Acosta, Steve

PD-1080-15
• NO. __________________
In the
Texas Court of Criminal Appeals
At Austin
NO. 05-13-01640-CR
In the Court of Appeals for the
Fifth District of Texas
Dallas, Texas
STEVE ACOSTA
Appellant,
V.
STATE OF TEXAS
Appellee.
PETITION FOR DISCRETIONARY REVIEW
OF APPELLANT STEVE ACOSTA
Bruce Kaye
TBN. 00784374
September 14, 2015 2309 Boll St.
Dallas, TX 75204
(214) 722-7438
Counsel for Appellant
TABLE OF CONTENTS
Page
TABLE OF CONTENTS: 2
STATEMENT REGARDING ORAL ARGUMENT 3
STATEMENT OF THE CASE 3
STATEMENT OF PROCEDURAL HISTORY 4
QUESTION PRESENTED FOR REVIEW 4
REASONS FOR REVIEW 5
I. Court of Appeals Erred in finding Evidence
was sufficient to f ind Appellant Guilty of
Charged Offense of Burglary of a Habitation
PRAYER FOR RELIEF 15
CERTIFICATE OF SERVICE 16
APPENDIX (Opinion of Court of Appeals, 5th Dist.)
2
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not requested as it would not assist to resolve
whether the Court of Appeals, 5th District, Dallas, Texas, ruled in error when
it denied Appellant the Constitutional right to Raise Issues for First Time on
Appeal.
STATEMENT OF THE CASE
On or about June 13, 2013, Steve Acosta, hereinafter “Acosta and/or
“Appellant” was indicted by the Grand Jury of Dallas County, State of
Texas, duly organized at the January term, A.D., 2013, of the Criminal
District Court 6, Dallas County, on the felony offense of Burglary of a
Habitation, Cause No. F1355987 (Clerk’s Record, P. 10).
Said Indictment also contained an enhancement paragraph for the
felony offense of Aggravated Robbery with a Deadly Weapon, Cause No.
F05-27389, Criminal District Court No. 5, Dallas County, Texas (Id).
Defendant entered a plea of not guilty to the charged offense
(Burglary of a Habitation) and proceeded to trial by jury. Appellant plead
not guilty.
On or about November 5, 2013, the Jury returned a verdict of
GUILTY to the charged offense (Clerk’s Record, P. 43). Appellant plead not
true to the enhancement allegation. Thereafter, the Judge assessed
3
punishment at 12 years incarceration in the TDCJ (Clerk’s Record, P. 53).
Defendant filed his Notice of Appeal and Appointment of Attorney on
Appeal on or about November 14, 2013 (Clerk’s Record, P. 60).
STATEMENT OF PROCECURAL HISTORY
A panel of the Fifth Court of Appeals affirmed the judgment of the
trial court in a decision rendered on or about June 6, 2011. See Appendix A.
Appellant did not file a motion for another rehearing. Appellant now files
his petition for discretionary review pursuant to Rule 68 of the Texas Rules
of Appellate Procedure.
QUESTION PRESENTED FOR REVIEW
Whether Court of Appeals erred by rendered opinion in which it
found that Appellant’s conviction was based on sufficient evidence.
4
REASONS FOR REVIEW
A. The Court of Appeals has decided important questions of state
and federal law in conflict with applicable decisions of the
Supreme Court of the United States and the Texas Court of
Criminal Appeals. Rex. R. App. P. 66.3(c).
ARGUMENT IN SUPPORT OF REASONS FOR REIVEW
The State initiated its case in chief with its first witness, Ms. Patricia Ortega
(“Ortega). Ortega lives next door to Mr. Garibaldi (“Garibaldi”), and lives
two houses away from victim Mr. Depena (“Depena”)(RR, V. 3, P. 15, L.
19-21). She stated she looked out her kitchen window and saw a man and a
woman inside Garibaldi’s home (RR, V. 3, P. 15, L. 12-15). She stated she
only saw “the young man from behind, not from the front.” (RR, V. 3, P. 16,
L. 1-2). She stated she saw the man then go to Depena’s house by removing
the air conditioner (a window unit on the left hand side)(RR, V. 3, P. 16, L.
14- 18). She stated, again, that she only saw the back of the man who pushed
in the air conditioning unit, and did not see his face (RR, V. 3, P. 17, L. 4-10).
