OVERRULING OF APPELLANT’S MOTION FOR REHEARING.
TEAGUE, Judge,dissenting.
Because I find that the majority erroneously overrules appellant's motion for rehearing without opinion, I am compelled to dissent.
The original opinion in this cause should either be withdrawn or overruled because it erroneously concluded that the death of the deceased was not caused by the same act which constituted the commission of the offense of arson. However, the indictment in this cause alleges on its face that the starting of the fire was the act which constituted both the underlying offense of arson and the “clearly dangerous” act which caused the death. Of course, the State was not required to allege the act which constituted the arson. However, once it did, it was then bound by its allegations.
I now find that it is clear as crystal that the State’s reliance upon the same act to constitute both the underlying felony offense of arson and the act clearly dangerous to human life which caused the death of the deceased violates the doctrine of merger in that the only act shown to be the commission of the offense of arson, the underlying felony, is one and the same act which caused the death of the deceased. Furthermore, appellant’s counsel has clearly pointed out in the briefs he has filed with this Court that V.T.C.A., Penal Code, Section 19.02(a)(8), the felony-murder statute, contemplates that a homicide can become murder, when not committed intentionally or knowingly, only if the act which causes the death occurs in the course of and in furtherance of the commission of or attempt to commit a felony other than voluntary or involuntary manslaughter, or in flight from such commission or attempt. Thus, it follows that the homicide can become murder only when some act evidencing the commission or attempted commission of the underlying felony offense is separate and distinct from the act which causes the death of the deceased.
This limitation on the felony-murder rule can easily be seen in both Aguirre v. State, — S.W.2d — (Tex.Cr.App.1984) (Presently pending on rehearing. See our cause number 62,033, original opinion handed down on July 14, 1982), and Garrett v. State, 573 S.W.2d 543 (Tex.Cr.App.1978).
I acknowledge that Garrett v. State, supra, can be distinguished from both Aguirre v. State, supra, and this cause, because it concerned an assault as the underlying offense whereas in Aguirre v. State, supra, and this cause the underlying felony is a non-assaultive offense. Nevertheless, the “same act” doctrine applied in Garrett v. State, supra, is applicable to both this cause and Aguirre v. State, supra.
The applicability of the “same act” doctrine is also reflected by the fact that in 1981 the Legislature amended V.T.C.A., Penal Code, Section 28.02, the arson statute, which amendment occurred after the instant offense was committed, but before Aguirre v. State, supra, was delivered. Where the arson causes a death, the *121amended statute provides that the range of punishment for that offense is the same as that for the offense of murder. Thus, the amendment to the arson statute at least indicates that the Legislature intended for a death caused by arson to be treated as seriously as the offense of murder, even though the death that was caused by the arson is not murder per se. If any death caused by the commission of the offense of arson would constitute murder, this would render the amendment a meaningless act on the part of the Legislature because the offense of causing death by arson was already punishable as a first degree felony under the felony-murder statute.
Appellant’s contention that the State relied upon the same act to constitute both the underlying felony offense of arson and the act clearly dangerous to human life which caused the death of the deceased should be sustained.
I have also found that there is another reason why appellant’s motion for rehearing should be granted, and that is because an allegation of “intent to collect insurance” does not necessarily include knowledge that the ostensibly insured object or person is insured.
In Dennis v. State, 647 S.W.2d 275 (Tex. Cr.App.1983), this Court held that where an indictment omits an element of an offense as it is defined, the indictment becomes fundamentally defective unless language in the indictment necessarily includes the omitted element. This Court also noted that an allegation of knowledge carries with it an implication that the thing known is a fact which actually exists. In contrast, an allegation of “belief” merely refers to the defendant’s subjective state of mind, and does not necessarily mean the thing believed is an actual fact in existence. This distinction is also reflected in several opinions holding that a habeas corpus affidavit referring to the applicant’s belief is insufficient. See Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967); Ex parte Jackson, 616 S.W.2d 625 (Tex.Cr.App.1981); Ex parte Brooks, 637 S.W.2d 955 (Tex.Cr.App.1982). Therefore, “intent,” like “belief,” merely refers to the subjective state of the mind of the defendant. In this instance, appellant may have intended to collect insurance when he set fire to the house, yet he might not have “known” it was uninsured because the insurance policy had lapsed.
Since September 1, 1979, the offense of arson, as relevant to the facts of this case, has required that the person starting a fire must do so with the intent to destroy or damage the habitation, and must do so “knowing that it is insured against damage or destruction.” Thus, in light of the above, the habitation must in fact be insured against damage or destruction at the time the fire is set before the setting of the fire can constitute the offense of arson. In this cause, the charge to the jury allowed the jury to convict appellant of murder if they only found appellant had committed arson by setting the house on fire with intent to collect insurance. However, it was not required to find either that appellant knew that the house was insured or that the house was in fact insured. Therefore, the charge to the jury was fundamentally defective because it did not require the jury to find all of the elements necessary to constitute the offense of arson, which, of course, was a necessary predicate before appellant could be found guilty of felony-murder.
For the above reasons, I dissent to the overruling of appellant’s motion for rehearing without written opinion.