dissenting.
Because the panel opinion clearly ignores the case law of this State, I must register my dissent to the overruling of the State’s motion for leave to file a motion for rehearing. Appellant was indicted for attempted rape:
“... Bobby Joe Sears * * * did then and there with the specific intent to commit the offense of rape, attempt to have *266sexual intercourse with F_V-, hereinafter called complainant, a female not his wife, without the consent of the said complainant, by knowingly and intentionally using force and threats; said attempt amounting to more than mere preparation that tended but failed to effect the commission of the offense intended, ...”
In the abstract portion of the jury charge, the trial judge defined the following:
“A person commits the offense of rape if he intentionally and knowingly has sexual intercourse with a female not his wife without the female’s consent.
u * * *
“A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objection or desire to engage in the conduct or cause the result.
“A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
“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.”
The application paragraph reads as follows:
“Now, if you find from the evidence beyond a reasonable doubt that on or about the 17th day of April, 1978 in Dallas County, Texas, the defendant, Bobby Joe Sears, did, without the consent of F_V_, a female, and by the use of force, attempt to have sexual intercourse with the said F_V_, and that the said F_V_was not then and there the wife of the said defendant, then you will find the defendant guilty of attempted rape, as charged in the indictment.”
The panel opinion held that “the charge omits so many elements stated in the statute and alleged in the indictment, ... that it does not even state an offense.”
V.T.C.A., Penal Code, Section 15.01, proscribes criminal attempt 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.”
It has been the position of this Court that the charge should be read as a whole and review should not be limited to parts of the charge standing alone. Jackson v. State, 591 S.W.2d 820 (Tex.Cr.App.1979) (on court’s motion for rehearing). Applying this principle to the instant case, it is clear that there is no fundamental error in the charge.
The charge to the jury required a finding of an attempt [as defined in the abstract portion of the charge] by appellant to rape the complainant. Attempt implies an intent and an active effort to carry out or consummate the intent or purpose. Ex parte Pousson, 599 S.W.2d 820 (Tex.Cr.App.1980); Dovalina v. State, 564 S.W.2d 378 (Tex.Cr.App.1978). It has been held in several Texas cases that “attempt” is sufficient to include the word “intent” and is in fact more comprehensive in meaning that the jury is required to find that the criminal attempt was committed with the required specific intent. Whitlow v. State, 609 S.W.2d 808 (Tex.Cr.App.1980); Smith v. State, 571 S.W.2d 168 (Tex.Cr.App.1978); Telfair v. State, 565 S.W.2d 522 (Tex.Cr.App.1978), and authorities cited therein. With “intent” being included in the meaning of “attempt”, it is clear that the jury could not convict without finding that appellant had the proper culpable mental state.
In addition, the abstract portion of the charge defined attempt as doing “an act amounting to more than mere preparation that tends, but fails, to effect the commission of the offense intended.” When this definition is considered with the portion of the charge applying the law to the facts, it is clear that the jury could convict only if they found that an attempt was made as defined.
*267I think it is important to note that the very identical charge under consideration here was approved by this Court in Finley v. State, 527 S.W.2d 553 (Tex.Cr.App.1975).
Despite the contentions of the majority to the contrary, Finley addressed the issue squarely:
“Appellant also contends that the trial court committed fundamental error in failing to apply the law of attempted rape to the facts of this case in his charge to the jury.” Finley v. State, supra, at 555.
The majority further attempts to ignore the holding in Finley by asserting that Finley’s objection went more specifically to how the charge was worded rather than its fundamental sufficiency. I ask the majority to explain why the error in the case at bar is so blatant that harm is presumed, and yet no harm resulted to Finley where the exact same charge was given.
Furthermore, the panel opinion in Stidham v. State, 590 S.W.2d 502 (Tex.Cr.App.1979), considered the application paragraph alone, and did not address whether other portions of the charge may have been sufficient to cure any alleged fundamental defects.
Absent a showing of harm, or an objection, no error is shown and the State’s motion for rehearing should be granted. I must therefore dissent.
W.C. DAVIS and CAMPBELL, JJ., join in this dissent.