Opinion filed May 16, 2019




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-17-00144-CR
                                  __________

                 TIMOTHY WAYNE STIRLE, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 238th District Court
                           Midland County, Texas
                       Trial Court Cause No. CR48210


                     MEMORANDUM OPINION
      The jury convicted Appellant, Timothy Wayne Stirle, of the state jail felony
offense of burglary of a building. After the jury found the enhancement paragraphs
to be true, it assessed Appellant’s punishment at confinement for ten years. The trial
court sentenced Appellant accordingly. Appellant presents two issues on appeal. In
his first issue, Appellant challenges the sufficiency of the evidence to support his
conviction. Specifically, Appellant contends that the evidence is insufficient to
show that he intended to commit theft when he entered the building. In his second
issue, Appellant challenges the admissibility of certain pieces of extraneous
evidence. We affirm.
                                  Evidence at Trial
      In the evening of August 20, 2016, Officer Gage Smith, a police officer with
the Midland Police Department, responded to an alarm at the New Horizons Child
Development Center, a daycare business in Midland. At the time, the daycare was
closed to the public.
      Officer Smith was one of the first officers to arrive on scene. When he arrived,
Officer Smith searched around the back of the building in the alley. While there, he
noticed that the gate of the wooden fence surrounding the back of the building “was
forced open.” Inside the fence, Officer Smith located a “shed” adjacent to the
building. According to Officer Smith, someone “had busted into it and scavenged
through it.” The door of the shed was ripped off and completely unhinged, and the
padlock of the door was broken off and lay on the ground near the door.
      Inside the fenced area, Officer Smith also noticed another open door, which
led into the building. When he went inside, Officer Smith found himself in “a
maintenance closet,” which contained “AC units.” Inside the room, between the AC
units, Officer Smith noticed a large hole “forced through the drywall leading into the
[daycare]” itself. Officer Smith and another officer crawled through the hole and
entered a bathroom of the building, which led into a hallway. The officers then
“cleared the business” and did not find anyone inside.
      Shortly afterwards, Trayce Leal, the co-owner of the daycare, arrived on
scene. Leal testified that she had received a call from her security company,
informing her that her daycare “was being broken into.” Leal testified that her
daycare contained video surveillance cameras and a security alarm system that
detects motion. When Leal arrived, she unlocked the front door and turned off the
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alarm. Leal then permitted the police to view the surveillance footage from the
security cameras.
          At trial, Officer Smith testified about the surveillance footage. According to
Officer Smith, in the surveillance footage, he could see “a white male wearing a
black and green hat” and “a Marine Corps shirt.” Officer Smith then testified about
the intruder’s actions inside the building. Officer Smith explained that the intruder
entered the building through the bathroom. Officer Smith testified that the intruder
then ran down the hallway toward the front of the business, where the “main office,”
“main desk,” and “cash register” were located. In doing so, the intruder set off the
motion sensors in the building, which, in turn, set off the audible alarm. After setting
off the alarm, the intruder immediately turned around, ran out an exit in the back of
the building, jumped the fence, and fled the scene by running down the alley.
Officer Smith further testified that the intruder was inside the building for
“[a]pproximately 30 seconds to a minute.”
          The record reflects that nothing from the building was reported stolen. Leal
testified that she did not know who the intruder was and had never given him
permission to be inside her daycare. Leal also explained that the shed was “normally
locked” and that the door to the maintenance closet was “typically locked.”
          Later that night, Officer Smith and Officer Allen Chilson responded to a call
concerning a person located too close to the railroad tracks. Upon arrival, the
officers approached an individual who was “passed out” a few inches from the train
tracks. Officer Smith noticed that the gentleman “had a green and black hat on and
the USMC shirt.” Officer Smith immediately recognized the individual as the
intruder in the video from the burglary earlier that day. At trial, Officer Smith
identified the intruder in the video and the person at the train tracks as Timothy
Stirle.


