                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-17-00263-CR

TRENTON EUGENE SINYARD,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                           From the 40th District Court
                               Ellis County, Texas
                             Trial Court No. 40346CR


                          MEMORANDUM OPINION


      Trenton Eugene Sinyard was convicted of Burglary of a Habitation, enhanced, and

sentenced to 99 years in prison. See TEX. PENAL CODE ANN. §§ 30.02, 12.42(b); 12.32 (West

2011). Because the evidence was sufficient to support the conviction, the trial court did

not abuse its discretion in admitting extraneous offense evidence, and Sinyard’s

complaints regarding his punishment were not preserved, the trial court’s judgment is

affirmed.
BACKGROUND

          Jennifer Lucas was working at home when around noon, someone rang her front

doorbell. She did not answer it. A moment later, the doorbell rang again. When she

investigated, she saw the shadow of someone walking by the front windows where there

were flower beds. She went to the French doors at the back of her house and closed the

blinds so no one would see her. Moments later, she heard someone “trying” the back

French door handle and pushing on the door. She retrieved her handgun from a safe and

called the Sheriff’s Department. While she was on the phone, she heard a loud bang, the

door flung open, and a person stumbled in through the doorway. Lucas did not

recognize the intruder and started shooting at him.

          When deputies arrived, they followed a trail of blood from Lucas’s back door to

her gate. A canine unit followed a scent then to the house next door, first to a separate

“mother-in-law” house at the back. There was blood on the door and below a hamper

inside. Believing the intruder was hiding in the main house,1 deputies called on the fire

department to use heat-sensing technology and found Sinyard hiding in a wall. He had

used a “scuttle hole” in the attic to reach the area where he was hiding. When he was

removed from the area, he was wearing shorts; but a pair of bloody jeans and a bloody t-

shirt were found in the area. He had a wound to the back of his head and to his left

back/shoulder area.




1
    The house belonged to Sinyard’s sister, and Sinyard lived there.

Sinyard v. State                                                                   Page 2
SUFFICIENCY OF THE EVIDENCE

        In his first issue, Sinyard contends the evidence is insufficient to support his

conviction. Specifically, he argues the evidence showed there was no entry into the home

and no intent to commit theft.

        The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

                When addressing a challenge to the sufficiency of the evidence, we
        consider whether, after viewing all of the evidence in the light most
        favorable to the verdict, any rational trier of fact could have found the
        essential elements of the crime beyond a reasonable doubt. Jackson v.
        Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State,
        514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the
        appellate court to defer "to the responsibility of the trier of fact fairly to
        resolve conflicts in the testimony, to weigh the evidence, and to draw
        reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at
        319. We may not re-weigh the evidence or substitute our judgment for that
        of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
        2007). The court conducting a sufficiency review must not engage in a
        "divide and conquer" strategy but must consider the cumulative force of all
        the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate
        about the meaning of facts or evidence, juries are permitted to draw any
        reasonable inferences from the facts so long as each inference is supported
        by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex.
        Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214
        S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder
        resolved any conflicting inferences from the evidence in favor of the verdict,
        and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex.
        Crim. App. 2012). This is because the jurors are the exclusive judges of the
        facts, the credibility of the witnesses, and the weight to be given to the
        testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
        Direct evidence and circumstantial evidence are equally probative, and
        circumstantial evidence alone may be sufficient to uphold a conviction so
        long as the cumulative force of all the incriminating circumstances is
        sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809
        (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
Sinyard v. State                                                                                Page 3
               We measure whether the evidence presented at trial was sufficient
        to support a conviction by comparing it to "the elements of the offense as
        defined by the hypothetically correct jury charge for the case." Malik v.
        State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
        correct jury charge is one that "accurately sets out the law, is authorized by
        the indictment, does not unnecessarily increase the State's burden of proof
        or unnecessarily restrict the State's theories of liability, and adequately
        describes the particular offense for which the defendant was tried." Id.; see
        also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law
        as authorized by the indictment" includes the statutory elements of the
        offense and those elements as modified by the indictment. Daugherty, 387
        S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

        Section 30.02 of the Texas Penal Code provides, as relevant to this case, that a

person commits an offense if, without the effective consent of the owner, he enters a

habitation, with intent to commit theft. See TEX. PEN. CODE ANN. § 30.02(a)(1) (West 2011).

“Enter” means to intrude any part of the body, or any physical object connected with the

body. Id. (b).

