dissenting.
The majority holds the defense of alibi “merely negate[s] an element of the offense” and, therefore, no instruction is necessary. Ante at 250. The majority also holds a trial judge may never give an alibi instruction. Believing both holdings are contrary to established precedent, I dissent.
I.
The defense of alibi is well established in legal jurisprudence. The Texas Supreme Court held over 125 years ago that “in many cases [alibi] is the only evidence which an innocent man can offer.” Walker v. State, 37 Tex. 366, 388 (1872). Indeed, this Court has held if the evidence raises the issue that the defendant was at some other place at the time and could not therefore have committed the crime, a charge on the defense of alibi is required. Arney v. State, 580 S.W.2d 836, 840 (Tex.Cr.App.1979); and Windham v. State, 162 Tex.Crim. 580, 288 S.W.2d 73, 76 (1956).1
Narrowing when an alibi instruction is required, this Court held the instruction must only be given when the defendant additionally offers affirmative evidence as to his presence elsewhere. See, Burns v. State, 509 S.W.2d 366 (Tex.Cr.App.1974); Windham v. State, 162 Tex.Crim. 580, 288 S.W.2d 73, 76 (1956); and Paul J. McClung, Jury Charges for the Texas Criminal, pp. 236-37 (1995). See also, 23 Tex. Jur.3d Alibi § 2856 (1982); and, 8 Michael J. McCormick et al, Texas Practice: Texas Criminal Forms and Trial Manual § 102.10 (10th ed.l995)(includes recommended wording for alibi instruction). These requirements for an alibi instruction go far beyond merely negating an element of the offense. Additionally, appellant has pointed out in a post-submission letter of authority that at least one United States Court of Appeals has determined that if the evidence is sufficient, the defendant has a Sixth Amendment and due process right to have that issue submitted to the jury. United States v. Hicks, 748 F.2d 854, 857 (4th Cir.1984).2
As the majority recounts, appellant offered affirmative evidence from his employer and *252friends regarding where appellant was during the commission of the crime. Ante at 245-46. Appellant offered more evidence than merely alleging he was elsewhere. Because appellant presented testimony beyond negating an element of the offense, evidence which in fact was inconsistent with the State’s case, an instruction was warranted. The majority fails to acknowledge this distinction, nor give deference to the trial court and their role in the judicial process.
II.
. Unfortunately, the majority opinion also reaches beyond the instant ease and addresses an issue not presented, namely whether the jury may ever be given an alibi instruction because “a special instruction for the issue of alibi would needlessly draw a jury’s attention to the evidence which raised alibi.” Ante, at 250.3 In so holding, the majority fails to appreciate that it is the trial judge who is required to determine on a case by case basis which instructions are necessary:
After the judge shall have received the objections to his main charge, together with any special charges offered, he may make such changes in his main charge as he may deem proper ...
The Tex.Code Crim. Proc. Ann. art. 36.16.
In Posey v. State, 966 S.W.2d 57, 69 (Tex.Cr.App.1998)(Womaek, J., concurring), Judge Womack offered the following explanation of the role of the trial judge in preparing the charge:
... 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.
In spite of the statute and this precedent, this Court now holds a trial judge may never instruct a jury on the defense of alibi, overruling over one hundred years of ease law, without any analysis or support. -
The Legislature has determined the trial judge is in the best position to determine what instructions should be delivered to the jury. Consistent with this legislative scheme, the trial judge should determine if an alibi instruction is warranted. The majority needlessly meddles in this scheme by holding an alibi instruction may never be given. Accordingly, I dissent.
OVERSTREET, J., joins.
. This Court has held if evidence introduced from any source which raises an issue on a defensive theory, the theory must, upon proper request, be included in the Court’s charge. Ojeda v. State, 712 S.W.2d 742, 744 (Tex.Cr.App.1986). The law has been that the accused is entitled to an instruction on the defensive theory even if the issue was raised only by the defendant’s testimony. Miller v. State, 815 S.W.2d 582, 585 (Tex.Cr.App.1991); and, Hayes v. State, 728 S.W.2d 804, 807 (Tex.Cr.App.1987).
Additionally, it should be noted that defensive issues are not limited to statutory defenses. See, generally Tex. Penal Code Ann. Chapters 8 and 9. Defensive issues related to common law defenses also warrant jury instructions. See e.g., Moosani v. State, 914 S.W.2d 569, 570 (Tex.Cr.App.1995)(Baird, J. dissenting), for a discussion of common law defenses recognized in prosecutions for unlawfully carrying a weapon.
. "... In addition, due regard for the Fifth
Amendment leads to the inevitable conclusion that a defendant must be permitted to prove an alibi other than by his own testimony. United States v. Curry, 681 F.2d 406, 416 n. 25 (5th Cir.1982). Failing to give the jury an alibi instruction was thus an error of constitutional magnitude ...”
Id., 748 F.2d at 858.
. For that contention they rely on four dissimilar cases with parenthetical explanations, offering no analysis for why alibi conforms to the holdings of those cases. Inexplicably, the Court fails to recognize that alibi and mistaken identity are not the same for instruction purposes. In Wilson v. State, 581 S.W.2d 661 (Tex.Cr.App.1979)(op. on reh'g), the Court held the jury charge which included instructions on presumption of innocence, reasonable doubt, and alibi, adequately protected a defendant's rights and the court did not err in refusing requested charge on mistaken identity. Alibi and mistaken identity are not the same type of defense, therefore, they should not be treated the same.