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      After finding Appellant, the officers woke him up and placed him under arrest
for burglary of a building. Officer Smith then patted Appellant down and grabbed
his wallet in order to identify him. Officer Smith testified that, although they were
unable to locate Appellant’s ID, they were able to locate a debit card and a social
security card inside the wallet. Officer Smith explained that the cards did not belong
to Appellant because they both contained the name of another person. The officers
also located other property around Appellant. Officer Chilson testified that the other
property included “[b]roken locks, some doorknobs,” a seven-amp drill, a grinder,
“a hand saw, a drill bit set,” a lawnmower, some sandals, and “a Game of Thrones
puzzle.” Neither Officer Smith nor Officer Chilson were able to confirm that the
property in Appellant’s possession was stolen. The record reflects that Appellant is
known to dig through the trash to acquire property, such as his clothes and shoes.
      After arresting Appellant and collecting the property, Officers Smith and
Chilson transported Appellant to the police station, where Appellant was
interviewed by Detective Blake Bush. The full interview was recorded, and the State
published a part of the interview to the jury. In the video, Detective Bush showed
Appellant several screenshots taken from the daycare’s video surveillance cameras.
After being shown these pictures, Appellant confessed that he was the individual in
the pictures. During the interview, Appellant explained why he had made the hole
in the wall and was inside the building. Appellant first stated that he was trying to
get in the building to “see what was in there.” Appellant later stated that he “wanted
a place to get away” and that he was just “trying to sleep.”
                                      Analysis
      In Appellant’s first issue, he contends that the evidence was legally
insufficient to support his conviction. Appellant directs his sufficiency challenge to
the element of intent. According to Appellant, the State failed to present any
evidence of his intent to commit theft when he entered the building. We disagree.
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      We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When we conduct a sufficiency review, we consider all the
evidence admitted at trial, including pieces of evidence that may have been
improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.
2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Additionally,
we defer to the factfinder’s role as the sole judge of the witnesses’ credibility and
the weight to be afforded their testimony. Brooks, 323 S.W.3d at 899. This standard
accounts for the factfinder’s duty 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; Clayton, 235 S.W.3d at 778. When the record supports
conflicting inferences, we presume that the factfinder resolved the conflicts in favor
of the verdict, and we defer to that determination. Jackson, 443 U.S. at 326; Clayton,
235 S.W.3d at 778.
      Moreover, in our review of the record, direct and circumstantial evidence are
treated equally. “Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient
to establish guilt.” Clayton, 235 S.W.3d at 778. We also note that, even if every
fact does not “point directly and independently to the guilt of the accused,” the
“cumulative force” of all the circumstantial evidence can be sufficient for a jury to
find the accused guilty beyond a reasonable doubt. Powell v. State, 194 S.W.3d 503,
507 (Tex. Crim. App. 2006).
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      A person commits burglary of a building when that person, “without the
effective consent of the owner,” enters “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) (West 2019). A person intends to commit theft if
he intends to unlawfully appropriate property with intent to deprive the owner of the
property. Id. § 31.03(a). Intent may be inferred from circumstantial evidence, such
as acts, words, and the conduct of a defendant. Guevara v. State, 152 S.W.3d 45, 50
(Tex. Crim. App. 2004). Evidence of intent includes, but is not limited to, evidence
of the following: forcible entry, joblessness, lack of transportation and funds,
implausible and inconsistent explanations, and flight upon being interrupted during
or after the commission of the offense. See Gear v. State, 340 S.W.3d 743, 747–48
& n.9 (Tex. Crim. App. 2011).
      Here, Appellant entered the daycare without the permission of the owner and
when it was not open to the public. He did so by entering the maintenance closet of
the daycare, located on the back side of the building. While inside, Appellant
forcibly created a large hole in the wall and entered a bathroom of the daycare.
According to Officer Smith, the video camera inside the building recorded Appellant
running toward the front of the building. Officer Smith testified that the cash register
was located in the front of the building. Before Appellant reached the front,
however, he set off the motion sensors inside, which triggered the security alarm.
Immediately after triggering the alarm, Appellant ran to the back door and fled the
scene. Officer Smith testified that Appellant was only inside the building for
approximately thirty seconds to a minute. Appellant’s forcible entry into the
building, his running toward the cash register, and his immediate flight once he
triggered the alarm is circumstantial evidence of Appellant’s intent to commit theft.
See Gear, 340 S.W.3d at 747–48 & n.9.


