concurring.
The issue in this ease is the proper treatment, on appeal, of a court’s charge that omitted an instruction on the defense of mistake of fact without objection or request from the defendant. The Court, on reasoning that is at odds with the leading case, Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), says that no complaint may be raised on appeal. I prefer to say that the complaint may be raised, but that it has no merit.
I.
The appellant was tried for the offense of unauthorized use of vehicle. The State’s evidence was that a peace officer stopped the appellant in Harris County for driving a Jaguar automobile with an expired registration sticker. The appellant had no driver’s license or proof of liability insurance. When the officer found out that the registered owner of the vehicle was a female from Corpus Christi, he asked the appellant whose car it was. The appellant said that he had gotten it from “Chuck,” who lived in his neighborhood and whose last name and address he did not know. The officer noticed that the inside of the door was damaged and the wires to the alarm system had been cut. In the glove compartment were repair notes and bills with the name “Chuck,” but no last name.
Wanda Thomas testified that she did not give the appellant permission to drive her automobile, which was usually driven by her boyfriend “Chuck” Williams. Williams testified that he had left the vehicle parked and locked at Hobby Airport in Houston three days before the appellant was stopped in it. There was a spare key in the console. Williams had not given the appellant permission to drive the vehicle.
The first defense witness was a friend from the appellant’s neighborhood, who testified that he had seen a man called Charles Yates give the appellant the keys to the Jaguar on the day before the arrest. The friend had known Yates for a week or two; Yates had been staying with the friend for a week or so, and he showed up with a Jaguar. The friend introduced Yates to the appellant, and about twenty minutes later Yates gave the appellant the keys. The appellant also presented the evidence of his cousin, who said that on the day of the arrest the appellant picked him up and drove him in the Jaguar to the friend’s house, where he saw Yates “hand back the keys” of the Jaguar to the appellant.
*67The court’s charge to the jury required that, to convict, the jury find beyond a reasonable doubt that the appellant did “intentionally or knowingly operate a motor-propelled vehicle, namely an automobile, owned by Wanda Thomas, without the effective consent of Wanda Thomas_” The charge contained the full definition of the term “knowingly” in Section 6.03(b) of the Penal Code.1
The charge did not contain an instruction on the defense of mistake of fact. Neither party requested such a charge or objected to its omission.
The parties argued the merits of the defense case in terms of the culpable mental state of knowledge. The appellant’s attorney argued to the jury that he should be acquitted because he did not know that he was driving the vehicle without the owner’s consent:
Then it [the juiy charge] states he must intentionally and knowingly take it, exercise possession of the ear without the effective consent of the owner. It was his impression that the owner was Mr. Yates who gave him the keys. That’s all he did was obtained possession of the keys and drive the car. That is reasonable doubt enough.
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It turned out later that it didn’t — that person was not the rightful owner, but Mr. Posey had no knowledge at the time in which he had possession of the car he was driving. He didn’t think that was the case. He thought Mr. Yates was the rightful owner of the car. Since he was in possession of it, he was driving it, had the keys, he gave the keys to him, for him to drive. That’s all he did. That’s as simple as that.
The prosecutor replied that there was no reasonable doubt that the appellant knew the car was stolen, because the defense evidence was incredible. She read the jury the definition of “knowledge” in the charge. The jury found the appellant guilty.
The court of appeals reversed the judgment of conviction because 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. 916 S.W.2d 88 (Tex. App. — Houston [1st Dist.] 1996). We granted the State’s petition for discretionary review.
II.
In Almanza v. State, 686 S.W.2d 157 (Tex. Cr.App.1985), we carefully considered the meaning of Article 36.19 of the Code of Criminal Procedure, which reads:
Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 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 trial.
We concluded that the statute embodies two standards of review. The standard for “error appearing from the record [that] was calculated to injure the rights of defendant” applies to errors in overruling objections to the charge which were made in the trial court under Article 36.14, or in refusing, or failing to respond to, requested special charges which were presented to the trial court under Article 36.15. The standard for reversal when “it appears from the record that the defendant has not had a fair and impartial trial” applies to errors that were not brought to the trial court’s attention by objection or request. The latter standard is “[a]n independent basis for reversal [which] arises if the error, even though not timely objected to, is so egregious and creates such harm that it deprives the accused of a ‘fair and impartial trial.’ ” Id. at 172. This latter *68standard in Article 36.19 is “the basic test for fundamental error.” Ibid.
The State argues that this basic test does not apply to the omission of a defensive instruction from the charge for three reasons: (1) There was no error in the charge because it contains no incorrect instructions. (2) There cannot be error in omitting law from a charge when no instruction was requested. (3) A trial judge should not decide sua sponte which defensive issues should be charged because such decisions are matters of strategy to be determined by counsel. These arguments are inconsistent with the statutes that regulate the charge of the court, which are incorporated in Article 36.19 by its terms.
The State’s first argument is that a jury charge is free of error no matter what it omits, so long as it contains no errors of commission. This disregards the statutes and our decisions. Article 36.14 of the Code of Criminal Procedure treats errors of commission and omission on an equal footing. The statute makes a charge objectionable if it contains “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.”
