In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-13-00120-CR
BRIAN MARTINEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2011-432,508, Honorable John J. "Trey" McClendon, Presiding
January 23, 2014
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Brian Martinez appeals his conviction of burglary of a habitation. The
two issues before us involve the legal insufficiency of the evidence underlying the
conviction and the admissibility of extraneous offenses received during both the
guilt/innocence and punishment phases of the trial. We affirm the judgment.
Sufficiency of the Evidence
Appellant argues the evidence is insufficient to support conviction because it
does not illustrate that he entered the apartment of Gabriella Dominguez with the intent to commit theft, he was not found in possession of any items stolen from Dominguez,
and Dominguez failed to positively identify him. We overrule the issue.
We review the sufficiency of the evidence under the standard discussed in
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). Furthermore, that evidence
must enable a rational jury to conclude, beyond reasonable doubt, that appellant
entered a habitation without the effective consent of the owner and with the intent to
commit theft. TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011).
Next, a jury may infer intent from circumstantial evidence, Guevara v. State, 152
S.W.3d 45, 50 (Tex. Crim. App. 2004), as long as each inference is supported by
evidence. Hooper v. State, 214 S.W.3d 9, 15-16 (Tex. Crim. App. 2007). Finally, an
appellate court may determine whether necessary inferences are reasonable based
upon the combined and cumulative force of all the evidence viewed in the light most
favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 156 (Tex. Crim. App. 2011).
The record at bar contains evidence that Gabriella Dominguez and her roommate
Beverly Mendoza were living at the Raider Pass Apartments in Lubbock. Both were
members of the Texas Tech University golf team. Upon their return home from a golf
tournament at midnight on September 14, 2011, they noticed the door to their apartment
was open even though it had been locked when they left. They also observed a man
coming down the hall. He was Hispanic with black hair and a little beard, and he wore a
striped shirt. The man claimed to have seen the apartment door open and entered to
investigate. He then left.
Also of record is evidence that the two female tenants noticed that their rooms
had been ransacked and that items were missing. Dominguez’ car also was gone.
2 Thereafter, blood was found on the damaged door to one of the female's bedrooms, and
DNA testing linked appellant to the blood. At the time the tenants left for the
tournament, the bedroom door in question had been locked. Also found was a broken
knife that had not been in that condition before the females had left.
So too was a "Buckle" rewards card in the name of Lyndal Briscoe found in the
apartment. The card had been damaged in a manner that was consistent with it being
used to bypass a door lock. Neither tenant knew Briscoe. However, the latter had been
the victim of a burglary on September 10, 2011. During that event, Briscoe's orange
Coach wallet which contained the "Buckle" card, her car keys, and her debit card had
been taken.
Investigation then revealed that someone used Briscoe's debit card to make a
purchase at a local store. The visage of the person making the purchase was caught
on camera. Though Briscoe could not identify the person, she could and did identify the
Coach wallet held by the person as hers. One or more of the store pictures was also
shown to Dominguez and Mendoza; Mendoza indicated that the shirt being worn by the
person in the picture was similar to the one worn by the person found in their apartment
on September 14th. Thereafter, a police officer identified appellant as the man in the
store photos.
The disarray found in the Dominguez/Mendoza apartment, its having been
locked before they left, appellant's blood found on Dominguez' previously locked
bedroom door, the discovery of a broken knife that could have been used to force open
the bedroom door, the presence of the damaged "Buckle" card in the apartment, its
susceptibility for use as a means of opening the apartment's locked door, the
3 identification of appellant as the person in the store pictures carrying Briscoe's Coach
wallet that contained the "Buckle" card, and the similarity between the shirt being worn
by the person in the store pictures and found in the Dominguez/Mendoza apartment is
sufficient evidence from which a rational jury could logically infer beyond a reasonable
doubt that appellant entered the apartment rented by Dominguez and Mendoza without
consent and with the intent to commit theft. In other words, the evidence is sufficient to
support appellant's conviction.
Extraneous Offenses
Appellant next complains of the admission of extraneous offenses at both the
guilt/innocence and punishment phases of the trial. We overrule the issue.