                                           6
      Moreover, evidence of Appellant’s inconsistent and implausible explanations
about why he was inside the building also indicate that Appellant entered the
building with the intent to commit theft. When Detective Bush asked Appellant why
he was inside the building, Appellant first stated that he was simply inside the
building to “see what was in there” but then later stated that he was trying to find “a
place to get away” and “sleep.” Further, these explanations are not plausible in light
of Appellant’s conduct while inside the building—running to the front of the
building where the cash register was located. Appellant’s conduct, rather than
establishing that he was innocently looking around or trying to find a place to sleep,
indicates that he acted deliberately and with a criminal purpose. Based on this
evidence, when viewed in the light most favorable to the verdict, we conclude that a
rational trier of fact could have found the existence of each of the elements of the
offense of burglary of a building, including that Appellant had the intent to commit
theft when he entered the building, beyond a reasonable doubt.
      Appellant also bases a part of his insufficiency argument on the fact that there
is no evidence that he took any property from the building. However, once Appellant
“entered” the building with the intent to commit theft, the offense of burglary of a
building, as charged in this case, was complete; it was not necessary for Appellant
to actually take any property. See Richardson v. State, 888 S.W.2d 822, 824 (Tex.
Crim. App. 1994).
      Therefore, we conclude that the evidence was sufficient to find Appellant
guilty of the offense of burglary of a building. We overrule Appellant’s first issue.
      In Appellant’s second issue, he contends that the trial court abused its
discretion when it admitted extraneous evidence in violation of Rule 404(b) of the
Texas Rules of Evidence. Specifically, Appellant argues that the trial court erred
when it permitted the State to introduce evidence of the debit card and the social
security card found in Appellant’s possession, both of which belonged to another
                                          7
individual. According to Appellant, the State did not prove that these two items
were unlawfully taken or that this evidence served some permissible purpose under
Rule 404(b).
      Even if we assume, without deciding, that the admission of the debit card and
the social security card constitutes error, we conclude that their admission did not
harm Appellant.     The erroneous admission of evidence generally constitutes
nonconstitutional error. See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.
2002). We must disregard a nonconstitutional error if it does not affect substantial
rights. TEX. R. APP. P. 44.2(b). “A substantial right is affected when the error had a
substantial and injurious effect or influence in determining the jury’s verdict.”
Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). “[S]ubstantial rights
are not affected by the erroneous admission of evidence ‘if the appellate court, after
examining the record as a whole, has fair assurance that the error did not influence
the jury, or had but a slight effect.’” Motilla, 78 S.W.3d at 355 (quoting Solomon v.
State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)). In assessing the likelihood that
the jury’s decision was adversely affected by the error, we must “consider everything
in the record, including any testimony or physical evidence admitted for the jury’s
consideration, the nature of the evidence supporting the verdict, the character of the
alleged error and how it might be considered in connection with other evidence in
the case.” Id.
      Here, although Officer Smith testified that he found a debit card and a social
security card in Appellant’s wallet and that the two cards were in another person’s
name, his testimony about the cards was brief and nonspecific.               Instead,
Officer Smith focused more on how Appellant forcibly entered the daycare and his
actions once inside the building—Appellant running toward the front of the building
toward the cash register and then taking flight once he triggered the security alarm.
Similarly, during its closing arguments, the State focused on Appellant’s violent
                                          8
actions before and during the burglary and only briefly mentioned his possession of
the two cards.         The State also centered its closing arguments on disproving
Appellant’s explanations for why he was inside the building, arguing that Appellant
was not in the building innocently looking for a place to sleep but, rather, was
looking for something to steal. Moreover, as discussed above in our disposition of
Appellant’s first issue, even without evidence of the debit card and the social security
card, the State presented overwhelming evidence of Appellant’s guilt. In light of
such evidence, and after examining the record as a whole, we have fair assurance
that the admission of the debit card and the social security card did not influence the
jury’s verdict, or influenced the jury only slightly. See Motilla, 78 S.W.3d at 355.
We overrule Appellant’s second issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           KEITH STRETCHER
                                                           JUSTICE


May 16, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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