¶1dissenting.
¶2I would hold on the authority of Lane v. State, 621 S.W.2d 172 (Tex.Cr.App.1981) that the trial court erroneously denied the appellant’s motion to quash asking that the general locality of the victim’s habitation be alleged. Lanewas a criminal mischief case; however, article 21.09, C.C.P., requiring an allegation of the general locality in the county of real estate, applies to burglary cases. See Hodge v. State, 527 S.W.2d 289 (Tex.Cr.App.1975).
¶3Hodge, supra,should not control the disposition of this case because it involved a claim of fundamental error in the indictment, whereas, in the instant case, the question is whether denial of the motion to quash was reversible error. See Hodge, supra, at 290.
¶4In a recent burglary case, Denison v. State, 651 S.W.2d 754, 758 (Tex.Cr.App.1983) the Court held that the trial court properly denied a motion to quash asserting that the indictment was defective because it “failed to designate the address of the habitation.” The Court stated:
In an extensive review of the case law Judge Dally examined the particularity with which situs of an offense must be alleged under § 30.02. Hodge v. State, 527 S.W.2d 289 (Tex.Cr.App.1975). In Hodge, this court held only the county need be alleged as the place where the offense was committed in a burglary indictment under § 30.02. In the instant situation the indictment alleges the offense occurred in “Dallas County.” The allegation of situs was sufficient and this ground of error is overruled.
¶5This seems to conflict with the holding in Lanewithout overruling it. Although the motion to quash in Denisondid not ask for the general locality in the county of the real estate, but rather for the address of the habitation, a more specific request than is *169mentioned in article 21.09, the Court did not base its opinion on this distinction.
¶6I am concerned that our jurisprudence now contains two decisions, Laneand Deni-son, supra, which appear to conflict in the resolution of an issue which could affect many criminal cases. In my opinion, Lane v. State should be followed until it is overruled.
¶7I respectfully dissent.