McCravy v. State

OPINION ON STATE’S MOTION FOR REHEARING

W.G. DAVIS, Judge.

On original submission, this Court reversed appellant’s conviction, upon a guilty plea, for the offense of attempted burglary, on the basis that the indictment in issue was fundamentally defective. For the following reasons we grant the State’s Motion *459 for Rehearing, reverse our earlier opinion, and now affirm appellant’s conviction.

The indictment under which appellant was convicted recited, in pertinent part, that appellant:

“did ... attempt to enter a building owned by Martin H. Ayers by turning off electrical power to said building and climbing to the roof of said building to gain access, having at the time the specific intent to commit the offense of burglary-”

V.T.C.A. Penal Code, Sec. 30.02, defines the offense of burglary and reads in part:

“(a) A person commits an offense if, without the effective consent of the owner, he:

“(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft;

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“(b) For the purposes of this section, ‘enter’ means to intrude:

“(1) any part of the body; or

“(2) any physical object connected with the body.”

V.T.C.A. Penal Code, See. 15.01, defines the offense of criminal attempt, and provides in part as follows:

“(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.”

Under Sec. 15.01, supra, among the elements of the offense of attempted burglary is that the defendant does an act amounting to more than mere preparation that tends but fails to effect the commission of the burglary intended. But although this is a required element of the offense, the indictment need not allege the phrase “amounting to more than mere preparation that tends but fails to effect the commission of the offense intended”, if it alleges facts which adequately show that the act is of that character. Morrison v. State, 625 S.W.2d 729 (Tex.Cr.App.1982); Colman v. State, 542 S.W.2d 144 (Tex.Cr.App.1976); Art. 21.17, V.A.C.C.P. An indictment which alleges neither that element nor facts which show that element, on the other hand, is insufficient to allege criminal attempt. Hobbs v. State, 548 S.W.2d 884 (Tex.Cr.App.1977) Ex Parte Carter, 618 S.W.2d 331 (Tex.Cr.App.1981). 1

As stated by Judge Clinton in the original opinion, the controlling issue in the case at bar is whether the words “turning off electrical power” and “climbing to the roof” are sufficient to allege that the acts done by appellant were ones which “amount[ed] to more than mere preparation that tend[ed] but fail[ed] to effect the commission of the [burglary] intended.” Sec. 15.01, supra. In holding these allegations insufficient, the original opinion stated:

“Though clearly an ‘act,’ ‘climbing to the roof’ equally clearly is not an act which tends to effect an ‘intrusion’ or ‘entry’ to the building. The allegation of ‘turning off electrical power’ informs neither that appellant did, or did not, do an act which tended to intrude any part of appellant’s body or any physical object connected with it. As such, the indictment fails to allege that appellant did an act which amounted to more than mere preparation which tended but failed to effect commission of an intended burglary, [citation omitted] We hold that the indictment returned against appellant alleges only an attempt to commit a preparatory offense which, by statute, is no offense at all.”

It is evident from the quoted language, viz., “which tended to intrude”, that our earlier opinion requires an allegation of acts *460 which amount to the performance of a “last proximate act”; it would therefore be necessary, to have a fundamentally sufficient attempt indictment, that the accused be caught during the performance of the last possible event prior to the completion of the intended offense. 2 As a practical matter, the question presented is at what point we will draw the imaginary line which separates the allegation of an act that amounts to no more than “mere preparation” from the allegation of an act which “tends ... to effect the commission of the offense.... ” We do not believe that the intent of Sec. 15.01, supra, was to draw this line at the “last proximate act”. There is necessarily a “gray area” between an allegation of a situation which is clearly no more than mere preparation, and an allegation of a situation in which the accused is discovered clearly engaged in the last act prior to a successful entry. It is this “gray area” into which the present case falls.

