Comment

The Committee considered whether Texas criminal law, in an attempt prosecution, attaches any legal significance to evidence that the defendant, by doing what the defendant has set out to do, could not commit the intended offense. It also considered whether and how juries should be instructed on this law addressing the significance of evidence of such “impossibility” of success.

Traditional criminal law is that legal impossibility but not factual impossibility precludes conviction for attempt. See Rollin M. Perkins & Ronald N. Boyce, Criminal Law 932 (3d ed. 1982). Courts have experienced considerable difficulty with what might appear to be the rather simple distinction between the two kinds of impossibility. See Wayne R. LaFave, Substantive Criminal Law § 11.5 (2d ed. 2003).

There are very unusual situations in which many courts and commentators agree there should be no liability for attempt. Discussions using impossibility terminology sometimes refer to these cases as involving “pure legal impossibility” or “true legal impossibility.” United States v. Farner, 251 F.3d 510, 512 n.2 (5th Cir. 2001). These involve situations in which no crime would be committed even if both (1) the defendant did everything he intended to do and (2) all the factual circumstances were as the defendant believed them to be.

The Model Penal Code defines attempt as committed when—with the required culpable mental state—a defendant “does . . . anything that, under the circumstances as he believes them to be, is . . . a substantial step in a course of conduct planned to culminate in [the] commission of the crime.” Model Penal Code § 5.01(1)(c) (Official Edition 1985). This would permit conviction in all impossibility cases except those involving pure legal impossibility.

Texas Case Law. The major Texas case law consists of a plurality portion (Part II) of the deciding opinion in Lawhorn v. State, 898 S.W.2d 886 (Tex. Crim. App. 2005) (a burglary case) and the unanimous opinion of the court in Chen v. State, 42 S.W.3d 926 (Tex. Crim. App. 2001) (an attempt case).

The Lawhorn plurality discussion suggested legal impossibility might in some situations prevent conviction for attempt and perhaps some other Texas crimes such as burglary. Chen held the facts showed only factual impossibility, defined as “ a situation in which the actor’s objective was forbidden by the criminal law, although the actor was prevented from reaching that objective due to circumstances unknown to him. ” Chen, 42 S.W.3d at 926–30 (quoting 21 Am. Jur. 2d Criminal Law § 178). This demonstration of factual impossibility, Chen held, did not render the evidence insufficient to support a conviction for attempt.

Chen also—ignoring the plurality nature of the Lawhorn discussion—asserted: “[W]e stated [in Lawhorn] that legal impossibility was a valid defense, while factual impossibility was not.” Chen, 42 S.W.3d at 929. Chen added:

Chen, 42 S.W.3d at 929. As to the accuracy of the plurality statement in Lawhorn that legal impossibility is a valid defense, Chen commented that the case before it involved only factual impossibility and thus “[w]e find it unnecessary to dispose of the legal impossibility doctrine at this time.” Chen, 42 S.W.3d at 929.

Chen appeared to hold that factual impossibility is never a defense and thus never renders otherwise adequate evidence of attempt insufficient. It did not, however, address the assumption in Weeks v. State, 834 S.W.2d 559 (Tex. App.—Eastland 1992, pet. ref’d), that the requirement of an act “that tends . . . to effect the commission of the offense intended” means the act must be one that “could have” effected the commission of the intended offense. Weeks v. Scott, 55 F.3d 1059 (5th Cir. 1995), accepted that this was Texas law.

Under Weeks, the state must show in an attempt prosecution that success was at least possible in some sense. Factual impossibility under Weeks is not only a defense but necessarily establishes the state failed to show the defendant’s conduct, if pursued, could result in successful commission of the intended offense. Chen’s failure to disclaim this approach is puzzling and raises some question whether Chen firmly establishes that factual impossibility is irrelevant to guilt of attempt.

Committee’s Position. The members of the Committee could not agree on whether Texas law bars conviction for attempt in any situations that might be characterized as involving impossibility of some sort. The Committee was consequently unable to agree on any instructions to recommend if impossibility is a defense or otherwise bars conviction and if it sometimes presents jury issues. The instructions, therefore, do not address the matter. Nor do they reflect the Weeks opinions’ assumption that the state must prove some degree of the possibility of success.

Possible Impossibility Approach Focusing on Intent. The Committee considered a suggestion that Chen implicitly provided for an appropriate approach to impossibility scenarios.

In Chen, the court reviewed impossibility cases from other jurisdictions and then commented: “The cases illustrate that the defendant’s intent is the critical element in attempt offenses—not possible completion of the substantive offense.” Chen, 42 S.W.3d at 929–30, 930 n.2. This observation appears to have been intended to cover Texas as well as general law. Under Chen, then, “the critical element” in attempt under Texas law is “the defendant’s intent . . . —not possible completion of the substantive offense.”

The court in Chen next turned to the proof produced in support of the indictment’s allegation that the defendant Chen attempted to induce Julie Cirello, a child younger than eighteen years of age, to engage in sexual intercourse. This evidence proved “the critical element”—Chen’s intent. The court explained:

Chen, 42 S.W.3d at 930.

Chen clearly asked whether what the defendant set out to do would have been an offense if the facts had been as he assumed they were or if the factual situation had been as he assumed it was. It asked whether his objective would be a crime if he actually had sex with the person he had arranged to meet, if that person was—as Chen assumed—a child younger than eighteen years of age. Chen had the required “specific intent to commit [the offense of sexual performance by a child]” if he intended to induce a person he believed to be a child to engage in sexual intercourse.

Under this approach, the requirement of a specific intent to commit the target offense, properly defined, means a defendant cannot be convicted of attempt in so-called pure or true legal impossibility situations. No separate and confusing defensive doctrine of legal impossibility is necessary to assure this result.

Implementing an “Intent” Approach. An approach focusing on the required “specific intent to commit an offense” might be implemented by carefully defining the necessary culpable mental state. This might involve a definition along the following lines:

Under this approach, impossibility would preclude conviction only in “pure legal impossibility” situations. In other situations, there would be liability and no need to categorize each situation as involving legal or factual impossibility.

This approach would reject the interpretation in Weeks of “tends . . . to effect the commission of the offense intended.” In light of Chen, however, this abandonment of the Weeks approach is arguably appropriate. No significance should flow from a showing that the defendant’s planned conduct could not complete the intended offense if that conduct would constitute the intended offense, if the situation were as the accused thought it to be.

Committee’s Position Regarding Possible Impossibility Approach Focusing on Intent. The Committee was not sufficiently convinced Texas law under Chen had incorporated this approach to justify including it in a pattern jury instruction. Chen was an evidence sufficiency case, and the court of criminal appeals has made clear analyses used by appellate courts for determining the sufficiency of evidence are not necessarily appropriate or sufficient for instructing juries.

Further, this reading of Chen implicitly assumes section 15.01(a) includes the substance of explicit language used in the statutory definition of solicitation. Tex. Penal Code § 15.03(a) (defining the offense as soliciting another “to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, would constitute the [offense]”). Chen did not support its use of the analysis described above in light of the absence in section 15.01(a) of section 15.03(a)-like language. The Committee was not confident the court would adhere to the apparent approach of Chen after considering the difference in language between sections 15.01(a) and 15.03(a).