MARK WAYNE BROWN, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed June 9, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01331-CR
............................
MARK WAYNE BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F08-00863-Y
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OPINION
Before Justices Morris, Moseley, and Lang
Opinion By Justice Lang
        Mark Wayne Brown appeals the trial court's judgment convicting him of burglary of a building, enhanced by two prior convictions. The jury found Brown guilty, the two enhancements true, and assessed his punishment at fifteen years of imprisonment.
        Brown raises two issues on appeal arguing: (1) the trial court erred when it required the jury to deliberate after it had rendered an informal guilty verdict on the lesser included offense; and (2) the evidence is factually insufficient to show that Brown unlawfully entered the shed.
        We conclude Brown failed to preserve his first issue for appellate review. Also, as to his second issue, we conclude the evidence is factually sufficient to support Brown's conviction. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        Betty Anderson owned a house that she rented out. The house was vacant because it was being refurbished and an air conditioning unit was stored in the shed. While driving down the street, Connie Bailey saw two men pulling an air-conditioning unit out of a storage shed in back of the vacant house owned by Anderson. Bailey drove to a nearby 7-Eleven where she alerted two police officers.
        Meanwhile, Mario Monsivais was walking with his grandson when he observed a man taking some wood laying on the porch of the vacant house. Monsivais told him not to take the wood. The man replied “okay” and left the wood. Then, Monsivais saw a second man, later identified as Brown, coming from behind the house carrying an air conditioner. He told Brown that he could not take the air conditioner because it was private property. Brown put the air conditioner down and walked away. Monsivais continued on his walk, but when he returned, he saw Brown at the same property carrying a trash can. Monsivais told Brown that the trash can belonged to the house and instructed him to put it back. In response, Brown put the trash can down and walked away.
        The police followed Bailey to the vacant house, but no one was there when they arrived. The police went to the back of the vacant house and observed that the door to the storage shed had been forced open. When the police returned to the front of the vacant house, Monsivais returned and told them what he had observed. The police looked inside the trash can that Monsivais saw Brown carrying and found an air conditioner inside. At that time, Brown and the other man were walking down the street and still visible from the vacant house. Monsivais pointed them out to the police.
        Based on Monsivais's identification of the men, the police approached and arrested them. Later, Brown gave the following written statement to the police, which was admitted into evidence at his trial:
 
I was walking down the street and we seen a pile of wood in the frot [sic] yard and we stop to pick it up and there was some lose can and ten [sic] there so I start pick it up and seen a old aircondition [sic] lay by the back of the house and I pick it up thinking it was junk and I took it to the front of the house and put it in the trash[.] There was stuff laying all around the old house[.] Just junk.
 
After a trial, the jury found Brown guilty of burglary of a building, the two enhancements true, and assessed his punishment at fifteen years of imprisonment.
II. JURY DELIBERATIONS
 
        In issue one, Brown argues the trial court erred when it required the jury to deliberate after it had rendered an informal guilty verdict on the lesser included offense. To preserve an issue for appellate review, the record must show: (1) a timely and specific request, objection, or motion bringing the issue to the trial court's attention; and (2) the trial court ruled on the party's request, objection, or motion, or the trial court refused to rule and the party objected to that refusal. Tex. R. App. P. 33.1(a).
        During deliberations, the jury sent a note stating, “If 9 vote guilty & 3 vote not guilty on Burglary is that considered an aquital [sic] [?] We'all [sic] agree on theft guilt.” Initially, Brown objected to the trial court's proposed answer on the basis that the jury had reached an informal verdict. After further discussion and a recess so the trial court could research the issue, the trial court presented the parties with two proposed answers to the jury's question: (1) “You are ordered to continue your deliberations”; or (2) “No. A nine vote guilty and three vote not guilty is not an acquittal. It simply means you have not reached a unanimous verdict as of this time. You are instructed to continue to deliberate.” In response, Brown offered a third option: “Your verdict must be unanimous on the charge.” As a result, the trial court prepared the following answer for the jury: “In response, your verdict on the charged offense of burglary of a building must be unanimous as to either a verdict of guilty or not guilty before you can proceed to consider the lesser included offense of theft.” The trial court inquired if there were any objections and Brown stated “No objection.”
        Based on the record, we conclude Brown did not preserve this issue for appeal. Brown did not make a timely, specific objection to the trial court's response to the jury's note. See Tex. R. App. P. 33.1(a).
        Issue one is decided against Brown.
III. FACTUAL SUFFICIENCY
 
        In issue two, Brown argues the evidence is factually insufficient to show that he unlawfully entered the shed. He contends the great weight and preponderance of the evidence contradict the jury's verdict of burglary of a building. Rather, according to Brown, the evidence shows that he was only guilty of theft because there is a “lack of credible evidence” proving the air conditioner was in the shed when he carried it off the property. The State responds that there was factually sufficient evidence and Brown's argument is really an attack on the credibility of the State's witnesses.
A. Standard of Review
 
        In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). When conducting a factual sufficiency review, an appellate court considers all of the evidence, both direct and circumstantial, whether properly or improperly admitted. See Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Reversal for factual insufficiency occurs only when: (1) the evidence supporting the verdict is so weak the verdict seems clearly wrong and manifestly unjust; or (2) there is some objective basis in the record that shows the great weight and preponderance of the evidence contradict the jury's verdict. See Berry, 233 S.W.3d at 854; Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417.
 
B. Applicable Law
 
        A person commits the offense of burglary if, without the effective consent of the owner, he enters a building not then open to the public, with the intent to commit theft. See Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 2003). “Enter” means to intrude “any part of the body” or “any physical object connected with the body.” See id. § 30.02(b).
C. Application of the Law to the Facts
 
        Anderson testified an air-conditioning unit was stored in the shed of her rental property while the house was being refurbished. Bailey testified that she observed two men at the vacant house and saw one of the men take an air-conditioning unit out of the storage shed. Monsivais stated he saw Brown come from behind the vacant house while carrying an air-conditioning unit. Monsivais told Brown the air conditioner was private property and Brown put the air conditioner down and walked away. Later, Monsivais saw Brown carrying a trash can and again told him to put it back. In response, Brown put the trash can down and walked away. The police observed that the storage shed had been forced open and found an air-conditioning unit in a trash can at the vacant house. Viewing the evidence in a neutral light, we conclude there is factually sufficient evidence to support Brown's conviction for burglary of a building. The evidence supporting the verdict is not so weak that the verdict seems clearly wrong and manifestly unjust, nor does the great weight and preponderance of the evidence contradict the jury's verdict.
        Issue two is decided against Brown.
IV. CONCLUSION
 
        Brown failed to preserve for appellate review the issue of whether the trial court erred when it required the jury to deliberate after it had rendered an informal guilty verdict on the lesser included offense. Also, the evidence is factually sufficient to support Brown's conviction.
        The trial court's judgment is affirmed.
 
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
081331F.U05