The Almanza opinion also gave equal treatment to fundamental errors of commission and omission. It specifically commended four previous decisions as having “stated the test properly.” 686 S.W.2d, at 172. Two of the four exemplary precedents dealt with errors of omission: Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975) (fundamental error in omission of application paragraph),2 and Boles v. State, 598 S.W.2d 274 (Tex.Cr. App.1980) (applying fundamental error test to the omission of a instruction on a lesser included offense).
The same precedents are disregarded by the State’s second argument, that there cannot be errors of omission in the absence of a requested instruction. Almanza would be stood on its head by acceptance of this argument. It is likewise in disregard of Article 36.14 of the Code of Criminal Procedure, which says that, for errors of commission or omission, “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 Court has created another version of this argument by reasoning thus: Almanza is based on Article 36.19. Article 36.19 only applies when the requirements of Article 36.14 have been “disregarded.” Article 36.14 only applies when a party objects; when a party does not object, Article 36.14 the requirements of Article 36.14 have not been disregarded. Therefore when a party does not object to the omission of a defensive charge, there is no error and Article 36.19 and Almanza do not apply. See ante at 60-62.
On the one hand this argument proves too much. If there is no error when a party does not object, there cannot be fundamental errors in the jury charge. This makes Al-manza not only wrong, but unnecessary. Of course, it also leaves us with the question, why are there two standards of harm in Article 36.19 if there are not two classes of error in the jury charge? It is ironic that, while proclaiming to vindicate the legislative intent of Article 36.14, the Court frustrates legislative intent by effectively repealing part of Article 36.19.
On the other hand the Court’s argument proves too little. Why is the holding limited to defensive issues? There is nothing about the analysis that differentiates defensive issues from any other matter in the jury charge. The linchpin of the opinion is, “Therefore, under this portion of Article 36.14, there generally is no ‘error’ in the charge unless the defendant objects in writing to claimed ‘errors’ of commission and omission in the charge.” Ante at 61. This principle is not limited to defensive issues.
■While denying that it has overruled Al-manza (ante at 61 n. 9), the Court has delivered an opinion that directly contradict the basis of Almanza’s reasoning. The confusion that will ensue is especially regrettable because, as Part IV of this opinion demon*69strates, the same result would be reached by the application of Almanza ⅛ principles.
The State’s third argument, that the decision whether to instruct the jury on defensive issues raised by the evidence is a strategic one for counsel rather than a legal one for the court, also is contradicted by statute and decision. Our law requires that “the judge ... shall ... deliver to the jury ... a written charge distinctly setting forth the law applicable to the case_” Code of Criminal Procedure, Article 36.14.
Art. 36.14, V.A.C.C.P., places the legal duty and responsibility on the trial judge to prepare for a jury a proper and correct charge on the law, and the law as may be applied to the facts adduced. This is a legal duty which must be performed by the trial judge. It may not be delegated to the attorneys for the respective parties ... or anyone else for that matter.
Doyle v. State, 631 S.W.2d 732, 738 (Tex.Cr. App.1982) (plurality opinion). The judge must deliver a charge even if the parties expressly waive it. Garrett v. State, 159 Tex.Crim. 203, 262 S.W.2d 414 (1953).
In our system the parties are adversaries; the judge is not. The parties may make strategic decisions whether to present evidence, and the evidence will determine what law must be applied. To that extent the adversaries’ decisions affect the court’s charge. But the charge is the judge’s. It is not under the control of the adversaries. When the evidence is closed, the judge’s duty to charge on the applicable law is no longer subject to the strategic decisions of the parties.3 (Of course a request for a charge estops the requesting party from complaining on appeal that it was error to give the charge. Livingston v. State, 739 S.W.2d 311, 341 (Tex.Cr.App.1987) (collecting cases). By the same reasoning, an objection to a charge should estop the objecting party from eom-plaining on appeal that the charge was not given.)
III
Although its primary contention is that there is no such thing as fundamental error by omission of an instruction, the State also argued in the court of appeals that the evidence did not raise the defense of mistake of fact, and it raised in its petition for discretionary review the contention that “there was no error and no fundamental error was required” (sic). Given these arguments and the close relationship between the standard of harm and the concept of fundamental error,4 it is appropriate to consider also the court of appeals’ holding that the omission of the instruction was egregious error.
The questions are whether the defense of mistake of fact is available in a trial for unauthorized use of vehicle, whether it was raised by the evidence, and whether its omission without objection or request deprived the appellant of a fair and impartial trial.
The appellant was indicted for unauthorized use of vehicle, that is, intentionally or knowingly driving or operating another’s motor-propelled vehicle without the effective consent of the owner.5 A defendant’s knowledge of the lack of consent is one of the elements which must be proven. McQueen v. State, 781 S.W.2d 600 (Tex.Cr.App.1989); Gardner v. State, 780 S.W.2d 259 (Tex.Cr. App.1989).
The appellant admitted driving another’s vehicle as alleged by the indictment. His defense was apparent consent: a new acquaintance had given him possession of, and permission to drive, the vehicle. This Court has held that such evidence raises the defense of mistake of fact, and that the court’s charge should instruct the jury on the law of that defense. Lynch v. State, 643 S.W.2d *70737 (Tex.Cr.App.1983).6 It was error to omit an instruction on this defense.
