concurring.
I have done what the dissent urges. I have read the charge as a whole. I am now convinced that the application paragraph of the charge makes the whole charge egregious.
The charge suffers from at least the following defects:
(1) The application paragraph of the charge does not require a finding that appellant acted intentionally or knowingly, the two culpable mental states alleged in the indictment.
(2) The application paragraph of the charge does not require a finding of any specific acts on the part of appellant, merely requiring a conclusory finding that appellant attempted to have sexual intercourse by the use of force;
(3) The application paragraph of the charge does not require a finding that appellant did some act which amounted to more than mere preparation that tended but failed to effect the rape of the complainant.
Although I acknowledge that an allegation of an attempt might substitute for one of the four statutorily defined mental states, see V.T.C.A., Penal Code, Sec. 6.03, as far as supplying a culpable mental state, see Dovalina v. State, 564 S.W.2d 378 (Tex.Cr.App.1978) (Overruled on another point in Windham v. State, 638 S.W.2d 486 (Tex.Cr.App.1982), it cannot replace one of the culpable mental states found in the indictment.
What the State alleges, it must prove, although when more than one method is alleged only one must be proved. Since the indictment in this cause alleged appellant acted intentionally and knowingly, the jury had to find that appellant acted either intentionally or knowingly. But, the jury was not instructed that they had to find either of these mental states.
Additionally, the charge does not instruct the jury as to what acts of appellant possibly shown by the evidence adduced would, if found to be true, constitute an offense, charging them only in the conclusory terms of “attempt to have sexual intercourse by the use of force.”
Furthermore, the charge did not require a finding of more than mere preparation, either by finding distinct acts constituting such or by referring them to an abstract definition of the offense of “attempt,” in that the abstract definition of “attempt” contained in this charge did not designate it as the offense of “attempt”, but merely referred to acts amounting to more than mere preparation, etc., as some unnamed offense.
The majority is too kind in its treatment of the State’s motion for rehearing. I enthusiastically agree with the majority opinion.