                                       NO. 12-18-00329-CR

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS

 THE STATE OF TEXAS,                                     §   APPEAL FROM THE 114TH
 APPELLANT

 V.                                                      §   JUDICIAL DISTRICT COURT

 DANA LEE INGRAM,
 APPELLEE                                                §   SMITH COUNTY, TEXAS

                                       MEMORANDUM OPINION
       The State filed a motion for rehearing of our November 27, 2019 opinion. We overrule the
motion for rehearing, withdraw our opinion of November 27, 2019, and substitute the following
opinion and corresponding in its place.
       The State of Texas appeals the trial court’s order granting Dana Ingram’s motion to quash
the indictment against her for burglary of a building. In its sole issue, the State argues the trial
court erred in quashing the indictment because it violated the separation of powers doctrine and
misapplied the law. We affirm.


                                               BACKGROUND
       On May 3, 2018, Appellee was indicted for burglary of a building. Thereafter, Appellee
filed a motion to suppress evidence and a motion to quash the indictment. In her motion to quash,
Appellee argued that the indictment did not allege with sufficient particularity how she made entry
into the building. Relying on Meru v. State, she argued that the State failed to allege whether she
partially or fully entered the building, effectively precluding her from receiving an instruction on
the lesser included offense of criminal trespass. 1 The trial court relied on Meru in finding that the



       1
           414 S.W.3d 159, 164 n.3 (Tex. Crim. App. 2013).
State’s indictment should be quashed for lack of particularity. 2 At the State’s request, the trial
court entered written findings of fact and conclusions of law. This appeal followed. 3


                                    MOTION TO QUASH THE INDICTMENT
         The State argues that the trial court misapplied the law in quashing the indictment, because
it relied on dictum in reaching its conclusion that the indictment should be quashed. Further, the
State argues that the trial court erred in quashing the indictment because it violated the separation
of powers clause set forth in Article II, Section 1 of the Texas Constitution and interfered with the
State’s prosecutorial discretion. Interspersed between these two arguments, the State also
maintains that the trial court’s ruling on the motion to quash has negative ramifications for the
State in drafting charging instruments. Specifically, the State contends that the ruling “imposes
upon the State the impossible duty to correctly guess what evidence may be offered by a defendant
at a future trial” and forces “the State to have to guess what facts to allege as necessary to be
consistent with all potential lesser-included offenses,” which is inconsistent with the traditional
test for the sufficiency of an indictment.
Standard of Review
         The sufficiency of the indictment presents a question of law. Smith v. State, 309 S.W.3d
10, 13–14 (Tex. Crim. App. 2010). Appellate courts review a trial judge’s rulings on a motion to
quash a charging instrument de novo. State v. Barbernell, 257 S.W.3d 248, 251-52 (Tex. Crim.
App. 2008). The trial court’s ruling should be upheld if it is correct under any theory of law
applicable to the case. State v. Zuniga, 512 S.W.3d 902, 906 (Tex. Crim. App. 2017).
Applicable Law
         The Texas and United States Constitutions grant a criminal defendant the right to fair notice
of the specific charged offense. U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10; TEX. CONST.


         2
           In its brief, the State relays that no Reporter’s Record has been submitted; thus, the appeal will be decided
on the Clerk’s Record alone. In the findings of fact and conclusions of the law, the trial court states that no evidence
was presented on the motion to quash. However, the findings of fact and conclusions of law also state that evidence
was presented at the motion to suppress which would “support a jury’s finding that [Appellant] had made a full-body
intrusion into the subject building.”
          3
            After the trial court quashed the indictment, Appellee’s counsel filed for leave to withdraw, which the trial
court granted. On November 20, 2018, Appellee’s trial counsel sent this Court a letter, copied to Appellee and the
State, informing us that Appellee is without counsel. Appellee’s trial counsel further stated that he informed Appellee
that she could retain appellate counsel or request court appointed appellate counsel. As of the date of this opinion, we
have received no pro se brief from Appellee or otherwise received any communication from Appellee.