She stated that she saw the person who pushed in the air conditioning unit go
inside Depena’s house. (RR, V. 3, P. 17, L. 13-16). She called 911 and told
them that someone was going inside the house of a neighbor. (RR, V. 3, P. 17,
L. 20-22). She further stated that she did not see anyone leave Depena’s
house (RR, V. 3, P. 18, L. 11- 15).
5
On cross examination, Ortega stated that the male who entered
Depena’s house (via the space where the window air conditioner was
located) was wearing a white T-Shirt (RR, V. 3, P. 20, L. 1-4). She stated
that the female (whom she testified she saw with the male inside Garibaldi’s
house – she is the daughter of Garibaldi) was outside acting like she was
working in the lawn (RR, V. 3, P. 20, L. 13- 16). Once again, Ortega
confirmed that she did not ever see anyone come out of Depena’s home
while she waited for the police to arrive (RR, V. 3, P. 20, L. 24-25).
Next, the State called victim Juan Depena (“Depena”). Depena stated
he received a phone call on May 20, 2013, at work from the police informing
him his home had been burglarized (RR, V. 3, P. 27, L. 16-18). Upon arriving
at his home, he noticed that the door was broken and “everything was tossed
around in my house.” (RR, V. 3, P. 28, L. 3-4). He continued, “everything
was upside down. The clothes were thrown about. The drawers were pulled
out and had been thrown on the floor. There was nothing – for example,
nothing of value, everything was messed up.” (RR, V. 3, P. 28, L. 22-25) He
stated he noticed his 47 inch Sony television was gone (RR, V. 3, P. 29, L. 1-
7).
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Depena testified that items were taken from his bedroom and
were now in the kitchen in black garbage bags (clothes and gifts to be
mailed to Mexico – purses, shirts, pants…) (RR, V. 3, P. 29, L. 15-24,
P. 30, L. 1). He also stated that other articles of home décor were also in his
kitchen, which were not there before the burglary (RR, V. 3, P. 30, L.16-18).
Depena concluded by stating that he did not give anyone permission to be in
his home or collect items and take them or attempt to take them from his
home (RR, V. 3, P. 28, L. 2-7).
On cross examination, Depena stated that he did not know who
entered his home that day and also did not know how they entered his
home (RR, V. 3, P. 31, L. 21-24).
The State then called Officer Christopher Klien (“Klien”), Dallas
Police Department. Klient works in a covert capacity in plain clothes
(RR, V. 3, P. 36, L. 8-9). He stated he received a call regarding a
burglary in progress at 12:50. He further stated that from the time he
received the call, he was about a minute away from the house (RR, Vol.
3, P. 38, L. 1-4).
The officer made two points clear: First, from the time he received the
call – recall that Ms. Ortega called 911 when she saw the young man push in
the air conditioner unit at Depena’s home – the Officer arrived at Depena’s in
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about a minute. Second, he did not see anyone leave Depena’s house from
the time he arrived until the uniformed police showed up --15 minutes later
(RR, Vol. 3, P. 38, L. 1- 4 and P. 41, L. 1-24).
Upon their arrival, the officers pushed open the front door to the home
and saw Appellant standing inside Depena’s home (RR, Vol. 3, P. 44, L.
21). The Officer testified the house had been ransacked and property was
collected and placed in the kitchen. “We did see in the kitchen there was the
A.C. unit that was in the kitchen that the caller [Ms. Ortega] had said that
she observed being pushed through.” (RR, Vol. 3, P. 48, L. 6-8).
Next to testify for the State was Detective Ronald Kramer
(“Kramer” and/or “Detective Kramer”), who also worked undercover
(like Klien). Kramer offered cumulative testimony essentially
reconfirming that the 911 call came in at 12:55 and he arrived on the
scene within 15 minutes (RR, Vol. 3, P. 87, L. 20-24). After arriving at
Depena’s home, Kramer (and Klein) maintained surveillance on the
house to “make sure no one came or went” (RR, Vol. 3, P. 88, L. 10-
11) until the uniformed officers arrived.
