                              NUMBER 13-08-247-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


BRIAN KEITH ENLOE,                                                            Appellant,

                                            v.

THE STATE OF TEXAS,                                                            Appellee.


                On appeal from Criminal District Court No. 7
                         of Dallas County, Texas.


                          MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Vela
                Memorandum Opinion by Justice Vela

       Appellant, Brian Keith Enloe, was indicted for the offense of burglary of a building,

a state-jail felony. See TEX . PENAL CODE ANN . § 30.02(a)(1), (c)(1) (Vernon 2003).

Following a jury trial, appellant was convicted, and after pleading true to two prior felony

convictions, the jury assessed punishment at ten years’ imprisonment. By three issues,
appellant complains the trial court erred in admitting State’s exhibit 10 into evidence, the

limiting instruction pertaining to State’s exhibit 10 was insufficient, and the evidence was

factually insufficient to prove intent to commit theft. We affirm.1

                                              I. Factual Background

         Edward Trejillo and his brother, Tino, lived in Dallas with their parents, Bastino and

Francis Trejillo. Their house had a detached garage with pecan trees around it. About

10:45 p.m. on December 16, 2007, Edward was in the house when he heard a noise like

someone was “stepping on the leaves and the pecans at the same time.” He looked

outside and saw the garage was halfway open and that somebody with a flashlight was in

the garage, looking for something. Upon seeing the intruder, Tino called the police.

         Officers Helm2 and Meyers were dispatched to the Trejillo residence. Officer

Meyers saw that the Trejillo’s garage was “slightly open. Open enough to where a person

could slide under there . . . and gain access that way.” While both officers were outside

the garage, Officer Helm told the intruder, who was still in the garage, “‘This is the Dallas

Police Department, come out, crawl out.’” The intruder, wearing gloves, crawled out of the

garage and was arrested at the scene. Officer Meyers testified that inside the garage, he

“found numerous items kind of piled up, or it looked like they were about to be piled up.”

He saw a tackle box with a hedge trimmer on top of it. A little further in the garage, he saw

a black gun case containing a .22 rifle. Outside the garage, there were two shovels and

a rake. Officer Meyers testified that “It looked like the defendant was piling up evidence



         1
           This appeal was transferred to this Court from the Fifth Court of Appeals by order of the Texas
Suprem e Court. See T EX . G O V ’T C OD E A N N . § 22.220 (Vernon 2004) (delineating the jurisdiction of appellate
courts); T EX . G O V ’T C OD E A N N . § 73.001 (Vernon 2005) (granting the suprem e court the authority to transfer
cases from one court of appeals to another at any tim e that there is “good cause” for the transfer).

         2
             Officer Helm did not testify during the trial of this case.
                                                            2
in a centralized location in the garage, at the exit point for where he was going to exit, to

access the property in a quick manner, go through the garage. And this is common with

burglaries. . . .” That night, Officer Meyers inventoried everything that appellant had on his

person, which included a roll of plastic trash bags,3 a utility knife, a pocket knife, and wire

cutters. Officer Meyers testified that these items are commonly used in burglaries.

Appellant also had two flashlights and a screwdriver. Officer Meyers identified appellant

as the person who crawled out of the Trejillo’s garage.

        On cross-examination, Officer Meyers testified that he did not find any signs of

forced entry and that trash bags are used to keep people warm and dry. He believed the

weather was cold at the time of this offense. He had no prior knowledge with respect to

what the garage looked like before he went into the garage.

        After appellant crawled out of the garage, Edward Trejillo looked through the garage

and saw that various items that were in the garage were either taken out of the garage or

had been moved to the front of the garage where they could be easily taken out. He stated

that “the lawnmower’s arms[4] were folded like he [appellant] was going to put it over the

fence, and the tackle box was up in the front, which the tackle box and the rifle were in the

back of the garage.” When the prosecutor asked Edward, “And did y’all ever put that bar,

that handlebar, I guess, of the lawnmower down?”, he replied, “No, sir.” He testified that

the handlebar was down when he went into the garage. He believed that the tackle box

normally sat in the corner of the garage; however, he found it in the front of the garage by



        3
         W hen the prosecutor asked Officer Meyers, “And in your experience, what are these [trash bags]
used for in a burglary?”, he replied, “Containm ent of property, vast am ounts of property, and an easy way of
transportation.”

