dissenting.
The jury assessed appellant’s punishment at 20 years’ imprisonment after convicting him of unauthorized use of a motor vehicle. V.T.C.A., Penal Code, § 31.07. The punishment was enhanced under V.T. C.A., Penal Code, § 12.42(a), by allegation, proof and finding of a prior felony conviction of aggravated robbery.
On appeal appellant raised two points of error. First, he contended that the court erred in denying his requested charge on “owner.” His second point of error is set out in his original appellate brief in its entirety as follows:
“THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY ON THE DEFENSE OF MISTAKE OF FACTS. '
“The appellant’s explanation to the police officers concerning his use of the car by permission (introduced by the State) clearly entitles the appellant to an instruction on the defense of mistake of fact. Lynch v. State, 643 S.W.2d 737, 738 (Tex.Cr.App.1983).”
The Court of Appeals in an unpublished opinion rejected both points of error and affirmed the judgment of conviction. Wood/ox v. State (Tex.App.-Houston [14th] 1986 — No. B14-85-155-CR). In disposing of appellant’s second contention the court wrote:
“In his second ground of error, appellant alleges the trial court erred in refusing his requested instruction on mistake of fact. At the time of his arrest, appellant told officers he had gotten the car from ‘Willie Davis.’ Appellant did not take the stand. The defense did not call Willie Davis as a witness. Based upon the officers’ testimony of appellant’s exculpatory statement, appellant claims he is entitled to a charge on the defense of mistake of fact. Such evidence alone is insufficient to support the submission of the instruction. Williams v. State, 605 S.W.2d 596 (Tex.Crim.App. 1980); Harper v. State, 533 S.W.2d 776 (Tex.Crim.App.1976). Appellant’s second ground of error is overruled.”
Appellant’s sole ground for review is “The trial court erred in failing to charge the jury on the defense of mistake of fact.” In his brief in support of his petition for discretionary review he contends that the Court of Appeals' decision is in conflict with Lynch, supra, for the explanation to the police at the time of arrest was sufficient to entitle him to the instruction requested. He further argued that Williams and Harper, supra, did not involve affirmative submission of a defense and the Court of Appeals’ reliance thereon was misplaced.
We granted the petition for discretionary review.
A review of the evidence is here helpful. Sherry Ferrel stopped her car at a service station about 10 p.m. on June 4, 1984. She left the keys in the ignition and the motor running while she used a pay telephone. Two men jumped into her car and drove it away. Ferrel reported this event to her friend to whom she was talking on the phone and the police were called. She testified she did not give appellant or anyone else permission to operate her car. At 2:30 a.m. on June 5th, about four and a half hours after the car was taken, Houston police officers C.B. Crosby and Thomas James McCorvey observed appellant driving a car at a high rate of speed. A license check revealed that the car had been reported stolen. The officers, with assistance of other police units, stopped the car which was shown to be Ferrel’s. Appellant was the only occupant. Ferrel’s purse, driver’s license, etc., were in the car. Appellant was told he was being arrested for automobile theft, and he was read his rights. Officer Crosby testified appellant “gave me some name of some person that gave it [car] to him,” that the name given was “William Davis.” Officer McCorvey testified appellant told him he “got it from a friend” about an hour earlier, that the name given was William Davis, that appellant stated Davis lived at Kelly Courts, a housing project, but that Davis was not there as Davis and his girlfriend left in *412another ear. MeCorvey was unable to locate Davis through a computer check for those with criminal records or with driver’s licenses.
There was no other evidence offered by the State on the subject matter, and appellant offered no evidence at all.
Before the charge was read to the jury at the guilt stage of the trial, the record reflects that appellant’s counsel orally stated to the court:
“First of all, a charge on whether or not police officers had probable cause to make the arrest, and I ask for a ruling on that.
“THE COURT: That will be denied.
“MS. IRVIN: Thank you. We ask for a charge of mistake of fact.
“THE COURT: I think the case is right on point stating a mistake of fact is not an issue in unauthorized use of motor vehicle cases.
“MS. IRVIN: We ask for a charge on exculpatory statements.... ” (Emphasis supplied.)
This is all that is found in the record as to either an objection or special requested charge as to a mistake of fact.
Article 36.15, V.A.C.C.P. (Requested Special Charges), authorizes either party to present “written instructions” to the court and ask that they be given to the jury. It further provides: “The requirement that the instructions be in writing is complied with if the instructions are dictated to the court reporter in the presence of the court and the state's counsel, before the reading of the charge to the jury.”
