OPINION

In his post-conviction application for ha-beas corpus relief, the applicant claims that the indictment on which he was convicted was fundamentally defective for failing to allege a culpable mental state. The indictment alleged that the appellant,

“on or about the 11th day of December 1977, was then and there the driver of, and person in control of, a motor vehicle in Tarrant County, Texas, and such motor vehicle, then and there being driven by and under the control of the said Jimmy Paul Rogers, did then and there strike and collide with another vehicle containing a person, to-wit: S_ M-, thereby causing injury to the said S_M_and he, the said Jimmy Paul Rogers, did fail, neglect, and refuse to render to the said S_M_all necessary aid; . . . .”

The requirement of a culpable mental state * applies to the offense of failing to stop and render aid (V.A.C.S., Article 6701d, Section 38), which this indictment sought to allege. Goss v. State, 582 S.W.2d 782 (Tex.Cr.App. 1979). When an indictment fails to allege a required culpable mental state, it is fundamentally defective and habeas corpus relief will be granted. Ex parte Winton, 549 S.W.2d 751 (Tex.Cr.App. 1977). The applicant will be granted habeas corpus relief because the indictment failed to allege the culpability element of the offense.

The conviction is set aside and the applicant is ordered released from any restraint imposed as a result of the indictment; the indictment is ordered dismissed.