The Officer stated that the female was Melissa Garibaldi and she lived
in the house next door to Depena (RR, V. 3, P. 40, L. 12-18). The Officer
stated he observed the house for 15 minutes waiting for the police officers to
8
arrive. The Detective made it clear (just as Klein did) that no one was seen
entering or leaving Depena’s home when he stated:
“Nobody came or went from the residence while we were doing
surveillance. There were people in the yard next door. And then two houses
down which is where the caller (Ms. Ortega) lived. But there was nobody
around the house (Depena)” (RR, Vol. 3, P. 89, L. 22- 25).
He stated that during the course of his investigation, he did not learn of
any other individuals exiting or entering the house, and the house was
covered (on the exterior) by officers (RR, Vol. 3, P. 89, L. 22-25).
Turning again to the issue of how much time passed form the initial
911 call until the officers arrived on the scene, on cross examination, the
Detective (using the call sheet to refresh his memory) stated that the 911 call
came in at 12:52-53 (recall this is when Ms. Ortega stated she saw Acosta
pushing in the ac unit in Depena’s home to enter it) and by 13:03 Acosta is
taken into custody (RR, Vol. 3, P. 107 Lans. Ch. 1-11). Thus, a total of
approximately 10 minutes passed from the original call to the arrest (Id at L.
18-24).
The Detective actually made the point that Appellant raised in the
Argument portion of this brief that Appellant could not have been the person
responsible for stealing the televisions from Depena’s home as follows:
9
Q: Hypothetically speaking, if there were TVs in that ten minutes, assuming
the person that went through the window was the person that took them, that
person removed the TV from the state they were in, right?
A: That is not going to be in that ten-minute time frame. All that stuff that
happened, it didn't happen in that ten-minute time frame. I will tell you that,
that ten-minute time frame we are talking about, not all of that stuff could
have
“Q: So ten minutes from when this person went in the window, to when you
arrived is not long enough for all of that to have happened?
A: I would say that, yes” (RR, Vol. 3, P. 118, L. 15-18).
A. Court of Appeals Committed Error When it Ruled in
violation of the decision of the United States Supreme Court
and the Texas Court of Criminal Appeals in Holding
Sufficient Evidence Exists to find Appellant Guilty.
A person commits burglary of a habitation when the person, without
the effective consent of the owner, enters a habitation with the intent to
commit theft or an assault; or enters a habitation and commits or attempts to
commit theft or an assault. Tex. Penal Code Ann. § 30.02(a)(1), (3) (2011).
In reviewing a claim of legal insufficiency, the Court of Appeals was
supposed to view all of the evidence in a light most favorable to the verdict
and determine whether any rational trier of fact could have found the
essential element beyond a reasonable doubt. Jackson v. Va., 443 U.S. 307,
319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Sells v. State, 121
S.W.3d 748, 753-54 (Tex. Crim. App. 2003); Hooper v. State, 214
S.W.3d 9, 13 (Tex. Cr. App. 2007).
10
Intent, as an essential element of the offense of burglary, must be
proved by the State beyond a reasonable doubt; it may not be left simply to
speculation and surmise. Greer v. State, 437 S.W.2d 558, 559-560 (Tex.
Crim. App. 1969).
"Insufficient evidence” points may, and should, be sustained when the
record discloses either of the following situations: (a) the evidence is
insufficient to support a finding of a vital fact, or (2) the finding of a vital
fact is so contrary to the great weight and preponderance of the evidence as
to be clearly wrong. Jackson v. Va., 443 U.S. at 314, 318 n.11, 320, 99 S.
Ct. at 2786, 2789 & n.11.
The issue in this case is whether a fact finder may reasonably infer
that appellant intended to commit a felony, theft, or an assault inside the
complainant's home when he entered the home through the air conditioning
window unit.
In summary, Appellant allegedly pushed in the ac unit on Depena’s
home and within 10 minutes, was met by officers. Additionally, undercover
officers arrived at the home within a minute of the call and testified that no
one else had entered or left the home during the 10 minutes it took for
the uniformed officers to arrive.
11
Nothing was reported stolen except a 47 inch television and a smaller
tv unit, which the Officer attested could not have been stolen during the 10
time frame of this situation (911 call comes in, undercover officer arrives in
about a minute, no one comes into or leaves the home during the ten minutes
it took for uniformed officers to arrive). Nothing else was stolen from the
home. Just a ransacked home with clothing stuffed into a garbage bag
located in the kitchen. The Officer confirmed that someone other than
Appellant must have stolen the TV (“several trips”) since there was not
enough time to have done so in 10 minutes. Hence, the same person who
entered the home prior to Appellant and stole the tv, was the same person
who ransacked the home and put some clothes in a garbage bag and left said
bag in the kitchen. There is no evidence that ties Appellant to the stolen
television(s) or the ransacking of the home or the placing of clothing into a
garbage bag. The sole factor that ties Appellant to this alleged offense is one
simple thing: Entry into the home.
