Espinoza v. State

955 S.W.2d 108, 1997 WL 603892
Court of Appeals of Texas·Decided November 5, 1997·No. 10-96-275-CR·Published·Cited by 35 cases

Opinions

OPINION

CUMMINGS, Justice.

The appellant, Randall Espinoza, was convicted by a jury of burglary of a habitation. See Tex. Pen.Code. Ann. § 30.02(a)(3) (Vernon 1994). The trial judge sentenced Espinoza to fifteen years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. See Tex. Pen.Code. Ann. § 12.32(a) (Vernon 1994), § 30.02(d)(1) (Vernon Supp.1997). In four points of error, Espinoza claims: (1) there is legally-insufficient evidence Espinoza had the intent to commit criminal mischief when he entered the victim’s home; (2) there is factually-insufficient evidence Espinoza had the intent to commit criminal mischief when he entered the victim’s home, and factually-insufficient evidence supports the jury’s finding regarding the amount of pecuniary loss to the victim; (3) the jury charge contained fundamental error; and (4) the victim’s identification of Espinoza was tainted by an impermissibly suggestive identification procedure.

I. Factual Background

About 2:30 a.m. on October 8, 1995, John Whey could not sleep because loud music was being played at a party in the home across the street from his house. Wiley told Riley Rector, a young man who was living in his house, to go over to the party and ask that the music be turned down. When Rector did not return, Wiley decided to go across the street himself to ask that the music’s volume be turned down. As Wiley was going over to the party, he was stopped in the middle of the street by Randall Espinoza, and Wiley asked Espinoza to turn the music down. Espinoza refused, telling Wiley that it was a Latin King neighborhood and he would not turn the music down. Espinoza then pushed Wiley and another man hit Wiley in the back of the head. As Wiley began to return home after repeating his demand that the music be turned down, Wiley testified that ten or twelve other young men appeared. The men, including Espinoza, began fighting with Wiley as he retreated into his home and locked the front door.

However, Espinoza and the other men were not willing to leave after Wiley went inside his home. The group started beating on the door with their fists, a knife, and then with a landscaping timber. The group also broke out the two front windows. As the front door came off its hinges and the young men entered the house, Wiley refused to [111] leave Ms home. Wiley testified that Espinoza was one of the first people who came through the door. After the group entered, the men began destroying numerous furnishings in the home as well as continuing to fight with Wiley. When the police arrived Wiley identified Espinoza as a member of the group who had broken into Ms house and destroyed his property.

II. Points of Error

In Ms first point of error and as the second sub-point in his second point of error, Espinoza claims that he should not have been convicted of the offense of burglary because legally and factually insufficient evidence exists to show that Espinoza had the intent to commit criminal miscMef when he entered Wiley’s home. Espinoza contends that the reason the men broke into Wiley’s home was to continue fighting with Wiley, and there was no intent to commit criminal miscMef when entry was made into the house.

Section 30.02 of the Penal Code lists three “distinct ways” a burglary may be committed.1 DeVaughn v. State, 749 S.W.2d 62, 64 (Tex.Crim.App.1988); see Tex. Pen.Code Ann. § 30.02(a) (Vernon 1994 & Supp.1997). If a defendant is charged with burglary under subsections (a)(1) or (a)(2), the State is required to prove the defendant’s intent to commit a felony or theft at the time the defendant entered or remained concealed in a habitation or building. See DeVaughn, 749 S.W.2d at 64-65; see also Tex. Pen.Code Ann. § 30.02(a). However, when a defendant is charged under subsection (a)(3), the State is not required to prove that the defendant intended to commit the felony or theft at the time of entry. The State must simply prove that the defendant intentionally or knowingly entered the building or habitation without the owner’s consent and while inside committed or attempted to commit a felony or theft. DeVaughn, 749 S.W.2d at 65; see also Rivera v. State, 808 S.W.2d 80, 92 (Tex. Crim.App.1991); Flores v. State, 902 S.W.2d 618, 620 (Tex.App.—Austin 1995, pet. refd) (“Prosecution under section 30.02(a)(3) is appropriate when the accused enters without effective consent and, lacking intent to commit any crime upon Ms entry, subsequently forms that intent and commits or attempts to commit a felony or theft.”) (citing Seth S. SeaRcy III & James R. Patterson, Practice Commentary, Tex. Penal Code Ann. § 30.02 (West 1989)).

Espinoza was charged by indictment under section 30.02(a)(3). At trial the State proceeded on paragraph two of count one in the indictment wMch alleged that Espinoza:

intentionally and knowingly, without the effective consent of JOHN WILEY, the owner thereof, enter a habitation and did attempt to commit and commit criminal miscMef ... and did thereby cause pecuniary loss of $1500 or more but less than $20,000 to the said owner.

Thus, because Espinoza was charged under subsection (a)(3) of 30.02 the State was not required to prove Espmoza’s intent to commit criminal mischief when he entered the home of John Wiley. We need not determine then whether there is legally or factually sufficient evidence of Espinoza’s intent to commit criminal miscMef when he entered Wiley’s home because tMs is not an essential element of the crime of burglary under subsection (a)(3). See Rivera, 808 S.W.2d at 92-93. Consequently, we overrule Espinoza’s first point and the second sub-point of Ms second point.

In the first sub-point of Espinoza’s second point of error, he asserts that the evidence is factually insufficient to show that the value of the property damaged in Wiley’s home was at least $1,500. As discussed above, when a defendant is charged with the offense of burglary under section 30.02(a)(3), the State must prove the defendant attempted or committed a felony or theft after enter[112] ing the building or habitation. Tex. Pen. Code Ann. § 30.02(a)(3). In the instant ease the State sought to prove that Espinoza attempted or committed the crime of criminal mischief after breaking into Wiley’s home. See Tex. Pen Code Ann. § 28.03 (Vernon 1994 & Supp.1997). Section 28.03(b)(4) of the Penal Code determines that criminal mischief is a state jail felony if the amount of loss caused by the defendant’s intentional or knowing destruction of property is $1,500 or more but less than $20,000. Tex. Pen Code Ann. § 28.03(b)(4) (Vernon 1994).

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Espinoza v. State, 955 S.W.2d 108, 1997 WL 603892 (Tex. Ct. App. 1997).

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