As is clear the record does not reflect that the instructions requested were in writing or dictated to the court reporter. There was no compliance with Article 36.-15, V.A.C.C.P.
Article 36.14, V.A.C.C.P., provides that a defendant or his counsel may object to the court’s charge “in writing, distinctly specifying each ground of objection. The statute also provides that the requirement “the objections to the court’s charge be in writing will be complied with if the objections are dictated to the court reporter in the presence of the court and the state’s counsel before the reading of the court’s charge to the jury.” This latter provision does not eliminate the requirement that the defendant distinctly specify each ground of objection.
If the statement alone “We ask for a charge of mistake of fact” is an objection, it certainly fails to distinctly specify the basis or ground of the objection as required by Article 36.14, supra. Which mistake of fact did the appellant have reference to negating the kind of culpability required by commission of the offense?
V.T.C.A., Penal Code, § 8.02(a), provides:
“(a) It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for the commission of the offense.” (Emphasis supplied.)
Even if it can be argued the “objection” was a valid one under Article 36.14, supra, it must be observed that this Court has held the elements of the offense under V.T.C.A., Penal Code, § 31.07, to be that (1) a person (2) intentionally and knowingly (3) operates an airplane, boat or motor-propelled vehicle (4) without the effective consent of the owner. Musgrave v. State, 608 S.W.2d 184, 189 (Tex.Cr.App.1980); Neely v. State, 571 S.W.2d 926 (Tex.Cr.App.1978). And this Court has held that there is no requirement that the prosecution prove that a defendant knew or should have known he was operating the motor vehicle without the owner’s effective consent, or that the vehicle was stolen. All that is necessary is a showing the defendant intended to operate the vehicle, and that such operation was without owner’s consent. Musgrave, supra, at 189-190. It is therefore irrelevant whether a defendant knew he was driving the car of a friend or one that was stolen. A defendant’s knowledge he is acting without the owner’s consent is not an element of the offense. Musgrave, supra, at 191.
In Johnson v. Stale, 635 S.W.2d 564 (Tex.App.-Houston [14th] 1982), the court, relying upon Musgrave and Neely, held *413that where it was irrelevant whether the defendant knew he was driving a friend’s car or one that was stolen, a charge on mistake of fact was unnecessary upon request and the trial court did not err in so refusing to instruct the jury. It appears this was the decision upon which the trial court relied in overruling the “request” or “objection.” See also Thomas v. State, 646 S.W.2d 566 (Tex.App.-Houston [1st] 1982).
In addition, even if this was not true, the evidence would not support a charge on mistake of fact. See § 8.02, supra. There was no evidence that appellant didn’t know the car was stolen. He merely said in exculpatory statements at the time of his arrest that a William Davis “gave” him the car an hour before. There was no evidence that appellant through a mistake formed a reasonable belief about a mistake of fact which would negate a necessary kind of culpability. The lack of evidence to support the charge forms another basis of upholding the trial court’s action.
The majority errs in overruling Williams v. State, 605 S.W.2d 596 (Tex.Cr.App.1980), and Harper v. State, 583 S.W.2d 776 (Tex.Cr.App.1976), even to the extent of any conflict. Those cases do not hold that a defendant must necessarily testify in order to raise the defensive issue of mistake of fact or the defensive issues there involved. All Williams and Harper did was to attempt to distinguish the factual situation in the case from Bonner v. State, 426 S.W.2d 869 (Tex.Cr.App.1968), where the defendant had testified. The defendants in Williams and Harper had relied on Bonner to support their argument the evidence was sufficient to raise the submission of the defensive issue requested. This Court pointed out their reliance was misplaced because in Bonner the defendant’s testimony had clearly raised the defensive issue, and that in Williams and Harper the defendants had not testified and the evidence did not raise the defensive issue. This Court did not hold that only the defendant’s testimony may raise such defensive issues. The majority simply misreads Williams and Harper and there is no excuse for overruling such cases.
For all the reasons discussed above, I find it ridiculous to remand this cause to the Court of Appeals, keep this cause in the heavenly appellate orbit, delay the finality of the judgment, further exhaust judicial resources, the State’s money, and insure, in all likelihood that we will once again be able to open up the same appellate record and find ourselves right where we are today.
I dissent most vigorously.
DAVIS, McCORMICK and WHITE, JJ., join this opinion.