McCravy v. State
642 S.W.2d 450, 1982 Tex. Crim. App. LEXIS 1170 (1982)
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Rule of Law:
An indictment for criminal attempt must allege facts showing the accused performed an act that amounts to more than mere preparation and which tends, but fails, to effect the commission of the intended offense. Simply listing preparatory acts is insufficient if those acts do not, on their face, tend to bring about the intended crime.
Facts:
- Martin H. Ayers owned a building.
- On February 15, 1979, McCravy turned off the electrical power to the building.
- McCravy then climbed to the roof of the building.
- The indictment alleged that McCravy performed these acts with the specific intent to commit burglary.
Procedural Posture:
- McCravy was charged by indictment for the offense of attempted burglary.
- McCravy pleaded guilty before the trial court.
- The trial court found McCravy guilty and assessed his punishment at five years confinement.
- McCravy appealed his conviction to the Texas Court of Criminal Appeals, arguing for the first time that the indictment was fundamentally defective.
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Issue:
Does an indictment for attempted burglary sufficiently allege an offense when it describes the defendant's acts as "turning off electrical power" and "climbing to the roof," without further alleging that these acts amounted to more than mere preparation that tended to effect the commission of the burglary?
Opinions:
Majority - Clinton, J.
No. An indictment for criminal attempt is fundamentally defective if it fails to allege every element of the offense. The Texas penal code defines attempt as requiring an act that amounts to "more than mere preparation that tends but fails to effect the commission of the offense intended." This is a required element of the offense. The acts alleged in this indictment—turning off power and climbing to the roof—do not on their face tend to effect an "entry" or "intrusion," which is the essence of burglary. Therefore, the indictment alleges only preparatory acts, which by statute is not a criminal offense, rendering the indictment void.
Dissenting - Douglas, J.
Yes. The indictment sufficiently alleges the offense of attempted burglary. The majority incorrectly characterizes the required act as a "required result"; the crime of attempt has no required result, as a result would constitute the completed offense. By requiring the alleged act to be an actual intrusion, the majority effectively repeals the crime of attempted burglary, since any intrusion would complete the substantive offense. The question of whether the acts of turning off power and climbing on the roof amount to more than mere preparation is a factual determination for a jury, not a legal question to be decided on the face of the indictment.
Concurring-in-part-and-dissenting-in-part - Clinton, J.
No. The court's original holding—that the statutory phrase 'amounting to more than mere preparation that tends but fails to effect the commission of the offense intended' is an essential element of attempt that must be pleaded—is correct and should be maintained. I concur with the reasoning that this element must be alleged. However, I dissent from any subsequent determination that the specific acts alleged in this indictment—turning off power and climbing a roof—are sufficient to satisfy that element. For the reasons stated in the original majority opinion, these acts do not meet the criteria, and the indictment should be dismissed.
Analysis:
This decision significantly clarifies the pleading requirements for the inchoate crime of attempt in Texas. By holding that the "more than mere preparation" standard is a constituent element of the offense that must be alleged in the indictment, the court increases the State's burden at the charging stage. This prevents prosecutors from charging individuals with attempt for conduct that is merely preparatory. The ruling forces indictments to be more specific, either by tracking the statutory language of the attempt statute or by alleging specific conduct that is clearly proximate to the commission of the target offense, thus protecting defendants from vague or insufficient accusations.
