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31 Baylor L. Rev. 243 (1979)
Attempted Murder: Should Specific Intent to Kill Be Required

handle is hein.journals/baylr31 and id is 271 raw text is: NOTES ATTEMPTED MURDER: SHOULD SPECIFIC INTENT To KILL BE RE- QUIRED?-The Texas Legislature adopted a general criminal at- tempt statute in 1973.' That provision prohibits an attempt to com- mit any offense specified in the Penal Code. Since its adoption, some confusion has arisen concerning the elements of the offense of at- tempted murder.2 The Court of Criminal Appeals held in Baldwin v. State' that specific intent to kill need not be shown to obtain a con- viction for attempted murder. That decision could potentially result in the conviction and sentencing of individuals under an inappropri- ate statutory offense. This article will examine Baldwin by review- ing the relevant statutory language and the construction of similar statutes in other jurisdictions. I. REQUISITE INTENT The historical offense of assault with intent to murder is generally considered to be the predecessor of attempted murder.' The Texas Legislature first enacted an assault with intent to murder statute in 1857.1 Between 1882 and 1974, one could not be convicted of assault with intent to murder absent proof of intent to kill the victim.6 A 'TEX. PENAL CODE ANN. § 15.01 (Vernon Supp. 1978-1979) which provides in rele- vant part: (a) A person commits an offense if, with specific intent to commit an of- fense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. (Emphasis added). The offense of attempted murder derives from the combination of TEX. PENAL CODE ANN. §§ 15.01 and 19.02 (Vernon 1974), the latter of which provides in relevant part: A person commits an offense if he: (1) intentionally or knowingly causes the death of an individual; (2) intends to cause serious bodily injury and commits an act clearly danger- ous to human life that causes the death of an individual; or (3) commits or attempts to commit a felony, other than voluntary or involun- tary manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he com- mits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. id. at (a). 1538 S.W.2d 615 (Tex. Crim. App. 1976). 'See generally 40 C.J.S. Homicide § 68 (1944); and 40 AM. JUR. 2d Homicide § 566 (1968). '*TEX. PENAL CODE art. 493 (1857). 'See, e.g., White v. State, 13 Tex. Ct. App. 259 (1882); Hooper v. State, 29 Tex. Ct. App. 614, 16 S.W. 655 (1891); Walters v. State, 37 Tex. Crim. 388, 35 S.W. 652 (1896); Brewer v. State, 68 Tex. Crim. 483, 153 S.W. 622 (1913); Yeager v. State, 109 Tex. Crim 213, 3 S.W.2d 808 (1928); Jessie v. State, 126 Tex. Crim. 250, 70 S.W.2d 743 (1934); Ammann v. State, 145 Tex. Crim. 34, 165 S.W.2d 744 (1942); King v. State, 153 Tex. Crim. 422, 220 S.W.2d 647 (1949); Windham v. State, 162 Tex. Crim. 620, 288 S.W.2d 90 (1956); Hall v. State, 418 S.W.2d 810 (Tex. Crim. App. 1967); Bell v. State, 501 S.W.2d 137 (Tex. Crim. App. 1973). In 1882, the Court of Criminal Ap- peals first required a specific intent to kill for assault with intent to murder in White

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