Ex Parte Bailey

Given the heavy emphasis in the penal code on existence of one or another culpable mental state1 as an element of a penal offense,2 I doubt the present viability of *333Lucero v. State, 502 S.W.2d 750, 754 (Tex.Cr.App.1973) and other assault with intent to rob decisions under formal penal codes holding that “attempt includes intent.” The genealogy is easily traced back to its 1895 progenitors, Atkinson v. State, 34 Tex.Cr.R. 424, 30 S.W. 1064 and Runnells v. State, 34 Tex.Cr.R. 431, 30 S.W. 1065, decided by the Court on the same day.3 As set out in Runneils the charging part indictment read:

“That…