concurring.
The issue before us is whether the trial court has an affirmative duty to incorporate, as part of its charge to the jury, an instruction as to a defensive theory conceivably raised by the evidence where such instruction was not requested by the defendant nor was there any objection by the defendant to the charge given. Because I believe that finding such a duty would place an unreasonable burden on the trial courts of Texas, I join the opinion of the Presiding Judge. I write separately, however, as it is my opinion that appellant may well have a claim of ineffective assistance of counsel.
Texas Code of Criminal Procedure Article 36.14 provides, in relevant part:
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 objections may embody errors claimed to have been committed in the charge, as well as errors claimed to have been committed by the 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 counsel to present special requested charges to preserve or maintain any error assigned to the charge, as herein provided.
The intent of the Legislature is evident: to preserve an error of omission or commission in the jury charge, the defendant must object in writing (or by dictation into the record) before the charge is read to the jury. In the present case, appellant did not object to the charge in any way, much less in the manner prescribed by Article 36.14. However, as Article 36.14 has not been amended or changed since 1981, our inquiry cannot end there, given our case law since 1981. In Almanza v. State, 686 S.W.2d 157 (Tex.Crim. App.1984), this Court established a framework by which claimed errors, whether or not preserved, in the jury charge were to be analyzed on appeal.
Almanza, essentially, eliminates the necessity of proper preservation of a claimed jury charge error, whether it be an error of omission or commission, as mandated by Article 36.14. Instead, a claimed jury charge error is analyzed based on whether the error is “fundamental” error or “ordinary” error. If an error has been properly preserved by objection, reversal will result as long as the error is not harmless.
On the other hand, if no proper objection was made at trial and the accused must maintain that the error was ‘fundamental,’ he will obtain a reversal only if the error is so egregious and created such harm that he ‘has not had a fair and impartial trial’— in short ‘egregious harm.’
*65In both situations the 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.
Almanza, supra, at 171.
However, Almanza is at least somewhat consistent with Article 36.19, which provides that where any requirement of Articles 36.14 through 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.” In my opinion, this is effectively a definition of “fundamental (or egregious) error”: an error either calculated to harm the defendant’s rights or an error that denies the defendant’s right to a fair trial. Yet, the last sentence of Article 36.19 provides that objections to the charge and to the refusal of special charges shall be made at the time of trial, essentially mirroring the mandate of Article 36.14 that charge errors, whether they be errors of commission or omission, must be properly preserved to be raised on appeal.
Almanza, in my opinion, is a resolution of the apparent conflict contained within Article 36.19 as well as the apparent conflict between Article 36.14 and all but the last sentence of Article 36.19. When viewed as a whole, jury charge error whether it be one of commission or one of omission, will result in reversal where not preserved in accordance with Articles 36.14 and 36.19 only where the error was calculated to injure the defendant or resulted in denial of defendant’s right to a fair trial, or, in other words, was a fundamental or egregious error.1
In the present case, appellant avers the trial court erred by omission — in failing to sua sponte instruct the jury on the defense of mistake of fact. Appellant never requested an instruction as to the defense of mistake of fact, nor did he object to the charge actually given to the jury. Therefore, to prevail on appeal due to his failure to preserve this alleged error, appellant must show the error was egregious. The court of appeals found the absence of an instruction on the defense of mistake of fact was an error so egregious that it denied the appellant a fair trial. Posey v. State, 916 S.W.2d 88, 91 (Tex.App.—Houston [1st Dist.] 1996).
While I agree the lack of an instruction as to the defense of mistake of fact denied appellant a fair trial in this case, the error is not one of failure of the trial court to properly instruct the jury. Bather, appellant was denied his right to a fair trial due to ineffective assistance of counsel in failing to request such an instruction.
In Strickland v. Washington, 466 U.S. 668, 687-694, 104 S.Ct. 2052, 2064-68, 80 L.Ed.2d 674 (1984), the Supreme Court established the two-part test for determining whether a defendant received ineffective assistance of counsel.
(1) Was counsel’s performance so deficient that he was not functioning competently enough to satisfy the requirements of the Sixth Amendment ?
(2) Did counsel’s deficient performance prejudice defendant, depriving him of a fair trial to such an extent that there is a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different?
Id. A reviewing court must, however, presume that counsel was reasonably effective. Id. at 694,104 S.Ct. at 2068.
The court of appeals cites an opinion of this Court which is instructive. In Vasquez v. State, 830 S.W.2d 948 (Tex.Crim.App. 1992), we held trial counsel’s failure to request an instruction on the defense of necessity constituted ineffective assistance of counsel because the jury was “precluded from giving effect to the appellant’s defense,” rendering his conviction a “foregone conclusion.” Vasquez, supra, at 951. A trial where, as here, the jury is effectively precluded from considering evidence showing a statutory de*66fense like mistake of fact exists, is inherently unfair. The court of appeals carefully analyzed the record and found the evidence raised the defense of mistake of fact. This finding should be given due deference. Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997). Appellant, in my opinion, has likely satisfied both prongs of Strickland and is therefore probably entitled to habeas relief.2 I join the opinion of the Court as I agree the trial court did not commit fundamental error by failing to instruct the jury as to the defense of mistake of fact.3 Rather, appellant was denied a fair trial due to ineffective assistance of counsel, and, as this issue is not before us, we are not at liberty to address it. He is, of course, free to raise it by filing an application for habeas corpus relief.
. I note the Legislature has not acted to overrule Almanza; thus I do not agree that Almanza is inconsistent with the intent of the Legislature underlying Articles 36.14 and 36.19.
. I recognize appellant did not raise, in his ground for review, he was denied a fair trial due to ineffective assistance of counsel. Ordinarily, the preferable means to raise ineffective assistance of counsel in this instance would be by filing an application for writ of habeas corpus under Article 11.07. Arguably, a preferable way to resolve this matter would be to vacate the judgment of the court of appeals and to remand the cause to the court of appeals to consider whether appellant received ineffective assistance of counsel due to counsel’s failure to request a mistake of fact instruction. The court of appeals could elect to allow the parties to brief this issue before ruling.
. I stress further it is unreasonable and would result in unreasonable delay in completion of trials to expect the trial court to examine the record for any possible defense and then instruct the jury accordingly. Often counsel, for sound strategic reasons, elects not to request instructions on certain defensive issues out of concern the jury may not believe the defense, may be confused by the instructions, or may encourage the jury to convict on a lesser-included offense when counsel's strategy is for an “all or nothing” verdict.