IV.
The final question is whether the omission of the instruction on the defense of mistake of fact was so egregious as to deprive the appellant of a fair and impartial trial. 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 v. State, 686 S.W.2d 157,171 (Tex.Cr.App.1985).
The defense of mistake of fact is codified in Section 8.02(a) of the Penal Code:
It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.
The statutory term “kind of culpability” means “culpable mental state.” Beggs v. State, 597 S.W.2d 375 (Tex.Cr.App.1980). The defense arises, then, when there is evidence that a defendant’s mistaken, reasonable belief about a matter of fact negated the element of the culpable mental state required for the offense.
This peculiar aspect of the defense of mistake of fact puts it astride two principles in the law of the jury charge. "While it is true that a defendant is entitled to an affirmative submission of a defensive issue, it is likewise true that no affirmative charge need be given when a defensive theory merely negates an element of the offense. Sanders v. State, 707 5.W.2d 78, 81 (Tex.Cr.App.1986) (collecting eases).7 Had the Legislature not codified the defense of mistake of fact, we might be free to say that the jury charge could, and should, handle the issue adequately by requiring the jury to find the element of the culpable mental state in order to convict. But the power to create and define defenses is the Legislature’s, and a court should not disregard its choice.8 Nevertheless, the close relationship between the defense of mistake of fact and the culpability element of the offense is important in the consideration of the harmfulness of the omission of an instruction on the defense.
The court of appeals overlooked this aspect of the defense of mistake of fact when it said (916 S.W.2d, at 91):
In a similar situation, the Court of Criminal Appeals has held that 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 v. State, 830 S.W.2d 948, 951 (Tex.Crim.App.1992).
This case is not like Vasquez, because the defense of necessity is different from that of mistake of fact.9 Necessity is more than a negation of an element of the offense; in fact, it requires the defendant to admit the commission of the offense and to justify it.10 Vasquez had no law in the charge to support a defense of necessity.
In this case the jury could give effect to the defense of mistake of fact. The charge permitted, and even required, the jury to find the appellant not guilty if there was a reasonable doubt about the culpable mental state — his knowledge that he did not have *71consent to drive the vehicle. The charge fully defined “knowingly,” and the application paragraph required the jury to find that the appellant acted knowingly. (The adequacy of the charge may explain why the appellant did not request a separate defensive issue of mistake of fact.) The appellant had no difficulty in presenting his defense under the charge that was submitted, by arguing to the jury that his evidence showed he did not know the vehicle was stolen. The State met his argument directly. The defensive issue was squarely presented to the jury by the charge.
The omission of the defensive charge on mistake of fact did not deny the appellant a fair and impartial trial under the standard in Article 36.19 for error in the jury charge when there was no objection or requested special charge.
It is worth noting that the Almanza standard for finding reversible error in the omission of a charge without objection — the denial of a fair and impartial trial — is so high that when it is met, the defense attorney’s failure to object would almost always amount to ineffective assistance of counsel. See, e.g., Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim.App.1992). Therefore the new rule that the Court adopts today will have no practical effect when defensive charges are omitted, while it unnecessarily contradicts the valuable analysis oí Almanza.
I respectfully decline to join the Court’s opinion.
. "A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.”
The charge of the court reversed the order of these sentences in the Penal Code.
. Accord, e.g., Perez v. State, 537 S.W.2d 455 (Tex.Cr.App.1976).
. Except in the sense that adversaries, by making "improper argument of counsel” to the jury, may make it necessary to give a further charge. Tex. Code Crim. Proc. Art. 36.16.
. "We hold that finding error in the court’s charge to the jury begins — not ends — the inquiry; the next step is to make an evidentiary review ... as well as a review of any other part of the record as a whole which may illuminate the actual, not just theoretical, harm to the accused.” Almanza v. State, 686 S.W.2d 157, 174 (Tex.Cr. App.1984).
.Tex. Penal Code § 31.07.
. Accord, e.g., Woodfox v. State, 779 S.W.2d 434 (Tex.Cr.App.1989). Dicta to the same effect appear in, e.g., Willis v. State, 790 S.W.2d 307 (Tex.Cr.App.1990); McQueen v. State, supra; Gardner v. State, supra.
. This familiar principle in Sanders was not affected by the subsequent disavowal of other language in the opinion. See Willis v. State, supra n. 6, 790 S.W.2d at 313-14.
. See Willis v. State, supra n. 6, 790 S.W.2d at 313-14.
. The defense of necessity was created in Tex. Penal Code § 9.22.
. Accord, Auston v. State, 892 S.W.2d 141, 145 (Tex.App.—Houston [14th Dist.] 1994). Not contrary is the holding in Thomas v. State, 662 S.W.2d 677, 679 (Tex.App.—Dallas 1983), affd, 678 S.W.2d 82 (Tex.Cr.App.1984), that a defendant may rely on the defense of necessity and deny committing the offense; such a defendant was presenting inconsistent defenses, one of which required him to admit committing the offense because it was necessary.