concurring.
John Bell, appellant, was tried and convicted by a jury on an indictment that attempted to accuse him of committing an aggravated assault on George Smith, the complainant, by using a deadly weapon, to-wit: a firearm, to threaten Smith with imminent bodily injury. The jury also assessed punishment at five (5) years’ confinement in the Department of Corrections.
Appellant does not challenge the sufficiency of the evidence to sustain his conviction. Therefore, it is adequate to state that the State’s cause of action arose after appellant, believing that he had been the victim of telephone harassment by other persons, including the complainant, fired at least four shots from a rifle into the trailer home of the complainant, in which the complainant, his wife, and small child were located. No injuries were sustained by anyone.
The majority opinion correctly orders appellant’s conviction reversed because the trial court erred when it refused to submit an instruction to the jury on the lesser included offense of reckless conduct, as provided by the provisions of Y.T.C.A., Penal Code, Section 22.05.
The offense of reckless conduct, as provided by Sec. 22.05, supra, is committed if a person recklessly engages in conduct that places another in imminent danger of serious bodily injury. The offense of reckless conduct substantively differs from the offense of aggravated assault by the use of a deadly weapon, see Y.T.C.A., Penal Code, Sec. 22.02(a)(4), only in that it is not committed with the culpable mental state of intentionally or knowingly, but rather with the culpable mental state of recklessly. See V.T.C.A., Penal Code, Sec. 6.03.
If a threat of imminent bodily injury is made with a deadly weapon, it necessarily is a threat of imminent serious bodily injury. Consequently, reckless conduct may be a lesser included offense of aggravated assault by threatening imminent bodily injury by the use of a deadly weapon.
In this instance, the record makes it apparent that it was the intent of the prosecuting attorney to elevate the offense of assault to aggravated assault. See post, however.
Appellant’s facts of what occurred, as to the shooting, is that when he and his wife *445were patrolling their property in his truck for possible intruders, appellant’s wife called to appellant’s attention that she thought that she had seen an unwanted intruder in their orchard, after which appellant stopped his truck and fired four to six shots from his rifle into the air in an attempt to frighten off the possible unwanted intruder. Appellant testified that he was not trying to hit anyone when he fired his rifle. After firing his rifle, appellant and his wife did not see any further movement in the orchard, so they returned to their country store, where appellant was soon thereafter arrested. It was later established that bullets from his rifle struck an occupied trailer house, in which the complainant, his wife, and small child were situated.
Appellant’s testimony that he was merely firing his gun in the air to try to scare off a possible unwanted intruder negates any intent or knowledge that he wanted to injure or kill anyone. The fact that the bullets struck an occupied trailer only shows that the firearm was pointed in the direction of other people. A person, unquestionably, creates a substantial and unjustifiable risk that someone might be seriously injured when, without aiming, he fires a gun in the direction of an occupied residence. The disregard of this risk constitutes a gross deviation from the standard of care that an ordinary person would exercise. I find that the facts that were presented by appellant nicely fit the definition of the term “recklessly.” See V.T. C.A., Penal Code, Section 6.03(c). Consequently, and pursuant to Art. 37.09(3), V.A. C.C.P., the majority opinion correctly holds that appellant was entitled to an instruction on the lesser included offense of reckless conduct, and because the trial court erroneously refused to give the jury that instruction the majority opinion correctly holds that such was reversible error. Also see Sec. 22.05, supra; Lugo v. State, 667 S.W.2d 144 (Tex.Cr.App.1984). Cf. Aguilar v. State, 682 S.W.2d 556 (Tex.Cr.App.1985).
The main reason that I write, however, is because of the seriousness of appellant’s third ground of error, in which he asserts that the trial court erred in overruling his motion to quash the indictment. If the appellant’s motion to quash should have also been sustained, it is the responsibility and duty of this Court to say so. The majority opinion, however, although acknowledging that “this is not a model indictment,” declines to address the contention, thus leaving the trial judge, the prosecuting attorney, and appellant to wonder whether the appellant’s motion to quash should have been granted. Because I find that the trial court also erred in overruling appellant’s motion to quash the indictment, this is another reason why I concur in the reversal.