In Cody v. State, 605 S.W.2d 271 (Tex.Cr. App.1980), an appeal from a conviction for the offense of attempted arson, the appellant argued that the trial court erred in overruling his motion to quash the information under which he was convicted. The information stated in pertinent part, that appellant did:

“knowingly and intentionally attempt to start a fire ... said attempt amounting to more than mere preparation that tended but failed to effect the commission of the offense intended, in that the said Robert Lee Cody poured gasoline on the floor of said building.”

The appellant maintained that the act of pouring gasoline on a floor is in and of itself, only an act of preparation. In overruling the appellant’s ground of error the Court made the following statement which we find applicable to the case at bar:

“In the instant case, it is alleged that appellant attempted to start a fire by pouring gasoline onto the floor of a building. The information does not merely allege appellant’s acts of procurement, possession and transportation of the gasoline to the school; rather, it alleged an overt act of making use of the gasoline to ready the scene for a fire. We find that the information alleges an act amounting to more than mere preparation that tended but failed to effect the commission of the offense intended” 605 S.W.2d at 275 . 3

Although in the case at bar it is a very close question, and this is certainly not the form of indictment that we would recommend for use in the future, upon careful reconsideration we find that “turning off electrical power” and “climbing to the roof” are sufficient allegations of fact to lead to the legal conclusion that appellant committed acts amounting to more than mere preparation that tended but failed to effect the commission of the intended burglary. 4 Cf. Ex Parte Carter, 618 S.W.2d 331 (Tex.Cr.App.1981); Hobbs v. State, 548 S.W.2d 884 (Tex.Cr.App.1977).

*461 The indictment was therefore sufficient to give notice to the defendant and to invoke the jurisdiction of the trial court. 5

In his only additional ground of error, appellant alleges that the trial court failed to properly admonish him before accepting his guilty plea, as required by Art. 26.13, V.A.C.C.P.

Specifically, appellant argues that the court failed to comply with the portion of Art. 26.13, supra, which provides that:

“(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:

“(2) the fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court. Provided that the court shall inquire as to the existence of any plea bargaining agreements between the state and the defendant and, in the event that such agreement exists, the court shall inform the defendant whether it will follow or reject such agreement in open court and before any finding on the plea....” (emphasis added)

The relevant portion of testimony was as follows:

“THE COURT: Do you intend to enter a plea of guilty or not guilty to this offense?

“THE DEFENDANT: Guilty.

“THE COURT: Attempted Burglary of a Building, I told you, is a third degree felony, punishable by not less than two nor more than 10 years in the State penitentiary. In addition, a fine of up to $5,000 may be assessed. Do you understand that range of punishment?

“THE DEFENDANT: Yes, sir.

“THE COURT: Mr. Wilson, from your discussion with Mr. McCravy have you formed an opinion as to whether or not he does understand what he is accused of and is competent to assist you and stand trial?

“MR. WILSON [DEFENSE COUNSEL]: Yes, Your Honor. He is both.

“THE COURT: In your opinion.

“MR. WILSON: (Nod affirmative.)

“THE COURT: Before you enter this plea you still have certain rights. You have a right to have this case tried by a jury. You have a right to have all of the witnesses who are, going to testify against you do so in this courtroom in your presence and to question them or Cross Examine them. You have a right to remain silent and say absolutely nothing about this case. Do you understand those rights?

“THE DEFENDANT: Yes, sir.

“THE COURT: Do you give up your right to a jury trial and to have the witnesses come down here or do you want a jury trial?

“THE DEFENDANT: I don’t have any witnesses.

“THE COURT: You don’t want the witnesses to come down here if there are any?

“(Whereupon after a brief discussion between the Defendant and Mr. Wilson the following proceedings were had:)

“THE COURT: Stop. Hold it. Do you want a jury trial or not?

“THE DEFENDANT: No, sir.

“THE COURT: Do you want all the witnesses to have to come down here that are going to testify or not?

“THE DEFENDANT: No, sir.

“THE COURT: Do you give up your right to remain silent then and wish to make a confession of your guilt this morning?

“THE DEFENDANT: Yes, sir.

