Opinion filed June 16, 2022

In The

Eleventh Court of Appeals __________

No. 11-20-00166-CR

__________

ANDRES GUTIERREZ, III, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 132nd District Court

Scurry County, Texas

Trial Court Cause No. 10740

M E M O R A N D U M O P I N I O N

The jury convicted Andres Gutierrez, III, of burglary of a building. See TEX.

PENAL CODE ANN. § 30.02(a)(3) (West 2019). Appellant pleaded “true” to two prior 

felony convictions alleged by the State for enhancement purposes. The jury assessed 

Appellant’s punishment at confinement for a term of ten years in the Institutional 

Division of the Texas Department of Criminal Justice and it assessed a fine of 

$5,000. Appellant challenges his conviction in three issues. We affirm.
2

Factual Background

On November 15, 2019, Huey Jackson worked as the office manager of A&W 

Motors in Snyder. He testified that he locked the front door of the business at 1:45 

p.m. and left to go to Walmart to pick up some office supplies. Upon his return to 

the business around 2:15 or 2:20 p.m., he discovered that the front door of the 

business was open. Jackson thought that the owner of the business, Anthony Wells, 

might be inside the building. However, Jackson discovered Appellant sitting at 

Wells’s desk “digging through the drawers.” 

Jackson testified that Appellant had visited A&W Motors on the previous day 

saying that A&W Motors “owed” him a vehicle because he paid it off. Jackson 

further testified that Appellant also made claims to a vehicle on November 15. 

Jackson stated that Appellant was “out of it” and claimed to be the owner of A&W 

Motors. Jackson testified that Appellant appeared to be looking for keys and that he 

was holding a pair of keys that Jackson believed to have been taken from Wells’s 

desk. 

Appellant and Jackson exited the store while waiting for the police. Jackson 

testified that Appellant maintained possession of the keys as he exited the building

and that, once outside, Appellant presented to Jackson an old driver’s license 

belonging to Wells that had been in Wells’s desk. Jackson believed that the keys 

were for a vehicle. Appellant continued to assert that he was the owner of the 

business. 

Officer Markkus Tipton was the first officer on the scene. He observed 

Jackson and Appellant arguing. Officer Tipton testified that Appellant told him he 

was trying to get the keys to his pickup. Appellant also informed Officer Tipton that 

he was the President of the United States and the owner of A&W Motors. Officer 

Tipton observed two keys on a key ring in Appellant’s hand, and Appellant told 
3

other officers that the keys were to the building. Officer Tipton and other officers 

also observed pry marks on the front door of the business, which indicated that a 

forced entry was made. Officer Tipton believed that Appellant was intoxicated on 

narcotics. 

Officer Ryan Reeves also responded to A&W Motors. He knew Appellant 

from prior encounters with him. Officer Reeves testified that Appellant was holding 

a set of keys. Appellant told him that they were “his” keys to the business. However, 

the keys did not work on the doors. Officer Reeves stated that Jackson said that the 

keys were to some old padlocks. Officer Reeves also observed tool marks on the 

front door. 

Appellant testified in his own defense during the guilt/innocence phase. He 

testified that, on the date of the offense, he had been up for four days using 

methamphetamine and that he was not thinking straight. Appellant believed that he 

owned A&W Motors. He acknowledged using tools to forcibly open the front door. 

Appellant testified that he was not looking for anything inside the building and that 

he did not go through the drawers of Wells’s desk. He picked up the keys that he 

was holding because he thought they were keys for the front door. Appellant also 

testified that he told Jackson that he was “fired” when he entered the building. 

Appellant also acknowledged coming to the business on the previous day; however, 

he stated that his focus was not on a single vehicle, but rather the entire business. 

Appellant denied ever having Wells’s ID and he denied stealing anything from the 

business. Appellant stated that he only wanted to establish that he “owned” the 

business. 

Analysis

In his third issue, Appellant challenges the sufficiency of the evidence 

supporting his conviction. He contends that the State failed to prove that he 
4

committed either theft or attempted theft. 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 of 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 conducting a sufficiency review, we consider all of 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). We defer to the factfinder’s 

role as the sole judge of the witnesses’ credibility and the weight witness testimony 

is to be afforded. 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 defer 

to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. 

