Gilbert Leija, Jr. v. State

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. 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). 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 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. its favor. Analysis None of the relevant facts in this case are in dispute. The issue in this case is not whether TxDOT proved that it requested a BRC within 10 days of its receipt of TWCC's determination of Cruse's entitlement to first quarter SIBs and Cruse's applications for second through thirteenth quarter SIBs. Neither party disputes that TxDOT requested a BRC within 10 days of its receipt of these documents. (4) The issue in the present case is whether a request for a BRC that was filed within 10 days of receipt of multiple applications for SIBs was required to expressly identify the quarters being disputed to avoid waiver of the right to contest entitlement. See Labor Code § 408.147(b). Labor Code § 408.147(b) requires a carrier to "make a request for a [BRC] within 10 days after" receipt of the claimant's application for SIBs. The statute does not limit what issues can be addressed at the resulting BRC nor does it impose any requirement that issues must be clearly identified in the request in order to be addressed at the BRC, such as is required in a pleading. By its plain language, Labor Code § 408.147(b) requires only that a carrier request a BRC within 10 days of receipt of the applications to avoid waiver of its right to contest entitlement. See also Appeals Panel Decision 980106, 1998 WL 133283, at *3 (Tex. Workers' Comp. Comm'n 1998) (concluding that Labor Code § 408.147(b) requires only a timely request for BRC and does not require carrier to state grounds for its action). Further, had the legislature intended to limit a carrier's dispute of SIBs eligibility to those issues expressly identified on its request for BRC, it could have done so in the same manner that it did in Labor Code § 409.022. See Labor Code § 409.022. As there is no dispute regarding whether TxDOT filed a request for BRC contesting Cruse's entitlement to SIBs within 10 days of receipt of TWCC's determination of entitlement to first quarter SIBs and Cruse's applications for second through thirteenth quarter SIBs, we affirm the trial court's determination that TxDOT did not waive its right to contest Cruse's eligibility under Labor Code § 408.147(b) and the summary judgment it granted TxDOT on this basis. Both TxDOT, in its motion for summary judgment, and Cruse, in his appellate brief, argue TxDOT's compliance with TWCC Rule 141.1 and various Appeals Panel decisions. We do not address these issues because TWCC Rules and Appeals Panel decisions can not require more than what is required under Labor Code § 408.147. This is so because an administrative agency's rule may not impose additional burdens, conditions, or restrictions in excess of what is required under the relevant statute. See Milner v. City of Leander, 64 S.W.3d 33, 42 (Tex.App.-Austin 2000, no pet.). Thus, we conclude that our construction of Labor Code § 408.147(b) is determinative of this appeal. See Tex. R. App. P. 47.1. Conclusion We conclude that TxDOT's request for BRC in this case was sufficient to avoid waiver of its right to contest Cruse's entitlement to all thirteen quarters of SIBs. Therefore, we affirm the summary judgment of the trial court. Mackey K. Hancock Justice 1. Because the initial notice of appeal was filed before a final judgment was entered, this court dismissed a prior appeal for lack of jurisdiction. See Cruse v. Tex. Dep't of Transp., No. 07-05-0184-CV, 2005 Tex.App. LEXIS 4680 (Tex.App.-Amarillo June 16, 2005, no pet.). The current appeal is from a final judgment entered July 5, 2005. 2. Further reference to provisions of the Texas Labor Code will be by reference to "Labor Code § ___." 3. Further reference to provisions of the Texas Administrative Code will all refer to volume 28 and will be by reference to "TWCC Rule ___." 4. Cruse incorrectly argues that TxDOT filed its request for BRC on January 12, 2004. However, we view this argument as a mistake rather than a factual dispute since the uncontroverted evidence conclusively establishes that the request was filed on January 21, 2004. Our conclusion that this contention is based on a mistake is bolstered by Cruse's indication in the statement of facts in his brief that the TWCC's determination regarding Cruse's first quarter entitlement and the applications for the second through thirteenth quarters were received by TxDOT on January 12, 2004 and that TxDOT's request for BRC was filed on January 21, 2004. Further, the request is dated January 21, 2004 and the affidavit of Virginia Wier, TxDOT's claims handler for Cruse's claim, attest that the request was filed on January 21, 2004.