“The lower court erred in holding that an indictment for criminal attempt is fundamentally defective when it does not allege the constituent elements of the underlying offense attempted.”
Wood attempted to kill her infant son K.W. by suffocating him. The State’s indictment alleged that she “intentionally, with the specific intent to commit the offense of CAPITAL MURDER of K.W.” did an act, namely, impeding K.W.’s ability to breathe, “which amounted to more than mere preparation that tended to but failed to effect the commission of the offense intended.” It did not allege that K.W. was a child under 10. Wood entered an open plea of guilty. As part of the plea, she was admonished that she was pleading guilty to attempted capital murder. The trial court sentenced her to life imprisonment.
On appeal, Wood argued for the first time that her life sentence was illegal because the indictment only authorized a second-degree-felony conviction. Wood contended that indictment set out attempted murder, not attempted capital murder. The court of appeals agreed that because the indictment failed to allege an aggravating factor that would transform a murder into a capital murder, the indictment only alleged attempted murder. Also, because this rendered Wood’s life sentence illegal, the court could consider the issue for the first time, even when raised in a reply brief.
The State relies on established law that an attempt indictment is not required to set out the constituent elements of the offense attempted. It argues that alleging specific intent to commit capital murder and an act that was more than mere preparation that tended but failed “to effect the commission of the offense intended” is enough to allege attempted capital murder. The State distinguishes the court of appeals’s authority because those cases set out the requirements for completed offenses, not attempts. The State also complains of the court of appeals’s subtle reliance on Tex. Penal Code § 15.01(b): “[i]f 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.” While the court removed its overt reference to § 15.01(b) on rehearing, it nevertheless reasons that capital murder is murder accompanied by an aggravating factor. The State argues § 15.01(b) has no application to capital murder since it is not an offense denoted “aggravated” in the Penal Code.