Breed, Steven Eric

• Court: Court of Appeals of Texas
• Decided: August 27, 2015
• Docket: PD-0861-15
• Status: Published

Opinion

%6HS %6Z-i5 NO. ODI GINAL IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

COURT OF CRI1NAL APPEALS STEVEN ERIC BREED Petitioner AUG 2 7 2015 v.

THE STATE OF TEXAS Abe! Acosta, Clerk Respondent

Petition is in Appeal from Cause No. F12-00533-V and F12-51946-V in the 292nd District Court of Dallas County, Texas, Honorable Lawrence B. Mitchell, Judge Presiding, and No. 13-13-00382-CR & 13-13-00383-CR in the Court of Appeals for the Thirteenth District of Texas at Corpus Christi.

PETITION FOR DISCRETIONARY REVIEW

FILED IN COURT OF CRIMINAL APPEALS Steven Eric Breed, Pro Se TDCJ 1859585 AUG 27 2ui5 Huntsville Unit 815 12th Street Abel Acosta, Clerk Huntsville, TX 77348

STEVEN ERIC BREED

ORAL ARGUMENTS NOT REQUESTED TABLE OF CONTENTS

TABLE OF CONTENTS i

TABLE OF AUTHORITIES ... ii

STATEMENT REGARDING ORAL ARGUMENT 1

STATEMENT OF THE CASE.. 1

STATEMENT OF PROCEDURAL HISTORY 1

GROUNDS FOR REVIEW 1

1. The Thirteenth Court of Appeals erred when it found there was sufficient evidence to uphold Petitioner's conviction.

2. The Thirteenth CSurt of Appeals erred when it found there was no error in the admission of extranesous act evidence.

REASONS FOR REVIEW 1

ARGUMENTS AND AUTHORITIES 2

PRAYER FOR RELIEF 10

CERTIFICATE OF SERVICE 10 CASE TABLE OF AUTHORITIES Page Britton v State, 145 SW2d 878 (TexCrApp 1940) 5

Brooks v State, 323 SW3d 893 (TxCrApp 2010). ......... 2

Burden v State, 55 SW3d 608 (TxCrApp 2001) 2

Casey v State, 215 SW3d 870 (TxCrApp 2007) 7

Daggett v State, 187 SW#d 444 (TxCrApp 2005) 7

Eppinger v State, 800 SW2d 652 (TxApp-Austin 1990) ....... .3,5 Erazo v State, 144 SW3d 487 (TxCrApp 2004) . . .. 8

Gallo v State, 239 SW3d. 757 (TxCrApp 2007) 7

Jackson v Virginia, 443 US 307 (1979) 2

Lorea v State, 14 SW3d 464 (TxApp-Dallas 2000) -3,4,5

Page v State, 213 SW3d 332 (TxCrApp 2006) - 7 Taylor v U.S., 110 S.Ct- 2143 (1990) 4,8 Tommen v State, 505 SW3d 900 (TxCrApp 1974) 5,8

Trevino v State, 245 SW3d 788 (txCrApp 1952) 5,6

Villanuevav State, 711 SW2 739 (TxCrApp 1986) ........ 5

Young v State, 283 SW3d 854 (TxCrApp 2009) 8 STATUTES AND RULES

Texas Penal Code §1.07 (a)(9)..........--.. - -3,5

Texas Penal Code §2.01. . 3

Texas Penal Code §30.02(a) (3) .................--..*- 3

Texas Penal Code §32.02 .,..........-.-.--.- 1

Texas Rules of Appellate Procedure Rule 41.3 ......... 3 Texas Rules of Appellate Procedure Rule 66.3 ......... 1 Texas Rules of Evidence 403 . . - . . .. •- - - .6,7,8,9

Texas Rules of Evidence 404(b) ........ - 6,9

li STATEMENT REGARDING ORAL ARGUMENTS

Breed does not request oral arguments.

STATEMENT OF THE CASE

In two separate indictments, Petitioner was charged with burglary of a habitation in

violation of Texas Penal Code § 32.02. Petitioner pled not guilty to these offenses. A jury

convicted Petitioner of both offenses. The Trial Court subsequently assessed punishment at 16

years imprisonment in each case. The judgments were entered on May 21, 2013. Petitioner filed

timely notice of appeal in both cases.

STATEMENT OF PROCEDURAL HISTORY

The opinion of the Thirteenth Court of Appeals affirming the Trial Court in both cause

numbers was handed down on June 11, 2015. Petitioner's Petition for Discretionary Review is

due on September 11, 2015.

GROUNDS FOR REVIEW

1. The Thirteenth Court of Appeals erred when it found there was sufficient evidence to

uphold Petitioner's conviction.

2. The Thirteenth Court of Appeals erred when it found there was no error in the

admission of extraneous act evidence.

REASONS FOR REVIEW

1. The decision in these cases conflicts with decisions rendered by the Court of Criminal

Appeals and the U. S. Supreme Court.

2. The decision below conflicts with decisions of other Courts of Appeal.

3. The decision of the Thirteenth Court of Appeals so far deviates from the fair

administration of justice that Court of Criminal Appeals correction is required. See

Tx.R.App.Proc.66.3.

