concurring.
I concur with the ultimate result reached, that being a reversal of appellant’s conviction. However, I would like to add some principles of law that I feel should have been included in the opinion.
With respect to point of error one, Justice Burgess’ opinion analyzes with extreme thoroughness the problem raised when an indictment omits language of culpable mental state. His analysis and subsequent holding is well grounded in constitutional, statutory, and case law. While I am in complete agreement with his handling of this issue, I must also state that the dissent presents some very strong points as well. There is clearly more than a little ambiguity in the current status of the law (constitutional, statutory and case law), and until this ambiguity is addressed by our State’s highest appellate court, I see little possibility of there being unanimity in decisions from other intermediate appellate courts in this state.
With respect to point of error three, the appellant complains that the trial court erred in refusing to sustain appellant’s objection to the State’s use of peremptory challenges to exclude black veniremen from serving on the jury. The record is reflective of the fact that appellant is white. This point of error is grounded solely in art. 85.261 of TEX.CODE CRIM. PROC.ANN., Article 35.261 provides:
“(a) After the parties have delivered their lists to the clerk under Article 35.26 of this code and before the court has impanelled the jury, the defendant may request the court to dismiss the array and call a new array in the case. The court shall grant the motion of a defendant for dismissal of the array if the court determines that the defendant is a member of an identifiable racial group, that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that the defendant has offered evidence of relevant facts that tend to show that challenges made by the attorney representing the state were made for reasons based on race. If the defendant establishes a prima facie case, the burden then shifts to the attorney representing the state to give a racially neutral explanation for the challenges. The burden of persuasion remains with the defendant to establish purposeful discrimination.
(b) If the court determines that the attorney representing the state challenged prospective jurors on the basis of race, the court shall call a new array in the case.” (emphasis added).
The record indicates that the State struck eight out of the nine blacks on the venire. The State offered no explanation for the strikes except for the assertion that art. 35.261 applies only to strikes made against persons of the same race as the appellant.
Appellant contends that Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) does not apply to the circumstances in this case. The State argues that art. 35.261 no more than codifies Batson and the Texas case, Keeton v. State, 724 S.W.2d 58 (Tex.Crim.App.1987). Keeton held, inter alia:
“In order to invoke the protection set forth in Batson, supra, a defendant must establish purposeful discrimination by showing that:
1. he was a member of a cognizable racial group;
2. the prosecutor had exercised peremptory challenges to remove from the ve-nire members of the defendant’s race (peremptory challenges constitute a jury selection practice which permits those to discriminate who are of a mind to discriminate); and
3. the facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen on account of their race.” (emphasis added).
There is unmistakably a subtle, but very significant difference in the Kee-ton/Batson language referred to above, and the language of art. 35.261 previously quoted. This writer agrees with Justice Burgess that art. 35.261 permits an accused to establish purposeful discrimina*177tion by showing the State’s peremptory challenges were based on race without having to tie together the race of the stricken jurors and the accused. In essence, art. 35.261 partially provides for a racial neutering of the process of peremptory challenges conducted by the State. Since art. 35.261 became effective on August 31,1987 and Batson was decided on April 30, 1986, the legislative intent is obvious. The intent is not only to secure proper due process and equal protection for the accused in connection with the jury selection process, but to blaze a trial for these rights to become available for the benefit of every person sitting on the venire. Even though Batson was not an Equal Protection Clause or Due Process of law challenge, but rather strictly a Sixth Amendment complaint, the end result was, and the United States Supreme Court so found, that the Equal Protection Clause disallows the exclusion of a juror on account of race and that so doing is impermissible discrimination against the excluded juror. To this writer, the intent of the Supreme Court was clearly stated as follows:
“Racial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try. Competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at a trial. (Citation omitted). A person’s race simply ‘is unrelated to his fitness as a juror.’ (Citation omitted). As long ago as Strauder, [v. West Virginia, 10 Otto 303, 25 L.Ed. 664 (1880)] supra, therefore, the Court recognized that by denying a person participation in jury service on account of his race, the State unconstitutionally discriminated against the excluded juror. (Citations omitted).
The harm from discriminating jury se-s lection extends beyond that inflicted on the defendant and excluded juror to touch the entire community.”
Batson, supra at 87, 106 S.Ct. at 1718.
This language not only supports the opinion of Justice Burgess, but further condemns the practice of racial discrimination by either the State or the defendant. If the true intent of Batson is only for the accused’s use and benefit, then Batson actually condones and perpetuates racial discrimination in criminal jury selection by the defendant. Certainly the Supreme Court had no such intent.
