AN INTERPRETATION OF THE
TEXAS
CRIMIN~.L
ATIEMPT STATUTE
ROBERT ALLEN FLYNN
This paper will suggest ways in which the Te xas
criminal attempt statute can and should b e interp r e t e d
as the case law develops around it.
The paper will t o uch
briefly on the "assault" statutes that forme rly cove red
most of the situations now covered by attempt.
It will
discuss the various standards by which th e eleme nts of
attempt can be judged and will suggest that cas e law from
allover the United States is available for interpret ing
Sec. 15.01.
It will touch upon conceptual prob l e ms of
attempt, defenses to
t~e
offense and finally, the policy
underlying attempt.
THE PROBLEM OF THE ASSAULT STATUTES.
Section 15.01, Tex. P.C., should cl e ar up ma ny
problems which ,oe re inherent in the forme r group o f
statutes dealing with assault anq attempted crime s.
Th es e
. statutes were far from satisfactory and in certain are as
actually left gaps in Texas law which prosecutors tri e d
with great ingenuity to fill from time to time.
Be cause
the statute may not have truly fit the fact situati on, a
certain stretching of the eleme nts of the off e ns e b e came
necessary. ' For example, in Do·uthi·t v. State,
1
a n a bducti o n
took place in Travis County.
The victim was s ub s eque n t l y
raped in two other counties.
The 'defendant could not b e
1
2
tried in Travis. County for abduction or kidnapping
(Articles 1177 through 1182 Vernon's Ann. P.C.) because
those statutes did not fit a situation where the woman
was not a minor and where there was no purpose to remove
her from the state.
The prosecution charged the defendant
with assault with intent to rape. 2
After Douthit had abducted the victim at gunpoint
in Travis County, saying he needed a hostage, he drove her
to
/I
~ays
.
County and parked in a field for an hour.
At
that point, the first sexual relations were had.
The Court of Criminal Appeals upheld the conviction
in Travis County on the ground that the jury could reasonably have concluded, from the facts and circumstances,
that the assault with the gun in Travis County was made
for the purpose of rape.
This case represents the type of approach to intent
.problems which should be avoided in interpreting the new
penal code.
While · Douthit was present in Travis County,
the record showed his future intent was uncertain and not
provable beyond a reasonable doubt.
There was also no
present, specific intent to rape the victim.
Judge Onion in his dissent cited the evidentiary
standards for proving . intent which the Court refused to
apply in Douthit:
To constitute an assault with intent to commit
rape, the State has the burden of proving a specific
intent to rape, and said burden is not satisfied
3
by evidence showing only a me r e possibility
of SUCQ specific inte nt. Moreover , the
rule has b e en that there must be a present
inte nt to commit rape a ccomp anying the
assault • • • (with citations).3
Judge Onion went on to say that present inten t
was defined as the intention to commit the act th e n and
there.
This definition is close to that of specific intent
which has been d e fin e d as an intention to do that thing at
a particular time " and place. 4
The Model Penal Code has abandoned the distinction
" "lnten t . 5
l" flC
b e t ween genera 1 anspec
d
This decision will
not result in greater clarity because the area of intent
is fraught wi,th vaguenes s and imprecisi o n .
It is to be hope d that unde r the n ew statute on
criminal attempt, the unde rstanding of intent will be improved.
The intent should be to take a forbidden step
Qere and now.
'1' h,." i nte nt should not be spe culative , as a
desire to do something next wee k.
For e xample , lying in
wait outside an enemy's house with a weapon is strongly
corroborative of the requisite intent of atte mpt liab ility.
Driving off in a car after making a stateme nt of e nmity
against X is not such corroboration.
TO demonstrate such intent Wisconsin r eq uires th at
the actor do
acts toward the c ommission of the crime Ivhich
demonstrate unequivocably, under all the circumstances, that he forme d the intent . . • "S a
Such an approach to intent in Te xas would avoid the
pitfalls of previous statutes.
The atte mpt stat ute pave s
4
the way for a precise definition of inte nt by requiring
that the intent be "specific.,,6
PREVIOUS APPROACH TO INTENT
Under the old assault with intent to murde r statute
in Texas, intent to kill could be inferred from the fact
that the defendant committed an assault with a deadly
weapon.
7
If th e weapon was not deadly, the intent could
be "ascertained from and shown by the surrounding facts
and circumstances~8
Intent could also be infe rre d from
the extent and nature of the injuries and b y the manner
in which the weapon was used.
9
In He nry v. State, it
was further stated:
If it is possible that death might have be e n
inflicted by the weapon u se d, and if the
accused intended thereby to take life by the
use made thereof, the offens e of as s ault
with intent to murder is comple te, e ven though
the instrument used was not a de a dly \./e apon. lO
Thus, under the assault with intent to murde r statute
ll
,
the manner in which the attack was carried out was considered corroborative of the d e fendant's intent.