1 ARGUMENTS AND AUTHORITIES

1. THE THIRTEENTH COURT OF APPEALS ERRED WHEN IT FOUND THERE WAS SUFFICIENT EVIDENCE TO UPHOLD PETITIONER'S CONVICTION:

FACTS

The facts here are undisputed. In the first alleged offense, Breed (Petitioner) contacted a

Realtor and represented he was in the market to purchase a house. He toured a home that was for

sale by Rebecca Bell. While in this home, Breed revisited a part of the home and stole jewelry

that police later recovered from a pawn shop where Breed had pawned same, all while invited

inside home by Bell.

In the second alleged offense (both offenses were tried at the same trial) Breed went to an

open house and stole jewelry that was later recovered by police in Gainesville, TX. There was

video depicting Breed pawning this jewelry. Some mere speculation existed that while the open

house was still being conducted Breed reentered the home of Ms. Locke, whose home was being

held open by her Realtor. During the alleged reentry, the home owner's jewelry was stolen.

A. Standard of Review:

When reviewing a claim of insufficiency of the evidence to uphold a conviction, the

appellate court must determine, after considering all the evidence in the light most favorable to

the verdict, whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Jackson v Virginia, 443 US 307 (1979). Burden v State, 55

SW3d 608, 612 (TxCrApp 2001). The Jackson v Virginia legal-sufficiency standard is the

standard that a reviewing court should apply in determining whether the evidence is sufficient to

support each element of the criminal offense that the State is required to prove beyond a

reasonable doubt. Brooks v State, 323 SW3d 893, 894-95 (TxCrApp 2010) B. DISCUSSION-Insufficiency of Evidence to Find Petitioner Guilty of Burglary.

The State is required to prove every element of an offense beyond a reasonable doubt.

Tx. P. C. §2.01 (2010), A person commits the offense of burglary if, without the effective

consent of the owner, the person enters a building or habitation, and commits or attempts to

commit a felony, theft, or assault. Tx.P.C. §30.02(a)(3).1 Consent means assent in fact, whether

express or apparent.2 There was no circumstantial evidence that Breed was inthe house of Locke a second time without the presence of Locke or her Realtor, as the opinion at page 5

contemplates. It was an open house, and it was the Realtor that stated she heard a noise. She

stated nothing was amiss after an investigation of this noise. Once again, while the house was

open to the public. At the Bell property, Breed was invited in and while allowed to view the

house he stole items ofjewelry.

There simply was no evidence of one element of the offense, and that was never proven:

"without the effective consent of the owner." He was invited in the Bell home and the Locke

home, which was an open house. Thus, he had the effective consent of each owner. Moreover,

in Lorea v State. 14 SW3d 464, 468 (TxApp - Dallas 2000, no pet.), the Fifth District Court

clearly indicated that an "open house" held for purposes of a sale make the residence publicly

accessible. This was the precedents of the Court that transferred this appeal. The Thirteenth

Court of Appeals reaching a decision that is inapposite is a violation of Texas Rules of Appellate

Procedure Rule 41.3. The decision of the lower Court is in direct conflict with Lorea, supra.

This Court should review this decision.

What the State proved at trial was simple theft. There was no breaking or entering that

would constitute a burglary. Any theory of the case one would consider would not be burglary.

1 Breed was charged with only the third manner of committing the offense of burglary and not any other. 2 See Tx.P.C. §1.07(a)(9); see Eppinger v State. 800 SW2d 652, 653 (TxApp - Austin 1990, pet. refd.) For instance, the lower Court hypothesized that entry under false pretenses would be burglary.

This would mean that anyone that enters Wal-Mart and shoplifts a candy bar would be guilty of

burglary, as they entered the store for the express purpose of committing theft and not to

purchase anything. It would produce the absurd results that if a person enters a bank and forges

a financial instrument, they would be guilty of burglary. They had no intention of legally

obtaining funds from the bank. Say a person is legitimately seeking a home to buy and they steal

a knick knack from a house they viewed. Would that be burglary? No, it is definitely not, and

Breed is not guilty of burglary in the instant case as well. Thus, solely based on the evidence

adduced at trial, an essential element of the offense was not proven. Breed did not enter these

dwellings without the effective consent of the owners, period! If the opinion of the Thirteenth

Court of Appeals is allowed to stand as is, then the lower Court has redefined what constitutes

burglary far from any decision thus far rendered.

Black's Law Dictionary getstheir definition of generic burglary from Taylor v U.S., 110

S. Ct. 2143, 2158 (1990), defining burglary as "An unlawful or unprivileged entry into, or

remaining in, a building or structure to commit a crime." The U.S. Supreme Court does not

define invited entry into a building as being a burglary. Privilege is defined as: 'A right or

immunity for or against a private person granted as an advantage or favor, especially to some and

not others." Breed was granted the privilege to enter these homes. This is not in dispute. Thus,

he could not have committed the essential element of the offense of not having consent to enter.

He was given consent to enter the premises, most assuredly so in the case of an open house. This

could also be extended to the other house that he toured with the owner and the Realtor. Both

houses were for sale. This requires a person to open their homes to strangers for potentially

purchasing the home and making it publically accessible, as was declared in Lorea, supra.

