Comment

Act Going beyond “Mere Preparation.” The requirement that the act “amount[] to more than mere preparation” restates traditional attempt law. As early as 1857, the Texas Supreme Court observed that “[a]n attempt to commit a crime is defined to be an endeavor to accomplish it, carried beyond mere preparation, but falling short of the ultimate design, in any part of it.” Lovett v. State, 19 Tex. 174 (Tex. 1857) (citation omitted). The present statutory requirement of proof of an act “amounting to more than mere preparation,” while imprecise, has become acceptable through years of use in Texas and elsewhere. The Committee, therefore, saw no serious problems posed by putting this requirement in the jury instructions.

Act Tending to Effect Commission of Intended Offense. Some members of the Committee found the additional requirement that “the act tend[] . . . to effect the commission of the offense intended” more problematic.

This phrase is less common—but not unknown—to criminal law generally. New York used it in 1881 and retained it in that state’s 1965 revision of its penal law. McKinney’s New York Penal Law § 110.00 (“A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.”). Louisiana law requires “an act . . . tending directly toward the accomplishing of [the criminal] object. . . .” La. Rev. Stat. Ann. § 14:27(A). Nevada provides: “An act done with the intent to commit a crime, and tending but failing to accomplish it, is an attempt to commit that crime.” Nev. Rev. Stat. § 193.330(1). New Mexico specifies: “Attempt to commit a felony consists of an overt act in furtherance of and with intent to commit a felony and tending but failing to effect its commission.” N.M. Stat. Ann. § 30-28-1.

Since its enactment in 1956, the Uniform Code of Military Justice has defined an attempt as requiring an act “amounting to more than mere preparation and tending . . . to effect its commission.” Uniform Code of Military Justice art. 80(a); 10 U.S.C. § 880. Similar or identical language also appears in a number of state law codes of military justice. The Texas Code of Military Justice, chapter 432 of the Texas Government Code, has, since its enactment in 1963, used identical language. Tex. Gov’t Code § 432.125.

Case law from those jurisdictions with similar language contains little to give precise meaning to the phrase. An early judicial discussion of the New York statutory language (requiring an act “tending . . . to effect [the crime’s] commission”) shows the difficulty New York courts have had in finding substance in the statutory language:

People v. Rizzo, 158 N.E. 888, 889–90 (N.Y. 1927).

Some members of the Committee were uncomfortable with instructions requiring the jury to find—without elaboration—that the state proved an act that tends to effect the commission of the intended offense. At least one member entertained doubt that such an approach could withstand proper application of the federal and state constitutional prohibitions against vague criteria for criminal liability.

The Committee majority, however, concluded it could not recommend instructions that elaborated on the statutory requirements. Texas case law contains no discussions appropriate for explaining the critical statutory terms to juries. No other source for elaboration on the meaning of the statutory terms appeared available. In any case, the majority believed, instructional elaboration on the statutory terminology—whatever the source of that elaboration—is quite likely to constitute impermissible comment on the evidence.

Whether this requirement creates a defense of factual impossibility or even a requirement of proof that an attempt could succeed is considered in CPJC 15.4. The possibility that it could be so read, however, increased the concern of some members of the Committee that the statutory language without elaboration is unacceptably imprecise.

Act That Fails to Effect Commission of Intended Offense. Tex. Penal Code § 15.01(a) requires the act be one that (among other things) “fails to effect commission of [the intended offense].” Section 15.01(c) nullifies this by providing: “It is no defense to prosecution for criminal attempt that the offense attempted was actually committed.” The problem for the Committee was how—if at all—this should be reflected in jury instructions.

The law is clear that if the state’s evidence shows an attempt, no legal significance flows from the fact that the evidence also shows the attempt was successful. Current practice seems generally to include in the instructions all of the section 15.01 language. Instructions could, of course, simply ignore both section 15.01(a)’s “fails to effect” language and section 15.01(c)’s “no defense” language. The Committee was, however, uncomfortable suggesting instructions that totally omitted this much statutory language.

The Committee decided to recommend instructions based on the following positions: (1) the relevant statutes unit should include the section 15.01(a) “fails to effect” language because it is in the statutory definition of the offense; (2) the relevant statutes unit should include section 15.01(c)’s “no defense” law if—but only if—the facts could reasonably be construed by the jury as showing the intended crime was successfully completed; and (3) the application of law to facts unit should generally include as part of the second element a requirement that the state prove the act tended but failed to effect commission of the intended offense, but the “but failed” language should be included only if the facts could not be construed as showing the intended crime was successfully completed.

The Committee’s rationale was, first, that the statutory language should generally be included because it is statutory. Second, juries should not be confronted (in the relevant statutes unit of the instruction) with the contradictory statutory provisions unless the facts might be construed as invoking the matter. Third, in the application of law to facts unit, the statutory requirement should be included when it could not affect the jury’s analysis—when the facts could not be construed as showing a completed intended offense. When the facts could be so construed, the only practical solution is to take out the language referring to the section 15.01(a) requirement negated by section 15.01(c).