The
punishment for conviction of this crime was t o be d o ubled
if the assault was made "with a bowie knif e or dagge r, or
in disguise, or by lying in wait, or by shooting into a
pri vate residence ....
5
FUTURE GREY AREA OF INTENT
The problem of future versus present inte nt a r e
shown in this hypothetical situation:
Mr. Brown is shooting pool at a pool hall.
While
circling the table, he denounces 'one Jone s as worthl e ss
and even dangerous to the well-being of the community"
If Jones were here now, Mr. Brown says, he would face
serious trouble to his person.
Mr. Brown indicates his
willingness to use his pocket knife on Jon e s.
Mr~
In fact,
Brown says, he really ought to do some thing about
Jones very soon.
When the game ends, Mr. Brown sulle nly
gets in his car and appears to drive o f f in the dire ction
of Jones' home.
THE QUALITY OP THE I NTENT
The quality of the intent to be shown unde r t he
attempt statute is subjective inte nt.
The finde r o f fact
must somehow look into the de fendant's mind to d iscove r
what he believed and intended.
To do this, the j u dge or
jury must examine the defendant's acts to d e termin e wh e the r
they corroborate the fact of a "guilty mind" a s a lle ged
by 'the State.
The difficulty of proving intent is illustrated in
State v. ' Damms. 12
There the defendant rep eatedly' threate ned
his wife and then held an unloaded automatic pistol to
her head and pulled the trigge r.
Police, who h e ard the
wife's screams, arrived almost imme di at e ly .
6
The trial turned into a swearing match on the issue
of mens rea.
The defendant claimed that h e kn ew the
weapon was not loaded because he could see the clip was
missing from the butt of the gun.
Police officers, how-
ever, testified the defendant told them at the scene of
the crime that he thought the gun was loaded.
The jury
believed the police.
The dissent in the
D~
case pointed out th at the
defendant had many opportunities to load the weapon during
the morning when he was driving around town with his wife.
(It would have been obvious to anyone who was familiar
with automatic weapons that the gun was unloaded.)
The
dissent also stated that
, . ,"
unless he was devoid of all sense of touch a nd
.'. ' feeling in ' his hands and fingers it would be
impossible for him 'not to b e aware or knO\~ that
the pistol was unloaded. He could f ee l the
hole in the bottom of the butt, and th is on at
least two separate occasions for he handled
the pistol by taking it out of the box and
showing it to his wife . • . • 13
The dissent then pointed out that th is evidence
raised reasonable doubt of intent to attempt murde r.
The
majority believed, however, that intent was establishe d.
The great difficulty is proving beyond a r easonab l e
doubt what went on inside the defendant's h ead with regard
to intent.
I~
in the 'light of common experience with auto-
matic pistols, Damms mi'g ht have been fully awar e that his
7
pistol could not fir e , the e lement of inte nt has not b ee n
established beyond a reasonable doubt.
THE INTENT COMBINED WITH THE ACT
There is in the law of attempt an in e xtricable
connection between the criminal inte nt and the crimin a l
act.
It is by reason of the corroboration expe cte d from
the actus reus that courts sometimes confus e the int e nt
with the act.
This occurre d in United state s v. rlandujano .
14
The facts of Mandujano fell into the are a where a
specific provable act beyond preparati on ',",,, ; diffi cult
to find. The defendant took $650 from unde rcover agent
Cavalier and went out to obtain heroin for th e a gen t.
ApparentlY , unable to find any heroin, th e defe ndant
carn~
back and returned the money to the agent.
The defendant was charged with attempt to distribute
heroin under the federal attempt statute, 21
u. s. C.
oM';
846.
Defendant contended he merely had attempted to acquire
heroin in preparation for a possible crime .
The Court
admitted that the Governme nt had no proof that the de f endant's
contact for heroin actually existed, but that such proof
was not essential.
But without such proof, how could the
defendant's act of taking the $650 be corroborative of
intent to distribute heroin?
What if his intent was to
defraud the agent by taking his money without supplying
8
the heroin?
With regard to the a ct, where is the proof
that taking the money was a substantial step?
appears suspi cious, 'but is that enough?
It certainly
A rational of
"why else would he do it?" is riot' sufficient,
The Court r e lied on United St a tes v. Heng Awrak
Roman
15
'
where the defendants had possessed the heroin they
were attempting to sell, although federa l agents h ad,
with the help of a n informe r/go-between , sUbstituted soap
powder.
