What does the Penal Code say about Criminal Attempt?
Criminal attempt is found in §15.01 of the Texas Penal Code. It reads as follows
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.
Criminal attempt is found in Chapter 15 of the Penal Code. The crimes that are found in this chapter are known as preparatory offenses. These are also known as inchoate offenses. A preparatory offense is an offense that is not fully formed.
What is the punishment range for Criminal Attempt?
The punishment range for criminal attempt is one level lower than the underlying offense which makes the punishment range for criminal attempt anywhere between a class c misdemeanor to a second-degree felony.
For example, if you are charged with attempted sexual assault, the punishment range would be that of a third-degree felony which is two to ten years in the Texas Department of Corrections.
Can I get probation for Criminal Attempt?
Yes, either a judge[1] or a jury[2] can give you community supervision if you are charged with criminal attempt.
It is important to keep in mind that your sentence must be less than ten years to be eligible for community supervision. There could be other limits to community supervision depending on the underlying offense.[3]
What is the Statute of Limitations for Criminal Attempt?
The Statute of Limitations for criminal attempt is the same as that of the offense attempted.[4]
Explain it to me like I’m five!
“There is an imaginary line, which separates mere preparatory conduct, which is usually non-criminal, from an act which tends to effect the commission of the offense, which is always criminal.”[5]
Think about criminal attempt in terms of a classic bank robbery. Buying a ski mask and bag with a money sign on it is conduct that is preparatory. This isn’t criminal. Walking into the bank with the ski mask on and pointing a gun at the teller is a bank robbery and most definitely criminal. The imaginary line is the conduct in between. Driving up to the bank and walking to the door with mask and bag in hand? What if you are pulled over on your way to the bank, and the police officer sees a note asking for “all the money in the vault?” All of that could be enough for criminal attempt.
In all actuality, attempt is not usually a crime that we see people charged with all that often. This is for a few reasons. There is usually an offense that the State can prove and not some sort of imaginary line that they must try and prove. For example, a person could be charged with attempted murder if they brutally assaulted someone to an inch of their life. However, the State could just as easily charge them with aggravated assault with a deadly weapon. Both of which are second degree felonies.
Criminal attempt is used a lot in plea negotiations. Charge bargaining with criminal attempt helps reduce a client’s punishment exposure or collateral consequences. Sometimes it can lead to fun thought experiments. I’ve plead several clients to attempted possession of a controlled substance to get the felony down to a misdemeanor. You will also see criminal attempt in a jury charge if the facts during a trial call for a lesser included.
Conclusion
Please keep in mind that the state of the law is always changing whether by case law or through legislation. While the information on this blog is correct at the time of posting, it could change at the time of reading.
If you are charged with a crime, it is important to contact an experienced criminal defense attorney.
[1] Texas Code of Criminal Procedure 42A.053-42A.054
[2] Texas Code of Criminal Procedure 42A.055-42A.056
[3] Texas Code of Criminal Procedure 42A.054 and 42A.056
[4] Texas Penal Code 12.03(a)
[5] Crawford v. State, 562 S.W.3d 106, 111-12 (Tex.App.—Corpus Christi 2018, pet. ref’d)
