McCravy v. State

642 S.W.2d 450, 1982 Tex. Crim. App. LEXIS 1170

• Court: Court of Criminal Appeals of Texas
• Decided: December 8, 1982
• Docket: 64033
• Status: Published

Opinions

OPINION

CLINTON, Judge.

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 consti-tutent 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 Court⁷ 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 § 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 [as opposed to the elaborate old code statutory scheme dealing with attempt and related offenses] 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, § 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 § 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 § 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, § 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, Y.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 11 (Tex.Cr.App.1978); Milligan v. State, 554 S.W.2d 192 (Tex.Cr.App.1977); Lopez v. State, 494 S.W.2d 560 (Tex.Cr.App.1973); Burney v. State, 347 S.W.2d 723 (Tex.Cr.App.1961); Maedgen v. State, 104 S.W.2d 518 (Tex.Cr.App.1937).

Article 21.17, V.A.C.C.P., provides that “words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.” See, e.g., Dovalina, supra; cf. Chance, supra.

Accordingly, we hold that so long as an indictment charging an attempt alleges every element of the offense — the conduct, the culpable mental state and the required result — and each element is alleged either in the language of § 15.01, supra, or by words conveying the same meaning as the statutory words, that indictment will not fail for fundamental sufficiency. Dovalina, supra; Chance, supra; Maedgen, supra. To the extent that Green, supra, may be read to hold that the indictment in that case alleged the constituent elements of the offense of attempt, it is overruled.¹⁹

We now turn to an application of the foregoing analysis to the indictment returned in the instant cause. The phrase of the indictment which is in question reads:

... by turning off electrical power to said building and climbing to the roof of said building to gain access....

The issue is whether these words are sufficiently similar in meaning to the statutory words which require that the acts done were ones which “amountfed] to more than mere preparation that tend[ed] but fail[ed] to effect the commission of the [burglary] intended.”

Section 1.07(a)(1) defines the word “act” as “a bodily movement, whether voluntary or involuntary, and includes speech.” We cannot say that “turning off electrical power” and “climbing to the roof” are not “acts” within the meaning of § 1.07(a)(1), supra.²⁰ However, that such acts amount to “more than mere preparation”²¹ to commit the burglary intended is another matter.

V.T.C.A. Penal Code, § 30.02, provides the constituent elements of the offense of burglary and reads in pertinent part:

(a) A person commits an offense, if, without the effective consent of the owner, he:

(1) enters a habitation, or a building, (or any portion of a building) not then open to the public, with intent to commit a felony or theft.

* * * * ⅜ *

(b) For purposes of this section, ‘enter’ means to intrude:22

(1) any part of the body; or

(2) any physical object connected with the body.

Though clearly an “act,” “climbing to the roof” equally clearly is not an act which tends to effect an “intrusion” or “entry” to the building. The allegation of “turning off electrical power” informs neither that appellant did, or did not, do an act which tended to intrude any part of appellants body or any physical object connected with it.²³ As such, the indictment fails to allege that appellant committed an act which amounted to more than mere preparation which tended but failed to effect commission of an intended burglary. See Bledsoe v. State, 578 S.W.2d 123 (Tex.Cr. App.1979). We hold that the indictment returned against appellant alleges only an attempt to commit a preparatory offense which, by statute, is no offense at all. Y.T. C.A. Penal Code, § 15.05. As such, the indictment is void on its face.²⁴ American Plant Food Corp., supra.

For the failure of the indictment to allege an offense against the law, the judgment of conviction is reversed and the prosecution is dismissed.²⁵

It is so ordered.

TOM G. DAVIS, and DALLY, J., dissent.

1 . V.T.C.A. Penal Code, § 15.01, proscribes the offense of “attempt.” [See post at 454 for recitation of this provision.]

2 . The indictment in Williams, supra, alleged that the accused “unlawfully committed an offense. .. in that he did attempt to enter a building owned by Ray Bailey, by prying a door latch with a steel meat hook, having intent to commit burglary.”

3 . See Williams, supra, at 429 and cases cited there.

