WHAT IS CRIMINAL ATTEMPT IN TEXAS?
The Texas law against criminal attempt prohibits taking an affirmative step towards committing a specific crime, but failing to commit the offense. Criminal attempt requires more than mere preparation.
WHAT IS THE CRIMINAL ATTEMPT LAW IN TEXAS?
Tex. Penal Code Sec. 15.01. CRIMINAL ATTEMPT.
(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.
(b) If a person attempts an offense that may be aggravated, his conduct constitutes an attempt to commit the aggravated offense if an element that aggravates the offense accompanies the attempt.
(c) It is no defense to prosecution for criminal attempt that the offense attempted was actually committed.
(d) An offense under this section is one category lower than the offense attempted, and if the offense attempted is a state jail felony, the offense is a Class A misdemeanor.
Tex. Penal Code § 15.04. RENUNCIATION DEFENSE.
(a) It is an affirmative defense to prosecution under Section 15.01 that under circumstances manifesting a voluntary and complete renunciation of his criminal objective the actor avoided commission of the offense attempted by abandoning his criminal conduct or, if abandonment was insufficient to avoid commission of the offense, by taking further affirmative action that prevented the commission.
(b) It is an affirmative defense to prosecution under Section 15.02 or 15.03 that under circumstances manifesting a voluntary and complete renunciation of his criminal objective the actor countermanded his solicitation or withdrew from the conspiracy before commission of the object offense and took further affirmative action that prevented the commission of the object offense.
(c) Renunciation is not voluntary if it is motivated in whole or in part:
(1) by circumstances not present or apparent at the inception of the actor’s course of conduct that increase the probability of detection or apprehension or that make more difficult the accomplishment of the objective; or
(2) by a decision to postpone the criminal conduct until another time or to transfer the criminal act to another but similar objective or victim.
(d) Evidence that the defendant renounced his criminal objective by abandoning his criminal conduct, countermanding his solicitation, or withdrawing from the conspiracy before the criminal offense was committed and made substantial effort to prevent the commission of the object offense shall be admissible as mitigation at the hearing on punishment if he has been found guilty of criminal attempt, criminal solicitation, or criminal conspiracy.
In the event of a finding of renunciation under this subsection, the punishment shall be one grade lower than that provided for the offense committed.
WHAT IS THE PENALTY CLASS FOR CRIMINAL ATTEMPT IN TEXAS?
Criminal attempt is one offense category below the attempted crime. For example, if a person attempts to commit arson of a habitation, a first degree felony, the attempted arson may be charged as a second degree felony. The penalty classifications are as follows:
- Capital felonies are punishable by life without parole or death, but an attempted capital felony is a first degree felony, punishable by five to 99 years or life in prison.
- Attempted first degree felonies are categorized as second degree felonies, punishable by two to 20 years in prison.
- Attempted second degree felonies are categorized as third degree felonies, punishable by two to ten years in prison.
- Attempted third degree felonies are categorized as state jail felonies, punishable by 180 days to two years in a state jail facility.
- Attempted state jail felonies are categorized as Class A misdemeanors, punishable by up to one year in county jail.
- Attempted Class A misdemeanors are categorized as Class B misdemeanors, punishable by up to 180 days in county jail.
- Attempted Class B misdemeanors are categorized as Class C misdemeanors, punishable by a maximum fine of $500.
WHAT IS THE PUNISHMENT RANGE FOR CRIMINAL ATTEMPT IN TEXAS?
The punishment range for criminal attempt depends on the penalty class of the attempted crime. An attempted crime carries the punishment range of one penalty class below the offense attempted.
- Attempted capital murder is a first degree felony, which carries five to 99 years or life in prison, and a maximum fine of $10,000.
- An attempted first degree felony is a second degree felony, by two to 20 years in prison, and a maximum $10,000 fine.
- An attempted second degree felony is a third degree felony, which carries two to ten years in prison, and a maximum $10,000 fine.
- An attempted third degree felony is a state jail felony, with a punishment range of 180 days to two years in a state jail facility, and up to a $10,000 fine.
- An attempted state jail felony is a Class A misdemeanor, punishable by up to one year in jail, and a maximum $4,000 fine.
- An attempted Class A misdemeanor is a Class B misdemeanor, with up to 180 days in jail, and a maximum fine of $2,000.
- An attempted Class B misdemeanor is a Class C misdemeanor, punishable by a maximum fine of $500.
WHAT ARE THE PENALTIES FOR CRIMINAL ATTEMPT IN TEXAS?
A person charged with criminal attempt may be eligible for probation after a conviction, or deferred adjudication without a conviction. If charged with a criminal attempt categorized as a felony, a judge or jury may grant probation if the defendant’s underlying prison sentence does not exceed ten years, and a deadly weapon was not used in the criminal attempt.