The indictment in this cause alleges in pertinent part that appellant “did then and there knowingly and intentionally use a deadly weapon, to-wit: a firearm, and did then and there threaten George Smith with imminent bodily injury by the use of said deadly weapon.” (My emphasis.) What offense has been charged by this indictment? As easily observed, the indictment first alleges an aggravating element and then attempts to allege the predicate assault offense, but in alleging the latter it fails to allege a culpable mental state, which is a required element of the offense of assault. See Sec. 22.01, supra. Also see Sec. 6.02(b), supra.
Section 22.02, supra, the aggravated assault statute, when plainly read, clearly states: “A person commits [the] offense of [aggravated assault] if he [first] commits an assault as defined in Section 22.01 of this Code and he [then commits some aggravating element, as provided in Sec. 22.-02]”. (My emphasis.)
The majority opinion advises us to “But see, McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975) (Opinion on Rehearing).” I have done so and, after having done that, and notwithstanding the fact that I am now more convinced than ever that the dissenting opinion that was filed by Judge Roberts in that cause, regarding the validity of the indictment in that cause, should have been *446adopted by the then three judge majority of this Court, the indictment in that cause is clearly distinguishable from the one in this cause. Notwithstanding my thoughts, a comparison of the indictment in Ex parte Garcia, 544 S.W.2d 432 (Tex.Cr.App.1976), with the one in this cause, shows the obvious difference between the two indictments,, and why Garcia, supra, does not control.
One of the ways that a person might commit the offense of aggravated assault is that if he/‘intentionally or knowingly threatens another with imminent bodily injury by the use of a deadly weapon.” See Y.T.C.A., Penal Code, Sections 22.01(a)(2) and 22.04(a)(4). In this instance, the State, contrary to the statutory scheme and in violation of the recommended rule that the course that would best guarantee the legal sufficiency of an indictment is ordinarily to simply track the precise words of the statute, did not first allege the offense of assault and then, secondly, allege the aggravating feature, but, instead, alleged an aggravating feature, with a culpable mental state, but then alleged what is not an offense in our penal code, without even alleging a culpable mental state.
This deficiency enables appellant to correctly assert that his motion to quash the indictment should have been sustained because the only culpable mental state that was alleged did not go to an unlawful act, and because there is no allegation in the indictment that he knowingly and intentionally threatened George Smith with imminent bodily injury by the use of a deadly weapon, not only could he not be guilty of an aggravated assault, but such defective pleading did not even vest jurisdiction in the trial court.
The test for deciding whether an indictment is sufficient to charge a particular offense, in the face of a motion to quash, is to examine the indictment from the perspective of the statutory offense, i.e., in this instance, the indictment must be examined to make the determination whether the indictment, when read as a whole, sufficiently alleges the offense of aggravated assault by a deadly weapon. This is different from the situation where the defendant contends in a motion to quash that he has not received sufficient notice of the offense he is accused of committing. In that instance, the indictment must be examined from the perspective of the accused and in light of the presumption of innocence. See Jeffers v. State, 646 S.W.2d 185 (Tex.Cr.App.1983). Thus, complaints which relate to insufficient notice, rather than to a jurisdictional defect in the indictment, should be raised by a motion to quash; in the absence of such a motion, a nonjurisdictional defect will not be considered for the first time on appeal. Clark v. State, 571 S.W.2d 238 (Tex.Cr.App.1979).
In this instance, the conjunction “and” should be read to reflect that it is joining two clauses grammatically complete to form a single compound sentence. Strunk and White, The Elements of Style, (Third Edition). But see Pass v. State, 634 S.W.2d 857 (Tex.App. — San Antonio 1982) (P.D.R. Refused) (Which defined the word “and” rather than construing it as to how it was grammatically used in that indictment.) In Pacheco v. State, 529 S.W.2d 77 (Tex.Cr.App.1975), this Court approved an aggravated assault indictment that alleged in pertinent part that the accused “did then and there use a pistol, a deadly weapon, to intentionally threaten imminent bodily injury to Ernest Riojas.” (Our emphasis.) The Court correctly held: “We perceive no material difference between alleging that one intentionally threatened another with imminent bodily injury by using a pistol and alleging one used a pistol to intentionally threaten another with imminent bodily injury.” (My emphasis). “Each is sufficient to allege aggravated assault with a deadly weapon under V.T.C.A., Penal Code, Sections 22.01(a)(2) and 22.02(a)(3).” (77).
