                                                                                        PD-1080-15
                                                                       COURT OF CRIMINAL APPEALS
                                                                                      AUSTIN, TEXAS
                                                                     Transmitted 9/30/2015 10:44:44 PM
                                                                        Accepted 10/8/2015 1:14:09 PM
                                                                                       ABEL ACOSTA
                                                                                               CLERK
                                   NO.   1080-15



                     IN THE COURT OF CRIMINAL APPEALS




         FILED IN                  STEVE ACOSTA
COURT OF CRIMINAL APPEALS                         Appellant,
                                            vs.
      October 8, 2015

                                   THE STATE OF
   ABEL ACOSTA, CLERK
                                         TEXAS,
                                             Appellee


               On Appeal from the 5th District Court of Appeals
                                     Dallas, Texas



              APPELLANT'S MOTION FOR LEAVE TO FILE
       OUT  OF          TIME    PETITION          FOR     DISCRETIONARY
       REVIEW           and    PETITION           FOR     DISCRETIONARY
       REVIEW




       TO THE HONORABLE COURT OF CRIMINAL APPEALS:

       Comes Now, STEVE ACOSTA, Appellant/Petitioner who hereby files this

       Motion for Leave to File Out of Time Petition for Discretionary Review and

       Petition for Discretionary Review.    In support of this motion, per Tex. R.

       App. P. 10.5, Petitioner shows the following:
                           Procedural History

     The Court of Appeals for the 5th Appellate District in Dallas, TX,

rendered its opinion and judgment in Steve Acosta v. State of Texas,

Trial Court Cause No. F-1355987-M, Appellate Cause No. 05-13-01640-CR on

July 7, 2015.

     Appellant filed his Motion for Extension of Time to File Petition for

Discretionary Review ("PDR"), which was granted by the Court.

Appellant filed his PDR via EFileTexas.gov on or about September 9, 2015.

The filing was rejected because the PDR failed to include the interested

party names and a certification of compliance with the total number of

words contained therein.


     On or about September 22, 2015, Applicant filed an Amended PDR

which contained the heretofore missing information.    On September 23,

2015, the undersigned appointed counsel flew with his daughter to New

York City to tour Pace University and New York University.        Counsel

returned to Dallas on Sunday, September 27, 2015.

     On Monday, September 28, 2015, while counsel was filing documents

on another matter, counsel pulled up his page which contained a history of

all of his filings on EFileTexas.gov.   Counsel noticed that his filing of

September 22, 2015 (Amended PDR) had a rejection placed next to the
filing, but there was (and is) no actual notice of the rejection that was

emailed out to counsel. Counsel, confused by the lack of notice, called the

Court and spoke to Wade Papadakis and explained the facts contained

herein. Wade could not find the amended filing on the computer and asked

counsel to email him the screen shot which showed the matter had been


filed on September 22, 2015. Counsel emailed the requested screen shot to

Wade (See Exhibit 1).

     On September 30, 2015, counsel received an email from Mark Adams

which included the actual rejection language (the Amended PDR did not

contain the 5th Court of Appeals Opinion - although the Original PDR did)

and the fact that the due date was September 24, 2015, which was during the

time that counsel and his daughter were in New York City (See Exhibit 2).

     Again, while the Court of Criminal Appeals Clerk may have rejected

the filing, the undersigned counsel never received any notice whatsoever

from EFileTexas.gov that the filing had been rejected.

     Hence, counsel, now made aware of the fact, is hereby filing this

Motion and including the Amended PDR with the 5th District Court of

Appeals Opinion (See Exhibit 3).
      WHEREFORE PREMISES CONSIDERED, Petitioner prays that

this Court grant this Motion to File Out of Time PDR and PDR, and accept

and file Appellant's PDR.

                               Respectfully submitted,

                                    /s/ Bruce Kaye
                               Bruce Kaye
                               TBN 00784374
                               2309 Boll St.
                               Dallas, TX 75204
                               (214) 722-7438 Office
                               (866) 649-8757 Fax
                               Bruce@Brucekaye.com

              CERTIFICATE OF SERVICE


      I hereby certify that a true and correct copy of this Motion (with
PDR with 5th District Opinion) was emailed to Lori Ordiway, Dallas
County District Attorney's Office, Appellate Division, on this the 30th day
of September, 2015, in accordance with the Texas Rules of Appellate
Procedure.


                                     /s/ Bruce Kaye
                               Bruce Kaye
   From: Bruce Kaye bruce@brucekaye.com (f
Subject: PDR on PD-1080-15
    Date: September 28, 2015 at 1:31 PM
     To: wade.papadakis@txcourts.gov



Case # PD-1080-15                                                                ,                                 -                              ,                     Actions
 Enve'ooe #7041360<iled Tuesday Septemoer 22 2015at 3 35 PM CDT byBruce Kaye                                              *                _               '      ,.,

                           Rejected                  Petition for Discr... EFile                          PDRamended




Yours,
Bnjce Kaye, Esq.