Consent was both express and implied in the instant case

4 Eppinger v State, 800 SW2d 652, 653-54 (Tx App-Austin 1990): "Consent means

assent in fact, whether express or apparent." TxP.C. §1.07 (a)(9). Trevino and Thommen4

were prosecuted under the 1925 P.C. and were effectively overruled by the adoption of the

current code. The State cites no case applying Trevino in a prosecution, under either current or

former code, for burglary of a habitation... Foss did not intend to give appellant consent to steal

when he permitted him to enter his apartmaet.. .but neither did victims in Britton* and

Villanueva6 in which the owner's consent to enter was held to preclude convictions for

burglary." The decision in the lower Court relied heavily on Trevino, but that case was

overruled and has never been applied to burglary of a habitation. The reliance on this overruled

case was for the proposition that when one enters for the purpose of committing a theft consent is

not given effectively. Thus, in the case at bar, a person or persons was present to give consent

and the lower Court did not consider this factor at all in rendering their decision. Trevino was a

church where no person (s) were present to give such consent. Here persons were present and

gave consent. Thus, Trevino is wholly inapposite and has no place in fashioning a decision in

this case whatsoever. The law and facts have no similarity to this case. Intent to commit theft

does not negate owner's consent.

The issue in this case is whether there is sufficient evidence to support the jury's finding

that Mr. Breed's entry into the habitations was without consent of the owners. The totality of the

evidence adduced at trial clearly indicates that Mr. Breed had consent and did not enter the

habitations without consent as required to uphold his convictions for these offenses. As a result,

there was not just insufficient evidence but no evidence to sustain the convictions here, and the

3Trevino v State. 254 SW2d 788 (TxCrApp 1952). 4Tommen v State, 505 SW2d 900 (TexCrApp 1974). 5 Britton v State, 145 SW2d 878 (Tex CrApp 1940). 6Villanueva v State, 711 SW2d 739 (Texapp. 1986) Thirteenth Court of Appeals erred when it failed to reverse Breed's convictions. He is only

guilty of the lesser offense of theft, a State Jail Felony.

2. THE THIRTEENTH COURT OF APPEALS ERRED WHEN IT FOUND THERE WAS NO ERROR IN ADMISSION OF EXTRANEOUS ACT EVIDENCE.

The facts surrounding the admission of the extraneous act evidence are also undisputed.

During the guilt/innocence stage of trial, before the State had finished its case in chief, the

prosecutor informed the Court that it wished to present evidence of unindicted extraneous

offenses that were allegedly "contextual" in nature. RR4, pp 136-39. Defense Counsel objected

on the basis the evidence did not clear the 404 hurdle and also 403. See Texas Rules of Evidence

Rules 403 and 404(b). At this hearing outside the presence of the jury, the Court excused

Defense Counsel from re-urging objections. All at RR5 pp 7-8. The Court overruled the

objections and the jury ultimately heard evidence: 1) That Breed has been found in the closet of

Ms. Connell's home on March 8, 2012, near where she kept her jewelry; and 2) That appellant

had been arrested in Frisco in possession of a homeowner's jewelry after Breed had toured the

house as a potential home buyer. RR5, pp 24-25; 36-37. A limiting instruction was given at the

request of Defense Counsel. CR1, 78; CR2, 69; RR6, p. 19.

A. Standard of Review

The admission of evidence is reviewed for an abuse of discretion. Gallo v State, 239

SW3d 757, 762 (TxCrApp 2007). Generally, evidence of extraneous offenses may not be used

against the accused in a criminal trial.. .While such evidence will almost always have probative

value, it forces the defendant to defend himself against uncharged crimes as well as the charged

offense, and encourages the jury to convict a defendant based on bad character rather than proof of the specific crime charged. Daggett v State, 187 SW3d 444, 450-451 (TxCrApp 2005)

Extraneous-offense evidence is admissible only if the evidence satisfies a two-pronged test: 1)

the extraneous-offense evidence must be relevant to a fact of consequence in the case aside from

its tendency to show action in conformity with character; and 2) the probative value of the

evidence must not be substantially outweighed by the danger of unfair prejudice. Page v State,

213 SW3d 332, 336 (TxCrApp 2006). Unfair prejudice may result from the tendency of the

evidence to prove some adverse fact not properly in issue or unfairly to excite emotions against

the defendant. Casey v State, 215 SW3d 870, 883 (TxCrApp 2007).

Rule 403 of the Texas Rules of Evidence states that evidence, although relevant, may be

excluded if its probative value is substantially outweighed by danger of unfair prejudice,

confusion of the issues, or misleading the jury...Four factors are to be considered under Rule

403: 1) the probative value of the evidence; 2) the potential to impress the jury in some irrational,

yet indelible, way; 3) the time needed to develop the evidence; and 4) the proponents needed for

the evidence. Erazo v State, 144 SW3d 487, 489 (TxCrApp 2004). In evaluating the need of

the evidence this Court should consider: 1) whether the proponent has other available evidence to

establish the fact of consequence that the evidence is relevant to show: 2) the strength of the

other evidence; and 3) whether the fact of consequence is related to the issue in dispute. Erazo

Id at 495-96. "It is only where there exists a clear disparity between the degree of prejudice of

the offered evidence and its probative value that Rule 403 bars it admission." Young v State