The issue rai sed
b~
defendants was the defense
of impossibility to the charge of attempted possession
with intent to distribute.
Since th e agents had the heroin ,
and since l e ngthy ne got i at i ons for the sale of the he r o in
were conducted with the ag'er:ts , a' 's ubst an ti a l step in the
attempt had been taken'.
The Manduj ano Court also relied on United States v .
Noreikis whe r e t h e defendants were- convicted of an attempt
to manufacture a controlled substance.
But there the
defendants had take n the st~ of obtaining al l the in gre dients n ec e ssary to make the drug.
started making it, t h e charge would
Had they actua lly
ha.~
have ~ to
be manufacturing
the drug rathe r than the attempt to manufacture it.
,
(The
Noreikis decision is made eve n l ess' r e levant to uphold i ng
Mandujano's conviction by rea son of its strong dissent . )
What weare l eft wi th , then , in the Mandujano case are
contacts between a suspi c ious defe ndant and ,an unsavory informer.
The guilty steps a r e neve r clea rly docume nted and
the refore ,th e intent n ever clearly shown.
9
CLEARL':( DEFINING THE ACT:
CONNECTICUT
In defining the "act", Connecticut has adopted the
"substantial step" test. 17
But the Connecticut Statute
has greater precision than any other in the area 'of this
element because it makes an effort to de fine just what sort
of act will cause criminal liability to attach.
Considering
the fact that both the Connecticut and Texas St atutes were
drawn from the Model Penal Code, it is interesting the
Texas Revision Committee did not further elaborate upon
the meaning of the words "he does an act amounting to more
than mere preparation that tends but fails to effect the
cotitmission of the offense inte nded."
Connecticut, on the other hand, has given ' the courts
something to work with when it comes to the difficult
question of the substantial step e lement.
In Connecticut
one is guilty of an attempt (assuming requisi te inten t)
if he:
(2) intentionally does or omits to do anything
which, under the circumstances as he b e li e ves the m
to be, is an act or omission constituting a substantial step in a course of conduct planned to
culminate in his commission of the crime.
(b)
Conduct shall not be held to constitute a sub-
stantial step under subdivision (2) of subsection (a)
unless it is strongly corroborative of the actor's
10
criminal purpose.
Without negating the sUfficiency
of other conduct, the following, if strongly corroborative of the actor's criminal purpose, shall not
be held insufficient as a matte r of law:
(1)
Lying in wait, searcing for or fo ll ow ing the
contemplated victim of the crime;
(2)
enticing or seeking to e ntice the contemp late d
victim of the crime to go to the place contemplated
for its commiss ion;
(3)
reconnoite ring the place contemp l a ted for the
commission of the crime;
(4)
unlawful entry of a structure , v e hi cle or en-
closure
in which i t is conte mplated that the crime
will be committed;
(5)
possession of materials to be e mp loyed in the
commission of the crime, which are spec i ally
designed for such unlawful u se or which can serve
no lawful purpose of the actor under the circums tances;
(6)
possession, collection or fabric at i on of
materials to be employed in the commission of the
crime, at or near the place contemplate d for its
commission, where such possession, collection or
fabrication serves no lawful purpose of the actor
-
unde r the circumstances·;
(7)
soliciting an innocent agent to engage in
conduct constituting an eleme n t of the crime.
18
11
As stated in the text of the Connecticut St at ute,
conduct other than the substantial steps mentioned in the
Statute can also be sufficient to satisfy the "act" e l e men t
and to corroborate the "intent" element of attempt.
Although the named steps are not present in the
new Texas criminal attempt, they can still be us e d as
guides for judges who will have to decide whe n an act has
gone far enough.
The s teps named in the Connecticut
Statute all originate in American case
la,~
and are per-
suasive precedent to flesh out the Texas Statute .
The , drawback of naming certain activities as per se
substantial steps is that the approach may be too rigid.
For example, the Model Penal Code drafters cite a case
19
where the two defendants had followed a truck with the
. intention of stealing it.
At one point they had the easy
opportunity of using violence against the drive r of the
truck, but forbore from doing so.
suspicious and did not stop to eat.
The driver late r became
After 130 miles of
following, the defendants gave up.
Under the M.P.C. and Connecticut approach, the actors
had clearly violated the law by fo llowing the intended
victim and "reconnoitering" the place contemplated for the
commission of the crime"
Under the Texas attempt provision, such acts could
be held to be either continuous preparation
~
more than
12
mere ·preparation.
The trend is to class ify these acts
as going beyond mere preparation because of the obvious
criminal purpose.
Has enough criminal purpose been mani-
fested in every individual case of this typ e ?
The naming
of substantial steps in the statute removes this judgme nt
from the trier of fact.