4 . The indictment returned against Green alleged materially that he did:

“... intentionally and knowingly and without the effective consent of Clyde E. Cum-bie... the owner thereof, attempt to enter a building not then and there open to the public, and with the intent to commit theft, to wit: with intent ... to unlawfully exercise control over the personal property of complainant, without the effective consent of complainant, the owner of said property, and with intent to deprive complainant of said property.”

(All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

5 . Fonville, supra, an old code case, held that an attempted burglary indictment must state the acts of the accused which constituted the attempt so that the indictment’s face reveals that what the accused did constituted an attempted burglary.

6 . Presiding Judge Onion declared:

“I conclude that the holding in Fonville v. State, supra, is applicable to the new statute [V.T.C.A. Penal Code, Sec. 15.01(a)], and that an indictment for attempted burglary is fundamentally defective where the attempt is only stated as a conclusion and it is not alleged what the defendant did in the attempt to commit burglary. When an essential part of the elements of the offense involves an act amounting to more than mere preparation, that tends, but fails, to effect the commission of the offense intended, then that act should be alleged. While the instant indictment alleged the intent, the attempt was alleged only as a conclusion and the overt acts relied upon as constituting attempt were not alleged.” Green, supra, at 772-773 (Onion, P.J., dissenting.)

7 . Effective January 1, 1978, the Court of Criminal Appeals was enlarged from five judges to nine by Constitutional amendment. Tex.Const. art. V, § 4.

8 .The full context in which the question arose is of more than negligible interest. On September 14, 1977, the five member Court handed down Prodon v. State, 555 S.W.2d 451 (Tex.Cr.App.1977), a unanimous decision which, by implication, (and perhaps by inadvertence) approved the deletion, in an attempted burglary indictment, of the specific intent with which the attempt was made; less than two months later, the still five judge Court handed down Telfair v. State, 565 S.W.2d 522, 523 (Tex.Cr.App.1977), authored by the same judge as Pro-don, which directly addressed the issue and held 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.” [Emphasis original.] This decision, however, drew fire from Judge Douglas, who, by dissent, presaged that the majority’s 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,” citing Article 21.11, V.A.C. C.P. and pointing to the conflict thereby created with the decision in Prodon. Twenty eight days after Telfair was decided, on November 30, 1977, the State was granted leave to file a motion for rehearing, and thereafter, the case was submitted to the newly expanded nine judge en banc Court on January 11, 1978.

The stage had thus been set when Dovalina was submitted to the five judge Court on November 9, 1977, and thereafter decided by the full nine judge Court on February 22, 1978.

9 . The indictment in issue in Dovalina, omitting the formal portions, alleged that the accused did:

“unlawfully, knowingly and intentionally attempt to cause the death of Jerry Powell by cutting and stabbing him with a knife and by shooting him with a gun, the said Jerry Powell being a peace officer acting in the lawful discharge of his official duties and the said Defendant then and there knew the said Jerry Powell was a peace officer acting in the lawful discharge of his official duty.”

Because specific intent to commit burglary is alleged in the instant indictment, we have no occasion to evaluate the actual holding of Do-valina.

10 . Because Dovalina’s indictment did allege the acts constituting the attempt [see n. 9, ante], Judge Odom’s protestations served mainly the function of a warning. But for purposes of our discussion here, Judge Odom notably aligned himself for the first time with Presiding Judge Onion’s expressions of dissent in Green, supra.

11 . Article 21.01, V.A.C.C.P., provides that “An ‘indictment’ is the written statement of a grand jury accusing a person therein named of some act or omission which, BY LAW, is declared to be an offense. ”

12 . It is of import to note that § 15.01(a), supra, constitutes the declaration “by law” of conduct which constitutes the offense of criminal attempt, [see n. 11, ante], and is not merely a definition of the word “attempt” which serves to give that word a “technical meaning.”

13 . See, e.g., Article 1190 (attempt to rape); Article 1162 (assault with intent to rape); Article 1160 (assault with intent to murder); Article 1163 (assault with intent to rob); Articles 353b and 353d (attempted escape); Article 1316 (attempted arson); Article 1402 (attempted burglary).

14 . Subsection (a)(8) of the same section provides that “ ‘conduct’ means an act or omission and its accompanying mental state.”