                                                           2
art. V, § 12b; Lawrence v. State, 240 S.W.3d 912, 916 (Tex. Crim. App. 2007); see also
Barbernell, 257 S.W.3d at 250. Generally, when an indictment tracks the language of a statute it
will satisfy constitutional requirements. State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App.
1998).
         A person commits burglary if, without the effective consent of the owner, she (1) enters a
habitation, or a building, or any portion of a building not then open to the public, with intent to
commit a felony, theft, or an assault; or (2) remains concealed, with intent to commit a felony,
theft, or an assault, in a building or habitation; or (3) enters a building or habitation and commits
or attempts to commit a felony, theft, or an assault. TEX. PENAL CODE ANN. § 30.02(a)(1)–(3)
(West 2019). For purposes of Section 30.02, “enter” means to intrude (1) any part of the body; or
(2) any physical object connected with the body. Id. § 30.02(b)(1)–(2).
         A person commits criminal trespass if she enters or remains on or in property of another,
including residential land, agricultural land, a recreational vehicle park, a building, or an aircraft
or other vehicle, without effective consent and the person (1) had notice that the entry was
forbidden; or (2) received notice to depart but failed to do so. Id. § 30.05(a)(1)–(2) (West Supp.
2019). For purposes of Section 30.05, “entry” means the intrusion of the entire body. Id.
§ 30.05(b)(1).
         The Texas Constitution divides the powers of the government into three branches:
Legislative, Executive, and Judicial. See TEX. CONST. art. II, § 1. Section 1 states that “no person,
or collection of persons, being of one of these departments shall exercise any power properly
attached to either of the others, except in the instances herein expressly permitted.” Id. To
establish a violation under Article II, Section 1, there must be a showing that one department has
assumed, or has been delegated, to whatever degree, a power that is more properly attached to
another, or that one department has so unduly interfered with the functions of another department
that the other department cannot effectively exercise its constitutionally assigned powers. State v.
Williams, 938 S.W.2d 456, 458 (Tex. Crim. App. 1997); Wilkerson v. State, 347 S.W.3d 720, 724
(Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).
Discussion
         We first turn to the State’s argument that the trial court misapplied the law. The pertinent
language of Appellant’s indictment is as follows:




                                                  3
                 [O]n or about the 14th day of January, 2018, and anterior to the presentment of this
       indictment, in the County of Smith and State of Texas, DANA INGRAM did then and there, with
       intent to commit theft, enter a building or a portion of a building not then open to the public, without
       the effective consent of David Davis, the owner thereof;
                 AND THE GRAND JURORS AFORESAID do further present in and to said Court that
       on or about the 14th day of January, 2018, and anterior to the presentment of this indictment, in the
       County and State aforesaid DANA INGRAM did then and there intentionally and knowingly enter
       a building or a portion of a building without the effective consent of David Davis, the owner thereof,
       and attempted to commit or committed theft of property, namely acetaminophen with codeine pills,
       owned by David Davis…


       In its findings of fact and conclusions of law, the trial court stated that Appellee’s
indictment for burglary of a building did not allege whether Appellee’s entry into the building was
full or partial, but noted that evidence at the suppression hearing, which is not part of the appellate
record, would support a jury’s finding that Appellee made a full body intrusion into the building.
The trial court, relying on Meru v. State, found that the indictment foreclosed the possibility that
Appellee could obtain an instruction on the lesser included offense of criminal trespass, because
the indictment did not allege to what extent Appellee made entry into the building, i.e., full body
entry or partial body entry. 414 S.W.3d 159, 164 (Tex. Crim. App. 2013). The trial court stated
“Meru itself suggests that the motion to quash would be granted because ‘[t]his would force the
State to re-file the indictment.”’ The trial court further stated that “[n]umerous intermediate courts
of appeals have followed Meru and none has reached a different result or distinguished Meru” and
cited to Andrus v. State, 495 S.W.3d 300, 307 (Tex. App.—Beaumont 2016, no pet.), Smith v.
State, 466 S.W.3d 871, 873 (Tex. App.—Texarkana 2015, no pet.), and Shakesnider v. State, 477
S.W.3d 920, 924-25 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
       To address the State’s contention that the trial court misapplied the law, we must undertake
a discussion of the court of criminal appeal’s holding in Meru. In that case, the defendant was
charged with burglary by entering a habitation without the effective consent of the owner with
intent to commit theft. Meru, 414 S.W.3d at 161. The defendant requested a jury instruction on
the lesser included offense of criminal trespass, but the request was not specifically ruled on by
the trial court and an instruction was not given. Id. The defendant was found guilty, and timely
filed a motion for new trial which was granted based on the trial court’s failure to give the jury an
instruction on the lesser included offense of criminal trespass. Id. The State appealed, and the
court of appeals affirmed the trial court’s order granting a new trial. Id. But the court of criminal
appeals reversed, holding that criminal trespass was not a lesser included offense of burglary of a