Such a result could be harsh in
individual cases.
Other situations can be e nvisioned where liability
. would simply ar ise too swi ft ly under the named substantial
steps.
For example, in Smith v. State ,
20
t h e de fendant
was looking over a jury list with one Rowland when Rowland
remarked he knew one of t he jurors and that he would go
see her.
The defendant said, "Tell her there might be a
reward in the future."
The Nississippi Supreme Court held that the act in
question was mere preparation which was followed by Rowland's
refusal to make the offer and was therefore insufficient
to constitute the overt act required by the state statute.
The Court noted that if Rowland had agreed to make the
offer, the case would have presented a different problem.
In this situation
in Connecticut, criminal attempt liability
would probably have been found ·under Subsection (b) (7) :
"Soliciting an innocent agent to engage in conduct constituting an element of the crime.,,2l
Thus the decision of Texas Penal Code Revision
Committee not to place into the Code th e substantial st e ps
13
,
named in the Connecticut
stat~te
may have the long-range
result of softening the effect of the ·s-ection.
The M.P.C. (footnote,!
cas.e demonstrates the possibility that criminal purpose is
not always cle'a x-cut.
"n1e Mississippi jury tampering case
demonstrates that in the situation of c·a sual rema,r ks and
totally ineffectual
0:1;'
meaningless efforts ., liability need
not be found where the statute does not absolutely :l;'equire
it.
The general language of t.he Texas statute makes possible
a similar result.
THE QUESTION OF "'MERE PREPARATION"
The Texas attempt statute's approach tocril'ninal
attempt is more general than t.hat of some revised penal
codes and, as suggested above, this approach may have
themeri t of al1owinc;r the courts more flexibility.
In
,interpreting "an act. amounting to more than mere preparat.ion"
the'cou:r:ts have at their disposal
.o,v er the years.
ill
of the tests developed
In t.he cas·e s, "mere preparation" has been
·associated w.i th the various proximity tests.
The physical proximity test emphasizes time, distance·
.a nd number of necessary acts yet undone.
This test ;s in. d 'into th e d ange):'ous prox i -m:Lty
'
t. es t 22 wh'1.0h ad' corporate
ditiOl'lally examines the gravity of t.he offense attempted
and the ·p robability of success.
The -gravity-probability analysis is useful in conjunction with Texas' "prepa:l;'ation" apP:I;'oach.
Preparation,
14
it is said, is not an attempt, although some 'preparations
may amount to an attempt: 23
If the preparation comes very near to the
accomplishment of the act, the intent to complete
it renders the crime so probable that the act
will be a misdemeanor, although still a locus
poenitentiae, in the need of a further exertion
of the will to complete the crime. 24
Thus, at some point preparation undergoes a transformation and becomes the offense of attempt.
A helpful
sign along the way is if the locus poenitentiae (opportunity
to desist) has been passed.
This point is sometimes
tested by whether the actor has "done all that it is within
his power to do, but has been prevented by intervention
from outside
he has passed beyond any locus poe nitentiae.,,25
Such a test certainly goes well beyond "mere preparation" and has arrived at a stage of final preparation •
-
. That. the actor has done "all that it is wi thin his power to
do" makes his preparation much more than "mere" preparation;
Therefore, so stringent a test is not likely
under Texas Penal Code Sec. 15.01 unless it just happens to
fit the facts in the case at bar.
Another test which could be applied to the Texas
statute is "probable desistance" test.
This approach is
to examine whether the actor had reached a point where it
was unlikely that 'he would have "voluntarily desisted from
his efforts to commit the crime."
The drafters of the
15
Model Penal Code protest that in this test "no inquiry
is made into the personality of the particular offender
before the court.,,26
The drafters maintain that the
"probable desistance" test and other approaches which are
related to the proximity test are all chiefly concerned
with what remains to be done to complete the offense.
The better approach is to examine what the actor has already
done.
THE "ATTEMPTED ATTEMPT"
Future interpretation of the Texas Penal Code,
Sec. 15.01, should avoid the conceptual difficulti e s of
classifying possibly suspicious acts as attempts.
laws in Texas are to be strictly cons t. rue d.
27
Criminal
If a defendant
is charged with acts which are still in the preparatory
stage, the State is in effect alleging an attempted attempt.
The difficulty is strictly construing a statute which can
be applied'to a virtually infinite number of fact situations.
As a result of this reality of the physical world ,. no one
has yet defined with precision "mere preparation."
The
following phrase of the statute, " . • . that tends but
fails to effect the commission of the offense intended" is
helpful.
