concurring.
Without material deviation every code of criminal procedure enacted by the Legislature of the State of Texas has mandated, as Article 36.14, V.A.C.C.P. does now, that the judge of a trial court of record “shall . .. deliver to the jury ... a written charge distinctly setting forth the law applicable to the case.”1 When the Supreme Court decided Bishop v. The State, 43 Tex. 390 (1875), cited by, and selective excerpts from it in Mace v. State, 9 Tex.App. 110 (Ct.App.1880), reproduced by, the dissenting opinion in the case at bar, the contemporaneous code similarly imposed that duty on the trial judge. Bishop v. The State, supra, at 395.2
However, in common, both Mace v. State and the dissenting opinion seem not to appreciate the “general powers of revision and correction of errors” in this Court, as well as other appellate courts of this State. Particularly has the second segment of the authoritative opinion been overlooked — the *740part in which then Chief Justice Oran M. Roberts3 addressed those “general powers.”
Having determined the situation when a bill of exceptions shows that an accused did object to some perceived deficiency in the charge of the trial court, the Supreme Court then took up a further matter, viz:
“It is proper to notice another error apparent upon the record in order to prevent any misconstruction of the rules that have been announced, in connection with the rule by which this court is governed in its action, where there is a failure on the part of the court below to charge ‘the law applicable to the case,’ as required by the code, (Paschal’s Dig., art. 8059,) and where it has neither been excepted to at the time of the trial, nor attempted to be remedied by asking a charge which was refused, nor made a ground for a new trial, all of which are expressly permitted to be done by the code. (Paschal’s Dig., arts. 3061, 3067, 3068 and 3137.)” Id., at 397-398.
Turning to the testimony surrounding the alleged theft, the Supreme Court noted that the charge of the court “did not explain to the jury what is meant in law by a fraudulent taking, necessary to constitute theft...” Finding the evidence tended to establish that which the charge had omitted, the Supreme Court concluded that “its omission appearing of record on appeal, must be held to be a good ground of error by this court, although the charge in this respect was not excepted to at the time of the trial nor objected to in the motion for a new trial,” id., at 398-399.
The Supreme Court explicated the bases for its conclusion in terms that still obtain today, albeit this Court now has that final appellate jurisdiction in criminal cases formerly held by the Supreme Court of Texas.
First, “This results from the general powers of revision and correction of errors given to the Supreme Court by the Constitution and laws of this State, in acting under the laws regulating proceedings in criminal trials.” And the opinion points to constitutional provisions from the days of the Republic of Texas and the early decision in The Republic v. Smith, Dallam, 407,4 as well as contemporaneous statutory authority and direction by Paschal’s Digest, Article 3210(744)5 and Article 3208(742).6
Secondly, after accepting the general meaning of “to revise the judgment,” the Bishop Court explained:
“. .. The fact that a defendant may except to a charge, when given, by pointing it out definitely, specifying his objections, and that he may so object to any part of the charge on a motion for a new trial, to both of which the law has attached certain consequences, does not, by any fair implication, debar him from making the same objections for the first time in this court that might then have been made; and there certainly is no express prohibition of its being done. The duty of the district judge is none the less imperative to deliver a charge ‘in which he shall distinctly set forth the law applicable to the case’ under article 3059, when not excepted to at the time of trial in a felony case, although its infraction may invoke a different rule in revising the case on appeal, than that prescribed in *741article 3067, when it is excepted to at the time of the trial.”7 Id., at 401.
Thirdly, moving to the situation where an accused failed to except, the Supreme Court then wrote the paragraph that the dissent reproduces by quoting from the opinion of the Court of Appeals in Mace v. State, supra.8 (P. 748) After further explication of the rule and again indicating relevant testimony, the Supreme Court found that “the omission of some such charge was a material error, calculated to injure the rights of the defendant, by leaving the jury to decide the law as well as the facts of the case,” id., at 403. A host of Supreme Court precedents was added to show that its conclusion “is in accordance with the uniform decisions of this court, in the exercise of its powers as an appellate tribunal,” and their impact capsuled, viz:
“In none of the cases just cited, some of which are leading cases, do the reports of them show, nor does it appear in the opinions therein delivered, that there was an objection made to the charge, for misdirection or deficiency, either in exceptions at the time of the trial or in the grounds of a motion for a new trial, nor is there the least intimation in them, or that has been found elsewhere in our reports, that it was necessary to raise such objection below, as to the misdirection or deficiency of a charge, as prerequisite appearing on the record to enable this court to revise such action of the court in relations to the charge. This is ample evidence of the construction of the powers of this court in appeals, and of the rules under which it has uniformly acted, as above stated, and as shown by reference to the cases cited.” Id., at 403.