283 SW3d 854, 877 (TxCrApp 2009).

B. DISCUSSION - Error in the Admission of Extraneous Act Evidence.

Here, the Lower Court of Appeals has erred in the analysis of this issue by determining

the extraneous act evidence was admissible based on the erroneous conclusion that intent was needed to negate the effective consent obviously given to Mr. Breed by both owners of the

properties in question here. Breed was given implied consent and express consent, and the

properties were accessible to the public under the case law previously cited herein. The

Thirteenth Court of Appeals reliance on cases that are inapposite, and two, Thommen v State,

505 SW2d 900 (TxCrApp 1974) and Trevino v State, 254 SW2d 788 (TxCrApp 1952), both

of which have been overruled, are the salient factor in the severely defective opinion relating to

the admission of the extraneous act evidence. Opinion at page 9: "As we previously discussed,

the State, in order to prove burglary, necessarily needed to prove entry without the effective

consent of the owner...The material fact necessary to prove a lack of consent was intent to

commit theft." This was not the case in any of the decisions quoted by the Lower Court of

Appeals. All the cases quoted by the Lower Court involved businesses and no one was present.

Thus, the opinion of the Lower Court of Appeals concerning the admission of evidence under

Rule 404(b) cannot stand because it is seriously flawed and not a reflection of the laws of the

Texas Court of Criminal Appeals or the other District Courts of Appeals.

The Thirteenth Court of Appeals decision under Rule 403 fails for basically the same

reasons as under Rule 404(b). It was undisputed that the extraneous act evidence was

prejudicial. The Lower Court's Opinion at 11: "On the other hand, this evidence was necessary

to establish intent." There was no need to establish intent because intent does not negate the

obvious effective consent of the owners here. Thus, the probative value of the extraneous act

evidence was outweighed by its substantial prejudicial effect.

8 THE COURT OF APPEAL'S DECISION BELOW

I. INSUFFICIENCY OF EVIDENCE TO FIND BREED GUILTY OF THE INDICTED OFFENSE:

In its opinion, the Thirteenth Court of Appeals incorrectly held that there was sufficient

evidence to sustain Breed's conviction, as there was no evidence to conclude he entered the

premises of the two properties without the effective consent of the owners. As noted above,

there was insufficient evidence to uphold Breed's conviction. As a result, the Thirteenth Court of

Appeals incorrectly held there was sufficient evidence to uphold Breed's conviction. This error

requires reversal of Breed's conviction.

II. THE TRIAL COURT ERRED IN ADMITTING EXTRANEOUS EVIDENCE:

In its opinion, the Thirteenth Court of Appeals incorrectly held that the Trial Court did

not abuse its discretion in admitting the extraneous act evidence. This error harmed Breed and

Because of these factors, the affirmance by the Lower Court was error. PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Breed respectfully prays this Court grant

discretionary review and allow each party to fully brief and argue the issues before the Court of

Criminal Appeals and the upon reviewing the judgment entered below, that this Court reverse

this cause and remand for a new trial.

Respectfully submitted,

fiuVti 3/ 20 <4 Date: flU rd ' J Steven E. Breed, Pro Se

CERTIFICATE OF SERVICE

I, Steven Breed, do hereby declare that on the date indicated below a true and correct

copy of this Petition for Discretionary Review was mailed to the Dallas County District Attorney

and the State Prosecuting Attorney by first class U. S_. Mail, postage prepaid.

Executed this _^J 3 day of /fapf day of fUMJA ' ,2015.

10 APPENDIX A OPINION OF THE THIRTEENTH COURT OF APPEALS NUMBERS 13-13-00382-CR and 13-13-00383-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

STEVEN ERIC BREED, Appellant,

THE STATE OF TEXAS, Appellee.

On appeal from the 292nd District Court of Dallas County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Perkes, and Longoria Memorandum Opinion by Justice Perkes

Appellant Steven Eric Breed was indicted for two separate second-degree felony

offenses of burglaryof a habitation.1 See Tex. Penal Code Ann. § 30.02 (West, Westlaw

1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the two appeals were transferred to this Court from the Fifth Court of Appeals in Dallas. See Tex. Govt Code Ann. § 73.001 (West, Westlaw through 2013 3d C.S.). Appellate Cause No. 13-13-00382-CR is the appeal from trial court cause number F-1200533-V. Appellate Cause No. 13-13-00383-CR is the appeal from trial court cause number F-1251946-V. through 2013 3d C.S.). After a jury found appellant guilty for each offense, the trial court

assessed punishment at sixteen years' imprisonment for each offense and ordered the

sentences to run concurrently. By four issues, appellant contends: (1) the evidence is

insufficient to support appellant's conviction for burglary of a habitation in Cause No.

F-1251946-V; (2) the trial court erred by admitting evidence of two unindicted, extraneous

offenses during the guilt/innocence phase of the joint trial; (3) the limiting instruction

regarding the use of extraneous offense testimony is defective; and (4) the evidence is

insufficient to support the trial courts order for appellant to pay court costs in Cause No.

F-1251946-V.2 We affirm.

I. Background

The State alleged that appellant, while posing as a homebuyer, stole jewelry from

two different homes in the Dallas area.

