concurring and dissenting.
But for “Almanza the Terrible”, for the West citation see Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984), which, of course, should be quickly dispatched to Da-vey Jones’ locker, my first vote would be to put this Court’s “improvidently granted” stamp to the State’s petition for discretionary review because the Eastland Court of Appeals correctly held in its unpublished opinion of Moreno v. State, No. 11-84-066-CR, October 11, 1984, that the trial court’s refusal to give the appellant’s requested instruction on the offense of criminal trespass constituted reversible error.
My next vote is to remand this cause to the Eastland Court of Appeals, for it reconsider its decision in light of what this Court’s majority opinion stated and held in “Almanza the Terrible”, which decision of this Court had not been finally decided when the court of appeals ordered the trial court’s judgment of conviction reversed. In this regard, but only because the majority of this Court declines to adopt either of my first two proposals, I subscribe to what Judge Clinton stated in the dissenting opinion that he filed in Lawrence v. State, 700 S.W.2d 208 (Tex.Cr.App., 1985): “Shortly before this Court recessed [this past summer] we remanded at least a dozen causes *642to courts of appeals for reexamination in light of Almanza. Today the majority takes on the chore, though why this Court should do so in this particular cause is not explained. Consistent with our uniform policy, I would remand for that consideration.” Of course, “Foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.” Emerson, “Essays: First Series (1841),” quoted in Mc Elwee v. State, 589 S.W.2d 455, 455 (Tex.Cr.App.1979), by the author of that opinion, who is also the author of the majority opinion in this cause.
Notwithstanding that the majority of this Court does not vote to do any of the above, it does manage to correctly hold that under this Court’s past decisions, see, for example, Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1976), the refusal by the trial judge to give the requested instruction on the offense of criminal trespass was error, and further, but erroneously in light of “Al-manza the Terrible”, holds that such error was harmful.
Because of stare decisis, it is at this point that I must part company with the majority opinion. In holding that the error was harmful, I find that the majority opinion refuses to be faithful to all of the test that this Court’s majority enunciated in “Alman-za the Terrible”-that relates to objected to charge error. Cf. Alvarado v. State, 704 S.W.2d 36 (Tex.Cr.App., 1985).
Although the testimony of Eulogio Moreno, hereinafter referred to as the appellant, may have injected into this cause the issue whether he was also guilty of the offense of criminal trespass, under this Court’s majority opinion of “Almanza the Terrible” the inquiry must not stop there in deciding whether such error was or was not harmless. In “Almanza the Terrible”, this Court's majority opinion stated the following: “[T]he actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” [My emphasis.] Interestingly, the majority opinion in this cause does not even refer to or allude to the jury argument of trial counsel for the appellant, nor does it state whether or not there is “any other relevant information” in this cause, that might cause the error to be harmless. Of course, when you are in the majority, you can excuse yourself from taking all of the test.
I must ask: How can anyone, but a majority of this Court, say that the error of the trial judge in not instructing the jury on the lesser offense of criminal trespass was “calculated to injure the rights of the defendant”?
One of the meanings of the word “calculated” is “planned or contrived to accomplish a purpose.” See 196 Webster’s Ninth New Collegiate Dictionary. Is this Court’s majority opinion implicitly holding that the trial judge in this cause “planned or contrived” to deprive the appellant of a fair and impartial trial when he refused the appellant’s requested charge on criminal trespass? When this same trial judge instructed the jury on mistake of fact? In light of the evidence, the jury charge that was given, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, how can anyone who subscribes to “Alman-za the Terrible”, but a majority of this Court, say that the appellant was deprived of a fair and impartial trial? Deprived of due process and due course of law? How can anyone say that the appellant’s testimony that went to the offense of criminal trespass was cogent and overwhelming? Was it even reasonable? Did it present a theory which a reasonable mind could entertain, or was it only testimony that was remotely calculated to destroy the State’s case when considered in connection with the other testimony in the case, as well as the charge as a whole? “These are all important matters to be considered in passing upon the [degree of harm] in the omission.” “Almanza the Terrible”, at pp. 173-174.
*643I find that under the test enunciated by a majority of this Court in “Almanza the Terrible” the trial judge’s error was harmless. In this instance, the jury, was instructed in the abstract on the definition of the word “intentionally”. The jury also was instructed that if it did believe or had a reasonable doubt that the appellant committed the offense of burglary of habitation “with intent to commit theft” it was to return a verdict of not guilty. The jury was further instructed that if it believed or had a reasonable doubt that when the appellant entered the habitation he was then acting “under a mistaken belief that he was acting to assist the property owner or occupant” it was to acquit him. Putting all of these instructions together, it is difficult for me to understand how under “Almanza the Terrible” the refusal to give the requested instruction was harmful error.
For the moment, let us assume that the trial judge had given the instruction over objection. Would such have constituted reversible error under this Court’s majority opinion of “Almanza the Terrible”? I do not think so because had the jurors followed the court’s instructions to the letter, indeed we must presume they would have, see Cobarrubio v. State, 675 S.W.2d 749, 752 (Tex.Cr.App.1983), the jury in this cause would never have reached the issue whether the appellant was guilty of the offense of criminal trespass. Thus, when the jury in this cause found the appellant guilty of the offense of burglary of a habitation, it had no occasion to deliberate whether the appellant might have been guilty of any lesser offense. Under “Al-manza the Terrible”, the trial judge’s error in refusing the appellant’s requested instruction on the offense of criminal trespass was harmless to the appellant. Cf. Thomas v. State, 587 S.W.2d 707 (Tex.Cr.App.1979).
If the majority of this Court intends to give the objected to charge error test that was enunciated in this Court’s majority opinion of “Almanza the Terrible” the meaning it deserves, it should apply that test with vigor, so that the members of the bench and bar of this State will truly appreciate the monster that a majority of this Court turned loose upon the criminal justice system of this State when it decided “Almanza the Terrible”.
For all of the above and foregoing reasons, I concur in the result that the majority reaches, that the trial judge committed reversible error in not giving the requested instruction on the offense of criminal trespass, but dissent to the majority’s refusal to give meaning to this Court’s majority opinion of “Almanza the Terrible”.