Intent to Murder With An ''Incapable to Cause Death'' Weapon
In Flanagan v. State, 675 S.W.2d 734 (Tex. Crim. App. 1982) (opinion on rehearing), the majority rejected the defendant's argument that the evidence was insufficient to show defendant intended to murder the complainant, although his effort to do so failed. Id. at 745.
The dissent argued that the type of shot fired from the shotgun was incapable of causing death or serious bodily injury. See id. at 748 (Teague, J., dissenting).
Without a reasonable probability that the murder could have occurred, the dissent concluded that it was factually impossible to commit the offense of attempted murder and the defendant was not guilty. See id.
In reaching this conclusion, the dissent stated that "it has long been the law of this State that factual impossibility inherent in the means used has always been an affirmative defense to a charge of assault with intent to murder." Id. at 749 (Teague, J., dissenting) (citing Scott v. State, 46 Tex. Crim. 315, 81 S.W. 952 (Tex. Crim. App. 1904)).
Although the majority implicitly overruled the dissent's argument in that case, Lawhorn specifically stated that factual impossibility is not a defense in the context of attempt crimes. See Lawhorn, 898 S.W.2d at 891.