                      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).




                                                                            6
       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
                                                                             7
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 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:


                                                                              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

                                                                          13
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

                                               –2–
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

                                                –3–
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

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Envelope Details

                                 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]




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