dissenting.
Appellant, in his brief on the merits and in his brief in support of his petition for discretionary review, cites several opinions from the federal appellate courts and from the appellate courts of other states in support of his argument that the jury should be instructed as to the defense of alibi as an *253affirmative defense in Texas where raised by the evidence. See, e.g., U.S. v. Mason, 902 F.2d 1434, 1438 (9th Cir.1989); Strauss v. U.S., 376 F.2d 416, 419 (5th Cir.1967); Thomas v. Goldsmith, 979 F.2d 746, 748 (9th Cir.1992); U.S. v. Burse, 531 F.2d 1151, 1153 (2nd Cir.1976); Commonwealth v. Brunner, 341 Pa.Super. 64, 491 A.2d 150 (1985); State v. Leecan, 198 Conn. 517, 504 A.2d 480 (1986); State v. Robbins, 275 S.C. 373, 271 S.E.2d 319 (1980). While we are not bound by the opinion of these and other non-Texas courts in determining a question of Texas law, they are instructive and helpful in this instance which involves a question of first impression.
The Texas Legislature has set forth several general defenses to criminal responsibility including mistake of fact and mistake of law. See Tex. Penal Code, §§ 8.01-8.07. Conduct that is criminal in nature may be justified where committed in the defense of another or in self-defense, or in defense of property. See Tex. Penal Code, Chap. 9: Justification Excluding Criminal Responsibility.
In order to utilize any of the general defenses delineated in Chapter 8 or the justification defenses set forth in Chapter 9, the accused must, in effect, admit to commission of the act for which he has been indicted. For example, assume the accused is indicted under Texas Penal Code § 19.04 for the offense of manslaughter. The accused avers that while he did kill the complainant, he was under duress at the time he did so. He contends, therefore, that the affirmative defense of duress, as defined in Texas Penal Code § 8.05, negates the required criminal intent the State must prove beyond a reasonable doubt in order for the accused to be convicted of manslaughter.
As a second example, assume the accused is indicted for the offense of murder under Texas Penal Code § 19.02 by shooting the complainant with a deadly weapon, to wit: a firearm. The accused, while admitting he shot the complainant, avers he did so in order to prevent the complainant from shooting him first. The accused’s claim is his conduct was justified as self-defense under Texas Penal Code §§ 9.31 and 9.32.
In both of the above examples, the accused will be entitled to a jury instruction if the evidence at trial fairly raises the defensive theory alleged. Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App.1996); Smith v. State, 676 S.W.2d 584, 586 (Tex.Crim.App.1984).
Alibi, however, is a defensive theory having little in common with the various defenses and justifications set forth in the Penal Code. Common to the defenses and justifications described above is the need for the accused first to acknowledge he committed the conduct alleged. Only then can he negate an essential element of the State’s burden of proof — that the accused had the requisite criminal intent at the time of commission of the conduct — by introducing evidence that he lacked the requisite criminal intent because, for example, he was under duress or acted in self-defense.
In contrast, the defense of alibi requires the accused to deny having committed the conduct alleged in the charging instrument. In the present case, appellant’s contention at trial is a classic example of alibi — that he could not have committed the offense alleged because he was elsewhere when the offense was committed. Alibi is not a negation of an essential element the State must prove. Rather, it is a complete denial of any involvement in the commission of the alleged offense.
The majority is correct in noting the defense of alibi was available in Texas prior to the 1973 revision of the Penal Code. The Penal Code since 1973 has been devoid of any provision for the defense of alibi. However, this does not mean this Court does not have the inherent power to hold that an accused is entitled to the defense of alibi where it is raised by the evidence.
In Miller v. State, 660 S.W.2d 95 (Tex.Crim.App.1983), the appellant contended the trial court erred in failing to charge that he must prove alibi, a common law affirmative defense, by a preponderance of the evidence. We noted alibi is not a statutory affirmative defense in Texas, and that it is a defense, rather than an affirmative defense. We held, in effect, that alibi is not an affirmative defense intended to explain or justify an ac*254cused’s actions, but is simply an accused’s effort to cast doubt about whether he committed the act alleged by contesting an essential element of the State’s case, namely, that the accused was present at the time and place where the offense was committed. Therefore, appellant was not entitled to a jury instruction on alibi as an affirmative defense.
In my opinion, alibi as a general defense should be recognized in Texas, as it is currently recognized in the federal courts and by the courts of many other states. The Legislature, if it disagrees, is free to statutorily overrule us should we recognize the defense of alibi. See, e.g., Grunsfeld v. State, 843 S.W.2d 521 (Tex.Crim.App.1992).1
Accordingly, I would vacate the judgment of the Court of Appeals and remand this cause to that court in order to determine whether appellant was harmed by the denial of his request for a jury instruction on alibi, the applicable harm analysis being that set forth by Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984), and Texas Code of Criminal Procedure Article 36.19.
I respectfully dissent.
. Overruled by amendment to Texas Code of Criminal Procedure Article 37.07 Section 3(a), as amended by the 73rd Legislature, effective September 1, 1993.