But this phrase does not separate clearly the
elements of intent from the element in question, the act,
if indeed they' can ever be separated.
states one approach to the separation:
A Pennsylvania case
16
So long as the acts are confined to preparation
only, and can be abandoned before any transgression of the law or of others' rights, they
are within the sphere of intent, and do not
amount to attempts. 28
In People v. Jelke, the defense tested the validity
of a statute which1departing from the cornmon law model,
defined the essence of the crime as the attempt to do a
certain act. 29
The act itself was to attempt to entice or compel
a woman to lead a life of prostitution.
The Court held
that where the statutory definition of the essence of a
crime is the attempt to do a certain act, the crime is
(enticement)
committed regardless of whether or not the act/is performed.
The Court further held that the crime would be committed
even if the attempt was successful and regardl e ss of
whether the objective would be criminal apart from the
attempt.
Taken ·far from its common law roots, this New York
penal offense was extremely vague.
In the penal law
revision effective 1967, the offense was changed to
"promoting prostitution."
Some courts have held that where the essence of the
. . ..,H
pr~nc~~.~
0
fense
f '~s an attempt t h ere can b e no re d
'
uct~on
of that charge to the lesser, hypothetical offense of
attempt to perform that act.
People ·v. Schmidt. 30
This principle ",as. seen in
There, the defendant was charged with
17
attempted resisting arrest and attempted obstructing governmental administration.
The Court thought th e se offenses were
essentially attempts already and believed that th e st a te
was charging an attempted attempt.
For example, resisting
arrest was really attempted escape.
The Court was ther ef o re
faced with an inchoate inchoate offense.
The judge acquitted
the defendant partially on the basis of this log ical absur d ity.
Texas can avoid this result by treating attempt
as a completed or non-inchoate offense, a s will be seen below.,.
The attempt statute in
~] is
consin has resulted in
creating an offense of attempte d attempts.
In Hu eb ne r v.
state,31 the defendant was convicted of attemn ted enticement
of a child under 18 into an automobile for immo ral p urposes.
(The victim had refused to enter the car).
argued that enticement was itself an
~tempt
Th e d ef end a nt
to c omm it an
offense against sexual morality a nd ther efore t h e i nform a tion
against him was invalid because it alleged attem p t e d a tt e mpt.
The Court pointed out that, first, in "d iscon s in
common-law crimes were abolished and the only cr i mes were
those created and defined by the legislature.
Second, no
. constitutional prohibition forbade the legislature f rom
creating ·a n .offense of an attemt;>t to attemp t a crime.
A
statute situated outside the inchoate offenses p o rtion of
the penal code, the Court held, could legitimately cont a in
words of attempt.
The statute in ·question, therefore, was
held not to be an attempt statute, but rather was hel d to
have created a completed crime.
was therefore invalid.
The defense of '1og:tca·l :' a b surdity
18
DEFENSES:
THE COMPLETED OFFENSE
There has been some disagreement about whether a
by evidence
defendant can be convicted/of the completed offense , wh ich
by de finition is "inchoate."
For reasons known on l y to the
Texas Penal Code Revision Committee and the Texas Legis lature, the new Penal Code was passe d with illogical
language which requires that the criminal act t e nd but fail
to effect the commission of the offense 'intended .
31a
The
next paragraph states:
It is no defense to prosecution for criminal
attempt that the offense attemp t ed was a'ctually
committed. 32
This incongruity will apparently present no prob l ems
to the courts because the two paragraphs, when read togethe r,
will result in the holding that the completion of the
. no d e f
l 1a
' b'1 l'1ty. 33
o ff ense 1S
ense to attempt
Nonetheless, many defendants have pre sented this
defense of completion , saying for a court to hold otherwise
was logically inconsistent.
If the offense was completed ,
they say, why doesn't the State charge the more ser i o us
crime?
In In re M. 34 it was observed that "the common l aw
principle that a person who achieves a comp l eted crime may
not be convicted of attempt" no longer applies af t er the
passage of California Penal Code Se c. 663.
a juvenile threw a rock at police officers .
In that case,
The rock
19
landed eight feet in front of the officers and struck the
fender of their car.
The boy was initially cha rge d . , i th
assault with a deadly weapon and disturbing t h e p e a c e .
The charge was later amended, at the 'sugge s t ion of the
juvenile court, to attempte d criminal assault.
The California Court of Appeal state d that at c ommon
law there was no crime of attempte d assault be cause ass ault
was a type of attempt and an attempted atte mpt was a l o gical
impossibility.
The Court went on to hold for the St a t e ,
citing Perkins, who reasone d:
Where an attempt to commit a batte r y with the
present ability ' i s the only basis on wh ich
criminal assault ma y be established, a n "atte mpt
to assault" would me an in sub s tance a n a tte mpt
to commit a battery without present ab ility .3 5
The problem in the case for the State was that to
commit the offense of criminal assault
36
one had to h a ve
the present ability to commit battery .
