Gilbert Leija, Jr. v. State ( 2005 )

NO. 07-05-0202-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 30, 2005
______________________________
GILBERT LEIJA, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;
NO. 10,611; HON. TOM NEELY, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
Gilbert Leija, Jr. appeals his conviction for burglary of a habitation. Through three
issues, he challenges 1) the legal and factual sufficiency of the evidence underlying the
conviction and 2) the trial court’s refusal to permit him to cross-examine the victim about
a pending criminal investigation into an act performed by her. We affirm the judgment of
the trial court.
Issues One and Two - Sufficiency of the Evidence
In his first two issues, appellant argues that there was no evidence that he
committed theft and insufficient evidence that he attempted to commit theft. We overrule
the issues.
The standards by which we review the legal and factual sufficiency of the evidence
are well established. We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979), Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004),
Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556
(Tex. Crim. App. 2000) for an explanation of them.
Appellant was charged with intentionally or knowingly entering a habitation without
the consent of the owner and attempting to commit or committing theft of a television. See
TEX . PEN . CODE ANN . §30.02(a)(3) (Vernon 2003) (stating that a person commits a burglary
if without the effective consent of the owner, the person enters a habitation and commits
or attempts to commit a felony, theft, or an assault). The evidence here shows that
Cynthia Nail and her two small children were in the backyard of the residence she and her
husband were renting. Upon re-entering the abode, she observed appellant suddenly
appear from behind a hutch near their entertainment center. He had not been invited into
the house. Furthermore, appellant asked Nail for money and for something to drink. She
gave him two dollars and a Coke, and he left. Once he was gone, Nail discovered that the
television, DVD player, and VCR were unplugged from their electrical source.
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Approximately 30 to 40 minutes earlier, Nail and her children had been inside the
house with the television on. When the group decided to play outside, they turned the
television off but left it plugged into its electrical source.
Appellant contradicted Nail’s story by saying she granted him permission to enter
the house after he knocked on the door. Then, he allegedly asked her if he could use her
telephone because he had run out of gas and left after receiving a soft drink. Appellant
also claims that nothing was taken from the residence and the only evidence that he
attempted to commit theft was the allegation that the universal plug to which the three
appliances were attached had been unplugged. He further mentions the discrepancy
about whether the appliances were removed from the universal plug or whether the
universal plug itself was removed from the wall socket, and asserts that it is so pivotal that
it negates the validity of the conviction.
Despite the apparent conflicts in testimony, evidence nonetheless exists illustrating
that 1) the appliances had been unplugged either directly or indirectly from the wall
electrical socket while the family was outside, 2) appellant was discovered inside the home
and by the appliances, 3) appellant had not been invited into the home, 4) appellant was
in need of money, 5) appellant used cocaine, and 6) appellant had previously been
convicted of stealing a VCR.
When an accused is charged under §30.02(a)(3) of the Penal Code, the State need
only show that the defendant intentionally or knowingly entered a habitation without the
owner’s consent and attempted to commit a theft. DeVaughn v. State, 749 S.W.2d 62, 65
(Tex. Crim. App. 1988); Espinoza v. State, 955 S.W.2d 108, 111 (Tex. App.–Waco 1997,
pet. ref’d); Flores v. State, 902 S.W.2d 618 (Tex. App.–Austin 1995, pet. ref’d).
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Furthermore, a criminal offense may be proved by circumstantial evidence. Roberson v.
State, 16 S.W.3d 156, 164 (Tex. App.–Austin 2000, pet. ref’d). That 1) appellant was in
the home uninvited, 2) he appeared from behind a hutch near the entertainment center,
3) the appliances had been plugged in 30 to 40 minutes earlier and were found unplugged
after appellant left the home, 4) a police officer also observed the appliances to be
unplugged, and 5) there was no evidence that anyone else had been in the house is some
evidence upon which a rational jury could conclude beyond reasonable doubt that
appellant burglarized the habitation as charged. Furthermore, the inconsistency about
whether the appliances were disconnected from the multi-socketed electrical cord or
whether the latter alone was unplugged from the wall simply created issues regarding the
credibility of the witnesses. It, however, did not negate the evidence that the appliances
had been somehow disconnected from their electrical source, and that such was necessary
before they could be removed from the abode. Thus, the evidence was and is both legally
and factually sufficient to support the conviction.
Issue Three - Impeachment
Via his third issue, appellant questions the trial court’s refusal to allow him to cross-
examine Nail about a criminal investigation into her purported effort to acquire property
through the use of another’s name. We overrule the issue.
The evidence of record illustrates that Nail had not been convicted of the supposed
offense or any felony or crime of moral turpitude. This is determinative. One may not
delve into specific instances of conduct in effort to attack a witness’ credibility, TEX . R. EVID .
608(b), unless the instances resulted in a felony conviction or a conviction for a crime of
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moral turpitude. TEX . R. EVID . 609(a). Since Nail had not been so convicted, the trial court
did not abuse its discretion in excluding the evidence.
Having overruled each issue, we affirm the trial court’s judgment.
Brian Quinn
Chief Justice
Do not publish.
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