Appellant contends there is insufficient evidence that he committed
burglary of a habitation because not even a modicum of evidence was
presented that Appellant (who did enter the residence) ever intended to
commit theft or an assault; or entered a habitation and committed or
12
attempted to commit theft or an assault. Tex. Penal Code Ann. § 30.02(a)(1),
(3) (2011).
The nonconsensual entry of a habitation at night creates a rebuttable
appellate presumption that the actor intended to commit theft (See Mauldin v.
State, 628 S.W.2d 793, 795 (Tex. Crim. App. 1982); Solis v. State, 589
S.W.2d 444, 446 (Tex. Crim. App. 1979); Moss v. State, 574 S.W.2d 542,
544 (Tex. Crim. App. 1978); Clark v. State, 543 S.W.2d 125, 128 (Tex.
Crim. App. 1970). See also Williams v. State, 506 S.W.2d 868 (Tex. Crim.
App. 1974); Clayton v. State, 493 S.W.2d 526 (Tex. Crim. App. 1973);
Roberts v. State, 375 S.W.2d 303 (Tex. Crim. App. 1964);). However, that
presumption does not apply in this day-time event. LaPoint v.
State, 750 S.W.2d 180, 182 (Tex. Crim. App. 1986)(emphasis added) .
Intent, as an essential element of the offense of burglary, must be
proved by the State beyond a reasonable doubt; it may not be left simply to
speculation and surmise. Greer v. State, 437 S.W.2d 558, 559-560 (Tex.
Crim. App. 1969). To find that burglary has been committed there must be
evidence not only showing burglarious entry but also that the party at the
time he entered had specific intent to commit theft or a felony as alleged in
the burglary indictment. Greer, supra, at p. 560. Nothing in our burglary
statutes or other statutes indicates that a presumption from the evidence
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arises with regard to proof of intent as an essential element of burglary.
Mauldin v. State, 628 S.W.2d at 795 (Tex. Crim. App. 1982); Ortega v.
State, 626 S.W.2d 746, 749 (Tex. Crim. App. 1982); Moss v. State, 574
S.W.2d 542 (Tex. Crim. App. 1978); Williams v. State, 537 S.W.2d 936
(Tex. Crim. App. 1976); Hawkins v. State, 467 S.W.2d 465 (Tex. Crim.
App. 1971). See also Wilson v. State, 658 S.W.2d 615 (Tex. Crim. App.
1983); Goswick v. State, 656 S.W.2d 68 (Tex. Crim. App. 1983); Coberly v.
State, 644 S.W.2d 734 (Tex. Crim. App. 1983).
While the fact-finder's prerogative to choose among plausible and
rational readings of the evidence is beyond the review of this Court, there
must still be some evidence to prove the essential elements of the offense
and a verdict must be supported by a reasonable inference. Laster v. State,
275 S.W.3d 512 (Tex. Crim. App. 2009).
In Appellant’s case, there simply is no evidence that would give rise
to any reasonable inference that Appellant had the intent required to be found
guilty of Burglary (versus Criminal Trespass which does not have the same
mens rea as to intent).
The evidentiary "presumption" or permissive inference was never
intended to relieve the prosecution of proving every element of a crime
beyond a reasonable doubt or to be used in a jury charge for that purpose.
14
Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 1970, 85 L. Ed. 2d
344 (1985). Appellant argues that no rational trier of fact could have found
the essential element beyond a reasonable doubt. Jackson v. Va., 443 U.S. at
319.; Sells v. State, 121 S.W.3d at 753-54 (Tex. Crim. App. 2003); Hooper v.
State, 214 S.W.3d at 13 (Tex. Crim. App. 2007).
PRAYER FOR RELEIF
For the reasons cited herein, Appellant respectfully prays this Court
grants his Petition for Discretionary Review, and without need or oral
argument, reverse the decision of the Court of Appeals and reverse the
decision of the Trial Court.