                                                          4
habitation, as pleaded in the indictment, because all the elements of the lesser included offense
were not included within the proof necessary to establish the elements of the charged offense. Id.
at 163-64. 4 The indictment alleged that the defendant entered a habitation with the intent to commit
theft without the effective consent of the owner, thus, the court held that criminal trespass was not
a lesser included offense because of the differences in the definitions of the word “enter” and
“entry” within the burglary and criminal trespass statutes. Id. at 163-64.
         As previously discussed, the burglary statute defines entry such that an actor could be guilty
of burglary if they made a partial or full body entry into the subject habitation or building. Id.; see
also TEX. PENAL CODE. ANN. § 30.02(b)(1)-(2). However, the criminal trespass statutes require
an actor to make a full body entry into the subject habitation or building. See Meru, 414 S.W.3d
at 163; see also TEX. PENAL CODE ANN. § 30.05(b)(1). Because criminal trespass requires proof
of a greater intrusion than burglary, the difference in the definitions of “entry” will generally
prohibit criminal trespass from being a lesser included offense of burglary. Meru, 414 S.W.3d at
163-64. The court of criminal appeals noted that it would be possible for the elements of criminal
trespass to be deduced from the facts alleged in an indictment for burglary if the indictment alleges
facts that include a full body entry into the habitation by the defendant. Id. at 164. In a footnote
following this discussion, the court stated:


                  In a burglary indictment in which the State does not allege whether the defendant’s entry
         was full or partial, an instruction on criminal trespass as a lesser-included offense would be
         prohibited. However, a defendant who committed a full-body entry and wants the opportunity for
         an instruction on criminal trespass can file a motion to quash the indictment for lack of particularity.
         This would force the State to re-file the indictment, specifying the type of entry it alleges the
         defendant committed and allow either party to later request an instruction on criminal trespass.


Id. at 164 n.3.
         The State argues that the trial court erred in relying on Meru in granting Appellee’s motion
to quash because the actual holding of Meru, as discussed above, does not support quashing the
indictment. According to the State, the “trial court concluded that dicta in a non-dispositive
footnote in that case required that the indictment be quashed.” The State further argues that the


          4
            The court undertook the two-step analysis for determining whether a lesser-included-offense instruction
should be given: (1) Are the elements of the lesser-included offense included within the proof necessary to establish
the elements of the charged offense? (2) Is there evidence in the record that could allow a jury to find the defendant
guilty of only the lesser-included offense? Meru, 414 S.W.3d at 161. The first step is a question of law and does not
depend on the evidence adduced at trial. Id.


