dissenting.
I cannot agree that the indictment is sufficient; since the indictment fails to allege an act which was done to effect the intended offense of murder, it does not allege the offense of attempted capital murder.
The 1974 Penal Code defines and provides a penalty for the separate crime of criminal attempt as follows:
“V.T.C.A. Penal Code, Sec. 15.01, Criminal Attempt
“(a) 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.
“(b) It is no defense to prosecution for criminal attempt that the offense attempted was actually committed.
“(c) An offense under this section is one category lower than the offense attempted, and if the offense attempted is a felony of the third degree, the offense is a Class A misdemeanor.”
The offense of attempted capital murder requires that an act be committed, which amounts to more than mere preparation, to effect the intended offense of murder. Therefore, to allege the offense of attempted capital murder it is necessary to allege that a defendant having a specific intent to commit the offense of capital murder did some act, which amounts to more than mere preparation, to effect the commission of the intended offense of murder.
*732The indictment in the instant case alleges that the appellant:
“. . . did unlawfully, attempt to cause the death of Linda Faye Doty, in that the said defendant was employing for remuneration and promise of remuneration Bobby L. Curtis by knowingly and intentionally offering one thousand five hundred dollars ($1,500.00) current money of the United States of America to Bobby L. Curtis paid and promised to be paid to kill Linda Faye Doty by shooting her with a sawed off shotgun .
The allegation in the indictment concerning the employment of Curtis to shoot Linda Faye Doty is an allegation necessary to raise the offense from murder to capital murder; Y.T.C.A. Penal Code, Sec. 19.-03(a)(3);1 it is not an allegation of an act done to effect the intended offense of murder. Y.T.C.A. Penal Code, Sec. 15.01(a).
In Colman v. State, 542 S.W.2d 144 (Tex. Cr.App.1976) an indictment for the offense of attempted capital murder was held sufficient. It alleged the defendant:
“. . . then and there, with the specific intent to commit the offense of capital murder, attempt to cause the death of Terry L. Graves, hereinafter called complainant, by shooting the said Terry L. Graves with a pistol and the said complainant was a peace officer then and there acting in the lawful discharge of an official duty to-wit: attempting to arrest said defendant and the said defendant then and there knew the said complainant to be a peace officer.”
In Dovalina v. State, 564 S.W.2d 378 (Tex.Cr.App.1978), with four judges dissenting because they considered the indictment insufficient for a different reason than that now in issue, an indictment was held sufficient which alleged that the defendant:
“. . On or about May 23, 1975, did then and there unlawfully, knowingly and intentionally attempt to cause the death of Jerry Powell by cutting and stabbing him with a knife and by shooting him with a gun, the said Jerry Powell being a peace officer acting in the lawful discharge of his official duties and the said Defendant then and there knew the said Jerry Powell was a peace officer acting in the discharge of his official duty.”
In Pitts v. State, 569 S.W.2d 898 (Tex.Cr. App.1978), an indictment for the offense of attempted capital murder was held sufficient when it alleged that the defendant:
“. . . did then and there unlawfully attempt to intentionally and knowingly cause the death of S. L. Serres, by shooting him with a gun, the said S. L. Serres being a peace officer acting in the lawful discharge of an official duty and the said Larry Charles Pitts then and there knew the said Complainant was a peace officer.”
While the constituent element of capital murder alleged in the instant case was employment of another for remuneration, V.T. C.A. Penal Code, Sec. 19.03(a)(3), the constituent element of capital murder alleged in Colman v. State, supra, Dovalina v. State, supra, and Pitts v. State, supra, was that the defendant knew the victim was a peace officer in the discharge of his lawful duties. V.T.C.A. Penal Code, Sec. 19.-03(a)(1). In Colman v. State, supra, and Pitts v. State, supra, the act which it is alleged the appellant did in the commission of the offense of criminal attempt was shooting the victim with a gun. V.T.C.A. Penal Code, Sec. 15.01(a). In Dovalina v. *733State, supra, the act alleged to effect the offense of criminal attempt was by cutting the victim with a knife and shooting him with a gun. V.T.C.A. Penal Code, Sec. 15.-01(a). In the instant case there is no allegation of an act which the appellant did to effect the intended offense of murder.
The State argues that since the indictment in the instant case alleges that the appellant “was employing” Bobby L. Curtis for the purpose of committing capital murder it is sufficient. The State then attempts to distinguish this indictment from the indictment held to be insufficient in Hobbs v. State, 548 S.W.2d 884 (Tex.Cr. App.1977). The indictment in that case alleged:
“That Joyce Hobbs on or about the 25th day of July, A.D., 1975, ... did then and there attempt knowingly to cause the death of James Leon Hobbs, by promising remuneration to wit: promising to pay Virgil McCuller $100 to kill the said James Leon Hobbs by shooting him with a gun.”
I fail to see a distinguishing difference between “was employing” and “promising to pay.” Both indictments fail to allege an act to effect the intended offense of capital murder. This indictment alleges no act which was committed to accomplish the murder of Linda Faye Doty.
The point may be better illustrated by an example. Even if there had been an additional allegation that either the appellant or Curtis had obtained a gun with which to kill Linda Faye Doty, the allegations would not have been sufficient, because obtaining the gun would show mere preparation to commit the intended offense of murder.
The majority analysis of V.T.C.A. Penal Code, Sec. 19.03(a)(3) is too “very simple.” The employer in a murder for hire is not guilty of the offense of attempted murder until there is an attempt to kill the intended victim.
If the employer for a hired killing pays the employee and no other act is done to effect the intended murder, the employer would be guilty of solicitation to commit capital murder. V.T.C.A. Penal Code, Sec. 15.03(a).2 If either the employer or employee obtains a gun to kill the intended victim, this would be an overt act and both employer and employee would be guilty of a conspiracy to commit capital murder. V.T.C.A. Penal Code, Sec. 15.02(a).3 If the employee hired to kill the victim commits an act such as shooting at the intended victim, both the employer and employee would be guilty of attempted capital murder. V.T.C.A. Penal Code, Sec. 15.01.
Even if the indictment in this case be interpreted to mean that the appellant had already paid Curtis to kill Linda Faye Doty, that is only an act that increases the seriousness of the offense from murder to capital murder. The act of paying the money is not an attempt to kill the victim. The majority is clearly wrong in saying that: “In fact, once such a contract of employment exists, the principal has completed his role and may be guilty of capital murder or attempted capital murder, depending on the success of his agent.” If the employee merely accepts the money and has not or does not do any other act, the employer is clearly only guilty of solicitation of capital murder; not attempted murder.
We should hold that the indictment does not properly allege the offense of attempted capital murder. I dissent.
. V.T.C.A. Penal Code provides:
“Sec. 19.02. Murder.
“(a) A person commits an offense if he:
“(1) intentionally or knowingly causes the death of an individual; .
“Sec. 19.03. Capital Murder.
“(a) A person commits an offense if he commits murder as defined under Sec. 19.02(a)(1) of this code and:
“(1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman;
“(2) . . .
“(3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration.”
. “Criminal Solicitation.
“(a) A person commits an offense if, ’with intent that a capital felony or felony of the first degree be committed, he requests, commends, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor he believes them to be, would constitute the felony or make the other a party to its commission.”
. “Criminal Conspiracy.
“(a) A person commits criminal conspiracy if, with intent that a felony be committed:
“(1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and
“(2) he or one or more of them performs an overt act in pursuance of the agreement.”