Court of Appeals of Texas, Twelfth District, Tyler
FROM THE 114TH JUDICIAL DISTRICT COURT SMITH COUNTY, TEXAS
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
T. Worthen Chief Justice.
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.
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.
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. The trial court relied on Meru in
finding that the State's indictment should be quashed for
lack of particularity. At the State's request, the trial
court entered written findings of fact and conclusions of
law. This appeal followed.
to Quash the Indictment
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
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).
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. 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).
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,