¶1OPINION DISSENTING TO THE OVERRULING WITHOUT WRITTEN OPINION THE STATE’S MOTION FOR LEAVE TO FILE A MOTION FOR REHEARING
¶2dissenting.
¶3The panel has failed to take into account the practical result of Art. 37.09, V.A.C.C.P. as it was amended effective January 1, 1974, to coincide with the effective date of the new Penal Code.
¶4An attempt to commit the offense is a lesser included offense of a charged offense. This is the explicit provision of Art. 37.-09(4), V.A.C.C.P. and this Court has held that an indictment for a consummated offense puts a defendant on notice that he is also charged with an attempt to commit the offense charged. Hill v. State, 521 S.W.2d 253 (Tex.Cr.App.1975). Therefore, an allegation that a defendant committed the offense of arson, V.T.C.A. Penal Code, Sec. 28.02, would include the offense of attempted arson and put a defendant on notice he was also charged with an attempt to commit the offense of attempted arson.
¶5The majority now overrule the motion without written opinion and without considering that the panel has applied a rule which obtained under the old Penal Code before Art. 37.09, V.A.C.C.P. was amended, that rule is not now applicable. The Court has ignored the State’s argument which appears to be sound. See my opinion dissenting to the overruling without written opinion the State’s Motion for Leave to File the Motion for Rehearing in Ex parte Carter, 618 S.W.2d 331 (Tex.Cr.App.1981).
¶6I dissent.