Respectfully submitted,
/s/ Bruce C. Kaye
Bruce C. Kaye
TBN. 00784374
2309 Boll St.
Dallas, TX 75204
(214) 722-7438 office
(866) 649-8757 facsimile
Bruce @Brucekaye.com
Attorney for Appellant
15
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was
tendered, via email, to the Dallas County District Attorney’s Office, and via
Electronic Filing with the Texas Court of Criminal Appeals, on this the 8th
day of September, 2015, in accordance with the Texas Rules of Appellate
Procedure. A copy was also mailed out to State Prosecuting Attorney, P.O.
Box 12405, Austin, TX 78711.
/s/ Bruce C. Kaye
Bruce C. Kaye
16
MODIFY and AFFIRM; and Opinion Filed July 7, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01640-CR
STEVE ACOSTA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1355987-M
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Whitehill
Opinion by Justice Lang-Miers
A jury convicted appellant Steve Acosta of the offense of burglary of a habitation.
Appellant pleaded not true to an enhancement alleging a prior conviction for aggravated robbery
with a deadly weapon. The court found the enhancement paragraph true and sentenced appellant
to twelve years in prison. In one issue on appeal, appellant argues that the evidence was
insufficient to support the conviction. Because the issues are settled, we issue this memorandum
opinion. TEX. R. APP. P. 47.4. We modify the trial court’s judgment and affirm as modified.
BACKGROUND
Patricia Ortega—a neighbor who lived two houses from the complainant Juan Depena—
testified that, about noon on the day of the alleged offense, she saw through her kitchen window
that there was a woman and a man in her neighbor Mr. Garibaldi’s house. Garibaldi’s house lay
between her house and the complainant’s house. She testified that he was a Hispanic man and
that she saw “the young man . . . from behind, not from the front” and never saw his face.
Ortega also testified that the man left Garibaldi’s house, “pushed the air conditioner” unit at the
complainant’s window, “and went in[.]” Ortega testified that she called 911 and reported that
someone had entered her neighbor’s house. She also testified that she did not see anyone else
enter or anyone leave the complainant’s house (although she admitted on cross-examination that
she was not watching consistently) and that the police arrived in about fifteen minutes.
On cross-examination, Ortega testified that the man who entered the complainant’s house
was wearing a long t-shirt that she thought was white. Ortega testified that the woman she saw
in Garibaldi’s house was the daughter of her neighbor Garibaldi and that, when the man entered
the complainant’s house, the woman went outside Garibaldi’s house and acted like she was
working in the yard. Ortega also testified that she did not know if anyone entered or exited the
complainant’s side door to his house because she did not have a good view of that side door.
The complainant testified that, after the police informed him by phone that his house had
been burglarized, he arrived at his house and found the door broken and “everything . . . tossed
around” in the house. He testified: “[E]verything was upside down. The clothes were thrown
about. The drawers were pulled out and had been thrown on the floor. There was nothing—for
example, nothing of value, everything was messed up.” He also testified that he noticed that his
forty-seven inch television set was missing and also that items were in his kitchen collected in a
black garbage bag. He testified that he had not given anyone permission to be in his house or to
collect and take items or attempt to take items from his house.
Dallas Police Officer Christopher Klein testified that he was about a minute away from
the complainant’s residence when he received a call regarding the burglary in progress. The call
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relayed that a “Latin male had entered the house and there was a Latin female out front of the
house.” After he arrived at the house, as an undercover officer, he remained in his car parked
across the street, watching the house and waiting for uniformed police officers to arrive. He
testified that he could see three sides of the house and that he did not observe anyone entering or
exiting the house from the time that he arrived at the scene until uniformed officers arrived
within fifteen minutes. He observed a Latin female—subsequently identified as Melissa
Garibaldi—in the yard next door to the complainant’s house. Klein testified that, after
uniformed police arrived, the officers observed that a side door of the house was open. He and
two other officers “just pushed that side door open and announced Dallas Police” and “at that
point” they “saw Mr. Acosta standing inside the house” in the living room. Klein identified
appellant in the courtroom as the person whom he had observed in the complainant’s living room
when officers entered. Klein testified that appellant complied when police requested that he put
up his hands and lay on the floor. He testified that the “house had been ransacked” with
“property stacked by the door inside a black trash bag” in the kitchen, and “stuff all over the
place” with drawers pulled out, furniture moved, and the mattress taken off the bed. He testified
that officers also observed an air conditioning unit not at a window but “inside the kitchen.”
