                                       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 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
         On appeal, 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. Further, 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. 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
         The State argues 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



                                                  3
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 has not and cannot make a showing
that the trial court violated the separation of powers doctrine. See Williams, 938 S.W.2d at 458;
see also Wilkerson, 347 S.W.3d at 724.
       We now turn to the State’s argument that the trial court misapplied the law. The pertinent
language of Appellant’s indictment is as follows:


                 [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.




                                                          4
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 first 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. 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
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 “entry” within
the burglary of a habitation 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


          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.3dat 161. The first step is a question of law and does not
depend on the evidence adduced at trial. Id.


                                                          5
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
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. Moreover, 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).
        In addition to the argument that the trial court erroneously relied on dictum, 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.


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          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
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 November 27, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        NOVEMBER 27, 2019


                                         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.