Thus, pursuant to the statutory scheme of things, there is no requirement that the State allege in the charging instrument a culpable mental state as to the aggravating feature, where it either first or secondly pleads the statutory elements of the underlying offense, including a culpable mental state, which was done in Pacheco v. State, *447supra. Also see Art. 22.11, Y.A.C.C.P. But, that is not this case.
In the cause before us, the issue is not simply whether the State through its prosecuting attorney made grammatical errors when he prepared the charging instrument. Cf. Butler v. State, 551 S.W.2d 412 (Tex.Cr.App.1977). It is, instead, whether he properly alleged the offense of aggravated assault in the indictment.
Unless the definition of an offense clearly dispenses with the requirement of a culpable mental state, one of the culpable mental states, i.e., intentional, knowing, reckless, or criminal negligence, must be pled in the charging instrument, i.e., a culpable mental state must be inserted in the indictment unless the definition of the substantive crime plainly dispenses with any mental element. See V.T.C.A., Penal Code, Section 6.02(b). Also see Baldwin v. State, 538 S.W.2d 109 (Tex.Cr.App.1976). The offense of assault that the State attempted to allege in this instance plainly requires as an element thereof the culpable mental state of either intentional or knowing.
It is now axiomatic that where the indictment is required to allege a culpable mental state, and it fails to do so, it is fundamentally defective and may be attacked on direct appeal as well as through a post-conviction writ of habeas corpus. Garcia, supra. This is because a fundamentally defective indictment does not provide the trial court with jurisdiction, and for that reason any conviction purportedly based on it is void. American Plant Food Corp. v. State, 508 S.W.2d 598, 603 (Tex.Cr.App.1974). A jurisdictional defect, such as failure to allege the essential elements of an offense as defined in V.T.C.A., Penal Code, Section 1.07(a)(13), renders the indictment insufficient to state an offense. Green v. State, 571 S.W.2d 13, 15 (Tex.Cr.App.1978). If required by the offense, a culpable mental state is an essential element of the offense. Chance v. State, 563 S.W.2d 812 (Tex.Cr.App.1978). However, the indictment must be read as a whole to ascertain whether it is jurisdictionally sufficient to charge the intended offense, here aggravated assault by the use of a deadly weapon. Childs v. State, 547 S.W.2d 613, 615 (Tex.Cr.App.1977). Thus, but as Judge Clinton pointed out in Soto v. State, 623 S.W.2d 938, 939 (Tex.Cr.App.1981), “in a real sense, we look for omissions — for constituent elements of the statutory offense that are missing — in an indictment, for if an element is omitted ‘then the indictment fails to allege an offense,’ Ex parte Mathis, 571 S.W.2d 186, 187 (Tex.Cr.App.1978).”
I believe that the indictment under scrutiny, read grammatically and as a whole, actually attempts to charge the appellant with committing two things, namely, (1) knowingly and intentionally using a deadly weapon, to-wit: a firearm, and (2) threatening George Smith with imminent bodily injury by the use of a deadly weapon, to-wit: a firearm. Neither, however, charges a criminal wrong under our Penal Code. The indictment is defective as a matter of substance. It fails to allege that appellant did knowingly and intentionally threaten the complainant with imminent bodily injury. It thus fails to allege all of the constituent elements of the offense of assault which is claimed to have been aggravated by the use of a deadly weapon, and in turn fails to allege the offense of aggravated assault. Appellant’s conviction cannot stand.
Appellant’s ground of error number three should also be sustained. The majority correctly reverses appellant’s conviction. I concur.