                                                            5
Andrus, Smith, and Shakesnider cases cited by the trial court followed the actual holding of Meru
but did not endorse or apply the contents of footnote 3. The State cites Young v. State to support
its argument that the statements contained in footnote 3 are dictum. In Young, the court noted, in
a footnote, that it is not bound by the content expressed in footnotes of its opinions. 826 S.W.2d
141, 144 n.5 (Tex. Crim. App. 1991). Thus, the State cites to a footnote in a court of criminal
appeals opinion as authority for us to ignore the statements in footnote 3 of Meru, a court of
criminal appeals opinion. However, judicial dicta from the court of criminal appeals, as a
deliberate and unequivocal declaration of criminal law, is binding on this Court as an intermediate
court of appeals. Ex parte Moy, 523 S.W.3d 830, 836 (Tex. App.—Houston [14th Dist.] 2017,
pet. ref’d); Murray v. State, 261 S.W.3d 255, 257 (Tex. App.–Houston [14th Dist.] 2008), aff’d,
302 S.W.3d 874 (Tex. Crim. App. 2009).
       On original submission, the State also argued that “the trial court…violated the separation
of powers doctrine and unconstitutionally interfered with the State’s prosecutorial discretion by
quashing the burglary indictment” for failing to sufficiently allege entry. However, both the trial
judge and the prosecutor are officers of the judiciary. Meshell v. State, 739 S.W.2d 246, 253 (Tex.
Crim. App. 1987) (holding that county and district attorneys are officers within the judicial
department); Williams, 938 S.W.2d at 458 (Texas Constitution confers upon trial courts the
judicial power of the State). Because a violation of the separation of powers doctrine requires a
showing that one department has assumed or been delegated a power more properly attached to
another department, or that one department unduly interfered with the functions of another
department such that the other department cannot effectively exercise its powers, the State did not
demonstrate a separation of powers violation. See Williams, 938 S.W.2d at 458; see also
Wilkerson, 347 S.W.3d at 724.
       For the first time on rehearing, the State argues that the separation of powers doctrine is
implicated because the trial court’s order encroached on the legislature’s powers. See Price v.
State, 93 S.W.3d 358, 364 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (decision to consider
new ground raised for first time on rehearing is within sound discretion of the appellate court). In
support of this new argument, the State points out that the legislature has met four times since the
court of criminal appeals issued Meru and has not amended the definitions of “enter” in the
burglary statute or “entry” in the criminal trespass statute to comport with footnote 3 of Meru. See
TEX. PENAL CODE ANN. §§ 30.02(b)(1)-(2); 30.05(b)(1). The State argues that it would be “far



                                                 6
more consistent with [the legislature’s] intent for this Court to conclude that the [l]egislature did
not, and still does not, desire that the definitions of ‘enter’ and ‘entry’ be equated so that criminal
trespass can be a lesser included offense in burglary prosecutions.” The State further argues that
the court of criminal appeals’s “attempt in footnote 3 of Meru to graft the criminal trespass element
of ‘entry’ onto the burglary element of ‘enter’ constitutes an improper overreach and assumption
of a power by the judicial department that is ‘more properly’ attached to the legislative
department.” Consequently, the State argues “[t]o the extent that the [c]ourt in Meru has held the
definition of the criminal trespass element of ‘entry’ must be applied to burglary indictments it
violates the separation of powers doctrine and should not be sustained as the continuing law of this
jurisdiction.” We are not persuaded that the trial court’s order constituted a separation of powers
violation. The court of criminal appeals has stated the following about the powers of the legislative,
executive and judicial branches of government:


                  While the lines which separate the powers of the three departments of government, i.e.,
        the legislative, the executive and the judicial, are not always clearly drawn, still, and broadly
        speaking, the legislative power prescribes what the law shall be in future cases arising under it, it
        creates the law; the executive power executes the law and discharges and fulfills the duties required
        by the functions of office; while the judicial power ascertains and enforces the law as created by the
        legislative power. Article I is a direct prohibition of the blending of the departments. Each
        department acts under a delegated limited authority, and if one exceeds its authority by usurping
        powers not belonging to it, its acts are a nullity, not binding upon the other departments, and may
        be disregarded by them.


State v. Williams, 707 S.W.2d 40, 45 (Tex. Crim. App.) 1986). In this case, the State appealed the
trial court’s order quashing the indictment. Focusing on the actual act of the trial court in this case,
i.e., the quashing of an indictment for lack of particularity, we hold that the trial court did not
encroach on the legislature’s power to proscribe the law. The State’s argument urges this Court
to hold the court of criminal appeals’s statement in footnote 3 of Meru to be an encroachment on
the legislature’s power. As an intermediate appellate court, we lack the authority to overrule an
opinion of the court of criminal appeals. State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.—Austin
2006), aff’d sub nom. State v. Colyandro, 233 S.W.3d 870 (Tex. Crim. App. 2007).
        On rehearing the State also contends that our original opinion did not fully address its
argument because we did not consider the contention that the trial court’s order quashing the
indictment interfered with the State’s prosecutorial discretion, apart from the separation of powers
doctrine. However, in its brief on original submission, the State inextricably tied its argument that



