concurring.
The reason we granted the petition for discretionary review is that the Houston (1st) Court of Appeals has decided a question of law which has not been, but should be, settled by this Court. Tex.Cr.App. Rule 302(c)(3).
Though its allegations follow the formulation suggested in 3 Branch’s Annotated Penal Statutes (3rd Ed.) 117, § 38.04, that the instant information is vulnerable to the exception or motion to quash may be easily discerned from merely reading and understanding the meaning of the statute defining the offense, V.T.C.A. Penal Code, § 38.04(a), viz:
“(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting to arrest him.”1
That definition makes clear that accused must know a peace officer is attempting to arrest him.2 The information in the instant cause does not.3 Compare, however, McCormick & Blackwell, Texas Criminal Forms and Trial Manual § 16.03, 7 Texas Practice 118.
The State’s reliance on Hazkell v. State, 616 S.W.2d 204 (Tex.Cr.App.1981), is misplaced. While the information there is, as the State says, “identical with the indictment [sic] in the instant cause,” the contention there was the charging instrument was fundamentally defective for failure to allege that accused knew the peace officer “was in the process of making a lawful arrest,” id., at 205. Such is not the claimed deficiency here, for appellant asserted in his motion that the information did not allege that he “was aware and knew that an arrest was being attempted” —lawful or not.4
Finally, an observation about a matter not raised but pertinent to this discussion. Though the information alleges that appellant did “ ‘intentionally/ flee from a peace officer lawfully attempting to arrest him ...,” as to this offense that alleged culpable mental state does not embrace “with knowledge” that the peace officer was attempting to arrest him. Here the latter fact is one of the “circumstances surrounding his conduct” — existence of which an accused must be aware. V.T.C.A. Penal Code, § 6.02(b). One can not “intend” “circumstances surrounding his conduct.” Lugo-Lugo v. State, 650 S.W.2d 72, 87 (Tex.Cr.App.1983) (Concurring Opinion).
Accordingly, I join the judgment of the Court.
. All emphasis is mine unless otherwise indicated.
. The dissent believes the legislature evidenced an intent to omit that requirement by deleting "who he knows is." My own view is that someone over there knows awful bad grammar when he sees it. Taking out that awkward clause merely couples together what a charging instrument alleges an accused knows, namely: “a peace officer attempting to arrest him."
. Thus not only is Branch’s suggested form for charging instrument erroneous, but also its checklist of elements of the offense is misleading in that it fails to relate "with knowledge” that one is a peace officer as well to the fact that he is attempting to arrest defendant. Similarly, opinions that simply track that checklist are suspect, at least in that regard: e.g., cases cited in Hazkell v. State, 616 S.W.2d 204, 206 (Tex.Cr.App.1981). See Johnson v. State, 634 S.W.2d 695 (Tex.Cr.App.1982) (W.C. Davis, J., concurring, at 697, n. 1).
.In his dissent Judge Odom opined the information was fundamentally defective for the same reason appellant Jackson asserted below— "it is essential that the defendant knows the peace officer is attempting to arrest him.” Hazkell, supra, at 205. Of course, as against an exception or motion to quash, that is what this Court holds today.