We measure sufficiency of the evidence by the elements of the offense as 

defined in a hypothetically correct jury charge. 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.
5

The indictment charged Appellant with intentionally or knowingly entering a 

building or a portion of a building, “not then open to the public,” without the 

effective consent of the owner and “attempt[ing] to commit or committ[ing] theft of 

property.” Section 30.02(a) of the Penal Code provides that a person commits 

burglary if, without the effect 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; or

(2) remains concealed, with intent to commit a felony, theft, or an 

assault, in a building or habitation; or

(3) enters a building or habitation and commits or attempts to commit 

a felony, theft, or an assault.

PENAL § 30.02(a). The parties disagree about which particular subsection of 

Section 30.02(a) that Appellant was charged with violating. Appellant contends that 

he was charged under subsection (3) because the indictment charged him with 

committing theft or attempted theft after he entered the building. Conversely, the 

State asserts that Appellant was charged under subsection (1) because the indictment 

alleged that the building was not then open to the public. 

Under subsections (1) and (2), the statute requires proof of intent to commit a 

felony, theft, or assault at the time of entry. Daniel v. State, No. 07-17-00216-CR, 

2018 WL 6581507, at *3 (Tex. App.—Amarillo Dec. 13, 2018, no pet.) (mem. op., 

not designated for publication). Intent at the time of entry is not an element of the 

offense under subsection (3). Id. Instead, subsection (3) requires the State to prove 

that, while inside the habitation or building, the defendant committed or attempted

to commit a felony, theft, or an assault. See id. Here, the indictment charged 

Appellant with an offense under subsection (3) because it alleged that he entered the 

building and then committed or attempted to commit theft. See id. at *1 n.1.
6

Appellant directs our attention to the element of theft. As a part of his 

sufficiency argument, he asserts that the trial court’s charge to the jury did not 

include the statutory definitions of “theft” or “attempted theft.” Appellant’s reliance 

on this alleged omission is misplaced, however, because under Malik, we measure 

the sufficiency of the evidence by the elements of the offense as defined in a 

hypothetically correct jury charge. See 953 S.W.2d at 240.

A person commits theft if he unlawfully appropriates property with intent to 

deprive the owner of property. PENAL § 31.03(a). A person commits attempted 

theft if he has the intent to commit theft and engages in an act amounting to more 

than mere preparation to commit theft, but he fails to effect the commission of theft. 

Id.; PENAL § 15.01(a); McCay v. State, 476 S.W.3d 640, 645 (Tex. App.—Dallas 

2015, pet. ref’d). Jackson testified that Appellant exited the building with two items 

of property, a set of keys and an old ID belonging to Wells, both of which he 

removed from the business. Although the police officers were unable to find the old 

ID after they arrested Appellant, they all confirmed that Appellant was holding the 

keys that he removed from the business. Appellant told the officers that the keys 

were “his” keys to the business. Appellant also acknowledged taking the keys out 

of the business. Viewing the evidence in the light most favorable to the verdict, a 

rational trier of fact could have found beyond a reasonable doubt that Appellant 

committed theft of property after unlawfully entering the building of A&W Motors. 

See Jackson, 443 U.S. at 319. We overrule Appellant’s third issue.

In his first issue, Appellant asserts that the trial court erred by not including 

the statutory definitions for theft and attempted theft in the court’s charge. He cites 

the Texas Pattern Jury Charges in support of this proposition. See Comm. on Pattern 

Jury Charges, State Bar of Texas, Texas Criminal Pattern Jury Charges: Crimes 

Against Persons and Property PJC 91.4 (2020) (Instruction—Burglary of Building 
7

by Entry and Commission of Offense). The pattern jury charges include the statutory 

definitions of theft and attempted theft for an offense under Section 30.02(a)(3). See 

id. We note that Appellant did not object to the omission of these definitions.

A review of alleged jury-charge error involves a two-step analysis. Ngo v. 