, The defendant had no present ability to commit batt e r y .
'His conviction of attempted criminal assault was n o n e the l e ss
affirmed.
In re M.represents a situati o n where t h e at tempt
offense does not me sh with the principal crime said to be
attempted because the defe ndant's actions ' did not c o n t ain
an element necessary for the principal offense .
This prob l e m should not occur in Te x as .
Se cti on 15. 0 1
fits perfectly with Sees. 22.01 and 22.02, primarily b e cause
20
those statutes contain no "pres'entability" element.
The
Penal Codets simplicity thus avoids the California problem
where it was clear "that' some 'crime 'had been attemp t,-, d
and even completed, but the statutes were inadequate in
their coverage of the fact situation •. (see footnote 51).
In Boyles v. St'ate,37 it was held that a criminal
actor should not escape punishment merely because his
attempt was successful.
The elements of att,empt were said
to 'be an unequivocal 'a ct accompanied by intent.
The Court
cited the famous Wisconsin case of the attempted murder by
unloaded pistol, State v. Damms, where analogously it was
held that the actor should not escape attempt liability
merely because of fortuitous circumstances and reas ons unknown to the actor.
In the Boyles case, the armed robbery was never
completed because of intervening circumstances.
But the
Court points out that an attempt itself may be complete
I
once the elements have occurred.
Any other occurrences
are superfluous.
In Willis v. State,
38
the defendant argued that while
a battery may have occurred, there was not sufficient
intent for the conviction of attempted aggravated battery
where intention to cause great bqdily harm was required.
, In that case, three men beat and kicked an elderly man.
Their attack was interrupted by the 'shouts of bystanders.
The circumstances indicated that the defendants did indeed
21
have. the requisite intent for
Ge~;~§Da~
· ~
! cncn
battery.
The
defense of completed battery was rejected.
In this case, the attempt statute had the e f f e ct of
increasing the seriousness of the charge. The evide ntiary
an
question was l~hether there was/instrumentality of the
battery whicn was capable of producing the "high probability
of death" or "serious permanent disfigurement.,,39
Also,
were other circumstanc~s present, such as animosity which
would carry the attack on the stranger (complaining witness)
to the point of aggravation?
The dissent felt there was not.
Surely, the finding of such intent was purely speculative
and the actual act of aggravated battery dubious.
But with
the tool of the attempt statute the State was able to
obscure the original precision of the aggravated battery
statute.
The Wisconsin Supreme Court was loathe to
overturn the convictions in this case involving gratuitous
violence to a sixty-nine-year-old victim.
But the dissent
was bolder. 40
In Texas, the attempt statute should not be used to
obscure the acts in evidence by the tool of speculative
future intent.
Facts such as those in the Hi llis case
should not be permitted to give rise to an attempt prosecution.
That case was a battery and not an attempt at anything further.
The type of reasoning employed by the Wisconsin Court
has led some commentators to argue ·th a t attempt is not
22
really an inchoate crime.
Having been define d statutorily ,
the offense of criminal attempt is complete at a cert a in
point in time.
Therefore, it has been argued, the term
"relational" should be used to describe the crime rathe r
than the words "inchoate" or "incomplete."
With thi s n e w
term the relational aspect, the degree of proximity to
the completed crime of attempt/would be emph a s ized.
Another possible descriptive term is "preliminary.,,41
Th.e Texas Penal Code's approach to permit convi ction
for a·ttempt when evidence e xists that the offe ns e ,,,as
completed supports the view that the crime of attempt must
no longer be defined as "inchoate."
Atte mpt is r e ally a
lesser include d o ·ff ense, and not a separate offe ns e .
RENUNCIATION
Section 15.04, Tex. P.C., is a provision '''hich
validates the renunciation defense to criminal a ttempt.
At common law, the defense was known as abandonme nt o r
withdrawal.
The section requires that the renunciation of
the criminal objective must be voluntary and complete j that
actually avoided the criminal result originally sought.
If the renunciation or abandonment is insufficient to
prevent the crime, the actor must take "further affirma t i v e
action" beyond renunciation to prevent the commissio n of
the offense.
23
The qualification of "further affirmative action"
indicates that if the offense ·is completed, the Sec. 15.04
renunciation defe ns e will probably b e come unavailable to
the actor.
Connecticut provides a similar defense:
• it shall Je a defense that he abandoned
his effort to commit the crime or otherwise
prevented its commission, under circumstances
manifesting a complete and voluntary renunciation
of his criminal purpose. 42
The 1971 commission comment to the Connecticut Penal
Code states that the defendant "need not actually thwart
the success of the attempt by others if he abandoned the
criminal conduct."