As for the allegation about the admission of extraneous evidence during the
punishment phase, appellant supplied us with neither argument nor authority supporting
the contention. Thus, it was inadequately briefed and, therefore, waived. Hankins v.
State, 132 S.W.3d 380, 385 (Tex. Crim. App. 2004). Furthermore, we note that statute
provides the trial court with authority to receive, during the punishment phase of a trial,
evidence of extraneous crimes or bad acts. TEX. CODE CRIM. PROC. ANN. art. 37.07 §
3(a)(1) (West Supp. 2013) (stating that a trial court may admit any evidence it deems
relevant to sentencing, including the prior criminal record of the defendant, his general
reputation, his character, and any other evidence of an extraneous crime or bad act that
is shown beyond a reasonable doubt to have been committed by the defendant or for
which he could be held criminally responsible regardless of whether he has been
charged with or finally convicted of the crime or act). So, the admission of such
evidence is not error in and of itself.
4 As for the evidence admitted during the guilt/innocence phase, it pertained to the
Briscoe burglary. And, as illustrated above, it created a link between that crime, the
person who committed it (that is, appellant), and the "Buckle" card found in the
Dominguez/Mendoza apartment. As such, it could logically be viewed as evidence
identifying appellant as the person 1) found by Dominguez and Mendoza in their
apartment and 2) who committed that burglary. This is of import since evidence of
extraneous offenses is admissible to prove, among other things, identity. TEX. R. EVID.
404(b).1 Additionally, appellant questioned the evidence identifying him as the person
encountered by Dominguez and Mendoza. So, identity was relevant and the
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-13-00120-CR
BRIAN MARTINEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2011-432,508, Honorable John J. "Trey" McClendon, Presiding
January 23, 2014
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Brian Martinez appeals his conviction of burglary of a habitation. The
two issues before us involve the legal insufficiency of the evidence underlying the
conviction and the admissibility of extraneous offenses received during both the
guilt/innocence and punishment phases of the trial. We affirm the judgment.
Sufficiency of the Evidence
Appellant argues the evidence is insufficient to support conviction because it
does not illustrate that he entered the apartment of Gabriella Dominguez with the intent to commit theft, he was not found in possession of any items stolen from Dominguez,
and Dominguez failed to positively identify him. We overrule the issue.
We review the sufficiency of the evidence under the standard discussed in
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). Furthermore, that evidence
must enable a rational jury to conclude, beyond reasonable doubt, that appellant
entered a habitation without the effective consent of the owner and with the intent to
commit theft. TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011).
Next, a jury may infer intent from circumstantial evidence, Guevara v. State, 152
S.W.3d 45, 50 (Tex. Crim. App. 2004), as long as each inference is supported by
evidence. Hooper v. State, 214 S.W.3d 9, 15-16 (Tex. Crim. App. 2007). Finally, an
appellate court may determine whether necessary inferences are reasonable based
upon the combined and cumulative force of all the evidence viewed in the light most
favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 156 (Tex. Crim. App. 2011).
The record at bar contains evidence that Gabriella Dominguez and her roommate
Beverly Mendoza were living at the Raider Pass Apartments in Lubbock. Both were
members of the Texas Tech University golf team. Upon their return home from a golf
tournament at midnight on September 14, 2011, they noticed the door to their apartment
was open even though it had been locked when they left. They also observed a man
coming down the hall. He was Hispanic with black hair and a little beard, and he wore a
striped shirt. The man claimed to have seen the apartment door open and entered to
investigate. He then left.
Also of record is evidence that the two female tenants noticed that their rooms
had been ransacked and that items were missing. Dominguez’ car also was gone.
2 Thereafter, blood was found on the damaged door to one of the female's bedrooms, and
DNA testing linked appellant to the blood. At the time the tenants left for the
tournament, the bedroom door in question had been locked. Also found was a broken
knife that had not been in that condition before the females had left.
So too was a "Buckle" rewards card in the name of Lyndal Briscoe found in the
apartment. The card had been damaged in a manner that was consistent with it being
used to bypass a door lock. Neither tenant knew Briscoe. However, the latter had been
the victim of a burglary on September 10, 2011. During that event, Briscoe's orange
Coach wallet which contained the "Buckle" card, her car keys, and her debit card had
been taken.