        4
         Edward testified that the lawnm ower’s “arm s were folded down like if you’re going to put it in the
trunk, you fold the arm s down, so that way you can put the trunk down.”
                                                      3
the lawnmower and the edger. He said that a rifle that had been in the garage on top of

an old TV set was moved where the mower and tackle box were found. A hedge trimmer,

which usually sat on top of a mattress, was moved up front with the tackle box and

lawnmower. Rakes and shovels, which had been in the garage, were “tossed over to the

neighbor’s yard.”

       On cross-examination, he testified that the inside of the garage was not kept in an

orderly fashion. He said that the tackle box and rifle belonged to Tino and that he did not

know when Tino last used these items. Edward had not used the hedge trimmer or the

lawnmower since October.

       Bastino Trejillo, the owner of the garage, testified that his garage was not open to

the public and that he did not give appellant permission to go inside his garage and take

anything from him. He said that the person arrested at the scene was the same person

who was in his garage. On cross-examination, he did not know if anyone had removed

items from his garage. His sons, Edward and Tino, were mostly responsible for the garage

and the items inside it.

       Tino Trejillo testified that prior to the incident, he had not been in the garage for “a

couple of months.” He stated that he did not place either his tackle box or his rifle in the

front of the garage.

       Francis Trejillo testified that prior to the incident, she had not been in the garage for

“a couple of years.” However, she did not move anything up to the front of the garage.

       The defense rested without calling any witnesses at the guilt-innocence phase.




                                               4
                                       II. Discussion

A. Admission of Evidence

       In his first issue, appellant argues the trial court abused its discretion by admitting

State’s exhibit 10 into evidence. During the guilt-innocence phase, the prosecutor offered

into evidence State’s exhibit 10, which included a utility knife, a pocket knife, and wire

cutters. These items were found on appellant after he was arrested at the scene. Defense

counsel objected to the admission of State’s exhibit 10 on the basis that Texas Rule of

Evidence 403 prevented admission of these items because they were not probative of the

offense, but instead were highly prejudicial. Counsel also objected that the pocket knife

was inadmissible character evidence under rule 404(b). The trial court overruled the

objections but on counsel’s request, gave the jury a limiting instruction:

       This is potential evidence of consciousness of guilt of the defendant, and/or
       instrumentalities used to assist the defendant to accomplish whatever he
       was trying to accomplish that night. It is not to be taken by the jury as any
       kind of evidence that he intended to use any of those things for any sort of
       vile purpose.

       1. Standard of Review

       We review a trial court’s decision to admit evidence over objection under an abuse-

of-discretion standard, and we will not reverse that decision absent a clear abuse of

discretion. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). The abuse-of-

discretion standard applies to questions of the admissibility of evidence under rules 402-

404 of the Texas Rules of Evidence. Brimage v. State, 918 S.W.2d 466, 506 (Tex. Crim.

App. 1996). A trial court abuses its discretion when the decision lies outside the zone of

reasonable disagreement. McCarty, 257 S.W.3d at 239. We must uphold the trial court’s

evidentiary ruling if it is correct under any applicable theory of law. Trevino v. State, 991

S.W.2d 849, 853 n.5 (Tex. Crim. App. 1999). This is true even when the trial court gives
                                         5
the wrong reason for its decision. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990).

         2. Analysis

         a. Relevancy of State’s Exhibit 10

         Rule 401 of the Texas Rules of Evidence defines “relevant evidence” as “evidence

having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.” TEX . R. EVID . 401. Rule 402 provides that “[a]ll relevant evidence is admissible,

except as otherwise provided by Constitution, by statute, by these rules, or by other rules

prescribed pursuant to statutory authority. Evidence which is not relevant is inadmissible.”

