Telfair v. State

• Decision Date: 02 November 1977
• Docket Number: No. 53226,53226
• Citation: 565 S.W.2d 522
• Parties: Buford TELFAIR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 522

565 S.W.2d 522

Buford TELFAIR, Appellant, v. The STATE of Texas, Appellee.

No. 53226.

Court of Criminal Appeals of Texas.

Nov. 2, 1977.

Opinion On State's Motion For Rehearing May 10, 1978.

Bennie C. Boles, Center, for appellant.

Bill Warren, Dist. Atty., Center, Jim D. Vollers, State's Atty., Austin, for the State.

EN BANC.

OPINION

ROBERTS, Judge.

This is an appeal from an order revoking probation. Appellant originally pleaded guilty to a charge of attempted murder; punishment was assessed at eight years, probated. Subsequently, on January 15, 1976, the court revoked appellant's probation and imposed sentence.

An examination of the record reveals that the indictment is fundamentally defective. This is error which this Court will consider in the interest of justice. Art. 40.09(13), Vernon's Ann.C.C.P.

Omitting the formal parts, the indictment alleges that on or about October 4, 1975, in Shelby County, Texas, the appellant:

"did then and there intentionally and knowingly attempt to cause the death of Marvin McClelland, Mattie C. Handy, Mary Louise Williams, and Jerry Preston, by shooting them with a gun."

V.T.C.A., Penal Code, Sec. 15.01(a), reads 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."

V.T.C.A., Penal Code, Sec. 19.02(a), provides:

"A person commits an offense if he:

(1) intentionally or knowingly causes the death of an individual;

(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or

(3) commits or attempts to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual."

In Baldwin v. State, 538 S.W.2d 615, 616 (Tex.Cr.App.1976), we held that one of the elements of the offense of criminal attempt is the specific intent to commit an offense. ¹

In Garcia v. State, 541 S.W.2d 428, 430 (Tex.Cr.App.1976), another attempted murder case, we again emphasized that the specific intent to commit an offense is a necessary element of criminal attempt under Section 15.01. This is in accord with the language of Article 21.05 of our Code of Criminal Procedure, which provides that "(w)here a particular intent is a material fact in the description of the offense, it must be stated in the indictment." (Emphasis added.)

We can only conclude that the "specific intent to commit an offense" is both a particular intent and a material fact in the description of the offense of criminal attempt; therefore, it must be alleged in any indictment charging criminal attempt. Since the indictment in this case failed to allege this particular intent, the judgment must be reversed.

Nor can it be argued that the State satisfied its burden of pleading by alleging in general terms that the appellant acted intentionally. In Victory v. State, 547 S.W.2d 1, 4 (Tex.Cr.App.1976) (Opinion on State's Motion for Rehearing), we held that the allegation of the general culpable mental state "intentionally" does not dispense with the need to allege the particular intent required by Article 21.05.

For the foregoing reasons, the judgment is reversed and the prosecution under this indictment is ordered dismissed.

DOUGLAS, Judge, dissenting.

The indictment alleges that appellant ". . . did then and there intentionally and knowingly attempt to cause the death of Marvin McClelland, Mattie C. Handy, Mary Louise Williams, and Jerry Preston, by shooting them with a gun."

The majority holds that the indictment is fundamentally defective because it fails to allege the "specific intent to commit an offense." Such reasoning would require an indictment to allege in effect that the accused intentionally intended attempted murder, or that he intentionally attempted to murder with intent.

Today's holding contravenes the express language of Article 21.11, V.A.C.C.P., which provides in part:

"An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment; . . . ." (Acts 1965, 59th Leg., p. 317, ch. 722, § 1, eff. Jan. 1, 1966).

The allegation, all in one sentence, in the instant case that appellant intentionally attempted to kill conveys the meaning that he made such an attempt to murder. It does not take a lawyer to see this.

The most recent case of this Court is contrary to the majority opinion. In Prodon v. State, Tex.Cr.App., 555 S.W.2d 451 (1977), the indictment alleged that appellant unlawfully committed "an offense hereafter styled the primary offense in that he did attempt to enter a building owned by Elizabeth Leal by removing a ventilator and cutting a hole in the roof, having intent to commit burglary." In that case we rejected the defendant's contention that the indictment was fundamentally defective because it failed to allege the particular intent required by the attempt statute. Only one intent was alleged in that indictment.

In the case at bar appellant filed no exception or motion to quash the indictment. He knew that he was charged with attempted murder and was not misled or harmed in any way.

The judgment should be affirmed.

OPINION ON STATE'S MOTION FOR REHEARING

DOUGLAS, Judge.

The State's motion for rehearing is granted.

On original submission, although not raised by appellant, the majority reversed and dismissed the prosecution because a "specific intent to commit an offense" was not alleged.

In substance, the indictment alleged that appellant

". . . did then and there intentionally and knowingly attempt to cause the death of Marvin McClelland, Mattie C. Handy, Mary Louise Williams, and Jerry Preston by shooting them with a gun."

The case of Lucero v. State, 502 S.W.2d 750 (Tex.Cr.App.1973), answers the question. Even though it concerned an indictment under the former code, it construed the word "attempt" as sufficient to include the word "intent." In the present case, "attempt" was used instead of "intent."

Branch's Annotated Penal Code, 2d Edition, Section 1866, cites the correct rule as follows:

"The word 'attempt' is a word of more comprehensive meaning than the word 'intent' and includes the latter; . . ."

For further reasons, see Dovalina v. State, 564 S.W.2d 378 (Tex.Cr.App.1978).

The ground raised on appeal from the order revoking probation that evidence to revoke is insufficient will be discussed. Appellant had been convicted for attempt to murder. His punishment was assessed at eight years and he was placed on probation.

The motion to revoke probation alleged:

"a. On or about the 15th day of December, 1975, in Shelby County, Texas, the Defendant did then and there intentionally and knowingly remain in a habitation of Emma Jean Dock without the effective consent of the said Emma Jean Dock, and the said Buford Telfair after having received notice to depart, to-wit: the owner of said premises had by oral communications told the said ...