The facts are the defendant found outside a local bank with a toy gun and a standard stick-up note directing the bank teller to hand over the money, no dye packs, etc. However, he did not enter the bank or present the note to a teller. The best part is he has confessed that it was his intent to rob the bank.

The quick work of law enforcement has left us with a charging decision and I'd like your opinions.

I am leaning towards unlawful use of a criminal instrument under PC Sec. 16.01(a)(1) for possession of the note. The penalty is one catagory lower just like an attempt.

The other option is the standard attempted robbery. Do these facts amount to more than mere preparation?

Are there any other offenses that come to mind?

Looks like mere prep to me. Did he come to his senses (chicken out) or was he somehow stopped by 3rd parties? Coming onto the premises might be enough under the latter.

A citizen thought he looked suspicious and phoned it in. You gotta love small towns!

More case facts: He was also walking back and forth in front of the bank casing it out. A bank employee called the police. When police arrived at the bank, he took off running, fell down, and dropped his toy gun. He later made a phone call from the jail saying his getaway car driver had gotten away safely. He never went into the bank, never presented the note to a teller, and never brandished the gun. Since he admits a second person was involved, would the evidence be sufficient for conspiracy to commit robbery?

How is that mere preparation? He did everything but walk into the bank. That is an attempt. Pitiful, but still an attempt.

"he did everything BUT walk into the bank" says a lot. The statement could even be reworded to say "he did everything but attempt to rob the bank." Actually, on reflection, the statement that he did everything but walk into the bank is not even accurate. He did not walk into the bank, he also did not display the weapon, did not make any demand (written, oral or otherwise) for money, etc.

It is preparation because he abandoned the offense before actually attempting it. He did the prep work, but did not actually attempt to commit the offense. What is the act that attempts but fails to complete the offense? He did not communicate to any bank employee his desire to rob the bank or make any demand for money. How is that an attempt? I think our juries in west Texas would have a serious problem convicting for an attempt on these facts.

I'm guessing he wasn't naked.