Accordingly, bringing together that error in the charge to which exception had been leveled — addressed in the first part of the Bishop opinion from which the Mace Court drew support — and the “apparent error” pointed out in the second segment of its opinion, the court finally concluded:
“On both grounds of error, in charging substantially on the weight of evidence excepted to at the time of the trial, and for the material deficiency in the charge, not objected to below, but apparent on the record, and deemed to be an error calculated to injure the rights of the defendant, the judgment is reversed and the cause remanded.” Id., at 403-404.
Thus did the Supreme Court of Texas assert and confirm its plenary powers to review all proceedings made a part of the record in criminal cases and to revise a judgment of the trial court. That it chose to draw from extant statutory provisions its guides for determining what within or omitted from the charge of the trial court “would be a material error, justifying and requiring a reversal on appeal,” id., at 402, did not mean that such constitutional powers of review of defective charges and con-' comitant revision of judgment of conviction were necessarily so limited and restricted.
The matter thus stood until after adoption of the 1895 code when the principles of Bishop and Tuller v. State, 8 Tex.App. 501 (Ct.App.1880) were embraced in an amendment to then Article 723 by Acts *7421897,25th Leg., ch. 21, p. 17; see Gammell’s Laws of Texas 1071.9 With this development on the legislative front, I respectfully suggest that what the dissenting opinion views as “well-settled” judicially by 188610 was, predictably, destined to become unsettled.
Apparently the first consideration given to the 1897 revision was in Pena v. State, 38 Tex.Cr.R. 333, 42 S.W. 991 (1897).11 Judge W. L. Davidson wrote for the Court:
“... Under the recent act of the legislature [Acts 25th Leg., p. 17], this court is prohibited from reversing a judgment for material error of the court in regard to charging the law, unless ‘the error shall be excepted to at the time of the trial or on motion for new trial’.”
That notion was casually accepted for the next two and a half years in, e.g., Darter v. State, 39 Tex.Cr.R. 40, 44 S.W. 850 (1898); Bailey v. State, 45 S.W. 708 (Tex.Cr.App.1898); English v. State, 45 S.W. 713 (Tex.Cr.App.1898); Stewart v. State, 50 S.W. 459 (Tex.Cr.App.1899);12 Ford v. State, 41 Tex.Cr.R. 1, 51 S.W. 935, 937-938 (1899); Reid v. State, 57 S.W. 662, 664 (Tex.Cr.App.1900) —until June 6, 1900, and Johnson v. State, 42 Tex.Cr.R. 87, 58 S.W. 60 (1900) and Johnson v. State, 42 Tex.Cr.R. 103, 58 S.W. 69 (1900).
The constitutionality of Article 723, as amended in 1897, was assailed. Writing for a majority of the Court, Judge Brooks posed the issue and preliminarily resolved it:
“... We think said article is constitutional, and unless appellants complain of the charge below, and reserved that complaint in a bill of exception or in motion for new trial, then such error cannot be reviewed in this court, however erroneous or fundamental it may be.”13
For his part, however, Presiding Judge Davidson dissented, insisting that the statute did not intend to encompass fundamental error,14 and presented in extenso reasons why he found the majority interpretation of Article 723 to render the same “unconstitutional, and therefore void.”15
The second Johnson case, see supra, produced three opinions on the same constitu*743tional argument. Judge Henderson now wrote the opinion of the Court interpreting and upholding against constitutional attack on Article 723,16 supra; Judge Brooks specially concurred to disassociate himself from an implication in the opinion of the Court;17 Presiding Judge Davidson dissented, incorporating his views expressed in the first Johnson case, and adding a rebuttal.18
Together, then, the Johnson opinions reveal at the turn of the century a great deal of dispute over what was or should be the “well-settled” law on the matter in question.
