concurring in part and dissenting in part on State’s Motion for Rehearing.
On what was practically a clean state when we confronted this issue, I wrote the opinion which was approved by a majority of the Court on original submission; our sole concern was to comprehend, harmonize and give effect to what appeared to be conflicting opinions theretofore written on the subject of attempt pleading in light of the 1974 penal code.1 We were persuaded that under the new code, the phrase, descriptive of the culpable conduct — “amounts to more than mere preparation that tends but fails to effect the commission of the offense intended” — is an element of the offense of attempt, irrespective of the offense intended. Necessarily then, being an element of the offense, that phrase must be alleged in the State’s charging instrument in some manner.
Hoping to provide guidance to the prosecutors of this State, we sought to make it clear that pleading this phrase in the language of the statute is preferable, for a multitude of reasons, to attempting to set out acts which themselves illustrate they “amount to more than mere preparation that tends but fails to effect the commission of the offense intended.” [Emphasis added]
While I cannot agree that the acts pleaded here meet these criteria for reasons fully explicated on original submission, the essential rule of law fashioned at that time has by now been ratified through application2 and is today readopted by the majority of the Court.
Since the majority leaves undisturbed the prior holding that “amounting] to more *463than mere preparation that tends but fails to effect the commission of the offense intended,” is an element of the offense of attempt, which must be pleaded and proved by the State, I concur in that reasoning.
To the majority’s determination that the acts alleged here are equivalent to that element of the offense, however, I dissent.3 I would reverse the judgment of conviction and order the indictment dismissed.
. Only Green v. State, 533 S.W.2d 769 (Tex.Cr.App.1976) could not withstand the analysis; the majority today adheres to its being overruled.
. E.g., Morrison v. State, 625 S.W.2d 729 (Tex.Cr.App.1982); and Cody v. State, 605 S.W.2d 271 (Tex.Cr.App.1980), to name but a few.
. Happily the line between an attempt and the completed object offense is brighter in cases other than when the offense intended is burglary in general. But, I find the purported distinction made by the majority in n. 2, between “acts [which] tend to effect the commission of a burglary” and “acts [which] tend to intrude” into a building, to be one without difference in this case, because the indictment otherwise provides no inference that the acts alleged amounted to more than mere preparation to commit a burglary, which tended but failed to effect the commission of a burglary.
Had the State alleged appellant “turned off the electrical power by severing a power line” or “climbed to the roof carrying tools commonly used for prying,” or even “climbed to the roof to gain access into the building,” I would have no question as to adequacy of the indictment. Thus, the majority either misreads or misapprehends our prior opinion to require a “last proximate act.” It clearly did not.