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State v. Ingram

Court of Appeals of Texas, Twelfth District, Tyler

January 8, 2020

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

          APPEAL FROM THE 114TH JUDICIAL DISTRICT COURT SMITH COUNTY, TEXAS No. 114-0567-18.

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          James T. Worthen Chief Justice.

         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 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. 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, ...


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