Acosta, Steve

PD-1080-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/30/2015 10:48:22 PM
Accepted 10/12/2015 4:51:09 PM
ABEL ACOSTA
• NO. 1080-15 CLERK
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
2309 Boll St.
October 12, 2015
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 find Appellant Guilty of
Charged Offense of Burglary of a Habitation
PRAYER FOR RELIEF 15
CERTIFICATE OF SERVICE 16
CERTIFICATE OF COMPLIANCE 16
APPENDIX (Opinion of Court of Appeals, 5th Dist.)
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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.
INTERESTED PARTIES
The Honorable Ernest White, III Presiding Judge
194th Judicial District Court
Dallas County, Texas
Dietrich Knabe, Esq. Trial Counsel for Appellant
SBN 24070066 Dallas County Public Defender’s Office
James Aulbaugh, Esq. Assistant District Attorney
SBN 24062594 Dallas County District Attorney’s Office
Lori Ordiway Assistant District Attorney
Dallas County District Attorney’s Office,
Appellate Division
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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
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).
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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.
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,
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Lans. Ch. 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).
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
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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).
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
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(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
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
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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
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
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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:
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
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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).
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.
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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.
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.
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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
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
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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
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
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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.
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.
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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
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 22ND
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
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex. R.
App. P. 9.4(e) because it has been prepared in a conventional typeface no
smaller than 14-point for text and 12-point for footnotes. This document also
complies with the word-count limitations of Tex. R. App. P. 9.4(i), if
applicable, because it contains 2,542words, excluding any parts exempted by
Tex. R. App. P. 9.4(i)(1).
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