Klein also testified that, after the initial burglary report, the complainant stated that a couple of
television sets were missing and testified that officers searched unsuccessfully for them.
On cross-examination, Klein testified that appellant was wearing a blue shirt and blue
jeans and that, when appellant put up his hands upon police request, appellant “said that someone
was chasing him.” Klein testified that he did not see anyone else in the house and that officers
did not search the area looking for the person purportedly chasing appellant. When asked if
someone who was “not there” could have taken the televisions, Klein testified that “[c]ould have
been.” Klein also testified that he did not recover burglary tools from appellant, but that he did
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not “know if [he had] ever caught anybody with screwdrivers” in the “burglary of a house” and
that most burglars of houses “just kick the door in.”
On redirect examination, Klein testified that appellant described the people chasing him
as “[b]lack guys” but that Klein did not observe any African-American males near the house nor
did the eyewitness. Klein also testified that the distance from the complainant’s house to the
neighbor’s house could “be traveled multiple times in a period of three minutes[.]”
Detective Ronald Kramer with the Dallas Police Department testified that he arrived at
the scene seconds after Klein, and he and Klein maintained surveillance of the house until
uniformed officers arrived. He testified that he saw no one enter or exit the house and that,
during his investigation of the burglary, he did not learn of “any other individual exiting or
entering the house[.]” Kramer testified that, when police found appellant standing in the middle
of the complainant’s living room and identified themselves to appellant, appellant “seemed very
calm, not upset” and he was not sweating or out of breath. Kramer testified that appellant stated,
“Some guys were chasing me, so I ran in here to hide.” Like Klein, Kramer did not see “[a]ny
one of African-American race” in the general area and testified that appellant’s physical
condition did not indicate that he was being chased. Kramer also testified that the disarrayed
condition of the house was consistent with a burglary. Kramer identified appellant in the
courtroom as Steve Acosta and he testified that he transported appellant to the police station. 1
On cross-examination, when asked if in ten minutes (which was, according to police call
notes, the approximate time from the time of the 911 call until appellant was in custody)
someone could have entered and ransacked the house, checked the dressers, flipped the mattress,
put clothes in a bag and put the bag in the kitchen, and removed two televisions, Kramer testified
1
Kramer testified that he also transported Melissa Garibaldi to the police station because “the original caller stated that she may have been
involved, acting as a lookout” but she refused to talk and, because Kramer “did not have enough to prosecute her[,]” she was released.
–4–
that “[a]ll that stuff that happened, it didn’t happen in that ten-minute time frame” and “[i]t
would have taken several trips.” But in answer to whether the ten-minute time frame on the
police call notes was “a good time frame,” Kramer testified that the call notes reflect “just the
time that the witness, whenever she got home, observed the first strange incident” and that “there
was a whole [other] rest of the day before that.”
The jury found appellant guilty and the court sentenced appellant to twelve years’
imprisonment. This appeal followed. The State did not file a brief in this Court.
APPLICABLE LAW AND STANDARD OF REVIEW
In reviewing a challenge to the sufficiency of the evidence to support a conviction, we
must consider all the evidence and reasonable inferences therefrom 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. Whatley v. State, 445 S.W.3d 159, 166 (Tex.
Crim. App. 2014). We determine whether inferences are reasonable based upon the combined
and cumulative force of all the evidence when viewed in the light most favorable to the jury’s
verdict. Goad v. State, 354 S.W.3d 443, 450 (Tex. Crim. App. 2011).
A person commits burglary of a habitation when the person, without the effective consent
of the owner, enters a habitation with intent to commit a theft. TEX. PENAL CODE ANN.
§ 30.02(a)(1) (West 2011). Intent is a fact issue for the jury and may be inferred from the
circumstances. Robles v. State, 664 S.W.2d 91, 94 (Tex. Crim. App. 1984). It is not necessary
for the State to prove a theft was actually committed or the appellant possessed the stolen
property. See Richardson v. State, 888 S.W.2d 822, 824 (Tex. Crim. App. 1994). Because the
entry of the habitation is an intrusion into the occupant’s reasonable expectation of privacy, the
harm results from the entry. Id.