The argument continued in Barnett v. State, 42 Tex.Cr.R 302, 62 S.W. 765 (1900) and Manning v. State, 46 Tex.Cr.R. 326, 81 S.W. 957 (1904), and it appears the bar at least did not regard the issue closed. See Sue v. State, 52 Tex.Cr.R. 122, 105 S.W. 804, 80919 (1907). Then W. F. Ramsey was appointed to take the seat of the late Judge Henderson who died December 22, 1907, and the Court began to take a different approach to Article 723.
Thus, near the end of the next decade Judge Ramsey, writing for the Court in Jones v. State, 53 Tex.Cr.R. 131, 110 S.W. 741 (1908) characterized the 1897 revision as “in the nature of remedial legislation,” designed to preclude a reversal for “mere matters of form, where there had been no invasion of any substantial right of a defendant ...” and to prevent reversals for “mere technicalities,” id., 110 S.W. at 744-745. Contemporaneously, in Williams v. State, 53 Tex.Cr.R. 2, 108 S.W. 371 (1908) without pointing to any exception or motion for new trial, Presiding Judge Davidson found and held:
“... The court’s charge authorized a conviction for an offense not charged, to wit, a burglary with intent to commit a felony. Under the following authorities we are of the opinion that this error was of such moment as requires a reversal of the judgment. [Citations omitted.]”20
*744By the end of the second decade the point that Article 723 of the 1895 criminal procedure, as amended in 1897, and its successors did not vitiate the doctrine of fundamental error in a charge of the court was made and reiterated in, e.g., Grant v. State, 59 Tex.Cr.R. 123, 127 S.W. 173 (1910); Wright v. State, 73 Tex.Cr.R. 178, 163 S.W. 976 (1914);21 Moore v. State, 84 Tex.Cr.R. 256, 206 S.W. 683 (1918) — each of which is excerpted and discussed in Wilson v. State, supra, at 334-335. The fundamental error doctrine continued to be recognized and applied by generation after generation: in Menefee v. State, 129 Tex.Cr.R. 375, 87 S.W.2d 478, 481 (1935); the Gooden cases [Gooden v. State, 140 Tex.Cr.R. 351, 145 S.W.2d 179 (1940) ] supra, in the forties; by Judge Woodley, for the Court, in Garza v. State, 162 Tex.Cr.R. 655, 288 S.W.2d 785 (1956).22
Many more recent decisions honoring the fundamental error doctrine as it applies to the charge of the court could be cited, and some are in Sattiewhite v. State, 600 S.W.2d 277, 283-284 (Tex.Cr.App.1980) (Opinion on Motion for Rehearing). But enough has been shown to dispute the contention that the Court is reversing this judgment on a basis “of recent vintage”— indeed, demonstrating that the judicial power and authority to do so began with the Republic.
Accordingly, with these additional observations and sincé it is clear that the charge of the court failed to apply the law of a culpable mental state to the facts,23 I join the opinion of the Court.
ODOM, J., joins.. All emphasis is mine unless otherwise indicated.
. Writing the lengthy opinion for the Supreme Court Chief Justice Roberts set out in full Article 3059, Paschal’s Digest, the forerunner of Article 36.14, supra. In pertinent part it provided:
“After the argument of any criminal case has been concluded the judge shall deliver to the jury a written charge, in which he shall dis*740tinctly set forth the law applicable to the case
. Chief Justice Roberts would soon serve two terms as Governor of Texas. Texas Almanac (50th Ed.) 529-530.
. In the words of the Supreme Court, The Republic v. Smith case held that the constitutional grant of appellate jurisdiction “inherently conferred the right of appeal in criminal cases... and treated it as a remedy to revise the whole case upon the law and facts, as exhibited in the record...”
. “The Supreme Court may revise the judgment in a criminal action, as well upon the law as upon the facts; ...” Compare Article 44.25, V.A.C.C.P.
