Morrison v. State

625 S.W.2d 729, 1981 Tex. Crim. App. LEXIS 1252

• Court: Court of Criminal Appeals of Texas
• Decided: November 18, 1981
• Docket: 60817
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for burglary of a habitation. Punishment was assessed by the jury at 30 years.

In his third ground of error appellant challenges the admissibility of a prior conviction during the punishment stage. Appellant objected to evidence of a prior conviction for attempted capital murder on the ground that the indictment is fundamentally defective, rendering the conviction void.¹ The indictment alleged that appellant did:

“. .. knowingly and intentionally attempt to cause the death of Henry Lee Stiller, and that the said complainant was a peace officer acting in the lawful discharge of an official duty and that the said Troy James Morrison then and there knew that the said complainant was a peace officer.”

Among the elements of attempted murder are that the defendant does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. Teal v. State, 543 S.W.2d 371, 373 (Tex.Cr.App.). This is also an element of attempted capital murder. See Hobbs v. State, 548 S.W.2d 884 (Tex.Cr.App.).² The indictment need not allege the phrase “amounting to more than mere preparation that tends but fails to effect the commission of the offense intended,” if it alleges facts which show the act is of that character. Colman v. State, 542 S.W.2d 144 (Tex.Cr.App.). An indictment that alleges neither that element nor facts which show that element, on the other hand, is insufficient to allege criminal attempt. Hobbs v. State, supra.

The indictment in the prior conviction under examination here fails to allege any act whatsoever. It obviously also fails to allege an act amounting to more than mere preparation that tends but fails to effect commission of the offense intended, and is therefore fundamentally defective. It was error to admit evidence of the prior conviction over objection.

The State proved two prior convictions at the punishment stage: felony theft over fifty dollars, with punishment assessed at two years; and attempted capital murder, with punishment assessed at twenty years. We are unable to say the erroneous admission of the latter prior conviction could not have contributed to the assessment of punishment at thirty years in this case. The error is not harmless.

The judgment is reversed and the cause remanded.

1 . The objection at trial was:

“MR. ELLIS: We would object to the introduction of — these have been marked haven’t they — of what has been marked as State’s Exhibit 21 for identification and move that the Court suppress its introduction into evidence herein and we would object to the introduction of this packet into evidence herein because as a part of that packet there is an Indictment which was returned in that cause and which is a part of that cause and the Indictment fails to show the manner or means used; that is to say, it reflects knowingly and intentionally attempt to cause the death of Henry Lee Stiller without alleging the manner or means used in attempting to cause the death of Henry Lee Stiller and we submit that the Indictment is fundamentally defective and any conviction obtained on said Indictment is void and violative of the due process of this Defendant and particularly the Penal Code, Articles 15.01, Section A.”

2 . The State’s reliance on Eanes v. State, 546 S.W.2d 312 (Tex.Cr.App.), which held an indictment for aggravated assault need not allege the manner and means used is distinguishable, in that the elements of criminal attempt, as stated in Teal v. State, supra, expressly include an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. Without allegation of that act, i.e., the “manner and means,” it is impossible to allege these elements of criminal attempt.