concurring.
I agree that the indictment in the instant case is not fundamentally defective, but *384disagree with the majority’s reliance on Baldwin v. State, Tex.Cr.App., 538 S.W.2d 615, and Garcia v. State, Tex.Cr.App., 541 S.W.2d 428.
The majority cite ample authority for the proposition that the use of “attempt” in this indictment is sufficient to constitute an allegation of “intent”. Regarding these terms, the Court in Cirul v. State, 83 Tex. Cr.R. 8, 200 S.W. 1088, quoted with approval from Words and Phrases:
“The word ‘attempt’ is more comprehensive than the word ‘intent’, implying both the purpose and an actual effort to carry that purpose into execution. .
“The only distinction between an ‘intent’ and an ‘attempt’ to do a thing is that the former implies purpose only, while the latter implies both the purpose and an actual effort to carry that purpose into execution; . . . the word ‘attempt’ embraces the full meaning of ‘intent’ with something more, . . .”
The indictment in this case alleged that appellant:
“. . . 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 duties. . . .”
Although this indictment is not drafted with great clarity, and is not a model for future pleading, by a strictly grammatical alteration of its form, without changing the substance of its allegations, its content may be more clearly seen when written like this:
“. . . did then and there unlawfully, knowingly and intentionally cut and stab Jerry Powell with a knife and shoot 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 duties, and the said defendant did thereby attempt to cause the death of the said Jerry Powell. . . . ”
From this understanding of the substance of the indictment, with the recognition that an “attempt to cause the death” of an individual necessarily includes the intent to cause the death of an individual, it cannot be denied that the indictment alleges the requisite intent to commit murder (see V.T. C.A., Penal Code Sec. 19.02(a)(1)).
While I concur in the majority’s conclusion that the indictment in this case is not fundamentally defective, I do not agree that it would be sufficient merely to allege “that appellant intentionally attempted to kill,” as suggested by the majority. The indictment must also allege the acts constituting the offense since it is fundamental that an indictment is an instrument that alleges facts and not merely a legal conclusion. This fundamental principle was discussed in Williams v. State, 12 Tex.App. 395, 400:
“What is meant by the word ‘indictment?’ . . . ” ******
“It must be framed with sufficient certainty; for this purpose the charge must contain a description of the crime or misdemeanor of which the defendant is accused, and a statement of the facts by which it is constituted, so as to identify the accusation.”
******
“ ‘The indictment must show on its face . that a person mentioned therein has done . . . such and such particular acts, at a specific time; which acts, so done, constitute what the court can see, as a question of law, to be a crime,’ etc. (1 Bish.Cr.Pro.Sec. 135)
“ ‘An indictment is the written statement of a grand jury, accusing a person therein named of some act or omission which, by law, is declared to be an offense.’ (Code Crim.Proc. art. 419. [Art. 21.01, V.A.C.C.P.])
*385“Chief Justice Roberts, in Hewitt v. State, 25 Texas, 722, quotes the above definition from our Code, and says: ‘At the adoption of our Constitution, and for a century previously, both in England and America, this is what was understood as constituting an indictment.’ ” * * * * * *
“We think it clear from these authorities that the meaning of the word ‘indictment’ in the Bill of Rights requires that it should state the essential acts or omissions which constitute the offense with which the party is accused. It must charge explicitly all that is essential to constitute the offense, and cannot be aided by intendments. A statement of a legal result, a conclusion of law, will not be sufficient; the facts constituting the crime must be set forth, that the conclusion of law may be arrived at from the facts so stated.” (Emphasis added throughout.)
This early case dramatically illustrates the principle:
“The charging part of the indictment is as follows: ‘Joseph Brinster, an adult male did rape Mrs. Mattie McL. Davis, a female.’
“This indictment does not allege a single act which enters into and composes one of the elements of rape. An indictment is a written statement of a grand jury, accusing a person therein named of some act or omission punished by law. Subjecting the indictment in this case to the above definition, it evidently follows that it is no indictment at all.” Brinster v. State, 12 Tex.App. 612, 613. (Emphasis added.) See also Drye v. State, 14 Tex.App. 185, 191.
A criminal accusation that merely alleges a legal conclusion is not an indictment; to be an indictment the instrument must allege facts. An allegation that appellant attempted to kill, without more, would be insufficient. See Drye v. State, supra.
I am also unable to agree with the majority’s reliance on Baldwin v. State, Tex.Cr. App., 538 S.W.2d 615, and Garcia v. State, Tex.Cr.App., 541 S.W.2d 428. Those cases should be overruled. By the strange logic used in those two cases the Class A misdemeanor of attempted aggravated assault under V.T.C.A., Penal Code Secs. 15.01(a) and 22.02(a)(1) is treated as attempted murder.
In Baldwin v. State, supra, the majority construed Sec. 15.01, supra, in conjunction with murder under See. 19.02(a)(2), to reach the conclusion:
“A specific intent to kill is not required under V.T.C.A. Penal Code, Sec. 19.-02(a)(2) for the offense of murder to be committed. The specific intent, therefore, required under V.T.C.A. Penal Code, Sec. 15.01 [for attempted murder] would not be a specific intent to kill but need only be the intent to cause serious bodily injury.”
In Garcia v. State, supra, this position was again taken:
“[T]o prove an ‘attempted murder’ it is sufficient if the accused has the intent to cause serious bodily injury and commits an act ‘amounting to more than mere preparation’ that could cause the death of an individual but fails to do so.”
Section 15.01(a), supra, provides:
“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.” (Emphasis added.)
Baldwin misconstrued the requirement of a specific intent to commit an offense by stating that the accompanying specific intent to cause serious bodily injury, required for murder under Sec. 19.02(a)(2), would suffice. Such intent to cause serious bodily injury is not the same as the intent to commit the offense of murder. A killing under Sec. 19.02(a)(2) is murder notwithstanding the fact that no murder was intended. And for precisely that reason, Sec. 19.02(a)(2) may not support an attempted murder prosecution: A prosecution for an attempted offense will lie only if there is an intent to commit such attempted offense. The intent to cause serious bodily injury *386relied on in Baldwin and Garcia, supra, is the intent to commit aggravated assault under Sec. 22.02(a)(1), supra, and if such intent accompanies an act that tends but fails to effect serious bodily injury, the offense is attempted aggravated assault, not attempted murder. If the act does cause serious bodily injury, the offense is aggravated assault, not attempted murder. Section 19.02(a)(1) is the only form of murder that requires an intent to murder, and since Sec. 15.01(a) requires an intent to commit the offense attempted, only Section 19.02(a)(1) will support attempted murder.
I concur in the holding that the indictment before us is not fundamentally defective for the reasons stated at the beginning of this opinion; I do not, however, agree that a legal conclusion would be sufficient to constitute an indictment, nor is the State relieved of the burden to prove a specific intent to kill, and to that purpose Baldwin and Garcia, supra, should be overruled.