State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d 

726, 731–32 (Tex. Crim. App. 1994). We must first determine whether the charge 

contained any actual error. Ngo, 175 S.W.3d at 743–44; Abdnor, 871 S.W.2d at 

731–32. If there was actual error, we must next determine whether the error resulted 

in sufficient harm to require reversal. Ngo, 175 S.W.3d at 743–44; Abdnor, 871 

S.W.2d at 731–32. If an appellant fails to object to or present a properly requested 

jury charge, any error in the charge “should be reviewed only for ‘egregious harm’ 

under Almanza.” Madden v. State, 242 S.W.3d 504, 513 (Tex. Crim. App. 2007); 

see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

Because Appellant did not object to the jury charge, reversal is required only 

if the error results in egregious harm. Villarreal v. State, 453 S.W.3d 429, 433 (Tex. 

Crim. App. 2015). “Charge error is egregiously harmful if it affects the very basis 

of the case, deprives the defendant of a valuable right, or vitally affects a defensive 

theory.” Id. “Egregious harm is a ‘high and difficult standard’ to meet, and such a 

determination must be ‘borne out by the trial record.’” Id. (quoting Reeves v. State, 

420 S.W.3d 812, 816 (Tex. Crim. App. 2013)). “An egregious harm determination 

must be based on a finding of actual rather than theoretical harm.” Arrington v. 

State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015) (quoting Cosio v. State, 353 

S.W.3d 766, 777 (Tex. Crim. App. 2011)).

Egregious harm is only shown when the error “created such harm that [the 

appellant] ‘has not had a fair and impartial trial.’” Almanza, 686 S.W.2d at 171. In 

Almanza, the Texas Court of Criminal Appeals outlined four factors that a reviewing 
8

court should consider when determining whether a jury-charge error resulted in 

egregious harm: (1) the charge itself; (2) the state of the evidence, including 

contested issues and the weight of the probative evidence; (3) arguments of counsel; 

and (4) any other relevant information revealed by the record of the trial as a whole.

Villarreal, 453 S.W.3d at 433.

Under Article 36.14, the trial court is required to give the jury a written charge 

“setting forth the law applicable to the case.” TEX. CODE CRIM. PROC. ANN.

art. 36.14 (West 2007); Vega v. State, 394 S.W.3d 514, 518 (Tex. Crim. App. 2013). 

“As ‘law applicable to the case,’ the definitions of words or phrases defined by 

statute must be included in the jury charge.” Arteaga v. State, 521 S.W.3d 329, 334 

(Tex. Crim. App. 2017) (citing Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim. 

App. 2009), for the proposition that the jury must be instructed regarding the 

statutory definitions affecting the meaning of an element of the offense). Because 

theft and attempted theft are statutorily defined, those definitions should have been 

included in the trial court’s charge to the jury.

Appellant asserts that he suffered egregious harm because of the lack of the 

statutory definitions of theft and attempted theft in the charge. The Beaumont Court 

of Appeals addressed an analogous situation in Laday v. State, 690 S.W.2d 53, 54 

(Tex. App.—Beaumont 1985, no pet.). There, the trial court’s charge omitted the 

statutory definition of theft for a burglary under Section 30.02(a)(1). Id. The court 

concluded that, in the absence of a statutory definition of theft, it is assumed that the 

jury would consider the commonly understood meaning of the term in its 

deliberations. Id. at 56 (citing Olveda v. State, 650 S.W.2d 408 (Tex. Crim. App.

1983); Rohlfing v. State, 612 S.W.2d 598 (Tex. Crim. App. 1981)). The court in 

Laday held that the defendant did not suffer egregious harm because the evidence 

clearly proved each element of theft. Id. at 56.
9

Appellant contends that the prosecutor’s closing arguments “[muddied] the 

waters” because he made reference to Appellant’s “intent to steal when he broke in.” 

