IBARRA v. STATE (2026)

OPINION

A jury found appellant guilty of three counts of burglary of a habitation and assessed punishment for each at forty years' confinement and a $10,000 fine. In two issues, appellant contends that (1) the evidence is insufficient to support his convictions because the newly constructed houses that he burglarized were not habitations, and (2) the trial court erred by admitting evidence of two extraneous offenses during the guilt-innocence phase because the State had no need for their admission. We affirm.

I. Sufficiency of the Evidence

In his first issue, appellant contends that the evidence is insufficient to prove that the buildings he burglarized were “habitations” as defined by the Penal Code.

The Penal Code divides the burglary of real property into two categories—burglary of a building and burglary of a habitation—with the latter carrying a higher punishment classification. See Blankenship v. State, 780 S.W.2d 198, 206 (Tex. Crim. App. 1988) (op. on reh'g); see also Tex. Penal Code § 30.02(c). A “habitation” is defined as “a structure or vehicle that is adapted for the overnight accommodation of persons.” Tex. Penal Code § 30.01(1).

Whether a structure is adapted for overnight accommodation is a “complex, subjective factual question fit for the jury's determination.” Blankenship, 780 S.W.2d at 209. Under the familiar standard of review for evidentiary sufficiency,¹ the issue of “whether a burglarized place is a ‘building’ or a ‘habitation’ will be overturned on appeal only if the appellant can show that no reasonable trier of fact could have found the place to have been a habitation.” Id. at 209–10. A jury may be guided by the following nonexclusive and nonessential factors: (1) whether someone was using the structure as a residence at the time of the offense; (2) whether the structure contained bedding, furniture, utilities, or other belongings common to a residential structure; and (3) whether the structure is of such a character that it was probably intended to accommodate persons overnight, such as a house, apartment, condominium, sleeping car, mobile home, or house trailer. See id. at 209; see also Salazar v. State, 284 S.W.3d 874, 877 (Tex. Crim. App. 2009).

Appellant was charged with burglarizing three separate houses in February, June, and August 2024. He stole kitchen appliances such as dishwashers, microwaves, ovens, cooktops, and stoves. Each house had been newly constructed, but ownership had not yet transferred from the builders to the buyers.

The jury heard from witnesses who were employed by the builders of the houses to testify about each burglary. The February burglary occurred on the day before the scheduled closing. The house “looked like a brand new home” and was “ready to be lived in.” It had a roof, walls, and “everything you need to live in there.” It had passed all inspections and was “ready to move in.” The June burglary occurred when the house was “ready to be inhabited.” The house had a “final clean,” and the parties were “gearing towards the buyers' walk.” During this walkthrough, the parties would “make sure everything is in place—mirrors, flooring, carpet, doors, stoppers, appliances.” A peace officer who responded to the June burglary testified that the house looked like a “completed home.” Finally, the August burglary occurred in a “finished home.” It had been “[c]ompleted, a hundred percent.”

Although there was no evidence that these houses contained furniture or bedding, or that the houses had previously been used by persons for overnight accommodations, these factors are not dispositive. See Blankenship, 780 S.W.2d at 209. For example, in Hicks v. State, 204 S.W.3d 505 (Tex. App.—Amarillo 2006, no pet.), the court of appeals held that a rental property was a habitation although it was vacant and lacked furnishings. Id. at 507–08. The owner “considered the place as a house like other houses,” and it was “meant to be lived in.” Id. at 507. The house was wired for electricity and plumbed for water and gas. Id. It had a kitchen, bathroom, water heater, heater, and roof. Id. And the house was “in the process of being re-leased.” Id.

Appellant cites no factually analogous case to support his argument. But one case that would support his argument is Jones v. State, 532 S.W.2d 596 (Tex. Crim. App. 1976). In Jones, the Court of Criminal Appeals addressed whether a “completed but vacant and unused house” was a habitation. Id. at 599. At the time of the burglary, the house was the subject of a contract for sale, but no one had ever lived in it, there was no furniture or refrigerator in the house, and although there was a water connection, there might not have been “power.” Id. at 597–98. The court held that the evidence was legally insufficient to support a conviction for burglary of a habitation because the house had not yet been “actually ‘adapted for the overnight accommodations of persons’ or at least at some prior time used for the overnight accommodation of persons and still ‘adapted for the overnight accommodation of persons.’ ” Id.

But the Blankenship court overruled Jones, criticizing its narrow construction of the statute. Blankenship, 780 S.W.2d at 209–10 (“Jones erred by stepping into the jury box and assuming the role of substitute subjective factfinder [and] is expressly overruled.”); see also Chandler v. State, 790 S.W.2d 635, 635 (Tex. Crim. App. 1990) (recognizing the overruling of Jones; reversing court of appeals' decision that held an unfurnished and vacant apartment was not a habitation). We follow Blankenship, which requires us to consider whether the structure “is of such a character that it was probably intended to accommodate persons overnight.” Id. at 209. The court identified a “house” as one example of a structure that would have this character. Id.

In sum, the jury heard that these newly constructed houses were ready to be lived in, completed, finished, and of course furnished with kitchen appliances. We defer to the jury's resolution of the subjective factual question of whether these newly constructed yet uninhabited houses were of such a character that they were probably intended to accommodate persons overnight. See id. at 209–10. A rational jury, considering all the evidence and inferences therefrom, could have found beyond a reasonable doubt that these houses were habitations.

The evidence is legally sufficient. Appellant's first issue is overruled.

II. Admission of Evidence

In his second issue, appellant contends that the trial court erred by admitting evidence of two extraneous burglaries, which “substantially prejudiced” him, and “there was no need” for the evidence because he was already on trial for three burglaries.

