OPINION

This is an application for habeas corpus relief after a final conviction in a felony case. The applicant was charged by an indictment which reads in pertinent part: “. . did then and there enter a building which was not open to the public, without the effective consent of Kenneth Gould, the owner, and therein attempted to commit and committed theft . . ..” The indictment is fundamentally defective for failing to allege a culpable mental state. Ex parte Winton, 549 S.W.2d 751 (Tex.Cr.App. 1977). The conviction is set aside and the indictment is ordered dismissed.

The applicant is ordered released from any confinement or restraint imposed by virtue of the indictment, judgment, or sentence in cause 8777 in the 24th Judicial District Court of Victoria County.