 22, 1982), handed down today, Foster v. State, 639 S.W.2d 691 (Tex.Cr.App.1982), and Williams, supra, it is clear that we should acknowledge that former Articles 45 and 11393 were repealed on January 1, 1974 when the present Penal Code became effective, and clarify the correct law in this area.4 Such clarification could and should be made in this case; I believe it would amply justify overruling appellant’s third ground of error.
ONION, P.J., and ROBERTS and TEAG-UE, JJ., join.. “The court erred in admitting the confession before the jury because it was the product of an illegal arrest and detention.”
. It should be noted, however, that in the Lubbock County case of Green, supra, the record was utterly devoid of probable cause to arrest, and the manifestly insufficient affidavit presented to the magistrate had been drafted by an attorney, yet was identical to a Lubbock County affidavit condemned by the Supreme Court of the United States in Barnes v. Texas, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818 (1965), some ten years before. Furthermore, in Green, supra, the arrest, both in design and execution, was patently investigatory and, indeed, the procurement of a warrant in that case appeared to have been merely a matter of form which all involved knew was of no substance. In fact, in order to conclude the officers had probable cause to arrest Green, the dissent was constrained to look outside the record developed in that case; moreover, the dissent never disclosed what the alleged probable cause was.
. Article 45 provided:
“The intention to commit an offense is presumed whenever the means used is such as would ordinarily result in the commission of the forbidden act.”
Article 1139 provided:
“When an injury is caused by violence to the person, the intent to injure is presumed, and it rests with the person inflicting the injury to show the accident or innocent intention. The injury intended may be either bodily pain, constraint, a sense of shame or other disagreeable emotion of the mind.”
. According R. Ray, Texas Law of Evidence, § 51 (3d ed. 1980):
“Courts and textbook writers often divide presumptions into two classes: Presumptions of law and presumptions of fact. Such a classification is, at best, confusing. The difference between the two is the difference between things which are true presumptions and things which are not presumptions at all. A true presumption is a rule of law laid down by the courts which attaches to facts certain procedural consequences. On the other hand, a presumption of fact is nothing more than an inference which may be drawn by the jury from the circumstances without the aid of any rule of law.” [Emphasis supplied] Thus the correct rules of law are two:
(1) a factfinder ordinarily may infer the fact of intent to kill from the use of a weapon which is per se deadly;
(2) as a standard of review, an appellate court will accept that inferential factfinding except when, because of special circumstances of fact, no rational factfinder could have believed beyond a reasonable doubt that intent to kill had been proved. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Griffin v. State, 614 S.W.2d 155 (Tex.Cr.App.1981).
Neither of these rules of law are “presumptions.” E.g., Flanagan, supra; but see Foster, supra.