To accomplish the first burglary, appellant contacted a realtor and represented to

her that he was relocating from Houston to Dallas. He then made appointments to view

several homes, the first of which was owned by Rebecca Bell. Appellant and the realtor

entered Bell's home and toured the house with Bell accompanying. After the initial

showing, appellant excused himself from Bell and the realtor to revisit parts of the house

alone. Appellant was gone for several minutes and returned with his hands in his

pockets. Several days later, as Bell was preparing for church, she noticed that some of

her jewelry was missing and that the contents of her jewelry box was in disarray. Bell

2 Inasmuch as both convictions arose from a single trial, we consolidated the two appeals for purposes of this opinion. 2 contacted the police, who later recovered one piece of the missing jewelry, a ring, from a

pawnshop. The police subsequently learned that appellant had pawned the ring.

Appellant was indicted for this offense under cause number F-1200533-V.

The second burglary occurred nine days later at Kathy Lock's open house. Lock

left her home shortly after the commencement of the open house and she saw appellant

enter her home and begin looking at it with her realtor. Appellant told Lock's realtor that

he was from Houston, was recently widowed, and was in the market for a house in Dallas

for himself and his five children. The realtor walked appellant through the house and

suggested that appellant tour another house that she knew was open in the area. The

realtor saw nothing unusual occur as she walked through the home with appellant;

however, as she was showing the house to another group of people, she thought she

heard the front door open. When the realtor went to investigate, she did not see anyone.

The next day, Lock noticed that she was missing her wedding ring, a Rolex watch, a gold

necklace with an emerald pendant, and some costume jewelry, all of which had been

placed in a built-in shelf in her closet. Lock reported the theft to the police, who later

obtained a surveillance video purporting to show appellant pawning Lock's wedding ring

at a pawnshop in Gainesville, Texas. Appellant was indicted for this offense under cause

number F-1251946-V.

Appellant was tried on both indictments in a single trial. During the guilt/

innocence phase of the trial, the jury heard about two additional "offenses" appellant

committed that were similar to the offenses for which he was being tried. The first offense occurred early in 2012 when appellant was touring a home that

was listed for sale. The seller testified that she gave appellant an overview of the home

and afterwards appellant toured the house by himself. The seller observed appellant in

the master bedroom appearing to rummage through her jewelry armoire. Interrupted by

the seller, appellant quickly left the home. No jewelry was reported missing.

The second offense stemmed from a "sting operation" conducted in July 2010 by

the Frisco, Texas police department. Appellant was a suspect in a jewelry theft

investigation. The realtor contacted the police detective and told him that appellant had

made an appointment to tour a home listed for sale. The detective installed a remotely

operated camera in the master bedroom closet of the home which recorded appellant

stealing jewelry. Appellant was arrested as he left the home.

II. Evidentiary Challenges

By his first issue, appellant argues that the evidence is insufficient to support his

conviction for burglary in cause number F-1251946-V. Specifically, appellant argues the

State failed to prove that appellant's entry into Kathy Lock's home was non-consensual.

"The standard for determining whether the evidence is legally sufficient to support

a conviction is 'whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.'" Johnson v. State, 364 S.W.3d 292, 293-94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307,319 (1979)) (emphasis in original);

see Brooks v. State, 323 S.W.3d 893, 898-99 (Tex. Crim. App. 2010) (plurality op.). "The jury is the exclusive judge of the credibility of the witnesses and of the weight to be

given testimony, and it is also the exclusive province of the jury to reconcile conflicts in

the evidence." Wesbrook v. State, 29 S.W.3d 103,111 (Tex. Crim. App. 2000) (en banc)

(citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). Juries are

permitted to make reasonable inferences from the evidence presented at trial, and

circumstantial evidence is as probative as direct evidence in establishing the guilt of an

actor. Hooper v. State, 214 S.W.3d 9,14 (Tex. Crim. App. 2007).

B. Discussion

Appellant argues that by entering Lock's home during an open house, he entered

with the effective consent of the owner, thus negating an essential element of burglary.

We disagree.

"A person commits the offense of burglary if, without the effective consent of the

owner, the person enters a building or habitation, and commits or attempts to commit a

felony, theft, or an assault." Tex. Pen. Code Ann. § 30.02(a)(3).3 "Consent" means

assent in fact, whether express or apparent. Id. § 1.07(a)(9); see Eppinger v. State, 800

S.W.2d 652, 653 (Tex. App.—Austin 1990, pet refd).

It is undisputed appellant entered Lock's home during an open house, introduced

himself using an alias, and toured the home with Lock's realtor. There is circumstantial

evidence that he subsequently re-entered the home, without the realtor's knowledge,

presence, and consent, and stole property from Lock's home.

