Keith Dwight Manning appeals his convictions for murder, attempted murder, and three counts of aggravated robbery, all arising from the hold-up of a convenience store. Manning received two life sentences for murder and attempted murder and three fifty-year sentences for the aggravated robbery convictions. Appellant asserts three grounds of error, none of which were preserved by proper objection at trial. All concern claimed errors in the trial court’s charge, and all are asserted to be fundamental error. Because none of the alleged errors are fundamental, we affirm the judgment of the trial court.
In each instance, we must apply the tests for fundamental error set forth in Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984). Appellant’s first ground of error is common to all five cases. In each case, he asserts that the charge given to the jury at Manning’s pretrial competency hearing was fundamentally defective because it both “misstated the burden of proof” and “fail[ed] to apply the law to the very facts of the case.”
The charge now objected to states in pertinent part:
Under our law no person can be tried for a criminal offense while in a state of present incompetency. The burden of proof of competency in this case is upon the State to prove the defendant’s competency by ■preponderance of the evidence; that is, by the greater weight of the credible testimony.
⅜ * * * ⅜ *
Our law provides that a person is deemed incompetent to stand trial if he does not have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding; or, a rational as well as a factual understanding of the proceedings against him [emphasis added].
Appellant’s contention that the charge failed to apply the law to the facts of the case is without merit. The charge set forth the elements of incompetency to stand trial in language tracking the statutory definition. TEX.CODE CRIM.PROC. ANN. art. 46.02(l)(a) (Vernon 1979). This language clearly sets forth those facts which the jury must find. As so stated, the charge was not fundamentally erroneous since error, if any, did not deny appellant a fair and impartial trial.
Appellant further contends that the charge failed to properly place the burden of proof. In the ordinary case, the burden of proof is on the defendant to show incompetence by a preponderance of the evidence. TEX. CODE CRIM.PROC.ANN. art. 46.02(l)(b) (Vernon 1979). That section of the statute states:
(b). A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence [emphasis added].
Appellant in his brief apparently complains that the trial court erroneously presumed incompetence and placed the burden of proof upon the State rather than upon the defendant as provided in the statute. Appellant cannot be harmed by erroneously receiving the benefit of a presumption. Needless to say, any such error cannot be fundamentally erroneous.
Nevertheless, the dissent raises a different argument on behalf of appellant from that presented in his brief. The dissent first notes that appellant’s previous commitment to Rusk State Hospital, the year prior to this trial, was based on a finding of incompetency to stand trial. The dissent asserts that due to this presumed unvacat-ed adjudication of incompetency, the burden of proof on the issue of competency shifts to the State. The dissent then further would hold that the burden of persuasion is now shifted to the State and that the burden was the “beyond a reasonable doubt” standard of insanity cases rather than the “by a preponderance of the evidence” standard given in the jury charge here. Because an incorrect standard was *827given in the charge to the jury, the dissent asserts on appellant’s behalf that fundamental error has been shown and that the jury finding of competency must be overturned. We cannot agree.
Initially we note that there is no clear evidence in the record before us of the nature of appellant’s prior commitment to Rusk. The evidence at the competency hearing consisted exclusively of the statements of the State’s witness, a medical doctor specializing in psychiatry. No record of any adjudication of incompetency is in the record. The testimony of the witness fails to establish clearly the reason for appellant’s incarceration at Rusk. In this respect, the doctor testified that the appellant, in the year prior to the competency hearing in this case, was “sent to Rusk State Hospital for the criminally insane from Fort Worth. He stayed there about 18 days when he broke out of the building ... and he has not been back in the hospital since that period of time.” Later, this witness testified that “[tjhere is no indication at all that this man has ever been mentally ill.” During cross-examination of this witness, the defense attorney stated that “there was a judgment out of a Fort Worth court that sent him to Rusk State Hospital that said he was incompetent; is that correct?” The witness replied that it was. The defense attorney, later in the cross-examination, asked the witness to explain “why there is that unvacated judgment of incompetency.” The witness replied that the doctor in Fort Worth tended to “call everybody a schizophrenic,” and that appellant was sent to Rusk with that diagnosis.
If the basis for incarceration in Rusk was “mental illness,” as the witness’s initial testimony quoted above and later statements regarding schizophrenia indicate, this would not be a determination of mental incompetency to stand trial. See Leyva v. State, 552 S.W.2d 158, 160 (Tex.Crim.App.1977); Ainsworth v. State, 493 S.W.2d 517, 522 (Tex.Crim.App.1973).
If the basis was a finding of incompetency to stand trial, as the dissent assumes and as the responses to the defense attorney’s questions would indicate, there may be a question as to the effect of such a prior adjudication on the burden of proof. Prior Texas cases would lend support to the proposition that such a prior adjudication of incompetency creates the presumption of continuing incompetency. In such a situation, the State would then be required to prove the defendant competent at the time of trial. Schaffer v. State, 583 S.W.2d 627, 630 (Tex.Crim.App.1979). However, as stated by the Texas Court of Criminal Appeals, sitting en banc, in Ex parte Yarborough, 607 S.W.2d 565 (Tex.Crim.App.1980) this change of presumption does not change the standard of proof. The State need only “establish the sanity of the accused by a preponderance of the evidence.” Yarborough, 607 S.W.2d at 566.
Admittedly, Yarborough is somewhat different from our case. The court in Yar-borough was construing a previous provision of the Mental Health Code which removed the continuing presumption of incompetency upon the patient’s discharge from the mental hospital, so that the issue there did not concern the proper standard of proof once the burden shifts. Further, the statement quoted above refers to sanity of the defendant, not competency.