Law Office of Bruce Kaye
2309 BoO a.
Dallas. TX 75204
(214) 722-7438 Office
(866) 649-8757 t-acsiniile
(?14l 566 0?11 Cell/Toxl




 BRUCE KAYE
Changing lives one case At a time.


Theinformation containedin thise-mailmessage is attomoy-pnviloged and conftdentiaJ nlofmatton intendedonlyfor the use ofthe individual or enutynamed above. Further, thisetectronic
transmission may contain confidential Hortnation betonging to the. senderthatis protected bythe Electronic CorrvrxnickTtions Privacy AkI, 18 U.S.C. Sections 2510and 2521.ifyouare notthe
intendedrecipient, youare herEby notified thai anydissemination, distribution, copying or otheruse erf thisODmrnunication is strictly prohibited. Ifyouhavereceived thiscommunication inerror,
please immeduitely notify us by telephone at {214-722-7433}or e-mailand destroy ihis e-mailmessage.




                                                                           EXh.
  From: MarkAdamsMark.Adams@txcourts.gov <#
Subject: RE: PD-1080-15
   Date: September 30, 2015 at 10:41 AM
        To: Bruce Kaye bruce@brucekaye.com

Sorry, here is the attachment.

Mark Adams

    Original Message
From: Bruce Kaye [mailto:bruce@brucekaye.com]
Sent: Wednesday, September 30, 2015 10:34 AM
To: Mark Adams
Subject: Re: PD-1080-15

Mark:


I did file an Amended PDR on Sept. 22, 2015. When I looked online at efile, it showed I filed it, but it says rejected. I never received any
notice that it was rejected and that's why I called the Clerk's Office (who asked me to email him the screen showing the filing and
rejection). The Clerk could not find it in his computer - which is why you received it.

How should I proceed?

Yours,

Bruce Kaye

Law Office of Bruce C. Kaye
2309 Boll St.
Dallas TX 75204
(214) 722-7438 Office
(866) 659-8757 Facsimile
(214) 566-0211 Text/Cell
www. brucekaye.com

  On Sep 30, 2015, at 10:25 AM, Mark Adams <Mark.Adams@txcourts.gov> wrote:

  The Texas Rules of Appellate Procedure require attorneys to file documents electronically. Rule 9.2(c)(1); no action will betaken on the
  petition attached in your email to the Court. Furthermore, a corrected petition was due to be filed in this Court September 24, 2015.

  Mark Adams
  Deputy Clerk
  Court of Criminal Appeals



         i H!
     PD-1080-15
  DATT._STAMP.PDF




                                                            Exu a
Envelope Details




  Case #             PD-1080-15

   Case Information             \
   Location                              Court Of Criminal Appeals
   Date Filed                            09/22/2015 03:35:38 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                              '•'•-.\, '• --'„•   ,."1 ',.' •."":
   Account Name                           Bruce Kaye Credit Card
   Transaction Amount                     $0.00
   Transaction Response
   Transaction ID                         11530131
   Order #                                007041360-0


    Petition for Discretionary Review
    Filing Type                                 •                             EFile
    Filing Code                                                               Petition for Discretionary Review
    Rling Description                                                         PDR amended
    Reference Number
   Comments
   Status                                                                     Rejected
    Fees.
   Court Fee                                                                  $0.00
   Service Fee                                                                $0.00
    Rejection Information                           1   "




    Reason00 Time                   Rejection Comment
                   09/24/2015 The petition for discretionary review does not contain a copy of the court of appeals
   Other           03:41:24   opinion [Rule 68.4(j)]. Your corrected petition remains due September 24, 2015


hUps://reviewer.eriletexas.gov/EiwelopeDetails.aspx?enveIopeguid=46ea6f77-e8a546c5-b82a-82b545154fue[9/30/2015 10:34:46 AM]
                            NO.      1080-15




              IN THE COURT OF CRIMINAL APPEALS




                            STEVE ACOSTA
                                           Appellant,
                                     vs.



                             THE STATE OF
                                  TEXAS,
                                      Appellee


        On Appeal from the 5th District Court of Appeals
                              Dallas, Texas



       APPELLANT'S MOTION FOR LEAVE TO FILE
OUT     OF     TIME       PETITION         FOR     DISCRETIONARY
REVIEW         and      PETITION           FOR     DISCRETIONARY
REVIEW




TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Comes Now, STEVE ACOSTA, Appellant/Petitioner who hereby files this

Motion for Leave to File Out of Time Petition for Discretionary Review and

Petition for Discretionary Review.    In support of this motion, per Tex. R.