3 Although the statute includes multiple manners of committing an offense, appellant was only indicted under the third manner of committing an offense. Tex. Pen. Code Ann. § 30.02(a)(3). 5 In Trevino v. State, the defendant entered a church for the purpose of committing

a theft. See 254 S.W.2d 788, 789 (Tex. Crim. App. 1952). The court, in affirming the

conviction, stated that "we see no distinction, insofar as the law of burglary is concerned,

between a church, into which the public has consent to enter for the purpose of meditation

and prayer, and a place of business, into which the public has consent during business

hours to enter for the purpose of transacting business." Id. Where the State has other

evidence of intent to commit a felony or the crime of theft, prior to entry, and an entry and

breaking is shown, then the offense of burglary of a place of business during business

hours or a church has been established, notwithstanding an express or implied consent

to enter for lawful purposes. Id. An open house is similar to a church or business in

that the public has consent to enter for the purpose of evaluating the home. See Loera

v. State, 14 S.W.3d 464,468 (Tex. App.—Dallas 2000, no pet.) (explaining that residential

"open house" held for purposes of a sale makes residence publicly accessible).

The State produced evidence of appellant's intent to commit theft prior to entering

Lock's home. A rational jury could deduce from the testimony that appellant entered

Lock's house twice. The first time was to tour the home with the realtor—or as a jury

could rationally infer, to "case" the home. The second entry allowed appellant the

opportunity to take Lock's property. The realtor testified that after giving appellant a tour

of the home, she heard the front door open, went to investigate, and inquired whether

anyone had entered. A rational jury could infer that appellant did not re-enter the home

for any purpose related to the sale of the home, and instead made a surreptitious entry

for the express purpose of stealing Lock's property.

6 As the Texas Supreme Court noted in Trevino, "[i]t would be an impeachment of

the common sense of mankind to say that a thief who enters a store with intent to steal

does so with the owner's consent or upon his invitation." Trevino, 254 S.W.2d at 789.

So too is it inconceivable that Lock would have extended appellant the invitation to enter

her home during an open house so that he could steal from her. Consent given to enter

for one purpose does not give consent to enter for all purposes. See In re D.J.H., 186

S.W.3d 163,165 (Tex. App.—Fort Worth 2006, pet. denied) (holding that juvenile did not

have express or apparent consent to re-enter residence) (mem. op., not designated for

publication); see also Griego v. State, No. 07-08-00130-CR, 2010 WL 1286464, *2 (Tex.

App.—Amarillo Apr. 5,2010, no pet.) (mem. op., not designated for publication) (holding

that permission for appellant to enter on pretense of returning borrowed money did not

create effective consent in burglary conviction). The evidence supports a rational jury

inference sufficient to establish a lack of effective consent. We overrule appellant's first

issue.

III. Extraneous Offenses

By his second issue, appellant complains that the trial court erred by admitting

evidence of two unindicted, extraneous offenses during the guilt/innocence phase of the

trial. Appellant argues the extraneous offense evidence was inadmissible under rules

403 and 404(b) of the Texas Rules of Evidence. See Tex. R. Evid. 403,404(b).

We review a trial court's decision to admit or exclude evidence for an abuse of

discretion. Torres v. State, 71 S.W.3d 758,760 (Tex. Crim. App. 2002) (citing Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001)); see Gallo v. State, 239 S.W.3d 757,

762 (Tex. Crim. App. 2007). We will not reverse the trial court's ruling unless the ruling

falls outside the zone of reasonable disagreement. Torres, 71 S.W.3d at 760; see Taylor

v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). In applying the abuse of

discretion standard, we may not reverse a trial court's admissibility decision solely

because we disagree with it. See Powell v. State, 63 S.W.3d 435,438 (Tex. Crim. App.

2001). We will not disturb a trial court's evidentiary ruling if it is correct on any theory of

law applicable to that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App.

2009).

1. Rule 404(b)

Rule 404(b) of the Texas Rules of Evidence states that evidence of other crimes,

wrongs or acts is not admissible to prove the character of a person in order to show action

in conformity therewith. Tex. R. Evid. 404(b). The rule, however, allows such evidence

to be admitted for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident. Id. Under

Rule 404(b), extraneous-offense evidence may be admissible only if it tends to prove a

material fact in the State's case, apart from its tendency to demonstrate an accused's

general propensity for committing criminal acts. Owens v. State, 827 S.W.2d 911, 914

(Tex. Crim. App. 1992) (en banc).

Appellant argues that he was charged under section 30.02(a)(3), which does not

require a defendant to have entered a habitation with the intent of committing theft.

8 Appellant further argues that since neither the State's case, nor the defensive strategy,

placed intent at issue, the State did not need to introduce the extraneous offenses to

prove intent. We disagree with appellant.

Appellant argued during the trial that the Lock burglary was committed when the

residence was open to the public thereby giving appellant consent to enter and thereby

reducing the crime of burglary to theft. As we previously discussed, the State, in order

to prove burglary, necessarily needed to prove entry without the effective consent of the

owner. See Tex. Pen. Code Ann. § 30.02. The material fact necessary to prove a lack

of effective consent was intent to commit theft prior to entry. See Trevino, 254 S.W.2d

at 789; see also Thommen v. State, 505 S.W.2d 900, 902-03 (Tex. Crim. App. 1974)

(citing Trevino, 254 S.W.2d at 788 (holding defendant entered store for purpose of

committing theft)); Gonzales v. State, 50 S.W. 1018 (Tex. Crim. App. 1899) (holding

same). We agree with the trial court that the extraneous offenses were admissible under

rule 404(b). See Tex. R. Evid. 404(b).