. “The judgment in a criminal action upon appeal may be wholly reversed and dismissed when brought up by the defendant; ... the judgment may be reformed and corrected, or the cause may be remanded for further proceedings ... as the law and the nature of the case may require.” Compare Article 44.24(b), V.A.C.C.P.
. Article 3067, a more demanding direction than present Article 36.19, V.A.C.C.P., required a reversal of the judgment when “the district judge has departed from any of the requirements of the eight preceding articles ... provided it appears by the record that the defendant excepted ... at the time of the trial.”
. For purposes of continuity the quoted paragraph from Bishop, supra, at 401-402, is here reiterated:
“In this court, on appeal, as well as in the District Court, on a motion for new trial, a material misdirection of the law as applicable to the case, calculated to mislead the jury, would be error, justifying and requiring a reversal; and a failure to give a charge to the jury the law which was required by the evidence in the case, and which failure was to the extent to be calculated to injure the rights of the defendant, would be a material error, justifying and requiring a reversal on appeal. (Paschal’s Dig., art. 3137; see, for recent cases, 40 Tex. 15, 43, 203, 527.)”
The cited Article 3137, it should be noted, provided among other grounds for a new trial, “Where the court has misdirected the jury as to the law, or has committed any other material error calculated to injure the rights of the defendant.” Compare Article 40.03(2), V.A.C. C.P.
. Former articles, including Article 3067, Paschal’s Digest, see Bishop, at 395, required that the judgment be reversed when the judge “departed from” any of the other requisites of the charge, if excepted to at the time of trial. The 1897 enactment completely revised the concept: The judgment was not to be reversed for failure to comply with the preceding requirements unless raised by bill of exception or in motion for new trial, and the error was calculated to injure the rights of the accused.
. All cases cited and discussed in the dissenting opinion in this respect predate the 1897 legislative embrace of their principles.
. The Court consisted of Presiding Judge Hurt and Judges Davidson and Henderson.
. Judge Davidson had been elected Presiding Judge, and M. M. Brooks was elected Judge, both beginning January 2, 1899.
. Going on to develop reasons for thus opining, Judge Brooks first noted that “until of late” it had never been “successfully controverted and never really seriously denied” that the Legislature is amply authorized “to pass any law regulating the means, manner, and mode of assertion of any of appellant’s rights in the court,” adding that “so long as this means, manner, and mode be adequate for the assertion of either statutory or constitutional right, just so long are the statutes and remedies provided by law constitutional.” Id., 58 S.W. at 61. He then proceeded to elucidate that thesis.
. “It has no reference to the settled law in this state, wherein judgments were reversed when the error was of a fundamental nature, or which impinged upon those rights guarantied the accused, of a fair ‘trial by an impartial jury,’ due process of law, etc.” Id., 58 S.W. at 66.
. The essence of his legal theories is expressed id., 58 S.W. at 67:
“... If Article 723, supra, undertakes to limit this court in its authority to honestly, correctly, justly or legally decide cases, it is unconstitutional, and therefore void; or, if it undertakes to dictate when the court shall reverse or affirm cases, it is equally unconstitutional; or, if it undertakes to inhibit the court from deciding an appeal according to constitutional requirements, it would be a plain infraction of those sections of the constitution pointed out.”
Presiding Judge Davidson had alluded to Article II, Sec. 1, separation of powers; Article I, Sec. 10, speedy public trial by impartial jury; Article I, Sec. 15, inviolate right to trial by jury; and Article I, Sec. 19, due course of law.
. “... The language of this amendment is clear and unequivocal, and construes itself. If, however, it was a matter of judicial interpretation, evidently the legislature intended to cut off the evil of frequent reversals when no exception had been taken to the action of the lower court. The legislature did not undertake to deny appellant any right to which he was entitled under the law, but merely to regulate that right by enacting a reasonable course of procedure, requiring a defendant to try his case according to certain rules of law in the lower court, and, if he was aggrieved, to take his bill of exceptions, in order that the court below might be afforded an opportunity to cure the wrong, and thus prevent delay in the trial and disposition of cases. Under all the authorities, it was competent for the legislature to do this. March v. State, 44 Tex. 64, 1 Bish.Cr.Proc. § 115; Cooley, ConstXim. 327.” Id, 58 S.W. at 70.