                                                          7
the trial court interfered with the State’s prosecutorial discretion with its argument that such
interference constituted a separation of powers violation. See Price, 93 S.W.3d at 364.
       Nonetheless, the State argues that the indictment in this case sufficiently alleged the offense
of burglary of a building because it tracked the elements of the statute, thus, the trial court
interfered with the State’s exclusive prosecutorial discretion by quashing a facially valid
indictment. While the State cites no authority for this contention, we recognize that in most cases
a charging instrument that tracks the statutory text of an offense is sufficient to provide a defendant
with adequate notice. Barbernell, 257 S.W.3d at 251. Further, when, as here, a statutory term or
element is defined by statute, the charging instrument need not allege the definition of the term or
element because the definitions of terms and elements are typically regarded as evidentiary
matters. Id. However, when statutes define a term in such a way as to create several means of
committing an offense, and the definition specifically concerns an act or omission by the
defendant, the statutory language is not completely descriptive, and more particularity is required
to provide notice. Id. As previously discussed, the burglary statute defines “entry” in two ways,
i.e. partial or full body entry. Id.; TEX. PENAL CODE ANN. §30.02(b)(1)-(2). Moreover, footnote
3 in Meru unequivocally states that a burglary indictment can be quashed for lack of particularity
when the indictment does not specify whether the State alleges the defendant made a full or partial
body entry into the subject building or habitation. Meru, 414 S.W.3d at 164 n.3.; contra Smith v.
State, 652 S.W.2d 410, 411 (Tex. Crim. App. 1983) (burglary indictment was not fatally defective
for failure to allege in what manner defendant entered habitation). Thus, we are not persuaded that
the trial court’s order quashing the indictment should be reversed because it interfered with the
State’s prosecutorial discretion.
       Additionally, the State argues that the implications of the trial court’s ruling will unduly
burden the State because it will be required to anticipate the evidence a defendant might offer at
trial and what facts may be necessary to be consistent with all potential lesser included offenses.
The State provides no citation to authority for why these implications would require reversal of
the trial court’s ruling. See TEX. R. APP. P. 38.1(i). Moreover, beyond its bare conclusory
statement, the State offers no examples of how the trial court’s ruling would have these
implications in cases not involving the burglary statute. Id.
         In this case, Appellee was charged with burglary of a building, but the indictment does
not specify if she fully or partially entered the building. Appellee then moved to quash the



                                                  8
indictment for lack of particularity with respect to the allegation of entry, i.e., whether the State
alleges that Appellee fully or partially entered the building. Footnote 3 of Meru specifically states
that this is the procedure a criminal defendant should follow when they have made a full body
entry and want the opportunity to receive an instruction on criminal trespass. Meru, 414 S.W.3d
at 164 n.3. As an intermediate court of appeals, we are bound to follow the precedent of the Texas
Court of Criminal Appeals. Fielder v. State, No. 12-11-00090-CR, 2012 WL 951916, at *2 (Tex.
App.—Tyler Mar. 14, 2012, pet. ref’d) (mem. op.); see Purchase v. State, 84 S.W.3d 696, 701
(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); see also TEX. CONST. art. V, § 5(a) (declaring
that court of criminal appeals is final authority for criminal law in Texas). Therefore, we hold that
the trial court did not err in granting Appellee’s motion to quash based on Meru and we overrule
Appellant’s sole issue.


                                                  DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                JAMES T. WORTHEN
                                                                   Chief Justice


Opinion delivered January 8, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



                                                          9
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           JANUARY 8, 2020


                                         NO. 12-18-00329-CR


                                      THE STATE OF TEXAS,
                                            Appellant
                                               V.
                                       DANA LEE INGRAM,
                                            Appellee


                                Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No. 114-0567-18)

                       THIS CAUSE came to be heard on the appellate record and brief filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
