Ex parte Carter

OPINION DISSENTING TO THE OVERRULING WITHOUT WRITTEN OPINION THE STATE'S MOTION FOR LEAVE TO FILE A MOTION FOR REHEARING

The State says that a curious paradox is created by the majority opinion, since the indictment, which is quoted in the majority opinion, if it had omitted the words "attempt to" would allege the consummated offense of arson. V.T.C.A. Penal Code, Sec. 21.02(a)(1). An attempt to commit the offense is a lesser included offense of a charged offense. This is the explicit provision of Art. 37.09(4), V.A.C.C.P. and this Court has held that an indictment for a consummated offense puts a defendant on notice that he is also charged with an attempt to commit the offense charged. Hill v. State, 521 S.W.2d 253 (Tex.Cr.App. 19375). Therefore, an allegation that a defendant *Page 333 committed the offense of arson would include the offense of attempted arson and put a defendant on notice he was also charged with an attempt to commit the offense of attempted arson.

The majority opinion fails to take into account the practical result of Art. 37.09, V.A.C.C.P. as it was amended effective January 1, 1974, to coincide with the effective date of the new Penal Code. The State's argument has persuaded me that I was incorrect in joining the majority on original submission. The Court should grant the motion for leave to file the motion for rehearing and consider the State's argument which appears to be sound. The majority opinion on original submission applies a rule which obtained under the old Penal Code before Art. 38.09, V.A.C.C.P. was amended. That rule should not now be applied.

I dissent to the overruling without written opinion the State's Motion for Leave to File a Motion for Rehearing.

McCORMICK, J., joins this dissent.