Nevertheless, Yarborough is pertinent here for two reasons. First, the cases relied upon by the dissent for use of “beyond a reasonable doubt” as the proper standard are also all insanity cases. See Morrow v. State, 154 Tex.Crim. 21, 224 S.W.2d 481, 484 (1949); Murray v. State, 147 Tex.Crim. 474, 182 S.W.2d 475, 477 (1944); Herring v. State, 141 Tex.Crim. 281, 148 S.W.2d 416, 417 (1941); Gunter v. State, 139 Tex.Crim. 145, 139 S.W.2d 116, 117 (1940). Other earlier cases on this point include Glover v. State, 125 Tex.Crim. 605, 69 S.W.2d 136 (1934) and Witty v. State, 69 Tex.Crim. 125, 153 S.W. 1146, 1147-48 (1913). The other case cited by the dissent in support of its contention, Ex parte Tuttle, 445 S.W.2d 194, 199 (Tex.Crim.App.1969) concerns only the shift in burden to the State and not the standard to be applied. The same is true of Schaffer v. State, 583 S.W.2d at 630.
*828Second, the standard of proof in insanity defense cases should, if any different from that in incompetency cases, be more stringent rather than less. If a preponderance of the evidence is a sufficient burden for the State when insanity is at issue, no more should be required when incompetency is at issue. We need not decide what the standard of proof should be when the issue raised is the insanity defense. It may be reasonable to hold that once insanity is presumed, the State must, as an element of the crime, prove beyond a reasonable doubt that the defendant was sane at the time the crime was committed. But competency to stand trial is not an element of a crime, and a hearing on this issue is civil in nature. Parker v. State, 667 S.W.2d 185 (Tex.App.-Texarkana 1983, pet. ref'd), cert. denied, - U.S. -, 105 S.Ct. 590, 83 L.Ed.2d 699, Lingerfelt v. State, 629 S.W.2d 216 (Tex.App.-Dallas 1982, pet. ref’d).
No valid reason exists to hold that the standard in competency to stand trial cases should be the same required of the State for criminal elements of a crime. Apart from placing an unreasonable burden on the State, such a holding as the dissent would have us make is not constitutionally nor logically required. United States v. Makris, 535 F.2d 899 (5th Cir. 1976), rehearing denied, 540 F.2d 1086, cert. denied, 430 U.S. 954, 97 S.Ct. 1598, 51 L.Ed.2d 803. The Makris court relied on the “element of the crime” test as establishing the line between those issues which must be proved by the State beyond a reasonable doubt and those which need only be shown by a preponderance of the evidence.
Furthermore, article 5547-83, the statute previously relied on by some Texas courts holding that the burden of proof shifts to the State, has been amended. In some recent cases, the court of criminal appeals has apparently relied on the previous version both as to the continuing presumption of incompetency and as to termination of the presumption upon discharge. See e.g., Paul v. State, 544 S.W.2d 668 (Tex.Crim.App.1976); Ex parte Yarborough, 607 S.W.2d 565. By relying on this statute to determine burden of proof shifts in cases concerning mental incompetency to stand trial, thé court of criminal appeals has recognized that the statute as then codified affected the common law rules applicable to that issue. From 1959 to September 1, 1983, when all recent cases relied on by the dissent as well as Paul and Yarborough were decided, article 5547-83 stated:
(a) The judicial determination under this Code that a person is mentally incompetent creates a presumption that the person continues to be mentally incompetent until he is discharged from the mental hospital or until his mental competency is redetermined by a court.
Act of May 30, 1959, ch. 409, § 1, 1959 Tex.Gen.Laws 887, amended by Act of April 27, 1983, ch. 47, § 1, 1983 Tex.Gen. Laws 211, 261-62. The statute now reads in pertinent part:
Mental competency is presumed in the absence of a contrary judicial determination under the provisions of the Texas Probate Code.
We need not determine whether this change in the statute reverses the prior rule in Texas that incompetency is presumed to continue once an adjudication of incompetency has been obtained since in this case, the trial court placed the burden to show competency on the State.
However, because the competency issue is distinguishable from a claim of insanity as a defense, the cases cited by the dissent are not persuasive on the question of standard of proof. We conclude, therefore, that the charge given was substantially correct, and, that if the court erred in placing the burden of proof on the State, appellant could not have been harmed. Consequently, it could not be fundamental error.
Appellant asserts in his second and third grounds of error that the charge to the jury in the criminal phase of the trial erred in failing to (1) apply the abstract law of alibi to the particular facts, and (2) define “without effective consent.” Neither of these points were raised in the trial court, and thus cannot be a ground for reversal unless they are found to constitute “fundamental error.” We hold that no fun*829damental error is shown under the Alman-za standard.
The charge with respect to the defense of alibi read:
A defense submitted by the defendant in this case is what is known in law as an alibi, that is, that if the offense was committed, as alleged, the defendant was, at the time of the commission thereof, at another and different place from that at which such offense was committed and, therefore, was not and could not have been the person who committed the same.
Now, if you have a reasonable doubt as to the presence of the defendant at the place where the offense was committed, if an offense was committed, at the time of the commission thereof, then you will find the defendant not guilty.
We hold that the second paragraph of the charge adequately applies the law to the facts and error, if any, was not so egregious as to have deprived appellant of a fair and impartial trial.
Appellant’s third ground of error relates only to the two aggravated robbery convictions. We note that the court included the following definition:
“Effective consent” includes consent by a person legally authorized to act for the owner. Consent is not effective if induced by force, threat or fraud.
This is the general statutory definition of effective consent set forth in the Penal Code. TEX. PENAL CODE ANN. § 1.07(a)(12)(A) (Vernon 1974). The court’s failure to define in the negative, if error at all, would not rise to the category of fundamental error.
Affirmed.
HOWELL, J., files a dissenting opinion.. This opinion was originally assigned to the dissenter.