1

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00318-CR

__________________

DARRON DEWAYNE DENBOW JR., Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 163rd District Court

Orange County, Texas

Trial Cause No. B190185-R

__________________________________________________________________

MEMORANDUM OPINION

Darron Dewayne Denbow Jr. appeals his conviction and sentence for 

burglarizing a habitation. In three issues, which we have rearranged, Denbow argues 

(1) the evidence of entry, an element of the crime of burglary, is insufficient to

support the jury’s finding of guilt; (2) at punishment, the trial court erred by allowing 

the State to prove Denbow made an unwarned statement threatening to shoot a 

deputy while in police custody when he had not been warned of his rights; and (3) 
2

at punishment, the charge the trial court submitted is deficient because it fails to 

instruct the jury that, before considering the evidence that Denbow engaged in 

several wrongful acts—testimony showing he threatened to shoot his father, 

threatened to shoot a deputy, and threatened to shoot a district judge—it must find, 

beyond a reasonable doubt, that Denbow did in fact commit that wrongful act. We 

conclude Denbow’s arguments on issues one and two lack merit. And as to issue 

three, Denbow acknowledgesthe record must show the trial court’s failure to instruct 

the jury about the burden of proof applicable to his wrongful acts caused egregious 

harm based on his attorney’s failure to object to the charge. We conclude Denbow’s 

third issue lacks merit because the error he complains about did not cause egregious 

harm. For the reasons fully explained below, we will affirm.

Background

We limit our discussion of the facts to the testimony relevant to resolving the 

issues Denbow argues in his brief. During the guilt-innocence phase of Denbow’s 

trial, Vickie,

1 who owns a home in Orange County, Texas, testified that in December 

2018, she left home to attend a party. When she returned about three hours later, 

Vickie found a window in the home had been opened with the curtains covering the 

1

Because the Texas constitution grants crime victims “the right to be treated 

with fairness and with respect for the victim’s dignity and privacy throughout the 

criminal justice process,” we identify the individual identified in the indictment as 

the victim of the theft by using the pseudonym “Vickie.” Tex. Const. art. I, § 30.
3

window on the floor. Vickie also noticed several items were missing from the home: 

baby food, trash bags, shampoo, conditioner, and razors. And Vickie found that most 

of the items of food in her refrigerator and freezer were gone. 

Deputy Dustin Bock, an Orange County deputy, was one of the officers 

dispatched to investigate the burglary of Vickie’s home. On his way to the scene, 

Deputy Bock stopped at a convenience store near Vickie’s home. While there, the 

deputy saw Denbow, a person the deputy testified he had known for about nine years. 

According to Deputy Bock, when he asked Denbow about the burglary, Denbow 

told him that he didn’t know anything. Deputy Bock offered to give Denbow a ride 

home, which Denbow accepted. Denbow took the officer to the mobile home where 

he was living, a residence that, according to the deputy, is less than a mile from 

Vickie’s home. The deputy asked Denbow if he could come inside when they got to 

Denbow’s residence. Denbow agreed. While inside, Deputy Bock noticed several 

items in the home consistent with the ones reportedly stolen in the burglary. The 

deputy took photographs of these items. At trial, Vickie testified the items and food 

shown in the pictures taken by Deputy Bock matched the items she found missing 

from her home when she returned from the party.
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Analysis

Is the evidence sufficient to support the conviction?

In issue one, Denbow argues the evidence is insufficient to support his 

conviction for burglary because the circumstantial evidence does not establish that 

he was the person who entered Vickie’s home. To prove the defendant committed a 

burglary, the State must prove (1) the defendant, (2) without the effective consent of 

the owner, (3) entered a habitation, or a building (or any portion of a building) not 

then open to the public, and (4) with the intent to commit a felony, theft, or an 

assault.2 Under the statute making burglary a crime, the term enter is defined as “to 

intrude: any part of the body; or (2) any physical object connected with the body[.]”3

When evaluating whether sufficient evidence supports a defendant’s 

conviction, we review all the evidence in the light most favorable to the verdict to 

determine whether any rational factfinder could have found the essential elements 

of the offense beyond a reasonable doubt.4 A reviewing court must give full 

deference to the jury’s responsibility to fairly resolve conflicts in the testimony, to 

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate 

facts.5 The jury is the ultimate authority on the credibility of witnesses and the 

2

Tex. Penal Code Ann. § 30.02(a)(1). 