        Sinyard contends the evidence did not show he “entered” Lucas’s house because,

he asserts, the record reflects Lucas shot through the door before Sinyard opened it.

Sinyard contends that: 1) Lucas told the 9-1-1 operator that as Sinyard started opening

the back door, Lucas started shooting; 2) when law enforcement interviewed him after he

was retrieved from his hiding place, Sinyard stated that while he was banging on the

back door, someone started shooting; 3) there was no damage to the receiver plate for the

deadbolt, if it was engaged; and 4) the damage to the door and sheetrock beside the door


Sinyard v. State                                                                         Page 4
indicate the door was shut when Lucas began shooting.

        However, the evidence shows that Lucas also told the 9-1-1 operator that Sinyard

“came in” and Lucas started shooting.        Lucas testified that the back door opened

forcefully and a person stumbled in sideways. The intruder’s upper body and left foot

were in the house, and she started shooting. He did not leave right away but used the

door as a shield and pulled it closed. Lucas further stated that the deadbolt for the door

was engaged, but the pin in the bottom of the other door of the two French doors may

not have been engaged in the floor. Thus, she explained, without the bottom pin engaged,

there would be a lot of flex in the doors. Also, she and Sgt. Fitzgerald, an investigator

with the Ellis County Sheriff’s Department, noted that the receiver plate in the second

door had moved some. Through photographs admitted into evidence, Sgt. Fitzgerald

noted that the outside of the door was also damaged, indicating that it was open during

the shooting.

        The jury was not required to believe Sinyard’s statements to law enforcement that

he was shot before the door was opened. And, viewing all of the evidence in the light

most favorable to the verdict, we determine any rational trier of fact could have found

that Sinyard entered Lucas’s house beyond a reasonable doubt.

        Sinyard also contends the evidence was insufficient to prove that he had the intent

to commit theft. Although not immediately, Sinyard left Lucas’s home after Lucas started

shooting at him. He hid in a crawl space in his sister’s home next door after taking off


Sinyard v. State                                                                     Page 5
his bloody clothes. When retrieved by law enforcement after the incident, Sinyard

offered an explanation as to why he was at Lucas’s home—that he was looking for his

dog. Lucas testified that the dog roams the area but has never been taken into her house.

A dog was located in the bathroom of the house where Sinyard was located. Further, two

prior burglary of a habitation convictions for Sinyard were admitted into evidence as

support for the element of intent. See TEX. R. EVID. 404(b)(2) (“…evidence may be

admissible for another purpose, such as proving…intent….”).

        Based on this record, we determine that any rational trier of fact could reasonably

find beyond a reasonable doubt that Sinyard entered Lucas’s home with the intent to

commit theft. See id.; see also Gear v. State, 340 S.W.3d 743, 747-48 (Tex. Crim. App. 2011)

(evidence can be sufficient to prove intent to commit theft where a defendant attempts to

enter a home, flees when interrupted by the homeowner, and gives conflicting or

implausible explanation for his actions).

        Accordingly, Sinyard’s first issue is overruled.

EXTRANEOUS OFFENSES

        In his second issue, Sinyard complains about the introduction of two extraneous

offenses during the State’s case in chief. During Sgt. Fitzgerald’s testimony, the State

sought to introduce three prior burglary convictions listed in the State’s notice to Sinyard

of its intent to introduce extraneous offenses to rebut Sinyard’s defensive theory that he

had no intent to commit theft. One conviction was for “simple burglary” from Louisiana.


Sinyard v. State                                                                      Page 6
The other two were for burglary of a habitation, both occurring in Ellis County, Texas.

After a hearing outside the presence of the jury, the trial court admitted the two Ellis

County convictions. Sinyard contends the trial court abused its discretion in admitting

those two prior convictions in violation of Rules of Evidence 404(b) and 403.

         A trial court's ruling on the admissibility of extraneous offenses is reviewed under

an abuse-of-discretion standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App.

2009).

         Rule of Evidence 404(b) generally provides that "[e]vidence of a crime, wrong,

or other act is not admissible to prove a person's character in order to show that on a

particular occasion the person acted in accordance with the character." TEX. R. EVID.

404(b)(1). However, the evidence may be admitted for another purpose, such as to prove

the defendant's intent, plan, preparation, or other state of mind. Id. (b)(2). Further,

admitting evidence of extraneous offenses is permissible "to rebut a defensive issue that

negates one of the elements of the offense." De La Paz v. State, 279 S.W.3d 336, 343 (Tex.

