dissenting.
I respectfully dissent. I would hold not only that Hefner adequately preserved error with respect to his mistake of fact defense but also that the trial court erred in failing to include in its charge an appropriate instruction on this defensive issue. Accordingly, I would reverse the trial court’s judgment of conviction and remand the cause for a new trial.
On appeal, Hefner contends that he was harmed by the trial court’s denial of his mistake of fact defense. Hefner testified in detail concerning each transfer of funds and expressed his belief that each was authorized by complainant. Prior to submission of the charge, Hefner requested a .special instruction tracking the language of TEX.PENAL CODE ANN. § 8.02 (Vernon 1974) which authorizes the mistake of fact defense. Upon examination of those instructions proposed by the court for submission to the jury, Hefner objected to the omission of any charge on mistake of fact.
In its opinion, the majority has characterized the “primary fact issue” litigated at trial as being “whether complainant effectively consented to the transfer[s].” Taking the stand in his own defense, Hefner testified, at length, separately and precisely with respect to each transfer, that there was no question in his mind but that complainant understood and approved each transfer when made. Standing alone, this evidentiary litany regarding Hefner’s “belief” that he had complainant’s valid consent to make each transfer was a signal to the trial judge that such belief had a critical impact on Hefner’s culpability. See Knowles v. State, 672 S.W.2d 478, 480 (Tex.Crim.App.1984) (reversing the conviction and remanding the cause for another trial because of the trial court’s failure to submit a mistake of fact defense which negated defendant’s culpability in a theft prosecution when raised solely by testimony of defendant). Clearly, if Hefner was reasonable in entertaining such a belief but was nonetheless mistaken, he lacked the mens rea to be guilty of theft. Thus, through his own highlighting testimony on the subject, an exact basis for Hefner’s section 8.02 defense was clearly indicated.
While the majority contends that the instruction which Hefner tendered was defective, it was at least sufficient on its face to call the trial court’s attention to Hefner’s right to a proper charge on the defensive issue therein addressed. Williams v. State, 630 S.W.2d 640, 643 (Tex.Crim.App.1982). Hefner is not burdened with the same mandate that is placed upon a trial judge, which, as the majority notes, is to properly apply the law to the particular facts presented at trial. All Hefner was obliged to do was to call the omitted defense to the trial judge’s attention with such particularity as to enable the judge to perceive and cure the error. Regittano v. State, 96 Tex.Crim. 477, 257 S.W. 906, 908 (1922). The degree of specificity required of the objection will of necessity vary with the context in which it is presented. Within the factual setting presented by this case, I am persuaded that Hefner’s requested instruction and his objection to the charge, coupled with his testimony concerning his belief that complainant had validly consented, were sufficient to call the omitted mistake of fact defense to the attention of the trial judge and thus preserve for appellate review the error in question.
*628Further, upon thorough review of the trial record, I am convinced, contrary to the holding of the majority, that Hefner’s belief in the validity of the complainant’s consent was not unreasonable as a matter of law. Regardless of all conflicting and contradicted testimony, Hefner’s assertions standing alone have evidentiary weight to support his mistake of fact defense. See Campbell v. State, 614 S.W.2d 443, 445 (Tex.Crim.App.1981); Thompson v. State, 521 S.W.2d 621, 624 (Tex.Crim.App.1974). Accordingly, I would let the trier of facts determine the disputed matter of whether Hefner genuinely held that professed belief which would exculpate him.
I agree with the majority that Hefner is not entitled to an acquittal for insufficient evidence. He is entitled, however, to a new trial on grounds that the trial judge committed reversible error by failing to include in the charge, as duly requested by Hefner, an appropriate instruction covering that mistake of fact defense raised by the evidence. See Jackson v. State, 646 S.W.2d 225, 227 (Tex.Crim.App.1983) (reversing the conviction and remanding the cause for another trial because of the trial court’s failure to submit a mistake of fact defense in its charge when raised by evidence in theft prosecution and called to the court’s attention by a sufficient, albeit not technically correct, instruction). Accordingly, I would reverse the conviction and remand the cause for a new trial.