3

Id. § 30.02(b). 

4

Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013) (quoting 

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)).

5

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
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weight given to the testimony.6 Stated another way, as a reviewing court, our role is 

not to sit as a thirteenth juror so that we may substitute our views regarding the 

evidence for the view the jury chose to adopt.

7 In a trial, the jurors are free to believe 

some, all, or none of the testimony that is presented during trial.8 Jurors may draw 

multiple inferences from the evidence so long as the inferences the jury draws are 

reasonable inferences from the evidence presented to the jury in the trial.

9

Here, the evidence that Denbow entered Vickie’s residence is circumstantial. 

For instance, none of the witnesses testified they saw Denbow go inside Vickie’s 

home on the day the burglary occurred. Even so, the record contains circumstantial

evidence that allowed the jury to infer Denbow was the person who took the items 

that Vickie found missing from her home. In weighing the circumstantial evidence,

the jury had the right to consider all circumstantial evidence just as it would have 

considered direct evidence relevant to proving Denbow entered Vickie’s home and 

stole items he found inside.

10 Under Texas law, the evidence in the defendant’s trial 

need not all point directly to the defendant’s guilt.11 Instead, the question in a 

sufficiency review where the defendant argues the circumstantial evidence is 

6 Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981).

7

Id. 8

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

9

Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (citing 

Jackson, 443 U.S. at 319). 

10Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).

11See Temple, 390 S.W.3d at 359.
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insufficient to support the verdict is whether the verdict the jury reached is 

reasonable given the combined and cumulative force of the incriminating 

circumstances based on evidence before the jury in the defendant’s trial.

12

Even when the parties “disagree about the logical inferences that flow from 

undisputed facts, [w]here there are two permissible views of the evidence, the fact 

finder’s choice between them cannot be clearly erroneous.”13 When a defendant has 

property in his possession that the evidence shows was recently stolen and the 

evidence contains no reasonable explanation that explains why the property is in the 

defendant’s possession, it is reasonable for the jury to infer “the defendant is the one 

who committed the burglary.”14

In Denbow’s case, the jury heard two of Denbow’s neighbors testify they saw 

Denbow near Vickie’s home on the day the burglary occurred. One of Vickie’s 

neighbors testified that she called the police after noticing a man walking down the 

street carrying a heavy bag. The neighbor lives on the same street that Vickie lives 

on. The neighbor took the man’s photograph, and the jury had a right to conclude

from the image and from looking at Denbow that he is the person in the photo seen

carrying a bag. One of Vickie’s other neighbors testified that, on the day of the 

burglary, he saw Denbow and recognized him because he had coached Denbow 

12Id. 13Evans v. State, 202 S.W.3d 158, 163 (Tex. Crim. App. 2006). 14Rollerson v. State, 227 S.W.3d 718, 725 (Tex. Crim. App. 2007). 
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when Denbow was growing up and playing baseball. According to that neighbor, he 

saw Denbow make several trips carrying garbage bags while coming “in and out of 

[Vickie’s] driveway[.]”

Deputy Dustin Bock testified that he went inside Denbow’s home after 

Denbow invited him inside after picking Denbow up at a convenience store that is 

located a short distance from Vickie’s home. While inside the home, the deputy saw 

various items that are consistent with those Vickie reported as stolen. The deputy 

took photographs of the items and the food in the refrigerator while in Denbow’s 

home. At trial, Vickie testified she recognized the items in the photos as items she 

found missing from her home on the day the burglary occurred. As to one of the 

items, the hamburger meat in one of the photos, Vickie testified she recognized the 

package of meat because it was “[t]he hamburger meat that [she] package[d]” and 

then left in her freezer.