2. Rule 403

Rule 403 of the Texas Rules of Evidence states that evidence, although relevant,

may be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403. In reviewing

Rule 403 objections, we consider the following factors: (1) the probative value of the

evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the

time needed to develop the evidence; and (4) the proponent's need for the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004); Montgomery v. State, 810

S.W.2d 372, 389-90 (Tex. Crim. App. 1990) (en banc). In evaluating the need for the

evidence, we must consider: (1) whether the proponent has other available evidence to

establish the fact of consequence that the evidence is relevant to show; (2) the

strength of the other evidence; and (3) whether the fact of consequence is related to an

issue that is in dispute. Erazo, 144 S.W.3d at 495-96; Montgomery, 810 S.W.2d at 390.

"Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant

evidence will be more probative than prejudicial." Davis v. State, 329 S.W.3d 798, 806

(Tex. Crim. App. 2010); Montgomery, 810 S.W.2d at 389. "It is only when there exists a

clear disparity between the degree of prejudice of the offered evidence and its probative

value that Rule 403 bars its admission." Young v. State, 283 S.W.3d 854, 877 (Tex.

Crim. App. 2009).

We consider the evidence highly probative of intent. See Erazo, 144 S.W.3d at

489 (identifying probative value as first factor of Rule 403 review); Montgomery, 810

S.W.2d at 389-90 (same). We appreciate the potential impact this particular evidence

could have on the jury. "All testimony and physical evidence are likely [to] be prejudicial

to one party or the other." Davis, 329 S.W.3d at 806. Given the nature of this evidence,

the potential for impact could not be minimized, and the State took significant time

developing the evidence by presenting witnesses and exhibits. See Erazo, 144 S.W.3d

at 489 (holding potential to impress jury and time needed to develop evidence are two

necessary factors of Rule 403 analysis); Montgomery, 810 S.W.2d at 390 (same).

10 On the other hand, this evidence was necessary to establish intent. See Erazo,

144 S.W.3d at 489 (last factor is proponent's need for evidence); Montgomery, 810

S.W.2d at 390 (same). Since the defense argued that, in the Bell burglary, appellant

purchased the stolen property from the realtor, appellant's intent prior to entry was an

issue of dispute. See Erazo, 144 S.W.3d at 495-96 (discussing three factors for

evaluating need for evidence); Montgomery, 810 S.W.2d at 390 (same).

We conclude that the State's need for the extraneous-act evidence was high and

hold that the probative value of the evidence was not substantially outweighed by its

prejudicial effect. See Tex. R. Evid. 403; Young 283 S.W.3d at 877 (only clear disparity

between prejudice and probative value warrants exclusion under Rule 403). The trial

court's ruling on the admissibility of the extraneous-act evidence fell within the zone of

reasonable disagreement. See De La Paz, 279 S.W.3d at 343. We overrule appellant's

second issue.

IV. Limiting Instruction

By his third issue, appellant contends that the jury charge is so defective that it

constitutes egregious harm. Appellant asserts that the limiting instruction on the

extraneous offense evidence is defective because: (1) it did not condition the jury's

consideration of the extraneous offense evidence on the jury's first deciding that appellant

committed the extraneous offenses beyond a reasonable doubt; and (2) it failed to instruct

the jury on how to consider the extraneous-offense evidence if the jury found, beyond a

reasonable doubt, that appellant had committed the extraneous offenses.

11 Limiting instructions are governed by Rule 105 of the Texas Rules of Evidence.

Rule 105 states that:

"[i]f the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court's action in admitting such evidence without limitation shall not be a ground for complaint on appeal."

Tex. R. Evid. 105. A request for a limiting instruction must be made at the admission of

the evidence. Hammock v. State, 46 S.W.3d 889, 893 (Tex. Crim. App. 2001). If the

jury is required to consider evidence in a limited manner, then it must do so from the

moment the evidence is admitted. Id. at 894. Allowing the jury to consider evidence for

all purposes and then telling them to consider that same evidence for a limited purpose

only is asking a jury to do the impossible. Id. If a limiting instruction is to be given, it

must be when the evidence is admitted to be effective. Id.

Although appellant properly objected to the introduction of the extraneous offense

testimony, he did not request a limiting instruction. The first opportunity to request a

limiting instruction on the extraneous offense testimony would have been during the

hearing outside the presence of the jury where the trial court ruled on the admissibility of

the extraneous offense evidence. Once the trial court overruled appellant's objections

to the extraneous offense evidence and identified the purpose of admissibility, it was

apparent that a limiting instruction was proper. Because appellant did not request a

limiting instruction at the first opportunity, the evidence was admitted for all purposes. Id.

at 895. Therefore, a limiting instruction on the evidence was not within the law applicable

to the case, and the trial court was not required to include a limiting instruction in the

12 charge to the jury. Id.; see Tex. Code Crim. Proc. Ann. art. 36.14. Since the trial court

was not required to include a limiting instruction, it follows that including such an

instruction does not constitute error. See id.; Irielle v. State, 441 S.W.3d 868, 879-80

(Tex. App.—Houston [14th Dist.] 2014, no pet.) (concluding trial court did not err by giving

limiting instruction that failed to track language of Rule 404(b) when defendant never

requested limiting instruction).