The assertion is unsupported by the
language of the Connecticut statute which states that the
actor must abandon his effort to commit the crime "or
otherwise prevent its commission."
The "or" appears not to be disjunctive.
An actor's
prevention of the crime would strongly corroborate an
assertion that he had abandoned his criminal intent, purpose
and effort.
On the other hand'; an abandonment of criminal
purpose is of no use to society if the crime is committed.
The fact that it was committed gives rise to an inference
that the defendant never r e nounced his criminal purpose or
his position as an accomplice.
Also, the word
"othen~ise"
implies that the first method of renunciation, abandoning
criminal purpose, will have the effect of preventing the
commission.
However, without tangible acts of penance,
24
the actor is left with the alternative of somehow preventing
the commission if abandonment was ins ufficient to accomplish
this result.
Texas' Sec. 15.04 has clarified this area by
stating exactly what is required for renun c iation, since
the policy objective of forcing the actor to prevent the
offense is clearly included in that section.
,
One possible problem area with regard to r e nun c iation
is the situation of the distraught actor who renounces his
criminal purpose and makes criminal success impossibl e ,
but later forgets he has stymied himself.
State v. Damms,
43
For e xample, in
(defendant pulled trigge r of gun at wife's
head) the defendant may have removed the clip from his
pistol.
But when he later lost control of his emotions, h e
may have forgotten he had remove d it.
Had his r e nunciation
simply not been final?
Il4POSSIBILITY
Is impossibility a defense under Sec. 15 of the
Penal Code?
As pointed out in the "practice conunentary " to
Sec. 15, the question is unresolved by the language of the
statute itself.
Efforts to specifically exclude the defense
of impossibility were unsuccessful.
The Connecticut statute
seems to prohibit this defense by stating a crime is committed
if the defendant "engages' in conduct which would constitu t e
25
the crime if attendant circumstances we r e as he be li eves
them to be; . •
" 44
Probably criminal liability will be found i n Texas
despite the fact that abstract l ega l or factual impossibility is involved in the cas e .
Such circumstances in
Texas have generally been regarded as intervening factors
which negate neither the act nor the intent .
For examp l e ,
impotence was held to be no defense to assa ult with intent
to rape. 45
On the other hand, if a defendant knew of the
impotence his defe ns e might be more successful.
There is no clear distinction between legal and
factual impossibility.46
The general tre nd has been t o r es trict or eliminate
altogether the impossibility defense.
47
Texas courts, whe n faced with a classic impossibility
situation, such as one including "hero in" which is talcum
powde·r or shots fired into an empty bed , should use the
approach suggested by the Model Penal Code:
(1)
Has criminal purpose been clearl y demonstrated?
(2)
Has the actor gone as far as he could in im-
plementing that purpose?
If so, the actor' s dangerousness
48
is clearly manife ste d and he should be he ld liable.
This approach is consistent with the v i ew, seen
elsewhere in commentarie s on attempt situations, tha t an
intervening force which prevents the c ommiss i on of the crime
o.X'
is not available defense.
-I
26
CONCLUSION:
THE POLICY OF ATTEMPT LIABILITY
The purpose behind criminal liability for attempt
is seen in judging the quality of the act which will constitute a bona fide element of the offense.
For example ,
the M.P.C. drafters criticize the latitude give n a defe ndant
under the dangerous proximity test because, they say, that
test is based on the assumption that the purpose of punishing
attempts is to deter undesirable b e havior and that until
the actor's conduct becomes sufficiently dangerous, there
is not adequate reason for deterring it.
On the contrary,
according to the drafters, the primary purpose of punishing
attempts is rather to neutralize dangerous individual s .
It
is the dangerousness of the actor's personality upon which
the law should focus. 49
This approach suggests a great deal of latitude for
law enforcement.
For example, one can think of certain in-
dividuals who are potentially dangerous to others.
such person may
rnan~fest
One
a sick fascination with guns.
Another may qualify as an outright sociopath.
A third
person may be viewed by police as dangerous while in reality
he is not.
What is the conduct that will cause each of
these types to break the law under criminal attempt statutes?
In State: V, ' Wo'o d, Sathe 'defendant became angry,.ith
his wife and threatened to get th e razor and kill her and
himself,
He started f o r a drawer where the razor was kept,
but was dissuaded by his mothe r from going furt h er: _
27
.Here the defendant manifested an unstab le personality.
Should he be subject to preventive arrest?
true intent and how long did it last?
What was his
Is the defe ns e of
renunciation barred to this defendant because his own
mother was an "intervening force?"
