                                   NO. 07-05-0202-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL C

                                NOVEMBER 30, 2005
                          ______________________________

                                  GILBERT LEIJA, JR.,

                                                               Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

             FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;

                     NO. 10,611; HON. TOM NEELY, PRESIDING
                       _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J., and REAVIS and HANCOCK, JJ.

       Gilbert Leija, Jr. appeals his conviction for burglary of a habitation. Through three

issues, he challenges 1) the legal and factual sufficiency of the evidence underlying the

conviction and 2) the trial court’s refusal to permit him to cross-examine the victim about

a pending criminal investigation into an act performed by her. We affirm the judgment of

the trial court.
                 Issues One and Two - Sufficiency of the Evidence

      In his first two issues, appellant argues that there was no evidence that he

committed theft and insufficient evidence that he attempted to commit theft. We overrule

the issues.

      The standards by which we review the legal and factual sufficiency of the evidence

are well established. We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004),

Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556

(Tex. Crim. App. 2000) for an explanation of them.

       Appellant was charged with intentionally or knowingly entering a habitation without

the consent of the owner and attempting to commit or committing theft of a television. See

TEX . PEN . CODE ANN . §30.02(a)(3) (Vernon 2003) (stating that a person commits a burglary

if without the effective consent of the owner, the person enters a habitation and commits

or attempts to commit a felony, theft, or an assault). The evidence here shows that

Cynthia Nail and her two small children were in the backyard of the residence she and her

husband were renting. Upon re-entering the abode, she observed appellant suddenly

appear from behind a hutch near their entertainment center. He had not been invited into

the house. Furthermore, appellant asked Nail for money and for something to drink. She

gave him two dollars and a Coke, and he left. Once he was gone, Nail discovered that the

television, DVD player, and VCR were unplugged from their electrical source.




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       Approximately 30 to 40 minutes earlier, Nail and her children had been inside the

house with the television on. When the group decided to play outside, they turned the

television off but left it plugged into its electrical source.

       Appellant contradicted Nail’s story by saying she granted him permission to enter

the house after he knocked on the door. Then, he allegedly asked her if he could use her

telephone because he had run out of gas and left after receiving a soft drink. Appellant

also claims that nothing was taken from the residence and the only evidence that he

attempted to commit theft was the allegation that the universal plug to which the three

appliances were attached had been unplugged. He further mentions the discrepancy

about whether the appliances were removed from the universal plug or whether the

universal plug itself was removed from the wall socket, and asserts that it is so pivotal that

it negates the validity of the conviction.

       Despite the apparent conflicts in testimony, evidence nonetheless exists illustrating

that 1) the appliances had been unplugged either directly or indirectly from the wall

electrical socket while the family was outside, 2) appellant was discovered inside the home

and by the appliances, 3) appellant had not been invited into the home, 4) appellant was

in need of money, 5) appellant used cocaine, and 6) appellant had previously been

convicted of stealing a VCR.

       When an accused is charged under §30.02(a)(3) of the Penal Code, the State need

only show that the defendant intentionally or knowingly entered a habitation without the

owner’s consent and attempted to commit a theft. DeVaughn v. State, 749 S.W.2d 62, 65

(Tex. Crim. App. 1988); Espinoza v. State, 955 S.W.2d 108, 111 (Tex. App.–Waco 1997,

pet. ref’d); Flores v. State, 902 S.W.2d 618 (Tex. App.–Austin 1995, pet. ref’d).

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Furthermore, a criminal offense may be proved by circumstantial evidence. Roberson v.

State, 16 S.W.3d 156, 164 (Tex. App.–Austin 2000, pet. ref’d). That 1) appellant was in

the home uninvited, 2) he appeared from behind a hutch near the entertainment center,

3) the appliances had been plugged in 30 to 40 minutes earlier and were found unplugged

after appellant left the home, 4) a police officer also observed the appliances to be

unplugged, and 5) there was no evidence that anyone else had been in the house is some

evidence upon which a rational jury could conclude beyond reasonable doubt that

appellant burglarized the habitation as charged. Furthermore, the inconsistency about

whether the appliances were disconnected from the multi-socketed electrical cord or

whether the latter alone was unplugged from the wall simply created issues regarding the

credibility of the witnesses. It, however, did not negate the evidence that the appliances

had been somehow disconnected from their electrical source, and that such was necessary

before they could be removed from the abode. Thus, the evidence was and is both legally

and factually sufficient to support the conviction.

                                 Issue Three - Impeachment

       Via his third issue, appellant questions the trial court’s refusal to allow him to cross-

examine Nail about a criminal investigation into her purported effort to acquire property

through the use of another’s name. We overrule the issue.

       The evidence of record illustrates that Nail had not been convicted of the supposed

offense or any felony or crime of moral turpitude. This is determinative. One may not

delve into specific instances of conduct in effort to attack a witness’ credibility, TEX . R. EVID .

608(b), unless the instances resulted in a felony conviction or a conviction for a crime of



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moral turpitude. TEX . R. EVID . 609(a). Since Nail had not been so convicted, the trial court

did not abuse its discretion in excluding the evidence.



       Having overruled each issue, we affirm the trial court’s judgment.



                                                  Brian Quinn
                                                  Chief Justice

Do not publish.




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