¶1concurring.
¶2For the reasons set forth in Davila v. State, Tex.Cr.App., 547 S.W.2d 606, I agree that the indictment is fundamentally defective, because it fails to allege a culpable mental state. I dissent solely on the ground that to permit a collateral attack upon a final judgment of conviction upon the ground of a defect in the indictment by omission of a material element is an undue expansion of the writ of habeas corpus. As to a defective indictment, inquiry on habeas corpus should be limited solely to whether there existed a valid law under which a valid indictment could have been drawn, Ex parte Long, 135 Tex.Cr.R. 520, 120 S.W.2d 1066; Bueno v. Beto, 458 F.2d 457 (5th Cir.1972), and our decisions of recent years holding otherwise should be overruled. However, since the majority of this Court differs with me in this view, without alter*753ing my view, I accept such expansion of the writ of habeas corpus by my brethren as the present law of this State until a majority of this Court concludes otherwise. This being so, in order to afford equal protection of the laws to the petitioner herein, I concur in the result.