The jury could have also rejected the explanation Denbow offered to Deputy 

Bock to explain why he had the items that matched the items Vickie discovered were 

missing from her home. For instance, Denbow told Deputy Bock he lived with his 

cousin in the mobile home. But there is no affirmative evidence showing that 

Denbow’s cousin committed the burglary. And other than Denbow’s statement 

attributing the source of the items to his cousin, the record contains no other evidence 

to show that’s where they came from. Add to that the fact there is no testimony 
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showing that anyone saw Denbow’s cousin in or around Vickie’s home at any time, 

including the day the burglary occurred. Here, the jury could reasonably reject 

Denbow’s account about why the items Vickie tied to the burglary were later found 

by police in Denbow’s home.15 Simple common sense alone allowed the jurors to 

infer that it would be necessary for a person like Denbow to enter Vickie’s home so 

that he could take the various items she testified she left inside.

16

In the end, the evidence supports the jury’s conclusion finding Denbow 

entered Vickie’s home and took the various items Vickie testified she left inside her 

home. Denbow’s first issue is overruled.

At punishment, did the trial court abuse its discretion by allowing the 

State to prove Denbow made an unwarned statement threatening to shoot 

a deputy while in police custody when he had not been warned of his rights? 

In issue two, Denbow complains the trial court abused its discretion by 

admitting Deputy Bock’s testimony about a threat Denbow made to shoot the deputy

as the deputy was taking Denbow to jail. According to Denbow, the trial court should 

have excluded the testimony about the threat because he made the statement before 

being warned of his right not to speak to the police before consulting with an 

attorney.

17 Yet when the State offered Deputy Bock’s bodycam recording that 

15See id. at 726.

16See Browning v. State, 720 S.W.2d 504, 509 (Tex. Crim. App. 1986). 

17Miranda v. Arizona, 384 U.S. 436 (1966); Tex. Code Crim. Proc. Ann. art. 

38.22. 
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captured Denbow’s statement, he never objected to the State’s proffer. Instead, 

Denbow’s attorney stated: “No objections.” Before the jury saw the recording, 

Denbow’s attorney told the trial court that he was “going to renew [his] objection 

that the court overruled prior to that[,]” objections the record shows hinged on

Denbow’s claim that his threat to shoot the deputy was more prejudicial than 

probative and inadmissible as evidence of an extraneous bad act.18 

Under the general rule of error preservation, which is the rule uniformly 

followed by Texas courts, the objection that a party makes in the trial must comport 

with the claim the party raises in his appeal.

19 For that reason, “[a]n objection stating 

one legal theory [at trial] may not be used to support a different legal theory on 

appeal.”20

The argument Denbow advances in issue two does not comport with the 

objection he raised during his trial.

21 Since Denbow failed to preserve the complaint

18Denbow’s objection was that if the evidence about the threat Denbow made 

to the deputy was being offered “as a bad act, I’m going to object under 404(b), 

403.” 

19Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).

20Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (quoting 

Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990)).

21Resendez v. State, 306 S.W.3d 308, 316-17 (Tex. Crim. App. 2008) (waiver 

where there was no objection to the evidence at trial based on article 38.22); Gauldin 

v. State, 683 S.W.2d 411, 413 (Tex. Crim. App. 1984) (waiver occurs absent an 

objection to the evidence in the trial court pointing out the evidence is inadmissible 

because the defendant made the statement while in custody and before he was 

advised of his rights), overruled on other grounds, State v. Guzman, 959 S.W.2d 

631, 634 (Tex. Crim. App. 1998). 
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in the trial court, he did not preserve his right to have the complaint reviewed in the 

appeal.

22 We overrule issue two.

Is Denbow entitled to a new punishment hearing based on the trial court’s failure 

to include a burden-of-proof-for-wrongful-acts instruction in the charge?

