TEAGUE, Judge,
dissenting.The majority opinion makes the following statement: “So far as can be ascertained, this Court has never addressed the question of whether in addition to ‘the forbidden conduct’ there is also an element in the offense of theft under Sec. 31.03(a) and (b)(1) of ‘the required culpability,’ V.T.C.A. Penal Code, Sec. 1.07(a)(13).” This statement is partly incorrect because a panel of this Court did consider the issue in Minx v. State, 615 S.W.2d 748 (Tex.Cr.App.1981), in which my opinion did not carry the day and it became necessary to convert it into a dissenting opinion.
In Minx, Id., the panel majority held, in construing a similarly worded indictment as here:
Contrary to the position taken by the minority, we find the indictment sufficient. In Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976) (State’s motion for rehearing), this Court set out the requisites for a theft indictment under V.T.C.A. Penal Code, Section 31.03 (1974).... Accord: Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1977) (State’s motion for rehearing).
In applying the criteria established in Cannon, and reaffirmed in Reynolds, we find that the indictment sufficiently set forth all the necessary elements of theft. The ‘with the intent to deprive the owner’ element was placed at the end of the allegations. However, we fail to find that such drafting was ‘fundamental error.’ (p, 750)
Today, the majority of this Court holds: “... there is no required culpability in the offense of theft alleged herein beyond that of a specific intent to deprive the owner of property.”
After carefully reading what the majority has stated in this cause, in conjunction with what I stated in my dissenting opinion in Minx, supra, I find that once again a majority has failed to see the light. I am therefore relegated to a minority position and must therefore again file a dissenting opinion.
Without repeating all of what I stated in my dissenting opinion in Minx, supra, but reaffirming all of that opinion, I will simply point out to the majority the following:
The word “unlawfully” means absolutely nothing under our law, see Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1977), because such word pleads only a conclusion of law, omitting the facts necessary to that conclusion.
Sec. 6.02(b) of the Penal Code explicitly states the following: “If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.”
The indictment at bar fails to allege that the applicant intentionally or knowingly appropriated the property.
The “gist” of the offense of theft is that the offender must initially intend to appropriate the property of another wrongfully or unlawfully, and thereafter wrongfully or unlawfully appropriates it to his own use and benefit with the intent to deprive the lawful owner of said property.
The indictment at bar literally tracks the provisions of Sec. 31.03(a) of the Penal Code. However, it fails to allege in the beginning of the pertinent part a culpable mental state. The statute does not *313plainly dispense with a culpable mental state.
The culpable mental state of intentionally or knowingly deals with the thief’s state of mind in initially obtaining the property in question. His state of mind thereafter is literally unimportant.
When a culpable mental state is an element of an offense and the indictment fails to allege that element, the indictment is fundamentally defective and will not support a conviction. Zachery v. State, 552 S.W.2d 136 (Tex.Cr.App.1977). The offense of theft quite plainly is committed where the offender has a guilty mind (mens rea) or is acting with a culpable mental state of intentionally or knowingly and, acting with that guilty mind, he commits the wrongful deed (actus reus).
I observe by the indictment in this cause that the date of the offense is December 16, 1979, which is long after this Court decided Reynolds v. State, supra. And yet, virtually all of the theft indictments which have come before this Court in recent times do allege the culpable mental state of intentionally or knowingly. See also Jones v. State, 611 S.W.2d 87 (Tex.Cr.App.1981). By the many decisions of this Court which have reversed convictions because it was held that a charging instrument failed to allege a culpable mental state, we do a disservice today to the conscientious prosecutors of this State by denying this applicant relief. I fear that today’s decision will in the future encourage prosecutors of this State to carelessly draft charging instruments.
Because I believe that the statute does require a culpable mental state, I must therefore respectfully dissent to the majority’s contrary holding.