dissenting.
Appellant argues that the indictment in this case was fundamentally defective as it failed to allege that the criminal attempt was made with the specific intent to commit the offense of capital murder. The indictment alleged in pertinent part that appellant:
“. . . 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 duties . . ..”
“Criminal Attempt” is defined in V.T. C.A., Penal Code, § 15.01(a), which provides:
“(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.” (Emphasis supplied.)
Under this statute the elements necessary to establish an offense are (1) a person, (2) with specific intent to commit an offense, (3) does an act (amounting to more than mere preparation, (4) that tends, but fails, to effect the commission of the offense intended.1 See 1 Branch’s Ann.P.C., 3rd ed., p. 634; Green v. State, 533 S.W.2d 769 (Tex.Cr.App.1976) (Dissenting Opinion at p. 771).
In Baldwin v. State, 538 S.W.2d 615 (Tex.Cr.App.1976), it was stated:
“A person commits the offense of criminal attempt under V.T.C.A., Penal Code, § 15.01, if, first, with the specific intent to commit an offense he, second, does an act amounting to more than mere preparation that third, tends but fails to effect the commission of the offense intended.”
Under the former Penal Code there were such specific attempt crimes as attempted abortion, attempted arson, attempted burglary, attempted rape, etc. The foregoing section (15.01) of the new Penal Code replaces all these type statutes and provides a *387general attempt statute under which the attempt to commit any offense is an offense. Under the new Penal Code scheme of things one of the elements necessary to establish an offense under the statute was a specific intent to commit an offense.
In the Practice Commentary to V.T.C.A., Penal Code, § 15.01, it is written in part:
“Before an attempt to commit an offense can be punished, the attempt itself must be defined as an offense, Blanchette v. State, 125 S.W. 26 (Cr.App.1910), and prior law contained numerous statutes that defined attempt and related crimes in terms of a specific object offense. For example, it was an offense to attempt to rape, Penal Code art. 1190; to assault with intent to rape, art. 1162, or murder, art. 1160, or rob, art. 1163; to attempt to escape, arts. 353b, 353d; to attempt arson, art. 1316, or wilful burning, art. 1326; and to attempt burglary, art. 1402. Section 15.01, on the other hand, is a general attempt statute that represents a new approach to the law of attempt in Texas: criminal attempt, as defined in this section, applies in conjunction with all of the offenses defined in the Penal Code. (It may not apply to offenses defined outside the code however; Section 1.03(b) provides that only Titles 1, 2, and 3 of the code apply to outside law and the penalties of outside law do not correspond to this code’s classification system.) Under the general attempt statute, the elements necessary to establish criminal attempt and the penalties for its commission are uniform, while under prior law the elements of and penalties for an attempt varied depending on the particular offense attempted.” U * * *
“Section 15.01 defines attempt in traditional terms, cf. Lovett v. State, 19 Tex. 174 (1856); Penal Code art. 1402. To constitute attempt, there must be an act, which must be performed with intent to commit a crime. (Although attempt purports to be available for all offenses, it is improbable that a person will perform an ‘act’ with intent to commit a crime of omission, see the definition of ‘act’ in Section 1.07, and impossible that a person ‘intend’ to commit a crime involving recklessness or criminal negligence.) An act and intent alone, however, will not suffice for attempt. The actor’s conduct must progress beyond ‘mere preparation’ and must tend to effect commission of the crime. (( ‡ * *
It is clear from what has been said above that under the approach adopted by the new Penal Code the elements necessary to establish criminal attempt under the general attempt statute are uniform, and that one of the new elements is the specific intent to commit an offense.
Citing cases decided under former codes, the majority holds that the allegation of “attempt” is sufficient to allege “a specific intent to commit” an alleged crime. It is observed that in Green v. State, supra, it was held that an indictment under the general attempt statute which failed to allege the act constituting the attempt was not fundamentally defective, overruling Fonville v. State, 62 S.W. 573 (Tex.Cr.App.1901). In light of today’s majority holding and the decision in Green, the mere allegation of “attempt” as a conclusion in an indictment for the attempted capital murder of a peace officer is sufficient to allege “the specific intent to commit [the offense of] capital murder,” a necessary element of the general attempt statute, and further such indictment need not set forth what the defendant did in the attempt to commit capital murder without the same being fundamentally defective.
For the failure of the indictment to allege that the appellant had the’specific intent to commit capital murder, I would find the indictment fundamentally defective.
ROBERTS, PHILLIPS and DALLY, JJ., join in this dissent.. In 1 Branch’s Texas Annotated Penal Statutes, 3rd ed., § 15.01 sets out a suggested form for an indictment for attempted murder as follows:
“_did then and there attempt to cause the death of_by_(shooting him with a gun) having at the time the specific intent to commit the offense of murder.” (Emphasis supplied.) Morrison and Blackwell, New Texas Penal Code Forms, § 15.01, p. 5, sets forth the following: “(Commencement Form) A. B., on or about the_day of_, 19_, in the county and state aforesaid, did then and there with the specific intent to commit the offense of _ (specify, such as ‘burglary’) did then and there attempt to_(set out the offense attempted as in a complaint such as ‘did then and there, without the consent of C. D., the owner thereof, attempt to enter a building not then and there open to the public, with intent to commit theft’), said attempt amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.”