In issue three, Denbow argues there is error in the charge submitted at the 

conclusion of his punishment hearing because it does not contain an instruction that 

explains the jurors could not consider the evidence about three threats (the threat to 

shoot his father, to shoot the deputy, and to shoot the district judge) without finding

first, beyond reasonable doubt, that Denbow did, in fact, commit that particular act.

To determine whether the charge is defective based on the absence of an instruction 

relevant to the burden of proof that applies to a jury’s consideration of evidence 

showing the defendant committed some other wrongful act, we first decide whether

error in the charge exists.23 If so, we then conduct a harm analysis to evaluate 

whether the error caused sufficient harm to justify awarding the defendant a new 

trial.

24

The defendant faces an increased burden in proving harm when the record 

shows he failed to point out the defect in a charge to the trial court in the trial.

25 In a

case of unpreserved error, the defendant must show the defect in the charge caused 

22Gauldin, 683 S.W.2d at 413. 

23Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). 

24Id. 25Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). 
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egregious harm to prevail in the appeal.

26 Under Texas law, jury charge error is 

egregiously harmful when the defect that is identified for the first time in the appeal 

affected the basis of the issues in the defendant’s trial, deprived the defendant of a 

valuable right, or vitally affected a defensive theory on which the case was tried.

27

But “[e]gregious harm is a difficult standard to prove[,]” and whether the harm rises 

to that level turns on what the record shows occurred based on a review of the record 

as a whole in a case where the defendant is raising the complaint the first time in his 

appeal.

28

Here, the charge should have contained an appropriate instruction requiring 

the jury to find the evidence established, beyond reasonable doubt, that Denbow

made the threats to his father, a deputy, and a district judge before the jurors 

considered that testimony in assessing his sentence.

29 So the charge is defective 

because it lacks an appropriate instruction explaining the burden of proof applicable 

to considering a defendant’s other wrongful act in resolving questions about the 

appropriate length of defendant’s sentence.

26Id. 27Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007) (citing Hutch 

v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). 

28Hutch, 922 S.W.2d at 171. 

29See Huizar v. State, 12 S.W.3d 479, 481-84 (Tex. Crim. App. 2000); see 

also TEXAS CRIMINAL PATTERN JURY CHARGES: GENERAL PUNISHMENT 

INSTRUCTION § C10.3 324 (2011) (General Principles—Burden of Proof for 

Wrongful Acts).
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Step two in analyzing charge error requires the reviewing court to determine 

whether the error in the charge, when it was not the subject of an objection, created

egregious harm.

30 To evaluate a record for egregious harm, we examine the entire 

record in the appeal.

31 In our review, we examine (1) the charge as a whole, (2) the 

state of the evidence, (3) the argument of counsel, and (4) any other information in 

the record relevant to evaluating whether the error caused egregious harm.32 When

the error resulted from the trial court’s failure to instruct the jury on the burden of 

proof regarding a defendant’s other wrongful acts, we focus on the “impact of the 

omission in the jury charge of a reasonable-doubt instruction.”33

On appeal, Denbow characterizes the conduct related to the threats he made 

as “out of control rants directed at authority figures under conditions of stress.” The 

record shows the testimony about these rants relate to three events: (1) testimony 

that, about a year before the trial, Denbow threatened to shoot his father; (2) a deputy 

sheriff’s testimony that, about six months before trial, Denbow threatened to shoot 

the deputy following Denbow’s arrest; and (3) a recording, admitted into evidence, 

of a pretrial hearing that occurred several months before Denbow’s trial. In that 

30Almanza, 686 S.W.2d at 171.

31Id. 32See Allen v. State, 253 S.W.3d 260, 264 (2008).

33Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim. App. 2002). 
13

hearing, Denbow is heard threatening the judge who is the presiding official in his 

hearing. 