Even ifthe trial court erred in giving a limiting instruction in the jury charge, the trial

court's error would be reviewed for a showing of egregious harm because appellant never

objected to the limiting instruction. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1984) (op. on reh'g). Egregious harm occurs when the error is so

fundamental as to deprive the defendant of a fair and impartial trial. Beam v. State, 447

S.W.3d 401, 407 (Tex. App.—Houston [14th Dist.] 2014, no pet.). This is a difficult

standard to prove, and such a determination must be done on a case-by-case basis. Id.

When deciding whether appellant suffered egregious harm, we review the entire jury

charge, the state of the evidence including the contested issues and weight of probative

evidence, the argument of counsel and any other relevant information revealed by the

record of the trial as a whole. Id. The harm must be actual, not merely theoretical. Id.

Egregiously harmful errors are those that affect the very basis of the case, deprive the

defendant of a valuable right, vitally affect the defensive theory, or make a case for

conviction clearly and significantly more persuasive. Id.

The limiting instruction stated that "you may not consider such evidence, for any

purpose other than to determine 'intent,' if any, unless you find and believe beyond a

13 reasonable doubt that the defendant committed such offenses or bad acts, if any."

Appellant argues the limiting instruction failed to tell the jury how to use the extraneous

offense evidence if the jury found, beyond a reasonable doubt, that appellant committed

the extraneous offenses. We disagree with appellant's contention. The plain language

of the instruction conditions the jury's consideration of the extraneous offense evidence

on the jury's finding beyond a reasonable doubt that appellant committed the extraneous

acts. Moreover, the extraneous offense evidence was admitted for all purposes. See

Hammock, 46 S.W.3d at 895.

The trial court's error, if any, did not vitally affect appellant's defensive theory or

make the State's case clearly and significantly more persuasive. As the State pointed

out during closing arguments, there were reasons outside of the extraneous offense

evidence to disbelieve appellant's theory. With respect to Bell, although appellant claims

he purchased the stolen jewelry from the realtor who showed Bell's home, the realtor

testified that the only face-to-face contact he had with appellant was the approximately

four-hour period which included the showing. Moreover, the jury could have reasonably

concluded that since appellant left Bell and the realtor to take another look at the home

and later pawned Bell's property, appellant was the person who removed Bell's property

from her home. With respect to Lock, the jury could have relied on Lock's realtor's

testimony regarding the open house, the entry by an unknown person, and the inferences

drawn from appellant's pawning of Lock's property in concluding that appellant committed

the burglary of Lock's home.

14 We conclude that the charge, even if erroneous, did not deprive appellant of a fair

trial or make the prosecution's case clearly and significantly more persuasive.

Appellant's third issue is overruled.

V. Court Costs

By his fourth issue, appellant complains that the evidence is insufficient to support

the trial court's order for appellant to pay $244.00 in court costs included in the judgment

in cause number F-1251946-V. Appellant argues that the clerk's record filed in this case

does not include a proper bill of costs and that there is no indication that the bill of costs

were ever filed in the trial court or brought to the attention of the trial court. In response,

the State argues that the bill of costs, provided and signed by the district clerk, meets the

requirements of the Texas Code of Criminal Procedure.

The Court of Criminal Appeals recently issued a "roadmap" for criminal cases

regarding questions of court costs.4 See Johnson v. State, 423 S.W.3d 385, 388 (Tex.

Crim. App. 2014). The court held, in relevant part: (1) a claim with respect to the basis

of court costs need not be preserved at trial to be raised for the first time on appeal; (2) a

record on appeal can be supplemented with a bill of costs; (3) a bill of costs need not be

in the record to support a particular amount of court costs; and (4) the fact that most court

costs are mandated by statute dispenses with the need for an ordinary sufficiency review.

On appeal, we review the assessment of court costs to determine if there is a basis for

the cost, not to determine if there was sufficient evidence offered at trial to prove each

cost. Id. at 390.

4 Appellant concedes in his reply brief that Johnson is likely dispositive of the court costs issue. See Johnson v. State, 423 S.W.3d 385,388 (Tex. Crim. App. 2014). 15 The clerk's record contains a document titled "bill of costs certification" and is

comprised of four pages. The first page contains the seal of the District Clerk of Dallas

County certifying that the document is a true and correct copy. It is signed by the deputy

clerk. The next two pages list the itemized court costs that accrued in appellant's case

and the payments received. The fourth page explains the abbreviations used throughout

the document. Thus, the document contains the items of cost, is signed by an officer

who is entitled to receive payment for the cost—the Dallas County District Clerk—and is

certified by an officer of the court.

The document contained in the record is a bill of costs for the purposes of chapter

103 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Art.

103.001-.006; Johnson, 423 S.W.3d at 393. The amount reflected in the "bill of costs

certification" is the same amount the trial court ordered in the judgment. See Johnson,

423 S.W.3d at 395-96 (observing that although bill of costs is not required to sustain

statutorily authorized and assessed court costs, it is the most expedient, and therefore,

preferable method). We overrule appellant's fourth issue.

VI. Conclusion

We affirm the trial court's judgment.

GREGORY T. PERKES Justice

Do not publish. Tex. R. App. P. 47.2(b).

Delivered and filed the 11th day of June, 2015.