concurring.
I concur with the opinion of the majority reversing the conviction of appellant and entering an acquittal, except that I would also find that the indictment, in failing to allege that the appellant “agreed with one or more persons,” is fundamentally defective. I do not agree that an allegation that the defendant did conspire and agree “with each other” is tantamount to an allegation that the defendant agreed with one or more persons as is required for a prosecution for criminal conspiracy under § 71.02, TEX. PENAL CODE ANN. (Vernon Supp.1985). In the context of the indictment as drawn herein, I cannot find that the allegation as contained in the indictment with this regard is a matter of form. The indictment herein neither tracks the applicable statute, TEX.PENAL CODE ANN. § 71.01(b) (Vernon Supp.1985), defining criminal conspiracy, nor indicates who “each other” refers to, if anyone. Had the indictment indicated what person or persons this “each other” refers to or charged that “defendant and another conspired or defendant and others conspired” (as was alleged in Clayton v. State, 652 S.W.2d 950 (Tex.Cr.App.1983), cert. denied, — U.S.-104 S.Ct. 719, 79 L.Ed.2d 181 (1984), or even stated that there was a person or persons that defendant agreed and conspired with, then, I could agree with the majority that failure to allege who “each other” were was a matter of form and was therefore waived. However, a statement that a person “agrees with each other,” without more, is nonsense; making no sense and meaning nothing, it can hardly allege an essential element of a conspiracy. I would therefore sustain appellant’s second ground of error.