A. Rule 403 Legal Principles

Under Rule 403 of the Texas Rules of Evidence, a court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Tex. R. Evid. 403. A court must balance (a) the probative force of the evidence along with the proponent's need for the evidence against (b) any tendency of the evidence to suggest a decision on an improper basis, to be given undue weight by the jury, to confuse or distract the jury, and to consume an inordinate amount of time or merely repeat evidence already admitted. See Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). Courts generally consider the following nonexclusive factors: the probative value of the evidence, the proponent's need for it, the potential for it to impress the jury in some irrational yet indelible way, and the time needed to develop the evidence. Colone v. State, 573 S.W.3d 249, 266 (Tex. Crim. App. 2019).

Rule 403 presumes that the probative value of relevant evidence exceeds any danger of unfair prejudice. Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009). “The rule envisions exclusion of evidence only when there is a clear disparity between the degree of prejudice of the offered evidence and its probative value.” Id. (quotation omitted); see also Valadez v. State, 663 S.W.3d 133, 142 (Tex. Crim. App. 2022).

We review a trial court's decision to exclude evidence for an abuse of discretion. State v. Heath, 696 S.W.3d 677, 688 (Tex. Crim. App. 2024). A trial court abuses its discretion if the decision lies outside the zone of reasonable disagreement. Id. at 688–89.

B. Briefing Waiver

The State contends that appellant's brief is inadequate because appellant does not apply Rule 403 legal principles to the facts of this case but merely asks, “What was the State's need for these extraneous offenses during the guilt-innocence phase?” Indeed, appellant recites the general legal standards for Rule 403 and quotes extensively from the reporter's record but does not offer substantive analysis of how the Rule 403 factors apply in this case.

Merely reciting legal principles without applying the law to the facts is inadequate and results in waiver of the alleged error. See Swearigen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003); see also Mauricio v. State, 104 S.W.3d 919, 920 n.1 (Tex. App.—Houston [14th Dist.] 2003), aff'd, 153 S.W.3d 389 (Tex. Crim. App. 2005) (Rule 403 error waived due to inadequate briefing when the appellant's brief included “no argument or explanation why the [evidence] was unfairly prejudicial or misleading” (emphasis added)). Appellant's conclusory suggestion that the State didn't “need” the evidence is inadequate to properly present this issue and results in waiver. See Allen v. State, No. 14-12-01086-CR, 2014 WL 3587372, at *7 (Tex. App.—Houston [14th Dist.] July 22, 2014, pet. ref'd) (mem. op., not designated for publication) (Rule 403 complaint waived by merely stating that the evidence was “unfairly prejudicial” without explaining how Rule 403 factors should apply).

C. No Error

Even if appellant did not waive error due to inadequate briefing, we cannot conclude that the trial court abused its discretion. Appellant does not challenge the admissibility of the two extraneous burglaries under Rule 404 because the evidence was relevant to show his identity through a modus operandi. See generally Regan v. State, 7 S.W.3d 813, 817 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd).² Thus, the evidence was probative because all five burglaries involved appellant breaking into the rear of finished but unoccupied new-construction houses on Sunday mornings, parking his distinctive black sport utility vehicle in the driveways or garages, and stealing kitchen appliances by loading them into the vehicle. See, e.g., Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996) (high probative value when offenses are similar). Appellant does not dispute the trial court's reasoning that appellant placed his identity at issue through opening argument and his cross-examination of witnesses.³ Thus, the State's need for the evidence was heightened. See id. at 520–21 (high need when identity is contested issue). Appellant does not contend that the time to develop the evidence was inordinate; indeed, the evidence was presented through two witnesses with combined testimony comprising less than twenty pages in the reporter's record. See id. at 520 (time was not excessive when it took less than one fifth of the State's case in chief—less than a full day of testimony). Because the extraneous offenses were “no more heinous” than the charged offenses, the evidence was “not likely to create such prejudice in the minds of the jury that it would have been unable to limit its consideration of the evidence to its proper purpose.” Taylor v. State, 920 S.W.2d 319, 323 (Tex. Crim. App. 1996). Finally, the impermissible inference of character conformity was minimized through the court's use of a limiting instruction at the time the evidence was admitted and in the charge. See Lane, 933 S.W.2d at 520.

Considering the Rule 403 factors, the trial court's decision to admit evidence of two similar extraneous burglaries did not lie outside the zone of reasonable disagreement. Appellant's second issue is overruled.

III. Conclusion

The evidence is legally sufficient to support the trial court's judgment, and appellant has not demonstrated that the trial court abused its discretion by admitting evidence of two extraneous burglaries. The trial court's judgment is affirmed.

FOOTNOTES

1.   See, e.g., Garcia v. State, No. PD-0556-25, 2026 WL 1826501, at *3 (Tex. Crim. App. June 25, 2026).

2.   Although appellant recites Rule 404, he does not argue on appeal that the evidence was inadmissible under Rule 404, and his trial counsel explained his objection as follows: “I would agree with the State on what this—the prior offense shows; and the only issue is prejudicial effect on guilt/innocence, is the main issue.”

3.   Trial counsel responded, “I agree,” when the court described its reasoning: “What I'm only able to rule on is whether I believe that the Defense has raised an issue as to identity and intent to commit theft; and my understanding of the argument is that that is your defense, is identity, which then leads to does this testimony provided by [the witness], is it enough of a signature description of what the defendant has admitted to and been convicted of and in this case is very similar, if it's not a signature.” (emphasis added).

Ken Wise, Justice