Appellant asserts that this argument permitted the jury to focus on burglary under 

Section 30.02(a)(1) rather than the offense with which he was charged. However, 

the application paragraph of the trial court’s charge limited the jury’s focus to an 

offense under Section 30.02.(a)(3) because it provided as follows:

Now, if you find from the evidence beyond a reasonable doubt, 

that the defendant, ANDRES GUTIERREZ, III, on or about the 15th 

day of November, 2019, in Scurry County, Texas, did then and there, 

intentionally or knowingly enter a building or a portion of a building, 

not then open to the public, without the effective consent of Huey 

Jackson, the owner thereof, and attempted to commit or committed theft 

of property, then you will find the defendant guilty.

As held in Laday, we presume that the jury applied the common meaning of 

theft and attempted theft in its deliberations. In this regard, we note that the common 

meaning of theft and its statutory definition do not vary greatly. Considering the 

charge itself, the state of the evidence, the arguments of counsel, and the other 

relevant information in the record, we conclude that the absence of the statutory 

definition of theft and attempted theft did not create such harm that Appellant did 

not have a fair and impartial trial. See Villarreal, 453 S.W.3d at 433; Almanza, 686 

S.W.2d at 171. We overrule Appellant’s first issue.

In his second issue, Appellant asserts that he received ineffective assistance 

of counsel based on his trial counsel’s failure to object to the omission of the 

statutory definitions for theft and attempted theft. To establish that trial counsel 

rendered ineffective assistance at trial, Appellant must show that counsel’s 

representation fell below an objective standard of reasonableness and that there is a 

reasonable probability that the result would have been different but for counsel’s 

errors. Thompson, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (citing Strickland v. 
10

Washington, 466 U.S. 668, 687–88 (1984)). A reasonable probability is a 

probability that is sufficient to undermine confidence in the outcome of the trial.

Strickland, 466 U.S. at 694. There is a strong presumption that counsel’s conduct 

fell within the wide range of reasonable professional assistance, and the defendant 

must overcome the presumption that the challenged action could be considered 

sound trial strategy. Id. at 689.

A claim of ineffective assistance of counsel “must be firmly founded in the 

record, and the record must affirmatively demonstrate the alleged ineffectiveness.”

Thompson, 9 S.W.3d at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. 

Crim. App. 1996)). Direct appeal is usually an inadequate vehicle to raise such a 

claim because the record is generally undeveloped. Goodspeed v. State, 187 S.W.3d 

390, 392 (Tex. Crim. App. 2005). Direct appeal is especially inadequate when 

counsel’s strategy does not appear in the record. Id. Trial counsel should ordinarily 

have an opportunity to explain his actions before an appellate court denounces 

counsel’s actions as ineffective. Id. Without this opportunity, an appellate court 

should not find deficient performance unless the challenged conduct was “so 

outrageous that no competent attorney would have engaged in it.” Id. (quoting 

Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

We note at the outset that Appellant did not file a motion for new trial. Thus, 

trial counsel has not had an opportunity to explain or defend his trial strategy in 

response to the matter that Appellant contends was deficient. On a record that does 

not reveal counsel’s reasoning, we “must presume that counsel is better positioned 

than the appellate court to judge the pragmatism of the particular case, and that 

[counsel] ‘made all significant decisions in the exercise of reasonable professional 

judgment.’” Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992) (quoting 

Strickland, 466 U.S. at 690); see State v. Morales, 253 S.W.3d 686, 697 (Tex. Crim. 
11

App. 2008); Screws v. State, 630 S.W.3d 158, 164–65 (Tex. App.—Eastland 2020, 

no pet.).

Even if we assume that trial counsel was deficient for not objecting to the trial 

court’s charge, the record does not indicate that there is a reasonable probability that 

the outcome of trial would have been different but for counsel’s errors. See

Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812. We have previously 

determined that the evidence was sufficient to support Appellant’s conviction for a 

burglary offense under Section 30.02(a)(3). We have also determined that Appellant 

was not egregiously harmed by the omission of the statutory definitions for theft and 

attempted theft. The record does not show a reasonable probability that the outcome 

of trial would have been different had the trial court included the statutory definitions 

in the court’s charge. We overrule Appellant’s second issue.

This Court’s Ruling

We affirm the judgment of the trial court. 

JOHN M. BAILEY

CHIEF JUSTICE

June 16, 2022

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

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.