It is clear that Article 35.261 speaks only to the defendant’s rights to challenge the State’s striking of a juror and does not address the rights of a juror to protection from racial discrimination by the defendant. It is nevertheless clear that the intent of Batson, and our State Legislature was to eliminate all such discrimination. The above quoted language from Batson not only supports the legislative intent of art. 35.261 to eliminate the question of race from the jury selection process entirely, it condemns the practice of racial consideration by either party.
There are at least three very obvious interests affected in the jury trial of any criminal case; none being more deserving or less deserving of equal protection than the other. First, the interest of the accused to be tried by a panel of impartial jurors reflective of a peer group entitled to judge the alleged conduct of the accused, and not just those persons who may possess a higher or lower tolerance for the particular crime for which the accused is being tried. If “high or low tolerance of crime” be the touchstone, then the concept of equal protection becomes a farce. It would be pointless to even attempt to address any other interest.
The second equal protection interest finds its basis grounded in the civil rights of each juror called to participate in the jury selection process of a criminal trial. Each and every person on the venire is entitled to be considered as a prospective juror without race becoming a significant factor, whether by the State or the defendant. To do otherwise is nothing more than inexplicable and selective gameplay.
The third interest and the one so conveniently ignored since Batson is that of “the People”, (sometimes referred to as “the State”). I say conveniently ignored because we speak in terms of a “prosecutor” *178or the “attorney for the State” which implies that one particular individual cast in the role of a district attorney or assistant district attorney or county attorney is the real party of interest in the overall scheme of jury selection. This is a misconception for, in truth, that particular individual speaks for all the people, and to deny “the prosecution” the same equal protection from racial discrimination in criminal jury selection is to deny that protection to all “the people”. If we accept Batson as saying “the people” can’t racially discriminate against the defendant or jurors, but it is acceptable conduct for the defendant or his counsel to racially discriminate against “the people”, then we have selectively accepted, and only partially applied the overall meaning and intent of equal protection. Quoting again from Batson:
“The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community.” (emphasis added).
Batson, supra at 87, 106 S.Ct. at 1718.
A line of Texas cases dating back to the 19th Century stand for the rather axiomatic proposition that the State is as much entitled to an unbiased, unprejudiced, fair and impartial jury as is the defendant. Pierson v. State, 18 Cr.R. 524 (1885); McGill v. State, 25 Cr.R. 499, 8 S.W. 661 (1888); Giebel v. State, 28 Cr.R. 151, 12 S.W. 591 (1890); Whithers v. State, 30 Cr.R. 383, 17 S.W. 936 (1892); Stockton v. State, 148 Tex.Crim. 360, 187 S.W.2d 86 (App.1945). Tying that rule of law together with the legislative intent of art. 35.261 and the language from Batson quoted above, this concurrence takes the position that the test for determining purposeful racial discrimination as set out in art. 35.-261 must be applied to the attorney for the defense as well as to the attorney for the State. If either side gives even the appearance of striking members of the venire solely for racial reasons, the respective attorney should provide non racial reasons to the satisfaction of the trial court. Batson provides that the reasons do not have to be purely race neutral, nor do they have to rise to the level of challenges for cause. To pass constitutional muster, however, along with satisfying the spirit (if not the letter) of Batson, art. 35.261 should be applied equally to both parties during jury selection.
This writer is well aware that the Constitution exists to provide individuals with protection against “State action”, and unless an individual can show that “the State” has acted in some constitutionally impermissible way to the individual’s detriment, then an issue grounded in Constitutional law has not been raised. With respect to the jury selection process, the Texas Legislature has taken “State action” by enacting art. 35.261, which on its face provides a remedy only for the defendant. Considering the statute in light of the Bat-son language previously alluded to, as well as the Equal Protection clause, it is terribly underinclusive in its facial scope. It could easily be amended to allow either party to raise the issue of impermissible racial striking. The defendant would be entitled to the same remedy as before. The use of waiver of the right to raise the issue as a sanction against either party for striking jurors solely for race should not be an option for the trial court as it is the stricken juror’s rights to be considered as well as those of the defendant and “the people”. A juror stricken by either party solely for racial reasons should be allowed to be seated on the jury, and a juror not stricken by the offending party removed. The remedy for the State upon an adverse ruling by the trial court appears quite limited at present. TEX.CODE CRIM.PROC.ANN., art. 44.-01(c) permits the State to appeal a ruling on a question of law if the defendant is convicted in the case and appeals the judgment. It is a thin reed, but a reed nonetheless.
Therefore, I concur with the result reached by Justice Burgess as to appellant’s point of error three, but would expand art. 35.261 consistent with the reasons stated above.