15 . The explanatory comment to Branch’s, Texas Annotated Penal Statutes, § 15.01 (3rd ed. 1974) lays the claim that:

“An apparent typographical error resulted in the omission of commas offsetting the phrase ‘amounting to more than mere preparation’, and without them the section is incapable of interpretation.”

The commentary then asserts, and we believe correctly so, that,

“It is the ACT that must tend but fail to effect the commission of the offense intended."

17 . The ordinary meaning of “preparation” is “the action or process of making something ready for use or service or of getting ready for some occasion....” Webster’s New Collegiate Dictionary (1977).

18 . See also Dovalina, supra, (Onion, P.J., dissenting); and Green, supra, (Onion, P.J., dissenting).

The dissent would have it that “the crime of attempt has no required result,” asserting that a “result” would move the “attempt” forward to “a completed substantive offense.” The argument is specious. The required result of an attempt offense is attained when its constituent act or acts reach that discemable qualitative point of tending but failing to effect commission of the offense intended. Thus, it is not merely a matter of “manner and means used” but their effective thrust toward accomplishing the intended result.

16 . See § 1.07(a)(1) for definition of “act.”

19 .We do not disturb the direct holding of Green — that the omission of the acts constituting the attempt does not render the indictment fundamentally defective — but we do qualify that holding to the extent that such an omission will not necessarily render an otherwise sufficient indictment fundamentally defective.

The indictment in Green [see n. 4, ante], would clearly fail under the analysis and resultant conclusion we make today for, while under Dovalina, the culpable mental state is sufficiently alleged, neither the elemental act nor required result is alleged in the language of the statute or in words which convey or include the sense of those statutory elements. It is true that allegation of the word “enter” implies that some “act” has been completed. By contrast, allegation of an “attempted entry” does not assure the trial court that an “act” — implied or otherwise — in fact occurred, much less than it was one which amounted to more than mere preparation which tended but failed to effect the commission of the burglary intended. For example, under the indictment returned against Green, an accused could be convicted if proof established nothing more than that with intent to commit burglary, he merely reached toward a door knob, or, believing he could “will” a window open, concentrated his delusional skill to that end.

As previously emphasized in n. 12, ante, § 15.01 specifies the constituent elements of a distinct criminal offense; it does not provide a “technical meaning” for the word “attempt.” Accord: Dovaiina. Accordingly, allegation of the statutory elements of the prohibited act and its required result does not consequently inhere in the bare allegation of the word “attempt.” As such, the indictment returned against Green is fundamentally defective.

20 .Clearly “climbing to the roof’ falls within the statutory definition of “act;” “turning off electrical power,” however, conveys no information about the “bodily movement” involved. It is only by process of elimination, i.e., our inability to conceive of a person’s “turning off electrical power” without some bodily movement, that we concede such would constitute an “act,” albeit, an unknown “act.”

21 . For the ordinary meaning of “preparation,” see n. 17, ante.

22 . Webster’s Seventh New Collegiate Dictionary (1969), defines “intrude” as “to thrust oneself in without invitation, permission, or welcome; to enter as if by force.” See V.T.C.A. Penal Code, § 1.05(b).

23 . Because an “entry” is the gravamen of the offense of burglary, the State must allege and prove in an attempted burglary case, that the accused committed an act which tended but failed to effect the commission of the intended burglary, as opposed to some other offense, such as arson, murder, indecent exposure, ter-roristic threat, to name only a few. This is not to “repeal” the crime of attempted burglary, as charged by the dissent. We do require that the indictment allege conduct which demonstrates that it tends to effect commission of burglary as well as intent to commit burglary — the latter being already asserted by an allegation of that specific intent. Confusing the two quite different elements has infected much of the dissenting opinion.

24 . It is important to note that if the indictment before us had, in addition to the allegations made, reflected the statutory language of § 15.01, supra, which sets out the elemental act and required result as discussed ante, we would be persuaded that the indictment alleged the offense of attempt. In that case, whether proof of “turning off electrical power” and “climbing to the roof’ established the attempt offense alleged, would be a question of evidentiary sufficiency, a question we do not address here.

25 . In this Court appellant is represented by appointed counsel who was not his trial counsel. For spotting the defective indictment and raising the point on appeal, we commend the appellate attorney by expressing the thought that had he been trial counsel the cause would never have come to this Court.