McCravy v. State
| Decision Date | 10 September 1980 |
| Docket Number | No. 64033,64033 |
| Citation | 642 S.W.2d 450 |
| Parties | Randall Craig McCRAVY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
This appeal results from conviction upon a plea of guilty before the court, for the offense of attempted burglary; 1 punishment assessed by the trial court is five years confinement.
Appellant complains of the fundamental sufficiency of the indictment underlying his conviction; and, of the trial court's failure to comply with the requisites of Article 26.13, V.A.C.C.P., in admonishing him, which, he claims, the record reflects resulted in affirmative harm.
There was no motion to quash the indictment filed in the trial court; we therefore will consider only the question of the indictment's fundamental sufficiency now for the first time on appeal. American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974).
Omitting the formal portions, the indictment returned against appellant alleged that on February 15, 1979, he did ... attempt to enter a building owned by Martin H. Ayers by turning off electrical power to said building and climbing to the roof of said building to gain access, having at the time specific intent to commit the offense of burglary.
The question presented is, in short, "Does this indictment allege an offense against the law?" This Court has to date only passed on two issues regarding the fundamental sufficiency of attempted burglary indictments and our survey reveals interesting developments on the question.
In Williams v. State, 544 S.W.2d 428 (Tex.Cr.App.1976), this Court held that the constituent elements of the offense attempted need not be alleged for fundamental adequacy of an indictment for the offense of attempt. 2 This conclusion was supported by citing the analogues of "assault with intent" and robbery allegations. 3
It is interesting that in another case passing on attempted burglary pleading, Green v. State, 533 S.W.2d 769 (Tex.Cr.App.1976), the indictment not only alleged the constitutent elements of burglary, the offense attempted, but it also alleged all of the elements of the theft intended, at the time the burglary was attempted. Compare Williams, supra. The complaint on appeal this time, was that the indictment failed to allege the act or acts which constituted the attempt; 4 this Court, however, held that while allegation of such acts would be the better practice, its omission would not constitute error of a fundamental nature. Green, supra. Accord Baldwin v. State, 538 S.W.2d 615 (Tex.Cr.App.1976).
In so holding, this Court overruled Fonville v. State, 62 S.W. 573 (Tex.Cr.App.1901), 5 thereby eliciting vigorous dissent from Presiding Judge Onion who was unwilling to agree that, absent specification of the accused's conduct, a purported attempt indictment alleged an offense against the law. 6
Faced with the authority of Williams and Green--which respectively rejected the fundamental necessity of alleging either the elements of the offense attempted, or specifying the accused's conduct constituting the attempt to commit such offense--the newly enlarged en banc Court 7 confronted a question regarding the fundamental adequacy of an attempted murder indictment which alleged "attempt," but deleted an allegation of the specific intent with which that attempt was made, in Dovalina v. State, 564 S.W.2d 378 (Tex.Cr.App.1978). 8 A five judge majority of this Court, including Judge Odom by express concurrence, found that alleging the word "attempt" is sufficient to aver a specific intent because " 'attempt' is a word more comprehensive of meaning than the word 'intent' and includes the latter." 9 Dovalina, supra at 380. But Judge Odom separately expressed vehement disagreement with what he characterized as having been "suggested by the majority": "that it would be sufficient merely to allege 'that appellant intentionally attempted to kill'." Dovalina, supra, at 384. Judge Odom insisted that the acts constituting the attempt are essential to the indictment's facial adequacy, and the drafting "suggested" would constitute nothing more than a conclusion which, under Texas law, constitutes no indictment at all. 10
Presiding Judge Onion, joined by three other members of the Court, remained convinced that the "specific intent to commit an offense" constitutes an essential ingredient of an indictment charging an attempt, and must be alleged as such. For all practical purposes, the en banc Court merely echoed its decision in Dovalina when it handed down the opinion on State's motion for rehearing in Telfair, supra, on May 10, 1978.
