¶1concurring in part and dissenting in part.
¶2Article 36.19, V.A.C.C.P., provides:
“Whenever it appears by the record in any criminal action that any requirement of Articles 36.14, 36.15, 36.16, 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 the trial.”
¶3Here is a statute dealing with the violation of certain enumerated statutes concerning the court’s charge, and which concludes with a requirement that all “objections to the charge” be made at the time of the trial. Yet the majority by its own reading of statutory and decisional law, by removing commas in earlier opinions and reinterpreting them, and by selected excerpts from other cases, concludes “that Article 36.19 actually separately contains the standards for both fundamental error and ordinary reversible error.”
¶4The majority would have the phrase “calculated to injure the rights of the defend*175ant” apply as the only test for reversible error if there has been a timely objection to the charge, and if there has been “some” harm. It would also lift the phrase “that the defendant has not had a fair and impartial trial” out of the statute and use it as the test for fundamental error, an independent basis for reversal where the error, though not timely objected to, is, if you please, so “egregiously” harmful as to deprive the defendant of a fair and impartial trial.
¶5The majority, which admits that the phrase “unless it appears from the record that the defendant has not had a fair and impartial trial” is of uncertain origin, nevertheless concludes it was “meant to be a statutory enactment of the fundamental error doctrine and is of independent significance ... within Article 36.19.”
¶6In other words the Legislature, constitutionally or not, has adopted a fundamental error doctrine to be imposed upon the judiciary of this state without defining it by simply burying the phrase in question into the middle of the statute in question. With this I cannot agree.
¶7The majority commences its discussion by acknowledging at least three prior theories as to the test imposed by language in Article 36.19 as to “calculated to injure” and “fair and impartial trial.” The majority then adds:
“It is critical that we acknowledge from the outset the simple fact that no conceivable theory can reconcile the cases written on the subject over the last 130 years. Imprecise language, both statutory and decisional, has destroyed any hope of harmonizing all authoritative statements in any literal sense.
“In studying art. 743 and Article 36.19 to determine which, if any, theory is correct, it is clear that one cannot answer that question from the current statute itself. The statute is inherently ambiguous; it can be read dozens of times without revealing with certainty what the Legislature intended.”
¶8With this background the majority felt like it was free to interpret the statute in any way it pleased, including the announcement that long ago the Legislature had adopted a fundamental doctrine of independent significance in 1913 which was not clearly discovered until today by the wisdom of the majority.
¶9In explanation, the majority does state:
“Our exegesis1 of the statute, suggested legislative history of art. 743, is at least as defensible as any other reading of the statute in light of the research, a minuscule portion of which is set out above, does more than the others to respect the meanings which the statutes and caselaw had attached to key phrases in the provision.”
¶10There can be no question that over the years there have been numerous interpretations, not always consistent, of Article 36.19 and its forerunner. And it is true that support can be found for any number of different theories. When we reach the point where we begin to talk of “reversible beneficial (to the defendant) error,” Brewer v. State, 572 S.W.2d 940, 941-944 (Tex.Cr.App.1978) (dissenting opinion), and “harmless fundamental error,” it is time to take stock and see where we are.
¶11After study and reexamination of many of the authorities and the legislative history of Article 36.19 and its forerunners, it is my opinion that the statute relates to the situations where Articles 36.14 and 36.15, etc., are disregarded. Thus, where a timely objection or special requested charge has been made, and overruled, the “calculated to injure” or “fair and impartial trial” tests are to be applied to determine whether the error, if any, calls for reversal. Both tests apply to what the majority chooses to call “ordinary reversible error.” Despite timely objection, one error in failing to follow the enumerated statutes on the giving of the court’s charge may be well calculated, may be well intended to injure the rights of *176the defendant, while another error, timely objected to, may be due to haste, ignorance of the law, mistake, negligence, omission, oversight, etc., without there being any scheme, any calculation, design or intent to injure the defendant. Nevertheless, this later error may result in depriving the defendant of a fair and impartial trial to which he is entitled. This latter test is a much broader test designed to cover a wider range of situations than that encompassed by the first test.