*462 “THE COURT: To the charge of attempted burglary alleged to have been committed on February the 15th of this year do you plead guilty or not guilty?

“THE DEFENDANT: Guilty.

“THE COURT: Freely and voluntarily?

“THE DEFENDANT: Yes, sir.

“THE COURT: Because you are guilty and for no other reason?

“THE DEFENDANT: Yes, sir.

“THE COURT: I assume this is a negotiated plea.

“MR. WILSON: No, sir. It is not.

“THE COURT: It is not a negotiated plea. You understand if I find you guilty here this morning after hearing your testimony I can impose a sentence anywhere in that range I explained to you. Do you understand that?

“THE DEFENDANT: Yes, sir.

“THE COURT: Do you still want to plead guilty?

“THE DEFENDANT: Yes, sir.”

Art. 26.13, supra, requires that prior to accepting a plea of guilty, the court shall, inter alia, admonish the defendant of the non-binding effect of the prosecutor’s recommendation as to punishment, if there exists such a recommendation. In the present case, the record reflects that no such recommendation by the prosecutor existed. In a situation where no recommendation by the prosecution exists, the provisions of Art. 26.13(a)(2), supra, do not apply, and there is no requirement that the trial court admonish the defendant as to the non-binding character of such a recommendation. Jamail v. State, 574 S.W.2d 137 (Tex.Cr.App.1978); Whitten v. State, 587 S.W.2d 156 (Tex.Cr.App.1979); Kidd v. State, 563 S.W.2d 939 (Tex.Cr.App.1978); Bouie v. State, 565 S.W.2d 543 (Tex.Cr.App.1978) (concurring opinion); Campbell v. State, 577 S.W.2d 493 (Tex.Cr.App.1979). Appellant’s ground of error is overruled.

The State’s Motion for Rehearing is granted and the judgment is now affirmed.

CLINTON, J., dissents.

TEAGUE, J., concurs in the result.

. While it is acceptable to allege the offense by either of these two methods, it is the recommended practice to simply track the express language of the attempt statute, i.e., “and said attempt by the accused amounted to more than mere preparation that tended but failed to ef-feet the commission of the offense intended”. Sec. 15.01, supra. This should eliminate the inherent problem of alleging facts which are sufficient to lead to the legal conclusion of “more than mere preparation_”

.For a further example of the original opinion’s requirement of an allegation of the “last proximate act” prior to successful completion of the intended offense, see the treatment of Green v. State, 533 S.W.2d 769 (Tex.Cr.App.1976), in footnote 19. While we adhere to Judge Clinton’s partial overruling of Green (as will be treated later in this opinion), we not only find it possible that an accused could be convicted of attempted burglary on a showing that he reached toward a door with intent to commit burglary, we find it equally possible that an accused could be convicted on a showing of much less, as long as the alleged acts “tended to effect the commission of a burglary”, rather than requiring the acts to “tend to intrude?’, as stated by our original opinion.

. Due to the fact that the information in Cody, supra, contained language which tracked the provisions of Penal Code, Sec. 15.01, the information properly alleged the offense of criminal attempt without an analysis of the sufficiency of the factual allegations.

. This holding is consistent with the four elements necessary for a sufficient allegation of criminal attempt under Sec. 15.01, supra: (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. Torres v. State, 618 S.W.2d 549 (Tex.Cr.App.1981); Green v. State, 533 S.W.2d 769 (Tex.Cr.App.1976) (dissenting opinion); 1 Branch’s Ann.P.C., 3rd ed., p. 635.

. To the extent that our previous opinion partially overruled the holding in Green v. State, 533 S.W.2d 769 (Tex.Cr.App.1976), we continue to adhere. An attempt indictment which makes neither an allegation of “more than mere preparation which tended but failed to effect the commission of the offense intended”, nor an allegation of facts which would lead to such a legal conclusion, is fundamentally defective for failure to allege a crime. The indictment in Green , which alleged only the conclu-sory “attempt to enter”, was fundamentally defective as it did not allege the provisions of Sec. 15.01, supra.