TEX . R. EVID . 402. “It is important, when determining whether evidence is relevant, that

courts examine the purpose for which the evidence is being introduced.” Layton v. State,

No. PD-408-07, 2009 WL 250080, at *4 (Tex. Crim. App. Feb. 4, 2009) (citing Moreno v.

State, 858 S.W.2d 453 (Tex. Crim. App. 1993)). “It is critical that there is a direct or logical

connection between the evidence and the proposition sought to be proved.” Id.

         Here, the testimony showed that appellant did not possess any of the Trejillos’

property when he was arrested. Even though various items in the garage were moved to

the front of the garage and other items were removed from it, no one testified that appellant

moved any of these items. However, Officer Meyers testified that the pocket knife, utility

knife, and wire cutters were commonly used for burglaries. Thus, the State’s purpose for

introducing these items was to show appellant’s intent. In other words, appellant’s

possession of the items tended to show his intent to commit the offense of burglary and

therefore assisted the jury in drawing an inference that he entered the garage with the

intent to commit theft. See TEX . R. EVID . 401; see also Bordelon v. State, 683 S.W.2d 9,
                                              6
12 n.3 (Tex. Crim. App. 1985) (“[P]ossession of burglary tools is admissible in burglary

cases as a circumstance from which it may be inferred that such tools were used to commit

the primary offense.”) (emphasis in original).

         b. Rules 403 and 404

         Evidence of extraneous offenses is generally not admissible. TEX . R. EVID . 404(a).5

However, rule 404(b) allows evidence of other crimes, wrongs, or acts if the evidence has

relevance apart from character conformity. TEX . R. EVID . 404(b);6 Carter v. State, 145

S.W.3d 702, 707 (Tex. App.–Dallas 2004, pet. ref’d). Evidence of other crimes, wrongs,

or acts may be admissible to prove identity or intent, to establish motive, or to show

opportunity or preparation. TEX . R. EVID . 404(b); Moses v. State, 105 S.W.3d 622, 626

(Tex. Crim. App. 2003).

         Although admissible under rule 404(b), evidence may still be excluded under rule

403 if the danger of unfair prejudice substantially outweighs its probative value. TEX . R.

EVID . 403;7 Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999). The court of

criminal appeals has explained that the term “unfair prejudice”



         5
           Rule 404(a) provides, in relevant part: “Evidence of a person’s character or character trait is not
adm issible for the purpose of proving action in conform ity therewith on a particular occasion. . . .” T EX . R.
E VID . 404(a).

         6
             Rule 404(b) provides that:

         Evidence of other crim es, wrongs, or acts is not adm issible to prove the character of a
         person in order to show action in conform ity therewith. It m ay, however, be adm issible for
         other purposes, such as proof of m otive, opportunity, intent, preparation, plan, knowledge,
         identity, or absence of m istake or accident, provided that upon tim ely request by the accused
         in a crim inal case, reasonable notice is given in advance of trial of intent to introduce in the
         State’s case-in-chief such evidence other than that arising in the sam e transaction.

T EX . R. E VID . 404(b).

         7
         Rule 403 provides that “[a]lthough relevant, evidence m ay be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or m isleading the jury, or
by considerations of undue delay, or needless preparation or cum ulative evidence.” T EX . R. E VID . 403.
                                                        7
       refers not to an adverse or detrimental effect of evidence but to an undue
       tendency to suggest a decision on an improper basis, commonly an
       emotional one. Unfair prejudice does not arise from the mere fact that
       evidence injures a party’s case. Virtually all evidence that a party offers will
       be prejudicial to the opponent’s case, or the party would not offer it.
       Evidence is unfairly prejudicial only when it tends to have some adverse
       effect upon a defendant beyond tending to prove the fact or issue that
       justifies its admission into evidence. The prejudicial effect may be created
       by 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 S.W.3d 870, 883 (Tex. Crim. App. 2007) (citations omitted).

