dissenting.
Appellant’s first ground of error, evidential insufficiency, is difficult enough to resolve because of both the circumstantial nature of the evidence and its marginal weight and implications.
It is even more difficult for me to accept the majority’s disposition of the second and third grounds of error. The nearest the evidence approaches to showing, albeit circumstantially, that the appellant knew that his deceased father was planning to remove him from the will was the testimony of appellant’s two brothers: Joe admitted that he did not know whether appellant was so informed, and further stated that he had never seen his father arguing with the appellant; and Filimon stated vaguely that appellant and his father were arguing about the deceased’s will approximately two weeks before the homicide. It is not disputed by the State that the deceased did not in fact change his will to disinherit the appellant.
Logic, authority, and experience combine to guide me into believing that the circumstances relied on by the State to show that a defendant had a motive to kill the deceased are admissible only where it is first shown that the circumstances were probably known to the defendant. See Bailey v. State, 532 S.W.2d 316, 325 (Tex.Crim.App.1975) (dissenting opinion on motion for rehearing); McCormick and Ray, Texas Law of Evidence Civil and Criminal, sec. 1534 (Texas Practice 2d ed. 1956); and Wigmore, Evidence, sec. 389 at 329 (3d ed. 1940). See also the following cases which were reversed when circumstances were admitted to show a motive for murder but it was not shown that the defendant had knowledge of the circumstances: See e.g., Phillips v. State, 22 Tex.App. 139, 2 S.W. 601 (1886); De Leon v. State, 68 Tex.Cr.R. 625, 155 S.W. 247 (1913); Young v. State, 59 Tex.Cr.R. 137, 127 S.W. 1058 (1910); Black v. State, 82 Tex.Cr.R. 358, 198 S.W. 959 (1910); (1917); Kirklin v. State, 73 Tex.Cr.R. 251, 164 S.W. 1016 (1914); Terry v. State, 45 Tex.Cr.R. 264, 76 S.W. 928 (1903); Berwick v. State, 116 Tex.Cr.R. 508, 31 S.W.2d 655 (1930); Edmondson v. State, 109 Tex.Cr.R. 518, 6 S.W.2d 119 (1928).
It seems to me that the circumstantial evidence was not sufficient to show that appellant knew that he might be disinherited, and such testimony in question was therefore essentially irrelevant, prejudicial, and possibly hearsay. Nor does such testimony become admissible under Section 19.-06 of the Texas Penal Code, which permits evidence showing the previous relationship existing between the accused and the deceased, as well as all relevant circumstances going to show the state of mind of the accused at the time of the homicide. Section 19.06 does not change, limit, or extend the general rules of evidence relating to hearsay. Erwin v. State, 531 S.W.2d 337 (Tex.Crim.App.1976); Love v. State, 581 S.W.2d 679 (Tex.Crim.App.1979); Nixon v. State, 587 S.W.2d 709 (Tex.Crim.App.1979).
Because I cannot say that the error in admitting such testimony was rendered harmless in light of the overwhelming evidence of appellant’s guilt, as in Bailey v. State, supra — because the evidence herein, while sufficient to support the jury’s verdict, was not overwhelming — I would sustain appellant’s second ground of error.
In his third ground of error, appellant argues that the trial court erred in overruling his motion to suppress, thereby allowing into evidence appellant’s clothes, boots, and the money found on his person. The State urges that appellant’s arrest was lawfully based upon his being publicly intoxicated, and that the search of his person was incidental to such arrest and accordingly permissible. Pulido v. State, 503 S.W.2d 578 (Tex.Crim.App.1974). Seizable items, such as instruments or evidence of the crime or contraband which come into the possession of an officer lawfully searching in connection with another crime *414or for another purpose, may be retained and used in the prosecution to which they relate. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Pulido v. State, supra.
Appellant argues that the arresting officer did not have any warrant for his arrest, but claimed only that he had information that there were outstanding warrants for appellant’s arrest. Tex.Code Crim.P.Ann. art. 15.26.. In Gant v. State, 649 S.W.2d 30 (Tex.Crim.App.1983), it was held that when an accused objects to admission of evidence on the ground it is tainted by a warrantless arrest, and the State relies on an arrest warrant, in the absence of waiver, error results unless the arrest warrant is exhibited to the trial judge for a ruling. Id., at 33. The court, applying the basic holding of Cannady v. State, 582 S.W.2d 467 (Tex.Crim.App.1979), requiring production at trial of search warrants, found no basis in reason to distinguish the principle when applying it to arrest warrants.
The arrest warrants were never produced at trial by the State in the instant case— nor was their production waived. The State argues, however, that sec. 14.01(b) of the Code of Criminal Procedure allows a peace officer to arrest a party without a warrant for an offense committed in his presence or within the view of the officer, and the fact that the officers observed appellant highly intoxicated in a public place gave the officers probable cause to arrest appellant for public intoxication. That offense, however, consists of more than mere intoxication in a public place. It requires extreme intoxication and public presence under circumstances that indicate a danger to self or a threat to the security of others. See Dickey v. State, 552 S.W.2d 467 (Tex.Crim.App.1977); Tex.Penal Code Ann. art. 42.08 (Vernon 1974).
In the instant case, the arresting officers testified that the appellant was highly intoxicated at the time of his arrest, and was playing pool. Playing pool is generally thought to require some degree of skill unlikely to be compatible with extreme intoxication. Furthermore, there was no testimony as to the appellant’s danger to himself or to others, and in the absence of such testimony, the State has failed to establish probable cause justifying an arrest for public intoxication. See Davis v. State, 576 S.W.2d 378 (Tex.Crim.App.1978), which in a footnote at 380 states:
We also note that there was not probable cause to arrest for public intoxication. In order to arrest for public intoxication under V.T.C.A., Penal Code Sec. 42.08, the arresting officer must have reason to believe the suspect is intoxicated “to the degree that he may endanger himself or another.” In this instance appellant was walking along a sidewalk in the early afternoon without any difficulty when first observed by the officer. Only on close inspection did Davis appear to the officer to be intoxicated because he was somewhat unsteady on his feet and his speech was slurred. There was no indication that he was in any way a danger to himself or anyone else. There was no probable cause for an arrest for public intoxication, had there been such an arrest.
No other justification for the warrantless arrest, under either Chapter 14 of the Code of Criminal Procedure or any other authority, has been claimed by the State.
Accordingly, I would sustain appellant’s third ground of error, reverse the judgment of the trial court, and remand the cause for a new trial.