concurring.
I take the uncommon, but not unprecedented, step of concurring with one’s own opinion. I concur that the majority opinion reaches the correct result regarding allegations of trial court error in not submitting unrequested jury instructions. I write to urge the Court of Criminal Appeals to reconsider its decision in Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984), to determine: (1) whether it correctly interpreted article 36.19 of the Code of Criminal Procedure; and (2) whether Almanza applies to omissions of unrequested jury instructions.
Importance of Almanza
Almanza is monumental for halting what Judge Clinton called the “modern trend of the Court first to label certain errors ‘fundamental’ then automatically reverse convictions without regard to the nature and harm of the error in the case.” Id. at 172-73. While unacknowledged in any of the Alman-za opinions, the court had strayed far from the statutory standard for reviewing error in the jury charge:
Art. 36.19 Review of charge on appeal
Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of the trial.
Tex. Code ÜRIm. PROC. Ann. art. 36.19 (Vernon 1981). Whatever else can be said about Almanza,1 it accomplished no small service to the Texas criminal jurisprudence by restoring, to some extent, an adherence to the statutory standard of review.
I suggest it was the necessary first step to an ultimate restoration of the clear legislative intent expressed in the plain language of the statute. A comparison of the majority opinion with the concurring/dissenting opinion in Almanza provides a stark contrast between antithetical approaches. The majority opinion searched everywhere, but the language of the statute itself, for support of a legislative establishment of the doctrine of fundamental error. The concurring/dissenting opinion simply looked at the statutory language itself to conclude fundamental error was a creation of the judiciary. The reason for the development of the doctrine of fundamental error in the jury charge is obvious from the second sentence of article 36.19 that clearly requires a trial objection in order to obtain appellate review. The fundamental error doctrine arose to address jury charge error, to which no objection was made, that “affected the *151foundation of a conviction’s validity.” Id. at 176 (Onion, P.J., concurring in part and dissenting in part).
The reason it is now time to reexamine Almanza, and the doctrine of fundamental error in general, is that with the advent and prolific development of appellate review of points of error based on ineffective assistance of counsel, there is no longer the need there once was for the doctrine of fundamental error. Despite the admonition of Ingham v. State, 679 S.W.2d 503, 507 (Tex.Crim.App.1984), that error waived by lack of trial objection would not automatically translate into grounds for relief based on ineffective assistance of counsel, ineffective assistance claims certainly have eliminated the need for trial objections in order to obtain review of error on direct appeal.
Any error that an appellate court formerly felt constrained to address as fundamental, or in the interest of justice, due to lack of preservation at trial, is now reviewable via ineffective assistance of counsel.2 Isn’t it time we return to the plain and simple language of the legislative standard for reviewing error in a jury charge?
Does Almanza Apply to Unrequested Omissions?
Even if the Court of Criminal Appeals is unwilling to consider a complete return to the statutory language, I urge the court to address the issue of whether Almanza applies to unrequested omissions. Based on its facts, and its express holding, Almanza applies to error in the charge. Id. at 159, 174. There is a difference between a charge that is erroneous on its face, and a charge which, though correct on its face, may not contain every instruction on law conceivably applicable to the case. Indeed, the vast majority of cases3 involving fundamental jury charge error have been cases where the error was in the charge. See Cumbie v. State, 578 S.W.2d 732, 733-35 (Tex.Crim.App.1979) (although overruled in Almanza, it set forth the most thorough categorical analysis of fundamental error in the jury charge).4
The majority opinion follows the example of Saunders v. State, 817 S.W.2d 688 (Tex.Crim.App.1991), by applying Almanza to omissions of unrequested charges. Saunders relied upon that part of article 36.19 which expressly applies to any error in article 36.14, including the duty of the trial court to deliver to the jury a written charge distinctly setting forth the law applicable to the case. Tex. Code CRiM. PROC. Ann. art. 36.14 (Vernon Supp. 1997), art. 36.19 (Vernon 1981). What this overlooks is the very strongly worded legislative intent in the statutory provisions that there be a request or objection at trial before one is able to complain on appeal of error in the jury charge. We have examined that clear language in article 36.19 above (“All objections to the charge and to the refusal of special charges shall be made at the time of trial.”). The pertinent language of article 36.14 is:
Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time’to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection. Said objection may embody errors claimed to have been committed in the charge, as well as errors claimed to have been committed by omissions therefrom or in failing to charge upon issues arising from the facts, and in no event shall it be necessary for the defendant or his coun*152sel to present special charges to preserve or maintain any error assigned to the charge, as herein provided.
Tex. Code Crim. Proo. Ann. art. 36.14 (Vernon Supp. 1997) (emphasis added). The plain language clearly shows a legislative intent that errors of omission, as well as errors of commission, be raised in the trial court.
What Saunders did not address was prior eases from the court holding that a request or trial objection was necessary for appellate review. See White v. State, 495 S.W.2d 903, 904 (Tex.Crim.App.1973); Elmo v. State, 476 S.W.2d 296, 297 (Tex.Crim.App.1972); Rogers v. State, 420 S.W.2d 714, 715 (Tex.Crim.App.1967). These cases have not yet been expressly overruled. The potential for conflict is being realized. See Marlow v. State, 886 S.W.2d 314, 319 (Tex.App.—Houston [1st Dist.] 1994, pet. ref'd) (applying White to hold error in omitting unrequested charge waived); cf. Posey, 916 S.W.2d at 90-91 (applying Almanza to hold error in omitting unrequested charge is fundamental).
There are also practical and policy reasons to hold Almanza does not apply to omissions of unrequested jury instructions. As the majority opinion points out, requiring the trial court to submit unrequested jury instructions causes the trial court to leave its position of neutrality and inject itself into the arena of the parties’ trial strategy.
Conclusion
For these reasons, I urge the Court of Criminal Appeals to revisit its interpretation of article 36.19 in Almanza and complete the job of bringing the jurisprudence back to the statutory standard of reviewing jury charge error.
. For example, Judge Teague dubbed it "Almanza the Terrible” and "monster child" in his colorful concurring opinion in Kucha v. State, 686 S.W.2d 154, 156 (Tex.Crim.App.1985) which began: "Today we witness another startling valid legal reason why this Court should have aborted, rather than to have given birth to, the monster child now known in our legal circles as 'Almanza the Terrible.' "
. Of course, there will be some cases where ineffective assistance of counsel is not raised on direct appeal, but fundamental error in the jury charge is. See Posey v. State, 916 S.W.2d 88, 91 n.4 (Tex.App.—Houston [1st Dist.] 1996, pet. granted). The elimination of fundamental error in those cases would result in restricting such as appellant to pursuing relief by post-conviction writ of habeas corpus.
. Perhaps all pre-Almanza cases in which fundamental jury charge error was found involved errors of commission within the charge rather than errors of omission. Even since Almanza, there are relatively few cases addressing fundamental jury charge errors of omission.
.I recognize that the very first category of fundamental error examined in Cumbie was an omission of an allegation in the indictment required to be proved. Id. at 733. Such a so-called error of omission is actually an error of commission for affirmatively submitting an instruction with an element missing. This is different from omitting an entire instruction, which is the error of omission at issue here.