Thomas Douglas Barnhill v. The State of Texas--Appeal from 52nd District Court of Coryell County

NO. 10-89-195-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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THOMAS DOUGLAS BARNHILL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 52nd Judicial District Court

Coryell County, Texas

Trial Court # 11,553

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O P I N I O N

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A jury convicted Appellant of attempted capital murder and assessed his punishment at eighteen years in prison. See TEX. PENAL CODE ANN. 15.01(a), 19.03(a)(1) (Vernon Supp. 1991 and Vernon 1989). He complains that his indictment was fundamentally defective, and that the court erred when it refused to charge the jury on attempted murder. The judgment will be affirmed.

The State alleged in the indictment that Appellant:

did then and there intentionally, with the specific intent to commit the offense of capital murder of Clayton Williams by causing the death of the said Clayton Williams, do an act, namely, shoot the said Clayton Williams with a firearm, while the said Clayton Williams was a peace officer, [to-wit], a police officer for the City of Gatesville, Texas, in the lawful discharge of his official duty, which amounted to more than mere preparation that tended but failed to effect the commission of the offense intended.

In points one and two, Appellant argues that the indictment was fundamentally defective because the State failed to allege that he knew Williams was a peace officer.

The elements which must be included in an indictment for criminal attempt are: (1) a person; (2) with specific intent to commit an offense; (3) does an act amounting to more than mere preparation; (4) which act tends but fails to effect the commission of the offense intended. See id. at 15.01(a) (Vernon Supp. 1991); Ex parte Bartmess, 739 S.W.2d 51, 53 (Tex. Crim. App. 1987). A person commits capital murder if he intentionally or knowingly murders a peace officer "who is acting in the lawful discharge of an official duty and who the person knows is a peace officer." TEX PENAL CODE ANN. 19.02, 19.03(a)(1) (Vernon 1989). An indictment for criminal attempt is not fundamentally defective if it fails to allege the elements of the offense attempted. Jones v. State, 576 S.W.2d 393, 395 (Tex. Crim. App. [Panel Op.] 1979).

An indictment which charges a defendant with the "attempt to cause the death of a police officer with the specific intent to commit the offense of murder sufficiently alleges the offense of attempted capital murder." Ex parte Pousson, 599 S.W.2d 820, 822 (Tex. Crim. App. 1980). Likewise, an indictment which alleges that the defendant intended to commit capital murder and attempted to cause the death of peace officers sufficiently charges the defendant with attempted capital murder. Gelabert v. State, 712 S.W.2d 813, 817 (Tex. App.--Houston [1st Dist.] 1986, pet. ref'd). Clearly, Appellant's indictment contained all the allegations required for criminal attempt because the State did not have to allege the underlying elements of capital murder. See Bartmess, 739 S.W.2d at 53. Points one and two are overruled.

Point three is that the court erred when it denied Appellant's requested charge on attempted murder. This point is overruled because the evidence failed to show that Appellant, if guilty, was only guilty of attempted murder. See Hall v. State, 640 S.W.2d 307, 309 (Tex. Crim. App. 1982). The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Participating: Chief Justice Thomas,

Chief Justice McDonald (Retired)

and Justice James (Retired)

Affirmed

Opinion delivered and filed January 24, 1991

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