Crim. App. 2009); Hinojosa v. State, 554 S.W.3d 795, 798 (Tex. App.—Waco 2018, no pet.).

         Nevertheless, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403. But this rule favors

the admission of relevant evidence, and such evidence is presumed to be more probative

than prejudicial. See Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006); Majors

v. State, 554 S.W.3d 802, 808 (Tex. App.—Waco 2018, no pet.). An analysis under Rule 403


Sinyard v. State                                                                       Page 7
includes, but is not limited to, 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.

Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012).

        One of Sinyard’s defensive theories at trial was that he did not intend to commit

theft—he was simply looking for his dog. Sinyard hinted during voir dire and opening

that there was a problem with the State’s ability to prove the element of intent. He fully

raised the “looking for my dog” theory on re-cross examination of Lucas where Sinyard’s

counsel told Lucas:

        What really happened out there that day was that somebody came to your
        backdoor. Let's just say, Mr. Sinyard. He was knocking on the backdoor,
        there on a legitimate purpose, trying to find his dog. He was knocking on
        the backdoor because he had already knocked on the front door and rung
        the doorbell. Came to the backdoor and knocked on the backdoor, and the
        backdoor came open and you shot him.

Accordingly, Sinyard placed his intent at issue and thus, the trial court did not abuse its

discretion in admitting the two prior convictions over Sinyard’s Rule 404(b) objection.

        Sinyard also contends that the convictions were extremely prejudicial and their

probative value was minimal. See TEX. R. EVID. 403. All testimony and physical evidence

will likely be prejudicial to one party or the other. Jones v. State, 944 S.W.2d 642, 653 (Tex.

Crim. App. 1996). It is only when there exists a clear disparity between the degree of

prejudice of the offered evidence and its probative value, in other words, the evidence is

unfairly prejudicial, that Rule 403 is applicable. Id.; see Montgomery v. State, 810 S.W.2d
Sinyard v. State                                                                        Page 8
372, 389 (Tex. Crim. App. 1991, op. on rhg).

        Sinyard’s prior convictions for burglary of a habitation seven years prior to his

trial strengthens the inference that he entered Lucas’s home with the intent to commit

theft, especially in light of Sinyard’s defense that he was only looking for his dog. Thus,

the evidence was necessary and probative. The presentation of the convictions did not

consume an inordinate amount of time and was not repetitive of evidence already

admitted. The jury was instructed that it could not consider the evidence for any purpose

other than to determine Sinyard’s intent. While the admission of prior convictions will

always be prejudicial, there was nothing here that suggested the jury would be distracted

from the main issue or use the evidence for an improper purpose.

        Based on our review of the record, the trial court, after balancing the various Rule

403 factors, could have reasonably concluded that the probative value of the convictions

was not substantially outweighed by the danger of unfair prejudice. Accordingly, the

trial court did not abuse its discretion in admitting the two burglary of a habitation

convictions into evidence over Sinyard’s Rule 403 objection.

        Sinyard’s second issue is overruled.

SENTENCE

        In his last two issues, Sinyard contends that his 99-year sentence was excessive

and disproportionate to the crime and inappropriate under the Eighth Amendment to the

United States Constitution and Article I, Section 13 of the Texas Constitution. See U.S.


Sinyard v. State                                                                      Page 9
CONST. amend. VIII; see also TEX. CONST. art. I, § 13.

        A disproportionate-sentence claim must be preserved for appellate review. See

TEX. R. APP. P. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996);

Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) (en banc); see also Noland v.

State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). At trial,

Sinyard’s counsel did not object to the imposed sentence. Further, Sinyard did not

complain about the imposition of his sentence in his motion for new trial or otherwise

present an objection to the imposed sentence. Thus, Sinyard’s complaints in these two

issues are not preserved.

        Sinyard’s third and fourth issues are overruled.

CONCLUSION

        Having overruled each issue presented on appeal, we affirm the trial court’s

judgment.


                                                TOM GRAY
                                                Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Senior Justice Scoggins2
Affirmed
Opinion delivered and filed February 27, 2019
Do not publish
[CRPM]


2
 The Honorable Al Scoggins, Senior Justice of the Tenth Court of Appeals, sitting by assignment of the
Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003 (West 2013).

Sinyard v. State                                                                                 Page 10
