Acosta, Steve

Opinion

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.)

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.

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

3 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).

4 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,

5 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).

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

6 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 7 (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 8 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 9 taken into custody (RR, Vol. 3, P. 107 L. 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

10 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.

11 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.

12 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

13 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

14 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.

15 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).