Investigation then revealed that someone used Briscoe's debit card to make a
purchase at a local store. The visage of the person making the purchase was caught
on camera. Though Briscoe could not identify the person, she could and did identify the
Coach wallet held by the person as hers. One or more of the store pictures was also
shown to Dominguez and Mendoza; Mendoza indicated that the shirt being worn by the
person in the picture was similar to the one worn by the person found in their apartment
on September 14th. Thereafter, a police officer identified appellant as the man in the
store photos.
The disarray found in the Dominguez/Mendoza apartment, its having been
locked before they left, appellant's blood found on Dominguez' previously locked
bedroom door, the discovery of a broken knife that could have been used to force open
the bedroom door, the presence of the damaged "Buckle" card in the apartment, its
susceptibility for use as a means of opening the apartment's locked door, the
3 identification of appellant as the person in the store pictures carrying Briscoe's Coach
wallet that contained the "Buckle" card, and the similarity between the shirt being worn
by the person in the store pictures and found in the Dominguez/Mendoza apartment is
sufficient evidence from which a rational jury could logically infer beyond a reasonable
doubt that appellant entered the apartment rented by Dominguez and Mendoza without
consent and with the intent to commit theft. In other words, the evidence is sufficient to
support appellant's conviction.
Extraneous Offenses
Appellant next complains of the admission of extraneous offenses at both the
guilt/innocence and punishment phases of the trial. We overrule the issue.
As for the allegation about the admission of extraneous evidence during the
punishment phase, appellant supplied us with neither argument nor authority supporting
the contention. Thus, it was inadequately briefed and, therefore, waived. Hankins v.
State, 132 S.W.3d 380, 385 (Tex. Crim. App. 2004). Furthermore, we note that statute
provides the trial court with authority to receive, during the punishment phase of a trial,
evidence of extraneous crimes or bad acts. TEX. CODE CRIM. PROC. ANN. art. 37.07 §
3(a)(1) (West Supp. 2013) (stating that a trial court may admit any evidence it deems
relevant to sentencing, including the prior criminal record of the defendant, his general
reputation, his character, and any other evidence of an extraneous crime or bad act that
is shown beyond a reasonable doubt to have been committed by the defendant or for
which he could be held criminally responsible regardless of whether he has been
charged with or finally convicted of the crime or act). So, the admission of such
evidence is not error in and of itself.
4 As for the evidence admitted during the guilt/innocence phase, it pertained to the
Briscoe burglary. And, as illustrated above, it created a link between that crime, the
person who committed it (that is, appellant), and the "Buckle" card found in the
Dominguez/Mendoza apartment. As such, it could logically be viewed as evidence
identifying appellant as the person 1) found by Dominguez and Mendoza in their
apartment and 2) who committed that burglary. This is of import since evidence of
extraneous offenses is admissible to prove, among other things, identity. TEX. R. EVID.
404(b).1 Additionally, appellant questioned the evidence identifying him as the person
encountered by Dominguez and Mendoza. So, identity was relevant and the
admissibility of the evidence in question to legitimately identify appellant as that person
fell within the zone of reasonable disagreement. See Edwards v. State, 228 S.W.3d
450, 451-22 (Tex. App.—Amarillo 2007, pet. ref’d) (wherein the court determined that a
shotgun stolen in one burglary and later found in a vehicle involved in another theft was
admissible for purposes of proving identity even though the acts committed in the
crimes were not identical); see also Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim.
App. 2003) (stating that the pertinent standard of review when deciding if the trial court
erred in admitting evidence of extraneous bad acts or crimes is one of abused
discretion); Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) (stating that
discretion is not abused if the decision falls within the zone of reasonable
disagreement).
1 At the time the evidence was admitted, the jury was instructed that the evidence could be considered for purposes of “intent, knowledge, motive, opportunity, preparation, plan, identity, or absence of mistake or accident.” Appellant did not object to this instruction.
5 Accordingly, the judgment is affirmed.
Brian Quinn Chief Justice
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