–5–
ANALYSIS
In his sole issue, appellant argues that the evidence was insufficient to support the
conviction because there was no evidence that would give rise to the reasonable inference that
appellant had the required intent to commit theft. He does not dispute that he entered the
complainant’s house. But appellant argues that there was no evidence tying him “to the stolen
television(s) or the ransacking of the home or the placing of clothing into a garbage bag.” He
contends that the “sole factor” tying appellant to the alleged offense was his entry into the house.
The jury heard evidence that appellant entered the complainant’s house by pushing
through a window air conditioning unit and going through the window, that—upon their entry
into the house—police officers observed appellant standing in the living room. The jury also
heard evidence that the house was ransacked with “stuff all over the place” with pulled-out
drawers, a flipped mattress, items gathered in a garbage bag by the kitchen door, and televisions
missing. And the jury heard evidence that appellant compliantly raised his hands upon request
by the police and stated that “black guys” had been chasing him, but that officers had not seen
any African-American men in the area and appellant appeared calm and not sweating or out of
breath. The jury also heard evidence that police officers and a witness had not observed anyone
entering or exiting the house from the time of the 911 call to appellant’s arrest. Based on this
evidence, the jury could reasonably conclude that appellant intended to commit theft. See Gear
v. State, 340 S.W.3d 743, 747–48 (Tex. Crim. App. 2011) (concluding jury could reasonably
infer that appellant intended to commit theft where evidence showed that appellant was
interrupted while attempting to enter the complainant’s house immediately after breaking the
complainant’s window, and then ran). Having reviewed the evidence under the appropriate
standard, we conclude that it is sufficient to support the jury’s verdict. We resolve appellant’s
sole issue against him.
–6–
CLERICAL ERROR IN JUDGMENT
The judgment in this case spells appellant’s first name “Steva.” At the beginning of trial
court proceedings, the judge confirmed with appellant that the correct spelling of his first name is
“Steve.” The notice of appeal also spells appellant’s first name “Steve.” We have the power to
modify a judgment when we have the necessary information to do so. See TEX. R. APP. P.
43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Accordingly, we modify
the judgment to correct the spelling of appellant’s first name to “Steve.”
CONCLUSION
We affirm the trial court’s judgment as modified.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47.2(b)
131640F.U05
–7–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
STEVE ACOSTA, Appellant On Appeal from the 194th Judicial District
Court, Dallas County, Texas
No. 05-13-01640-CR V. Trial Court Cause No. F-1355987-M.
Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee Justices Francis and Whitehill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
to correct the spelling of appellant's first name to "Steve."
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 7th day of July, 2015.
–8–
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Case # PD-1080-15
Case Information
Location Court Of Criminal Appeals
Date Filed 09/08/2015 10:27:28 PM
Case Number PD-1080-15
Case Description
Assigned to Judge
Attorney
Firm Name Law Office Bruce Kaye
Filed By Bruce Kaye
Filer Type Not Applicable
Fees
Convenience Fee $0.00
Total Court Case Fees $0.00
Total Court Filing Fees $0.00
Total Court Service Fees $0.00
Total Filing & Service Fees $0.00
Total Service Tax Fees $0.00
Total Provider Service Fees $0.00
Total Provider Tax Fees $0.00
Grand Total $0.00
Payment
Account Name Bruce Kaye Credit Card
Transaction Amount $0.00
Transaction Response
Transaction ID 11200342
Order # 006836264-0
Petition for Discretionary Review
Filing Type EFile
Filing Code Petition for Discretionary Review
Filing Description Appellant's Petition for Discretionary Review
Reference Number
Comments
Status Rejected
Fees
Court Fee $0.00
Service Fee $0.00
Rejection Information
Rejection Time Rejection Comment
Reason
09/14/2015 The petition for discretionary review does not contain a certification of compliance
with T.R.A.P. 9.4(i)(3). The petition for discretionary review does not contain the
Other 11:09:27
https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=d471b5da-4d4e-47eb-acca-c894cddfa426[9/14/2015 11:11:43 AM]
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identity of Judge, Parties and Counsel [Rule 68.4(a)]. You have ten days to tender a
AM
corrected petition for discretionary review.
Documents
Lead Document ACOSTA PDR.pdf [Original]
Attachments Acosta 5th Dist. COA Opinion.pdf [Original]
https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=d471b5da-4d4e-47eb-acca-c894cddfa426[9/14/2015 11:11:43 AM]