dissenting.
The majority reverses this case because of a fundamental defect in the indictment. McCravy was charged with attempted burglary. The indictment stated that McCravy “did then and there attempt to enter a building owned by Martin H. Ayers by turning off electrical power to said building and climbing to the roof of said building to gain access, having at the time the specific intent to commit the offense of burglary.... ” McCravy contends on appeal that the acts alleged amount to no more than mere preparation to commit a burglary. No motion to quash was filed.
In holding this indictment to be fundamentally defective, the majority uses a two-stage analysis: (1) that such acts are required to be alleged as the required result of the offense, and (2) the acts alleged in the instant case amount to nothing more than mere preparation to commit the offense.
As to the first conclusion, the majority opinion finds that these acts are elements of the offense of attempt and are required to be alleged. Article 21.03, V.A.C.C.P., states that an indictment should state all that “is necessary to be proved.” V.T.C.A., Penal Code, Section 1.07, defines “elements of offense”:
“(a) In this code:
t( * * *
“(13) ‘Element of offense’ means:
“(A) the forbidden conduct;
“(B) the required culpability;
“(C) any required result; and
“(D) the negation of any exception to the offense.”
The majority then finds that these acts should be alleged as “the required result” of the crime of attempt. The majority overlooks the obvious fallacy: that the crime of attempt has no required result. If there were a result to the crime, there would be a completed substantive offense, not just an attempt. Not all of the Penal Code offenses have a required result. Burglary is complete once the entry is made; there is no need for the defendant to have committed his intended felony. Similarly, the offense of assault, in certain situations [V.T. C.A., Penal Code, Section 22.01(a)(2)], has no required result; the offense is complete once a defendant intentionally or knowingly threatens another with imminent bodily injury. See also V.T.C.A., Penal Code, Section 15.02 (Criminal Conspiracy); V.T.C.A., Penal Code, Section 15.03 (Criminal Solicitation).
We have long held that attempt consists of only two elements: the intent to do a thing and an act that falls short of the *458thing intended. Wood v. State, 27 Tex. Cr.R. 393, 11 S.W. 449 (1889); Watts v. State, 30 Tex.Cr.R. 533, 17 S.W. 1092 (1891); Marthall v. State, 34 Tex.Cr.R. 22, 36 S.W. 1062 (1894). Viewed in this context, the majority opinion is nothing more than an attempt to require, as a fundamental element of the indictment, the allegations of the manner and means used to commit the offense. As the author of the majority opinion in this case stated in Cruise v. State, 587 S.W.2d 403 (Tex.Cr.App.1979), allegations of the manner and means to commit the offense are not “fundamental requisites” of charging the offense for purposes of invoking the'district court’s jurisdiction. We should follow that decision.
Even if such acts were required for fundamental sufficiency, the acts here are sufficient to allege an act that amounts to “more than mere preparation that tends but fails to effect the commission of the offense intended.” V.T.C.A., Penal Code, Section 15.01. The majority opinion focuses on the statutory definition of the word “entry” [see V.T.C.A., Penal Code, Section 30.02(b) ] as the test for determining the sufficiency of the allegation. The opinion requires that the alleged act amount to an intrusion “of any part of the building’s body or any physical object connected with it.” This ignores the elementary principle of criminal jurisprudence that once an entry is effected, the substantive crime of burglary is complete; the attempt was successful. If the requirement by the majority is followed, the crime of attempted burglary has been repealed by this Court.
Professor Perkins, in his hornbook treatise, Perkins on Criminal Law (Foundation Press, 1969), sets forth an extended explanation on the difference between an attempt and mere preparation:
“A distinction is made between measures taken by way of preparation for the commission of a crime and steps taken in the direction of its actual perpetration. As said by the California court: ‘Between preparation for the attempt and the attempt itself, there is a wide difference. The preparation consists in devising or arranging the means or measures necessary to the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made.’ The difference between the two may not be ‘wide’ as a matter of fact. As one approaches the other we may find a difficult ‘twilight zone’ rather than a sharp and clear dividing line. But it is wide as a matter of law.
“So far as the common law is concerned there is no criminal attempt unless what was done went beyond the stage of preparation. The ‘act must reach far enough toward the accomplishment of the desired result to amount to the commencement of the consummation;’ although it is not required to be the ‘last act’ intended for the purpose.”
Proximity of the acts to the completed offense in terms of both time and place are to be considered. The alleged acts must be viewed in the context of the criminal event and must evidence the defendant’s intent to complete the crime. That the acts evidence criminal intent is the exact reason why they must go beyond mere preparation for the crime. In the present case, if the acts were found to have been committed right before McCravy was to enter the building, they would easily indicate a criminal intent. This, however, is a matter for the jury to decide; they must find that the act amounts to more than mere preparation. It is not up to the reviewing court to place the alleged acts in a vacuum and to determine whether they evidence sufficient intent to commit a crime.
The judgment should be affirmed.
W.C. DAVIS, J., joins in this dissent.