Thus, the Court has before it authoritative statements, not unblemished by dissents, but authority nevertheless, as to what is NOT essential to allegation of the offense of attempt. When the non-essentials--so denominated by Green, Williams and Donvalina--are eliminated, we find that this Court has implicitly approved as fundamentally sufficient, allegation of an attempt distilled thus:
... that the accused did attempt to commit burglary.... We do not agree that the distillation produces a fundamentally adequate accusatory allegation, 11 and now proceed to analyze and hopefully clarify that which IS essential to allege that a person has committed an attempt, an offense proscribed by law, on the face of an indictment.
The 1974 penal code proscribes "criminal attempt" as follows:
A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.
Section 15.01(a), V.T.C.A., Penal Code. 12
Under our former penal code, numerous statutes individually proscribed attempt and related criminal conduct in terms of a specific object offense and provided varying punishments therefor. 13 Illuminative of the interests advanced, as well as the changes wrought by the new code in consolidating "attempt" and related offenses into the general proscription circumscribed by Sec. 15.01, supra, is the Practice Commentary following that provision:
Before an attempt to commit an offense can be punished, the attempt itself must be defined as an offense, Blanchette v. State, 125 S.W. 26 (Cr.App.1910), ... Section 15.01 [] is a general attempt statute that represents a new approach to the law of attempt in Texas: criminal attempt, as defined in this section, applies in conjunction with all of the offenses defined in the penal code. * * * Under the general attempt statute, the elements necessary to establish criminal attempt and the penalties for its commission are uniform, while under prior law the elements of and penalties for an attempt varied depending on the particular offense attempted.
Mindful of this concern for uniformity in the constituent elements of the offense of attempt notwithstanding the potentially myriad variations in detail and description, we find it edifying to review the governing definition of "element of offense;" V.T.C.A. Penal Code, Sec. 1.07, provides:
(a) In this code
* * *
* * *
(13) 'Element of offense' means:
(A) the forbidden conduct; 14
(B) the required culpability;
(C) any required result; and
(D) the negation of any exception to the offense.
The Practice Commentary to Sec. 15.01 consonantly notes:
* * *
* * *
To constitute attempt, there must be an act, which must be performed with an intent to commit a crime. * * * An act and intent alone, however, will not suffice for attempt. The actor's CONDUCT must progress beyond 'mere preparation' and must tend to effect commission of the crime.
It is clear, therefore, that the offense of attempt is committed only if the act or acts done result in progress toward the intended offense which is "more than mere preparation that tends but fails to effect the commission" of that offense. 15 We accordingly hold that the elements necessary to establish the offense of attempt under Sec. 15.01, supra, are: (1) a person, (2) with specific intent to commit an offense, (3) does an act, 16 (amounting to [resulting in] more than mere preparation), 17 that (4) tends, but fails, to effect the commission of the offense intended. Baldwin, supra; see also Branch's, Texas Annotated Penal Statutes, Sec. 15.01, (3rd ed. 1974). 18 It follows that the statutorily "required result" of the actor's conduct is an indispensable element of the offense of attempt, which the State is required to prove.
Article 21.03, V.A.C.C.P. commands that "everything should be stated in an indictment which is necessary to be proved." In Chance v. State, 563 S.W.2d 812, 814-815 (Tex.Cr.App.1978) this Court observed:
An indictment or information must by direct and positive averments allege all of the constituent elements of the offense sought to be charged. Nothing can be left to inference or intendment. In fact, the sufficiency of the indictment cannot be aided by intendment.... [A]ll elements constituting an offense must be sufficiently charged so as to inform, without intendment, the presumptively innocent [accused] of the charges against him. [All citations are omitted.]
Faithful to this precept, the rule has evolved that it is ordinarily sufficient to allege an offense in the language of the statute which denounces it, Parr v. State, 575 S.W.2d 522 (Tex.Cr.App.1979), and this is particularly true when the statutory proscription is of and by itself completely descriptive of the offense alleged to have been committed. Haecker v. State, 571 S.W.2d 920 (Tex.Cr.App.1978). See also Pollard v. State, 567 S.W.2d...
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