dissenting on State’s petitions for discretionary review.
Under our State’s statutory theory of unauthorized departure, it is an essential element of escape that the actor be in custody prior to commission of the offense. It is also an element of the offense that he depart from custody without permission. Such a departure can be said to occur only at the moment when he is no longer in custody.1 It follows that an individual who has departed from custody without permission may be prosecuted for escape without engaging in any further acts of misconduct and that he does not commit the offense of escape again until he is returned to custody and once more departs without permission. In the present context, this necessarily means that appellant could not actually have committed the offense of escape after entering the apartment unless he was still in custody when he entered it or, if not, was recaptured while still inside and left custody again without permission.
But, as both the District Attorney and the State Prosecuting Attorney emphasize, the State did not allege in this case that appellant actually escaped after entering the *894apartment, only that he intended to do so at the time of his unlawful entry. Under such pleadings, the question of sufficiency might depend, in a proper case, upon whether an actor’s unlawful entry in the mistaken belief that he was still in custody, and -with a conscious objective to escape from that custody, is enough to satisfy the requirement that his entry be made with intent to commit escape.2
The Court of Appeals did not resolve this question in the instant cause. Rather, it held simply that “the evidence is conclusive that [appellant] did not commit the offense of burglary with intent to commit felony escape, because he had already completed the offense of escape.” Lawhom, 843 S.W.2d at 270. The State Prosecuting Attorney rightly points out that this rationale takes after the Common Law doctrine of impossibility, which did not, however, apply to the intent element of burglary. 2 William Blackstone, Commentaries *127-28. Oddly enough, a majority of this Court agrees that the doctrine somehow controls this cause, holding that it forecloses conviction because, even if appellant did all that he intended in this case, it would not constitute the crime for which he was convicted.
This conclusion seems hopelessly wrong to me for several reasons, not the least of which is that, under our present statutory scheme, the elements of burglary do not include, nor do they necessarily require proof of, an actual ability to commit the intended crime. It is, therefore, a mistake to think that appellant could not have intended to escape when he entered the apartment just because he could not have escaped in fact. Although evidence that he had already left custody is, of course, relevant to his intent at the time of entry, it is not dispositive as a matter of law. In short, there is nothing in the plain language of the statute to imply that a person might not be guilty of burglary if the felony he intends to commit cannot actually be accomplished, so long as he mistakenly believes that it can.
In a way, the majority concedes this to be true, but insists that it was not just factually impossible for appellant to escape by entering the apartment, but that it was legally impossible as well. This supposed difference between “legal impossibility” and “factual impossibility” is the crux of the majority’s argument. The latter, we are told, “has been viewed as a valid defense.” Op. at 891. Accordingly, the majority insists that, although persons are responsible for their attempts to commit crime even when success is precluded by extant circumstances, they may not be held criminally responsible for intending a result which was legally impossible. The appellant is supposed to qualify for this latter category because he “could not as a matter of law, have intended to commit the offense of escape when he entered the apartment” because it was legally impossible for him actually to escape after entering. There are three respects in which I disagree with this analysis of the problem.
First, impossibility, legal or factual, is not a defense to any crime under the Texas Penal Code. In fact, there are no Texas cases in the last 30 years that even allude to the doctrine of impossibility, let alone employ it to decide whether evidence of guilt is sufficient for conviction. That, of course, explains why the majority does not so much as cite a single precedent from this jurisdiction in support of its novel contention that intending an impossible result is a defense to crime even when the applicable penal statute plainly provides otherwise. Whatever status impossibility may have had under the Common Law as an excuse or justification, it does not seem to have achieved a similar level of importance in Texas jurisprudence. And just as nothing is a crime in Texas unless proscribed by a competent legislative body, *895Penal Code § 1.03(a), we may safely suppose that there are no Common Law defenses surviving the Penal Code. The substantive criminal law is now entirely a creature of statute in this State.
