dissenting.
Because I am unable to agree with the majority that the evidence is sufficient to sustain the appellant’s conviction, due to the factual impossibility of appellant consummating the intended offense of murder, as well as the fact that I do not believe that any rational trier of fact could have found, under the facts that were presented, the essential elements of the crime charged beyond a reasonable doubt, see Jackson v. Virginia, 443 U.S. 307, 319, n. 12, 99 S.Ct. 2781, 2789, n. 12, 61 L.Ed.2d 560 (1979); Griffin v. State, 614 S.W.2d 155 (Tex.Cr.App.1981), I am compelled to dissent to Part II of the majority opinion.
What causes the majority’s analysis to be faulty in reaching its conclusion, that the evidence is sufficient, is the fact that it directs its attention solely to the act of appellant pointing the shotgun in the • direction of the complainant and then firing it. It is apparent to me, if no one else, that in resolving the issue of whether the evidence is sufficient, the majority ignores, among other things, the question, whether the type shot that was fired from the shotgun was capable of inflicting death or serious bodily injury on the complainant.
As pointed out in the panel opinion, before the evidence can be held sufficient to support a conviction for attempted murder, under such a factual situation as here, the firing of shot from a shotgun must occur with the capacity and under such circumstances as are reasonably calculated to produce the death or cause serious bodily injury to the person fired at. At least, there must be established a reasonable possibility that such could have occurred.
It is also obvious to me, if no one else, that the majority fails to come to grips with the common law defense of impossibility, which has existed since at least 1846. See Regina v. Goodchild (1846) 2 Cr & K 293, 175 Eng Reprint 121. Also see In Regina v. Collins (1864) Eng 9 Cox CC 497, which held that there can be no attempt to steal from an empty pocket.
I am of the school of thought that when the consummation of an intended crime is either legally or factually impossible, and the sufficiency of the evidence is challenged, the facts of the case must be viewed in that light, and I find that it is far from strange to view the criminality of an attempt in relation to the completed offense. Therefore, if an attempt occurs under such factual circumstances as those at bar, where it was conclusively established that it was factually impossible to consummate the intended offense, then the accused cannot be guilty of the attempted offense.
If it is the majority’s intention to hold that factual impossibility cannot ever be a defense to an alleged criminal offense of attempt, it should expressly make this holding. If that is not the majority’s intention, then it should expressly state that it is not eliminating from our law the defense of factual impossibility, and then explain how the evidence in this cause is sufficient to sustain appellant’s conviction.
To do neither is to do a disservice to the bench and bar of this State.
King v. State, 312 S.W.2d 677 (Tex.Cr.App.1958), was cited in the panel opinion as authority for the conclusion that the evidence was insufficient. In King, supra, another case which the majority fails to acknowledge, this Court held that the evidence was insufficient to sustain a conviction for assault with intent to murder with malice aforethought, even though the facts showed that at a distance of only 25 yards the defendant fired his rifle in the direction of several police officers, “and the officers heard the bullet ‘whistle’ by them.” Also see Scott v. State, 46 Tex.Cr.R. 315, 317, 81 S.W. 952 (1904); Medford v. State, 86 Tex.Cr.R. 237, 216 S.W. 175 (1919); and Cooper v. State, 60 Tex.Cr.R. 411, 132 S.W. 355 (1910).
In the instant cause, the State’s only basis for establishing that when appellant fired the shotgun in the direction of the complainant’s vehicle he had the specific intent to murder the complainant was the following: the mere firing of the shotgun by appellant in the direction of the vehicle *749driven by the complainant was sufficient to establish the intent to murder. However, the State presented no testimony or evidence that the shot fired from the shotgun appellant fired was capable of causing death or serious bodily injury to the complainant. There is also no testimony or evidence in the record that a shotgun, using any type of shot, and fired from approximately fifty feet in the direction of a vehicle traveling between 50 and 60 miles per hour, is capable of causing death or serious bodily injury to the driver of the vehicle.
The record, however, only reflects that the actual damage the complainant’s vehicle sustained was two “B.B.” sized dents in the front grill and some chipped paint in the hood of the vehicle. There was also no damage to the front windshield of the vehicle. The complainant did not sustain any injuries from the gunshot.
It is common knowledge that the range of shot from a shotgun is comparatively short due to the lightness of the shot. See Moenssens, Moses and Inbau, Scientific Evidence in Criminal Cases 122 (1973 Edition). In this cause, no evidence was presented by the prosecution that concerns the size, weight, or what type shot was in the projectile that was fired from the shotgun. The complainant testified that in his opinion the shot fired consisted of pellets and not lead balls. See Scientific Evidence in Criminal Cases, supra, at page 125. I am unable to understand how, under the circumstances of this cause, the pellets fired from the shotgun were capable of causing death or serious bodily injury to the complainant, and if they were incapable of causing death or serious bodily injury to the complainant, then pray tell how could they have effectuated the intended offense?
Decisions of this Court should make it obvious to anyone that before the specific intent to cause death or serious bodily injury may be inferred from the mere act of the accused firing a shotgun at or in the direction of another person, there must additionally be established that the shot fired from the shotgun was capable of causing death or serious bodily injury. In this instance, the State failed to present evidence on this issue. Thus, the majority errs in holding that the evidence is sufficient.
It has long been the law of this State that to constitute the crime of assault with intent to murder, there must be an attempt plus actual present ability to effectuate the intent. See Scott v. State, 46 Tex.Cr.R. 315, 81 S.W. 952 (1904). To put it another way: It has long been the law of this State that factual impossibility inherent in the means used has always been an affirmative defense to a charge of assault with intent to murder. I pause to point out that there is no meaningful difference between that offense and the present offense of attempted murder.
This Court should either expressly overrule all eases which have applied such rule of law or it should follow what this Court has held in the past. To do neither does not assist the bench and bar of this State.
The evidence is insufficient. To the contrary holding by the majority, I respectfully dissent.