Did the de fendant's
excited emotional state :cause his actions to go beyond mere
preparation and become attempt?
The reversal of Wood's conviction turned on the fact
that he was never actuallY armed with the weapon.
The Model
Penal Code drafters would consider this fact irrelevant
since the actor's dangerousness had already been shown.
The M.P.-C.'s strong emphasis on the actor's dangersh.~M
ousness eamnot be taken too far.
The State also has the
policy to preserve its resources and not to enforce a rule
which transforms a family squabble into a criminal atte mpt.
The main pOlicy behind criminal attempt is to stop
dangerous people when they have committed an act which increasingly is regarded as a completed crime.
Once they
have committed such an act, it is no longer a gre at problem
to establish their mens rea.
At that point, the criminal
law can classify ·them not only as "dangerous" but as
Ucrirninal" .
FOOTNOTES
1)
482 S.W.2d 155 (1971).
2)
Art. 1162, V.A.P.C.
3)
482 S.W.2d at 162-3.
4)
W. LaFave, Handbook on Criminal Law (1972), P. 202.
5)
Id., at 202 footnote 47.
Sa)
WIS. STAT. ANN., Sec . 939,32.
6)
Tex. P.C., Sec. 15.01 (a).
7)
Hall v. State , 418 S.W.2d 810
8)
Flores v. State, 331 S.W.2d 219
9)
Washington v. State, 471 S.W.2d 409
v.
State, 246
(1967).
S.W.2d 891
(1960).
(1971).
10)
Henry
(1 952) .
11)
Art. 1160, V.A.P.C.
12)
100 N.W.2d 592 (Wis. 1960).
13)
Id., at 599.
141
15 Crim. L. Rptr. 2515
15)
356 F. Supp. 434
16)
481 F.2d 1177 (7th Cir. 1973).
17)
CONN. GEN. STAT. ANN., Sec. 53a-49 (b)
18)
Id.
19)
M.P.C., Tent. Draft #10, p. 49.
201
279 So.2d 652
21)
CONN. GEN. STAT. ANN. ,supra.
22)
M.P.C., supra, p. 40.
(1974).
(S.D.N.Y. 1 9 73).
(Miss. 19731.
28
(1971).
29
23)
'Commonwealth v. Peaslee, 59 N.E. 55, 56
24)
Id., at 56.
25)
U.S. v. Coplon, 185 F.2d 629
26)
M.P.C., supra, p. 42.
27)
V.A.C.C.P.
28)
Commonwealth v. Eagan, 42 A 374, 377
29)
152 N.Y.S.2d 479
(N.Y. 19561.
30)
352 N.Y.S.2d 399
(Crim. Ct. 1974).
3l)
147 N.W.2d 646
31a)
(Mass. 1901).
(2d Cir. 1950).
(Pa. 1899).
(Wis. 1967).
Tex. P.C., Sec. 15.01 (a) •
32)
Id., Sec. 1501 (b) •
33)
Assurances of Professor Charles Bubany.
34)
105 Cal. Rptr.
35)
47 Minn. L. Rev.
36)
Cal. P.C., Sec. 240.
37)
175 N.W.2d 277 (Wis. 1970).
38)
208 N.W.2d 403
39)
Id., at 409.
40)
Id., at 409.
41)
D. Rotenberg, Withdrawal as a Defense to Relational
Crimes,1962, WIS. L. REV. 596.
42)
CONN. GEN. STAT. ANN., supra.
43)
100 N.W.2d 592
44)
CONN. GEN. STAT. ANN., supra.
45)
Willis v. State, 473 S.W.2d 200
809
(Cal. App. 1972).
71, 8l.
(Wis. 1973).
(Wis. 1960).
(1971).
30
46)
Bee
47)
Id. , at 382.
48)
M.P.C. , ·suEra, p.
49)
Id. , at 4l.
50)
103 N.W. 25 (S. D. 1905) •
51)
37 A:L.R.3d 375, 381 (1971) .
Note on In re M••
3l.
california penal Cod e, sec. 240,
is as follows.
ASSAULT DEFINED.
An assault is an unlawful attempt,
coupled with a present ability,to commit a violent
cl&~
injury on the person of another.
The summary of In re M. presented in this paper should
have been placed in the section on archaic a ssault
statutes (it was enacted in 1872).
The statute has
been used to charge such offenses as "assault to
commit murder".
The "present ability" element seems
to be related to the more modern "subs tantial step"
element of attempt.
Many cases in California have differ ed wi th the
Court of In re M. and have held that to constitute
assault there must be physical means to acco mpl i s h
the injury, e.g., people v Pena, 101 cal. Rptr. 804
(1972).