¶12I find no support for any claim that the Legislature has ever adopted a fundamental error doctrine or a test that must be applied by the judiciary, the third branch of government, to a claim of fundamental error-in the court’s charge or indictment, etc. I simply cannot buy the majority’s theory that the second test in Article 36.19 was intended to be the sole test to be applied if the courts -were passing upon a claimed fundamental error in the court’s charge. In 1913, when then Article 743 of the Code of Criminal Procedure was enacted, the fundamental error doctrine had been espoused in several appellate opinions. Bishop v. State, 43 Tex. 390 (Tex.1875); Tuller v. State, 8 Tex.App. 501 (Crt. of Appeals 1880); Stewart v. State, 50 S.W. 459 (Tex.Cr.App.1899); Leache v. State, 22 Tex.App. 279, 3 S.W. 539 (Crt. of Appeals 1886); Ford v. State, 41 Tex.Cr.R. 1, 51 S.W. 935 (1899); Jones v. State, 53 Tex.Cr.R. 131, 110 S.W. 741 (1908). It was not this source of a few reversals that the Legislature sought to curb. The 33rd Legislature in 1913 was concerned with the large number of criminal convictions reversed because of what today’s majority refers to as “ordinary reversible error” in the court’s charges due to then existing procedural rules. The Legislature sought to require timely objections, etc., to the charge at the time of trial to prevent the trial judge from being sand-bagged by post trial complaint and thus reversed on appeal. If the Legislature had thought it proper to address by legislation the question of what we now refer to as fundamental error in the charge, they could have easily and expressly said so. They did not. The same was true when Article 666 was enacted as part of the 1925 Code of Criminal Procedure and when Article 36.19 was enacted as part of the 1965 Code of Criminal Procedure.
¶13There is no statutory test for determining fundamental error. That is a matter for the courts. Constitutionally the Legislature cannot tell the courts how to decide a case.
¶14A timely objection to a charge, etc., preserves the claimed error, “the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair trial and impartial trial.” If the claimed error has not been preserved by timely objection, etc., no reversal follows even if it is error in fact unless, of course, it is fundamental error. Naturally, then, every claimed error not properly preserved is asserted to be fundamental error. Not every claimed fundamental error, however, is actual fundamental error.
¶15A fundamental error is a very basis, an underlying material error that affects the foundation of a conviction’s validity.
¶16Early on, before the language was incorporated in any statute, the Supreme Court of Texas in Bishop v. State, 43 Tex. 390 (1875), stated a “material deficiency in the charge, not objected to below, but apparent on the record” was deemed to be “an error calculated to injure the rights of the defendant.” Other opinions have used the *177“fair and impartial trial” language in discussing fundamental error. There has been no consistency. As the majority notes, other opinions have used the phrase “calculated to injure the rights of the appellant to the extent that he has not had a fair and impartial trial.” See, e.g., Ross v. State, 487 S.W.2d 744, 745 (Tex.Cr.App.1972). This seemingly is a combining of the two statutory tests in Article 36.19 to some extent and supportive of the first theory discussed by the majority that Article 36.19 applies only to fundamental error and sets no standard for “ordinary reversible error.” See Dowden v. State, 537 S.W.2d 5, 6, n. 1 (Tex.Cr.App.1976). This, I conclude after further study, is an erroneous concept.
¶17In determining whether there is fundamental error there will naturally be a consideration of whether the claimed error was calculated to injure the rights of the accused or whether he was deprived of a fair and impartial trial, but it must be a material error affecting the very foundation of the conviction’s validity. The error must have resulted in actual harm, remarkable or extraordinary in some bad way, of a glaring or flagrant nature. Fundamental error must meet this higher test for harm, a more stringent test than for “ordinary reversible error.” Reversals for fundamental error in the charge should be granted only in the most compelling cases.
¶18I fully agree with the majority that if there is a claimed fundamental or “ordinary reversible” error in the charge we must look to the charge as a whole, the evidence, the argument of counsel, the record in its entirety to determine if the jury was misled and if in fact there is reversible error. This approach is not new. Mace v. State, 9 Tex.App. 110 (Ct. of Appeals 1880); Robinson v. State, 39 S.W. 107 (Tex.Cr.App.1897); Simnacher v. State, 43 S.W. 512 (Tex.Cr.App.1897).