Second, I do not accept that there is a meaningful difference between legal and factual impossibility. Even the examples given by the majority illustrate the futility of maintaining such a distinction and why the distinction was so difficult to maintain under the Common Law. To cite but a single example from the majority opinion, we are expected to believe without any explanation whatsoever, as if the proposition were somehow self-evident, that attempting to kill someone with an unloaded weapon is factually impossible, whereas attempting to kill someone already dead is legally impossible. Somehow, there is thought to be a difference between mistaking a harmless object for a weapon and mistaking a corpse for a living person. But I do not see the difference, and the majority does not bother to explain it.
Finally, it is perfectly clear as a factual matter that appellant might have had the intent to escape from custody when he entered the apartment even if it was impossible for him actually to do so. All that was required was that he be mistaken about his status. It is no different, really, than other examples of so-called “factual impossibility” given in the majority opinion. Thus, as the Court itself avers, one is culpable for attempting to perform an abortion on a woman who is not pregnant because the act would undoubtedly be a crime if the facts were as the actor mistakenly believed them to be. Likewise, the attempt to pick an empty pocket is as much an attempt to steal as is the attempt to pick a pocket with money in it because the actor’s conduct would clearly offend the law if the facts were as he supposed. I do not see, nor has the majority demonstrated, that a mistake about whether a woman is pregnant or has money in her pocket is different in any relevant respect from a mistake about whether a person is in custody.
I think the majority just has an irresistible intuition that no lucid human being could ever actually believe he was in custody when he wasn’t, that it would take a profound delusion for a person to think himself bound, shackled, or confined while really at liberty in the world. Perhaps, the Court is right to think so. Indeed, I do not disagree that the evidence in this case was actually insufficient to sustain a conviction for burglary under the theory alleged by the State in its indictment. After all, it was the State’s own proof that raised the issue whether appellant had departed from custody before his unlawful entry into the apartment where he was later discovered. Had the State produced no evidence at all of this departure, its proof would simply have been insufficient to show that he had an intent to escape when he entered the apartment. As it is, the only evidence of his actual intent renders it less likely that he entered with intent to escape than it would have been without any proof at all.
Of course, the District Attorney is quite right to insist that, had appellant been prosecuted for escape, a jury might rationally have found the evidence insufficient to show that he had really departed from custody. Because, in a prosecution for escape, the State must prove departure beyond reasonable doubt, relevant evidence of departure might still be regarded by a rational jury as too weak or unclear to justify such a conclusion. In the instant cause, however, it was the State’s burden to show, not that appellant had departed, but that he was still in custody, or at least that he believed himself to be in custody, at the time of his unlawful entry. Because the only relevant evidence on this question militates against such a conclusion, it was not rational in my view for the jury to find in the State’s favor on this element.
However, my personal belief on this question, and that of my colleagues, is not especially important as I do not think it within this Court’s power to make a determination of evidentiary insufficiency on discretionary review. See King v. State, 895 S.W.2d 701 (Tex.Crim.App.1995) (Meyers, J., dissenting). Because the Court of Appeals has not yet determined for itself whether the evidence will support a conclusion that appellant mis*896takenly believed himself to be in custody when he entered the apartment in question, I would vacate its judgment and remand this cause for it to complete the evidentiary review it truncated when it erroneously assumed that appellant could not intend to escape if escape was impossible under the circumstances. Ardia v. State, 834 S.W.2d 357 (Tex.Crim.App.1992). Although I believe that, on remand, the Court of Appeals would certainly hold the evidence insufficient to establish this essential element of the alleged offense, it is plainly that Court’s job, not ours, to make such a determination.
Accordingly, I dissent.
WHITE, J., joins.. Apparently it is the position of Justice Powers, who filed a dissenting opinion in the lower court, that departure from custody does not occur until one is legally discharged. As I read his analysis, it would follow that appellant in the instant cause never actually escaped, since his legal status never changed, and could never have changed during the relevant interval. Lawhom, 843 S.W.2d at 272-73. I would reject this unusual reading of the word “custody.”
. To prove that appellant entered the apartment with intent to commit escape, the State would have to establish that appellant believed himself at that time still to be in "custody,” as meant by the Penal Code, and not merely to be still in the process of "getting free or away,” as is sometimes meant by "escape" in ordinary parlance. Compare Tex.Penal Code Ann. § 38.01(2), (3) (West 1989) with The New Merriam-Webster Dictionary p. 257 (1989).