. “I concur in the conclusion reached. But 1 do not concur in so far as the opinion herein asserts the proposition that the legislature can deprive defendant of the right of appeal to this court altogether, and that there is no constitutional inhibition. I do not think the legislature, by sheer force of the fact that it has power to provide adequate remedy for the assertion of legal rights, can go further, and deprive defendant of all right of appeal to this court, thereby destroying this court. I therefore do not agree to any proposition in this opinion asserting this as a fact.” Id., 58 S.W. at 71.
. “... That the legislature may regulate such appeals so as to carry out fairly the right of appeal does not authorize that body to prohibit this right. The fact that it can be regulated necessarily recognizes the right of appeal. If there is no such right, this court is unnecessary.” Id., 58 S.W. at 71.
. “We wish here to again repeat what we have frequently said, that it is useless consumption of paper and an unnecessary incum-brance of the record to put an assignment of errors in the record sent to this court. Article 723 of the Code of Criminal Procedure of 1895 limits our consideration to assignments in the motion for a new trial and to bills of exceptions. We cannot take cognizance of any assignment of errors that is not thus placed in the record. Therefore, we again urge the bar of Texas, not to incumber the records sent to this court with any more assignments of errors. No complaint of the charge of the court, or ruling of the court can be considered by us, unless said complaint is embodied either in a motion for a new trial or in a bill of exceptions.”
. The nine authorities are cases decided by the Court of Criminal Appeals, the former Court of Appeals and the Supreme Court of Texas. Granted most of them reflect an exception or motion for new trial, but some do not, e.g., Weeks v. State, 13 Tex.App. 466 (Ct.App.1883): "The charge of the court being radically *744defective, the judgment is reversed...” See also Hobbs v. State, 44 Tex. 353 (1875). Nevertheless, as I have demonstrated in my concurring opinion in Wilson v. State, 625 S.W.2d 311, 334 (Tex.Cr.App.1981), thirty two years later in the Gooden cases [Gooden v. State, 140 Tex.Cr.R. 351, 145 S.W.2d 177 (1940)] the “exact same error” appearing in the charges was held to be “fundamental error.”
.By now two new members of the Court served with Judge Davidson: Presiding Judge A. C. Prendergast and Judge A. J. Harper. The opinion in Wright takes note of still another amendment to what had become Article 743, C.C.P. 1911 — “or on motion for a new trial” was deleted — finds its effect was to require a contemporaneous exception to claimed charge error and concludes “consequently we are without authority to review the charge of the court unless complained of at the time of trial, unless fundamental error is presented.” Perhaps satisfied with the ultimate qualifying clause, Judge Davidson did not dissent. For other instances in which he did not, see Williamson v. State, 74 Tex.Cr.R. 289, 167 S.W. 360, 362-363 (1914); Crossett v. State, 74 Tex.Cr.R. 440, 168 S.W. 548, 552 (1914); Grider v. State, 82 Tex.Cr.R. 124, 198 S.W. 579, 580 (1917); Lowe v. State, 83 Tex.Cr.R. 134, 201 S.W. 986, 988 (1918). It is clear none of those opinions was seen as discarding the fundamental error doctrine; see Sweeney v. State, 84 Tex.Cr.R. 58, 205 S.W. 335, 338 (1918) (Pren-dergast, J., dissenting).
. Without objection the trial court authorized a jury to find an accused guilty of possessing beer in a dry area for purpose of sale should it determine that he possessed “more than 24 bottles ... for the purpose of sale;” the Court concluded that “the error in the charge is of a fundamental nature and requires that the conviction be set aside.”
. The principle stated in Sattiewhite, supra, at 285, is not satisfied with respect to the essential element of a culpable mental state; it is:
“... If not otherwise faulty, a charge of the court that requires the jury to find each essential element of the offense charged and comports with the legal theory presented by the State though evidence that proves every factual allegation made in the charging instrument is not fundamentally defective .... ” [Emphasis in original]
West v. State, 567 S.W.2d 515 (Tex.Cr.App.1978) squarely holds that failure of the charge to require the jury to find, as an element of the offense, either culpable mental state alleged in the indictment constitutes fundamental error.