¶19In the recent past there has been an increase in the number of the so-called fundamental error per se reversals where the claimed error has been determined to be fundamental error without a discussion of any real harm in the particular case. The “new” approach should change this somewhat, but it should be borne in mind that even if the “new” approach had been utilized in the past cases the same result would have been easily reached in some cases. And in the future there will be cases where the error is so flagrant there will still be a fundamental error reversal per se. Many of the reversals have been directly related to the abandonment in part by this Court of the rule of reading the court’s charge as a whole in construing the same, see e.g. Doyle v. State, 631 S.W.2d 732 (Tex.Cr.App.1982). And this resulted in large measure from the recent acceptance and use by the majority of this Court of the phrase “application paragraph of the charge” as if one and only one paragraph of the charge applies the law to the facts. This has never been true. In fact, the whole written charge is given for the purpose of “distinctly setting forth the law applicable to the case;” Article 36.14, V.A. C.C.P. By finding a single defect in the exalted “application paragraph” the majority would reverse without consideration of the charge as a whole, or considering whether the jury was in any way misled.
¶20Most importantly, the issues concerning the charges in many cases should not have ever reached the appellate courts. Too frequently the “error” was due to mistake, oversight, and plain sloppiness in the preparation of the charge. It appears that trial judges are allowing court reporters and others to draft the charges, and attempts are made to follow pattern jury instruction forms and old charges without striking inapplicable portions or trying to tailor the form to the allegations of the indictment in the case. There are often few or no objections to these charges, and trial judges are apparently reading the charge to the jury without observing the obvious mistakes therein.
¶21*178Trial judges should personally develop some expertise in the drafting of charges, and supervise the preparation of the same. It should never be assumed that because there is no objection to the charge that it will necessarily pass muster. And when the trial judge reads the charge to the jury, it should not be the first time he has read the charge.
¶22Today’s majority reaches out and very selectively chooses certain cases, some not involving charges, and declares they produced bizarre results, and then lectures the court about common sense and the fair administration of justice. If the writer of the majority opinion is concerned about bizarre results and common sense I would suggest he has overlooked cases as Antunez v. State, 647 S.W.2d 649 (Tex.Cr.App.1983); Braudrick v. State, 572 S.W.2d 709 (Tex.Cr.App.1978); Cobarrubio v. State, 675 S.W.2d 749 (Tex.Cr.App.1983); Camera v. State, 663 S.W.2d 1 (Tex.Cr.App.1984).
¶23In concluding its opinion, the majority simply overrules the leading case of Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979), to the extent it holds any error in the court’s charge requires “automatic” error. There is no further explanation of the Cumbieopinion or many cases following it. Cumbieset forth four kinds of types of fundamental error in the court’s charge which had called for reversal in the past. With the limited surgery performed on Cumbieand its progeny, will we be left with four kinds of fundamental error that may be in light of the record “harmless fundamental error”? I would have hoped the majority would go far enough to spare us a doctrine of “harmless fundamental error.”
¶24And instead of applying the newly announced rule regarding fundamental error to the instant case which has long pended before this Court, the majority remands the cause to the Ft. Worth Court of Appeals for that court to attempt to apply the new rule. That court followed our previous teachings and now they must apply a new rule of which it was unaware until today. There is no judicial economy in this move. From this day forward the various Courts of Appeals will be applying the new rule in other cases without any example of how this Court has applied its own rule. Is the purpose to run the new rule up the flag pole to see how many salutes it receives before proceeding to utilize it ourselves?
¶25While I agree with the new rule, I dissent to remanding this cause to the Ft. Worth Court of Appeals for first application of the rule.
¶26For the reasons stated, I concur in part and dissent in part to the results reached.
¶27. Explanation or critical interpretation of text.
¶28. In Bellah v. State, 415 S.W.2d 418, 421 (Tex.Cr. App.1967), the Court stated:
"In the absence of a proper objection it is only in those cases where the erroneous charge goes to the basis of the case and is contrary to and fails to state the law under which the accused is prosecuted that objections to the charge are considered on appeal as fundamental error. Garza v. State, 162 Tex.Cr.R. 655, 288 S.W.2d 785.”
¶29. In Jackson v. State, 578 S.W.2d 748, 749 (Tex. Cr.App.1979), it was stated:
"Many cases such as this have recently come before this court. It is difficult to un*178derstand why so many courts are submitting charges to juries which allow the juries to convict defendants for offenses not alleged in the indictment_”
¶30dissenting.