A person may also receive deferred adjudication after a plea of guilty or nolo contendere (“no contest”) to a judge. The length of community supervision depends on the offense category:
- First degree felony, second degree felony, or third degree felony community supervision may not exceed ten years;
- State jail felony community supervision may range between two and five years, with the possibility of extending supervision for up to ten years;
- Class A or Class B misdemeanor community supervision may not exceed two years;
- Class C misdemeanor deferred adjudication may be up to 180 days.
WHAT ARE THE DEFENSES TO CRIMINAL ATTEMPT IN TEXAS?
In addition to other defenses available for all crimes, Texas law authorizes a renunciation defense for criminal attempt, conspiracy, and solicitation.
- What is the renunciation defense to criminal attempt? A person engaging in criminal attempt may abandon his criminal conduct at any time before performing the last proximate act tending to effect the commission of the object offense. Even if the last proximate act has occurred, a person who takes affirmative steps to prevent the commission of the offense or the result of the crime may still assert the renunciation defense—e.g., when the fuse has been lit but can still be stamped out.But if a person puts forces in motion that he is powerless to stop, leading to the crime’s complete commission, there can be no renunciation of the criminal conduct.In Barron v. State,the defendant and her boyfriend were doing drugs in their trailer when two men broke in. They killed both men in self-defense, but panicked, and hid the bodies under the trailer. Once sober, they went to police, but were ultimately convicted of evidence tampering.On appeal, the defendant argued her conduct was justified, and renunciation. The appellate court affirmed; the justification defenses to murder were inapplicable to the tampering. The renunciation defense only applies to criminal attempt, conspiracy, and solicitation. 629 S.W.3d 557 (Tex. App.—Eastland 2021, pet. ref’d).
- Can a person be charged with criminal attempt if the crime was factually impossible to commit? Yes. Factual impossibility is not a defense, even in the context of attempt. A factual impossibility exists when a defendant has an objective that is forbidden in criminal law, but he cannot achieve that object due to a circumstance unknown to him.For example, if a defendant is charged with possession of cocaine, but lab testing reveals the alleged cocaine was actually aspirin, the defendant may still be convicted of attempted possession of a controlled substance. See, e.g., Ex parte Hicks, 640 S.W.3d 232 (Tex. Crim. App. 2022); Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014).
- What is the legal impossibility defense to criminal attempt? Legal impossibility is a valid defense, and exists where the intended act, if completed, would not be a crime. For example, one may not be convicted of attempting to murder a corpse.
WHAT IS THE STATUTE OF LIMITATIONS FOR CRIMINAL ATTEMPT IN TEXAS?
The limitation period for criminal attempt is the same as that of the offense attempted. For example, the limitation period for arson is ten years, so the limitation period for attempted arson is also ten years.
CRIMINAL ATTEMPT IN TEXAS
The elements necessary to establish an attempted offense comprise: (1) a person, (2) with specific intent to commit an offense, (3) does an act amounting to more than mere preparation that (4) tends, but fails, to effect the commission of the offense intended. An indictment need not allege the elements of the offense attempted, but should allege the specific act constituting the criminal attempt.
TEXAS CRIMINAL ATTEMPT COURT CASES
The case law regarding criminal attempt in Texas illustrates acts amounting to more than mere preparation to commit an offense.
- In Wood v. State, the defendant was convicted of attempted capital murder of a child under ten years old. She repeatedly brought her premature baby, K.W., to the hospital, claiming he stopped breathing. Hospital surveillance recorded the defendant attempting to suffocate K.W. twice by putting her hand over his face, causing his oxygen monitor to go off.
The indictment alleged she had the specific intent to commit capital murder, and committed an act beyond mere preparation, specifically, impeding K.W.’s breathing with her hand. It was not necessary to allege K.W. was under ten years old. The indictment satisfied the elements of criminal attempt. 560 S.W.3d 162 (Tex. Crim. App. 2018). - In Thetford v. State, the defendant was convicted of attempting to murder her son, C.T., by “failing to provide adequate food and/or nutrition.” On appeal, she argued she could not legally be convicted of attempt based on an omission, or a failure to act.
The appellate court affirmed; the indictment alleged the defendant’s failure was an “act” amounting to more than mere preparation, and the evidence showed the defendant took affirmative steps to deter others from feeding C.T., turned off his feeding pump, and prevented his access to food. The evidence supported her conviction for attempted murder based on the failure to provide nutrition. 643 S.W.3d 441 (Tex. App.—Fort Worth 2022, pet. ref’d).