       “Rule 403 favors admission of relevant evidence and carries a presumption that

relevant evidence will be more probative than prejudicial.” Shuffield v. State, 189 S.W.3d

782, 787 (Tex. Crim. App. 2006); Brimage, 918 S.W.2d at 505. “Rule 403 requires

exclusion of evidence only when there exists a clear disparity between the degree of

prejudice of the offered evidence and its probative value.” Brimage, 918 S.W.2d at 506.

A proper rule 403 “analysis 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.” Prible v. State, 175 S.W.3d 724, 733 (Tex. Crim. App. 2005); Arroyo v.

State, 259 S.W.3d 831, 837 (Tex. App.–Tyler 2008, pet. ref’d).

       Considering the rule 403 factors, State’s exhibit 10 was probative because it showed

appellant’s intent as well as the context and circumstances of his actions. See Jackson

v. State, 575 S.W.2d 567, 570 (Tex. Crim. App. 1979) (“The facts and circumstances

surrounding the commission of an offense are admissible to prove the guilt of the

accused.”); Miller v. State, 874 S.W.2d 908, 915 (Tex. App.–Houston [1st Dist.] 1994 pet.

ref’d) (holding poker chips and other physical evidence were relevant and admissible to

prove defendant’s gambling activities). We further note that the State spent relatively little

                                              8
time developing this evidence as opposed to the total amount of time devoted to its case-

in-chief. We are also not persuaded that the evidence had a tendency to suggest a

decision on an improper basis or that it impressed the jury in an irrational way. And

although appellant claims the risk of unfair prejudice substantially outweighs the probative

value of the evidence, he fails to point out in what way the evidence was improper. We

hold the trial court did not abuse its discretion by admitting State’s exhibit 10 into evidence.

We overrule the first issue.

B. Limiting Instruction

       In his second issue, appellant argues the trial court’s limiting instruction was

insufficient to lessen the prejudicial impact of the admission of State’s exhibit 10. “To

preserve error, a complaining party must make a timely and specific request, objection, or

motion and obtain an express or implied ruling on that request, objection, or motion.”

Lopez v. State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008) (citing Gauder v. State, 115

S.W.3d 11, 13 (Tex. Crim. App. 2003)). Here, an objection was not made to the limiting

instruction. Consequently, appellant has failed to preserve this argument for review. See

id. Issue two is overruled.

C. Sufficiency of the Evidence

       In issue three, appellant argues the evidence is factually insufficient to prove he

intended to commit theft. In reviewing a factual sufficiency claim, we review the evidence

in a neutral light rather than the light most favorable to the verdict. Neal v. State, 256

S.W.3d 264, 275 (Tex. Crim. App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex.

Crim. App. 2007) (citing Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000)).

Evidence is factually insufficient if the evidence supporting the verdict is so weak that the

verdict seems clearly wrong and manifestly unjust, or if the supporting evidence is

                                               9
outweighed by the great weight and preponderance of the contrary evidence so as to

render the verdict clearly wrong and manifestly unjust. Neal, 256 S.W.3d at 275; Roberts,

220 S.W.3d at 524 (citing Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App.

2006)). We do not reverse for factual insufficiency if the greater weight and preponderance

of the evidence actually favors conviction. Neal, 256 S.W.3d at 275; Roberts, 220 S.W.3d

at 524 (citing Watson, 204 S.W.3d at 417).

       1. Applicable Law

       Appellant was convicted under penal code section 30.02, which provides in part:

“(a) A person commits an offense if, without the effective consent of the owner, the person:

(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[.]” TEX . PENAL CODE ANN . §

30.02(a)(1) (Vernon 2003). The intent to commit theft must exist at the moment of the

entry or there is no offense under section 30.02(a)(1). DeVaughn v. State, 749 S.W.2d 62,

65 (Tex. Crim. App. 1988). The offense is complete upon the entry; a completed theft is

unnecessary. Id. Proof of the intent to commit theft is a necessary element of the State’s

case. Id.

       Appellant argues the evidence is insufficient because there was no proof of intent

to commit theft. In a burglary case, the accused’s subjective, specific intent is rarely

evident from direct proof. Fugate v. State, 709 S.W.2d 29, 30 (Tex. App.–Corpus Christi

1986, no pet.). “As a question of fact for the jury, however, intent may be inferred from the

surrounding circumstances.” LaPoint v. State, 750 S.W.2d 180, 182 (Tex. Crim. App.