After studying the record, we conclude Denbow’s argument complaining that 

the error caused egregious harm is unfounded. We reach that conclusion for five

reasons. First, just because the charge omits the instruction requiring the jury to find 

defendant did in fact engage in the specific wrongful act beyond reasonable doubt, 

the omission of the instruction is not enough by itself to establish the error caused

egregious harm.34

Second, there is no testimony in the record contradicting the testimony and 

evidence showing that Denbow made the three threats now at issue in his appeal.35

As for the threat Denbow made against his father, two witnesses (Deputy Scott Jacks 

and Denbow’s father) testified Denbow threatened to shoot his father. As to the 

threat against the deputy, Deputy Dustin Bock testified that Denbow threatened to 

shoot him after he arrested him for burglarizing Vickie’s home while the deputy was 

taking Denbow to jail. The last of the three threats, Denbow’s threat to shoot the 

district judge during a pretrial hearing, was captured on a recording of the pretrial 

proceeding. Denbow’s attorney cross-examined the deputies about the threats 

Denbow made to his father and the deputy. And Denbow called his father as a 

34See Huizar, 29 S.W.3d at 251.

35The district judge Denbow threatened in the pretrial hearing did not preside 

over Denbow’s trial. 
14

witness in the punishment phase of the trial. None of the testimony casts doubt on 

whether the threats occurred. For example, Denbow’s attorney asked Denbow’s 

father whether it was true that Denbow threatened to shoot him in the head?

Denbow’s father answered: “Yes.” The lack of evidence contradicting the evidence 

about the threats diminishes whatever theoretical harm Denbow claims he possibly 

suffered from the error in the charge.

Third, in closing argument, Denbow’s attorney never argued that Denbow did 

not threaten to shoot his father, the deputy, or the judge. Instead, Denbow’s attorney 

argued: “[Denbow’s] a nut, but he’s not a dangerous nut.” Of course, there is no 

evidence that Denbow shot or assaulted the three people he threatened to shoot. And 

the argument Denbow relied on in the trial is not inconsistent with the argument that 

his attorney presented in closing. In closing argument, the prosecutor did not focus 

on the three threats that Denbow complains about for the first time in his appeal. 

Instead, the prosecutor argued that Denbow should receive a lengthy sentence 

because he had already incurred fifteen prior convictions, two involving violence. 

To be fair, we note the prosecutor mentioned the three threats during his closing

argument, suggesting these “are the words of a violent man, a violent man who has 

been convicted time and time and time again.” But the thrust of the prosecutor’s 

argument focuses on Denbow’s fifteen prior convictions, not the threats.
15

Fourth, at the beginning of the trial, the trial court instructed the jury that 

“[t]he burden of proof throughout the trial is always on the state.” And during jury 

selection, the prosecutor told the jury four times that the State bore the burden of 

convincing the jury that Denbow committed the elements of burglary beyond a 

reasonable doubt. We have no reason to believe the jury reversed that burden when 

evaluating the recording and testimony about the threats. 

Fifth, the jury decided Denbow should serve a fifty-year sentence. That 

sentence is in the middle range available for defendantslike Denbow, who as a repeat 

felony offender under the allegations in his indictment faced an enhanced sentence

if found guilty of committing two prior felonies (other than state-jail felonies) in the 

order that is required under the repeat-felony-offender statute.

36 Denbow’s 50-year 

sentence is a reasonable sentence considering the jury’s findings on the enhancement 

counts and evidence showing that Denbow has fifteen prior convictions. 

For the reasons explained above, we conclude that Denbow’s complaint about 

the error in the charge lacks merit because the error did not result in egregious harm. 

We overrule Denbow’s second issue. 

36See Tex. Penal Code Ann. § 12.42(d) (creating an enhanced sentence range 

of twenty-five to life for defendants convicted of two prior felonies sequenced in the 

order required by the repeat-felony-offender statute); Huizar, 29 S.W.3d at 251.
16

Conclusion

Having overruled all three of Denbow’s issues, the trial court’s judgment in 

trial court cause number B190185-R is

AFFIRMED.

_________________________

HOLLIS HORTON

Justice

Submitted on March 24, 2021

Opinion Delivered September 15, 2021

Do Not Publish

Before Kreger, Horton and Johnson, JJ.