Justice, dissenting.
As pointed out by the majority, the defense of mistake of fact is recognized and described in the Texas Penal Code.5 When the evidence at trial raises it, the trial court is instructed to have the jury charge include instructions “distinctly setting forth the law applicable to the case.”6
Avoiding the redundancy of repeating the test in Almanza,7 I am in agreement with the majority that the trial court erred in refusing the defense’s request to include an instruction on mistake of fact. I further concur that there must only be “some harm” occasioned to a defendant by such a preserved nonconstitutional charging error before a reversal is required.8 My differ*422ence with the majority lies in the definition of “some harm” as it applies to the case before us here.
The majority points out that the mistake-of-fact defense was present throughout the trial, commencing at the voir dire, continuing through the evidence, and argued in summation. In fact, Durden never contested that the wire had been stolen. He admitted that he was in possession of the stolen copper wire and that it did not belong to him. The sole question for the jury to determine was whether he had taken his course of action under the mistaken impression that he was justified in taking it from the place he alleged he had found it. It is because this point was so fully covered in all phases of the trial that the majority has determined that Durden suffered no harm when the trial court refused his request for the inclusion of an instruction of a mistake-of-fact defense.
Apparently, defining what is meant by “some harm” is as difficult as nailing Jell-0 to a tree; although one might think that it is firmly nailed down, it slithers off the nail. Recognizing the elusive nature of that term, Almanza instructs that looking at the full record “may illuminate the actual, not just theoretical, harm to the accused.” Almanza, 686 S.W.2d at 174. Distinguishing between the actual versus the theoretical harm is the balancing act which the appellate courts must perform.
In looking at the word “theoretical,” we are met with the definition “existing only in theory.” Merriam-Webster Collegiate Dictionary 1296 (11th ed. 2003). Backing up a step, the closest-fitting definitions of “theory” are “The analysis of a set of facts in their relation to one another,” “abstract thought,” “the general or abstract principles of a body of fact,” “a plausible or scientifically acceptable general principal or body of principle,” “a hypothesis assumed for the sake of argument or investigation,” or “an unproved assumption.” Id. Since re-creation of the exact trial as it happened (but ameliorating an error which has occurred) is totally impossible, theoretical analysis is precisely what appellate courts must do in any harm analysis. We must often postulate things that did not occur in order to posit an outcome. Accordingly, in appears that the Almanza explanation that we are not to look at theoretical harm is not very helpful in determining whether “some harm” exists. One comes to the conclusion after parsing the words that are used in Almanza in describing what is to be done in review on appeal, if we ignored all theoretical harm, we could almost never find that harm resulted, no matter how egregious the circumstances might be.
Rather more helpful is the discussion of what is meant by “some harm” found in Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986), in which the Texas Court of Criminal Appeals stated that some harm meant any harm (emphasizing both words to reflect that they are synonyms when determining the amount of scrutiny to be applied).
Applying that yardstick, we now look at Durden’s entire trial. As pointed out by the majority, the entire case presented by Durden in defense was that he was mistaken and, therefore, because of his mistake, he did not possess the necessary mens rea to have committed the crime of theft. From the beginning of the trial until its end, this was the thrust of the controversy. Due to its importance and the large proportion of the trial which was consumed by it, the majority believes that the issue of that defense was adequately covered and *423explained and, therefore, Durden suffered no harm.
For the very same reason, I believe that Durden did suffer harm, The centrality of the question of the mistake-of-fact defense in the trial is undeniable. A jury is not nearly so precise about words as judges and lawyers; such things as “with the intent to deprive” might not be as concrete to a juror as to a trained legal specialist. An instruction in the charge which would have explained the mistake-of-fact defense would have served to magnify its importance and the viability of the defense which had been mounted. Durden could have then correctly argued on closing that the jury must first have found that there was no mistake of fact before it went on to discuss whether the State had met its burden of proof on each of the elements of the charged offense. He could further have used the requested instruction to emphasize in closing argument that it was not just his opinion that the jury could not find guilt if there had been a mistake of fact, but that the court had instructed it precisely that mistake of fact was a valid defense.
When the law requires that an instruction be given, when the defendant calls that law to the attention of the trial court (apparently while reading from the statute describing the defense itself), and when the trial court refuses the requested-but-proper instruction, we should not look at the potential harm with a cavalier eye, but we should rather look to see if “any” harm resulted. Although it may be simply theoretical to attempt to crawl into the minds of the jurors to determine whether the additional emphasis the requested instruction would have placed on Durden’s sole defense to the charge, I cannot help but believe that there was “some” harm which resulted. The question of whether it would have tipped the scales in his favor is a question we are neither required to answer nor is anyone now capable of answering.9
The most cogent reason to reject Dur-den’s appeal is this Court’s ruling in Sands v. State, 64 S.W.3d 488, 494 (Tex.App.-Texarkana 2001, no pet.), which should be considered precedent here. It is our duty to give strong adherence, when possible, to the doctrine of stare decisis when analyzing the merits of a case due to the value which consistency of the laws provide. Our own Texas Court of Criminal Appeals has observed that “we should take into account the interests underlying the rule of stare decisis: Often it is better to be consistent than right.” Malik v. State, 953 S.W.2d 234, 236 (Tex.Crim.App.1997). The doctrine of stare decisis is a bulwark of Anglo-American jurisprudence because it serves the important purpose of ensuring “the stability of the law.” Lawrence v. Texas, 539 U.S. 558, 577, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). On the other hand, we need to observe that “Stare deci-sis is not an inexorable command; rather, it ‘is a principle of policy and not a mechanical formula of adherence to the latest decision.’ ” Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Although the majority opinion here is well reasoned and I do not suggest that it is not rationally founded, a blind adherence to stare decisis in all cases reminds one of Einstein’s definition of insanity: doing the same thing over and over again and expecting different results. Stare decisis is not a command to repeat *424the mistakes of the past. By finding that there is no harm in this case, it places the alert and objecting defendant on virtually the same plane as the defendant who sleeps through his objections at trial; here, the trial court was timely alerted to the mistake-of-fact defense and the request for an instruction involving it. In both the Sands case and in this matter, a finding that no harm resulted from refusing to submit an instruction that was the core of the defense is tantamount to our encouraging the disregard of the statute which directs that such an instruction be included when raised by the evidence.
In these circumstances, since I believe that Durden suffered some harm from the error, I would reverse.
. Tex. Penal Code Ann. § 8.02 (Vernon 2003).
. Tex.Code Crim. Proc. Ann. art. 36.14 (Vernon 2007).
. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh'g).
. "Preserved jury charge error is evaluated under Almanza 's 'some harm' standard unless we determine that the error is constitu*422tional in nature, in which case the ‘beyond a reasonable doubt harmless’ standard would apply.” Williams v. State, 273 S.W.3d 200, 225 (Tex.Crim.App.2008).
. Had this issue been raised in a hearing on a motion for new trial, a juror would have been prohibited from testifying "to the effect of anything on any juror’s mind or emotions or mental processes, as influencing any juror’s assent to or dissent from the verdict or indictment.” TexR. Evid. 606(b).