1988), disapproved of on other grounds by Warner v. State, 245 S.W.3d 458 (Tex. Crim.

App. 2008); Simmons v. State, 590 S.W.2d 137, 138 (Tex. Crim. App. 1979); Macias v.

State, 704 S.W.2d 484, 486 (Tex. App.–Houston [14th Dist.] 1986, no pet.); accord
                                             10
Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (“Intent may also be inferred

from circumstantial evidence such as acts, words, and the conduct of the appellant.”). A

“presumption of an intent to commit theft arises from the nonconsensual nighttime entry

of a home or building.” Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003);

Mauldin v. State, 628 S.W.2d 793, 795 (Tex. Crim. App. 1982). When a defendant

possesses burglary tools, the fact finder may infer that the defendant was going to use

those tools to commit a theft. See Bordelon, 683 S.W.2d at 12 n.3.

       2. Analysis

       A rational jury could have determined the following from the evidence: (1) appellant

was inside the garage at nighttime; (2) appellant was using a flashlight and appeared to

be looking for something; (3) prior to appellant’s entry into the garage, various items of

property were in their usual places; however, after appellant left the garage, these items

were moved to the front of the garage; (4) after appellant was arrested at the scene, he

had a pocket knife, utility knife, and wire cutters, all of which were commonly used in

burglaries; (5) two shovels and a rake were found over the fence; and (6) appellant did not

have consent to enter the garage, which was not open to the public.

       The contrary evidence showed: (1) no one saw appellant move any items inside the

garage or take any items from the garage; (2) the plastic bags which appellant had in his

pocket could have been used to keep him warm and dry; (3) appellant did not attempt to

flee; and (4) appellant did not have any of the Trejillo’s property on his person.

       Viewing the evidence neutrally, we conclude the evidence is not so obviously weak

that the verdict seems “clearly wrong and manifestly unjust” or that proof of guilt is against

the great weight and preponderance of the evidence to show, beyond a reasonable doubt,

that appellant entered the garage with the intent to commit theft. See Watson, 204 S.W.3d

                                             11
at 414-15, 417; Johnson, 23 S.W.3d at 11. Accordingly, we hold the evidence is factually

sufficient to support appellant’s conviction. See Mauldin, 628 S.W.2d at 795.8 We overrule

the third issue.

                                                III. Conclusion

        We affirm the trial court’s judgment.



                                                              ROSE VELA
                                                              Justice


Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this 19th day of March, 2009.




        8
          In Mauldin v. State, 628 S.W .2d 793 (Tex. Crim . App. 1982), a warehouse supervisor, Horace W est,
arrived at the warehouse about 4:30 a.m . and saw the defendant being brought out of the warehouse by
police. Id. at 794. U pon entering the warehouse, W est saw “papers scattered about and a num ber of
calculators, a radio, and other office equipm ent rem oved from their usual places and stacked upon desks and
chairs.” Id. The defendant was found inside the building on top of a “tier of shelves.” Id. On appeal, the
defendant contended the evidence was insufficient to sustain his conviction for burglary of a building because
there was no proof of intent to com m it theft. Id. at 794-95. The court of crim inal appeals stated: “In a
prosecution for burglary, the intent to com m it theft m ay be inferred from the circum stances.” Id. at 795 (citing
Simmons v. State, 590 S.W .2d 137 (Tex. Crim . App. 1979)). “Further, an entry m ade without consent in the
nighttim e is presum ed to have been m ade with intent to com m it theft.” Id. (citing Moss v. State, 574 S.W .2d
542 (Tex. Crim . App. 1978); Solis v. State, 589 S.W .2d 444 (Tex. Crim . App. 1979)). The court held that the
defendant’s “entry into the building having been m ade in the nighttim e without the consent of the owner is
sufficient to show an intent to com m it theft.” Id.
                                                        12