App. P. 10.5, Petitioner shows the following:




                                tXH 3
                           Procedural History

     The Court of Appeals for the 5th Appellate District in Dallas, TX,

rendered its opinion and judgment in Steve Acosta v. State of Texas,

Trial Court Cause No. F-1355987-M, Appellate Cause No. 05-13-01640-CR on

July 7, 2015.

     Appellant filed his Motion for Extension of Time to File Petition for

Discretionary Review ("PDR"), which was granted by the Court.

Appellant filed his PDR via EFileTexas.gov on or about September 9, 20.1.5.

The filing was rejected because the PDR failed to include the interested

party names and a certification of compliance with the total number of

words contained therein.


     On or about September 22, 2015, Applicant filed an Amended PDR

which contained the heretofore missing information.     On September 23,

2015, the undersigned appointed counsel flew with his daughter to New

York City to tour Pace University and New York University.         Counsel

returned to Dallas on Sunday, September 27, 2015.

     On Monday, September 28, 2015, while counsel was filing documents

on another matter, counsel pulled up his page which contained a history of

all of his filings on EFileTexas.gov.   Counsel noticed that his filing of

September 22, 2015 (Amended PDR) had a rejection placed next to the
filing, but there was (and is) no actual notice of the rejection that was

emailed out to counsel. Counsel, confused by the lack of notice, called the

Court and spoke to Wade Papadakis and explained the facts contained

herein. Wade could not find the amended filing on the computer and asked

counsel to email him the screen shot which showed the matter had been

filed on September 22, 2015. Counsel emailed the requested screen shot to

Wade (See Exhibit 1).

     On September 30, 2015, counsel received an email from Mark Adams

which included the actual rejection language (the Amended PDR did not

contain the 5th Court of Appeals Opinion - although the Original PDR did)

and the fact that the due date was September 24, 2015, which was during the

time that counsel and his daughter were in New York City (See Exhibit 2).

      Again, while the Court of Criminal Appeals Clerk may have rejected

the filing, the undersigned counsel never received any notice whatsoever

from EFileTexas.gov that the filing had been rejected.

     Hence, counsel, now made aware of the fact, is hereby filing this

Motion and including the Amended PDR with the 5 District Court of

Appeals Opinion (See Exhibit 3).
      WHEREFORE PREMISES CONSIDERED, Petitioner prays that

this Court grantthis Motion to File Out of Time PDR and PDR, and accept

and file Appellant's PDR.

                               Respectfully submitted,

                                     /s/ Bruce Kaye
                               Bruce Kaye
                               TBN 00784374
                               2309 Boll St.
                               Dallas, TX 75204
                               (214) 722-7438 Office
                               (866) 649-8757 Fax
                               Bruce@Brucekaye.com

              CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of this Motion (with
PDR with 5th District Opinion) was emailed to Lori Ordiway, Dallas
County District Attorney's Office, Appellate Division, on this the 30th day
of September, 2015, in accordance with the Texas Rules of Appellate
Procedure.

                                    /s/ Bruce Kaye
                               Bruce Kaye
MODIFY and AFFIRM; and Opinion Filed July 7, 2015.




                                            In The

                                   (Emirt of Appeals
                       Jffiftlj Saistritt at ®exas at Dallas
                                     No. 05-13-01640-CR

                                STEVE ACOSTA, Appellant

                                              V.


                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 194thJudicial 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" unitat 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

enteror 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 complainanttestified 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 noticedthat 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

                                                -•>_
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 "[cjould have

been." Klein also testified that he did not recover burglary tools from appellant, but that he did
not "know if [he had] evercaught 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 "betraveled multiple times ina 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, notupset" and he was not sweating or outof 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 hetransported appellant to thepolice station.'

           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,

 putclothes ina bag and putthe bag inthe kitchen, and removed two televisions, Kramer testified


       ' Kramer testified thathe alsotransported Melissa Garibaldi to the police station because "theoriginal caller staled thatshemay have been
 involved, acting asa lookout" butsherefused to talk and, because Kramer "didnothave enough toprosecute hcr[,l" she was released.


                                                                     -4-
that "[a]U 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.
 t


                         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 ofthe offense beyond a reasonable doubt. Whatley v. State, 445 S.W.3d 159, 166 (Tex.
Crim. App. 2014). Wc 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).

        Aperson commits burglary ofa 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. Slate, 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 ofhis 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 tocorrect the spelling ofappellant'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-
                                 Court of Appeals
                       Jfftftlj Biatntt of <5e*as at ©alias
                                      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, thejudgmentof 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.