¶31I believe that because of what the majority opinion, authored by Judge Clinton, states and holds, as to when objected to error and unobjected to error in the trial court’s final charge to the jury might constitute reversible error, that this Court retreats at least 400 years into the past, at the same time expressly overruling all decisions of this Court that might have been of assistance in making the determination whether error in the court’s final charge constitutes reversible error.
¶32In Ex parte Clark, 597 S.W.2d 760, 761 (Tex.Cr.App.1980), Judge Truman E. Roberts, who authored that opinion for this Court, stated therein, inter alia, that “the failure of the charge to apply the law to the facts ‘impairs the right to trial by jury’ and, therefore, by definition, is ‘calculated to injure the rights of the defendant ... to a trial by jury,’ which right is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 10, of the Texas Constitution.” Judge Clinton’s opinion for the majority of this Court, in stating and holding what it does, unfortunately does not take into account those wise words of wisdom Judge Roberts once uttered for this Court so few years ago.
¶33Henceforth, when it comes to instructing the jury on the law, and the law as applied *179to the facts of the case, I believe that it will now be permissible for trial judges of this State to give a jury a flawed jewel, rather than “a gem that has been cut and polished by the hard edge of legal experience obtained from both within and without our criminal justice system.” Doyle v. State, 631 S.W.2d 732, at 738 (Tex.Cr.App.1982).
¶34After today, harmless error should prevent even the most egregiously worded jury charge from constituting reversible error. Henceforth, there will be no per se rule of reversible error because of fundamental error in the court’s charge. Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979), and like decisions of this Court, are no more as they have been expressly overruled by today’s majority opinion. No longer are there any cases that can be used as guides.
¶35Judge Clinton states in the opinion he authors for the majority of this Court that the following nebulous rules will now govern whether an erroneous instruction in the court’s charge to the jury will constitute reversible error:
If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is ‘calculated to injure the rights of the defendant,’ which means no more than that there must be some harm to the accused from the error. In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless. On the other hand, if no proper objection was made at trial and the accused [claims on appeal] that the error was ‘fundamental,’ he will obtain a reversal only if the error was so egregiously harmful that he ‘has not had a fair and impartial trial’ ...” The harm that is inflicted by such an erroneous charge must ‘be assayed in light of the entire jury charge, the state of the evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.
¶36Unfortunately, Judge Clinton, for the majority, fails to give the members of the bench and bar of this State a hypothetical example of just when both objected to error in the court’s charge and error in the court’s charge to which no objection was leveled might somehow rise to the level of reversible error under the new rules. Perhaps, however, as to either, unobjected to error in the court’s charge or objected to error in the court’s charge, none can be conjured up by his brilliant mind.
¶37When will the members of the bench and bar of this State know that error in the court’s final charge to the jury constitutes reversible error? Perhaps in the future, we will learn, much like Lot’s wife did, at the moment when the event occurs.
¶38In light of what the majority opinion ultimately holds, it is obvious to me, if no one else, that much of what this Court has attempted to do in the past ten years-in its efforts to admonish trial judges to fulfill the responsibility that the law casts upon them in carefully instructing the jury on the law, and the law as applied to the facts of the particular case-no longer has any real meaning.
¶39In Doyle v. State, supra, an opinion that I proudly authored for the Court, I stated the following: “Over 400 years ago, it was written: ‘For the office of 12 men is no more than to enquire to Matters of Fact and not to adjudge what the law is, for that is the Office of the Court,and not of the jury,’ ” 1 Plowden 110a, 114a (K.B. 1554), and added a postscript: “But in its instructions to the jury, the trial court must correctly apply the law to the facts of the case.” (737). Alas, those words also no longer have any real meaning.
¶40Notwithstanding what the majority of this Court now holds in the area of the law that governs giving the jury correct instructions on the law, and the law as applied to the facts of the case, I hope and pray that most trial judges of this State will continue to believe that the final charge to the jury represents “a gem that has been cut and polished by the hard edge of legal experience obtained from both within and without our criminal justice sys*180tem,” rather than something that resembles a tasteless smorgasbord.
¶41To the majority’s efforts to have our jurys served with flawed jewels, and a tasteless smorgasbord, I respectfully dissent.