Telfair v. State

565 S.W.2d 522

• Court: Court of Criminal Appeals of Texas
• Decided: May 10, 1978
• Docket: 53226
• Status: Published

Opinions

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.

1 . We also held in Baldwin that where the offense is attempted murder, the State, in proving the specific intent to commit murder, need not prove that the accused intended to kill, but must only prove that he intended to cause serious bodily injury. See V.T.C.A., Penal Code, Sec. 19.02(a)(2), supra.