AFFIRM; and Opinion Filed October 18, 2017.




                                          S   In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                       No. 05-16-01328-CR

                           GLENN TERRANCE MARTIN, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                         On Appeal from the County Court at Law No. 7
                                     Collin County, Texas
                             Trial Court Cause No. 007-81681-2016

                              MEMORANDUM OPINION
                         Before Justices Lang-Miers, Brown, and Boatright
                                   Opinion by Justice Boatright
          A jury found appellant guilty of misdemeanor assault and made an affirmative finding of

family violence. The trial court assessed his punishment at 180 days’ confinement, probated for

eighteen months, and a $100 fine. In two issues, appellant argues (1) the evidence is insufficient

to establish that he acted with the requisite mental state, and (2) he was harmed by the

prosecutor’s improper mention of an extraneous offense in the State’s opening remarks. We

affirm.

          In his first issue, appellant challenges the sufficiency of the evidence supporting his

conviction for assault. Specifically, he contends there is no evidence that he injured his former

girlfriend, Lauren Ramirez, with any culpable state of mind. A person commits an assault if he

intentionally, knowingly, or recklessly causes bodily injury to another person. TEX. PENAL CODE

ANN. § 22.01(a)(1) (West Supp. 2016). A person acts recklessly with respect to circumstances
surrounding the result of his conduct when he is aware of but consciously disregards a

substantial and unjustifiable risk that the result will occur. TEX. PENAL CODE ANN. § 6.03(c)

(West 2011).

       We review appellant’s challenge by examining the evidence in the light most favorable to

the prosecution to determine whether any rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979). An accused’s intent is sometimes proven through circumstantial evidence surrounding

the crime. See, e.g., Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007).

       Appellant contends he injured Ramirez by accident. Ramirez testified at trial that she and

appellant had a daughter. Their childcare plan provided for Ramirez to care for the child during

the morning and afternoon and for appellant to care for her in the evening and overnight while

Ramirez worked as a manager of a Wal-Mart store. On the day of the altercation, appellant called

Ramirez to report that he would be home late. Ramirez told appellant she would take the child to

her brother’s house because she had to get to work and because she believed appellant sounded

intoxicated; she told appellant he could pick the child up in the morning. Appellant became

agitated and telephoned Ramirez “more than ten times” as she drove to work, calling her vulgar

names and complaining that he wanted to pick their daughter up then. Appellant drove to the

Wal-Mart and confronted Ramirez in her supervisor’s office, which is located in an area that he

knew was restricted to employees. Ramirez left the office, walked out into the store, and used her

phone to call 911. As she tried to talk to the operator and move away from appellant, he followed

her closely and continued to call her names and make demands concerning their child. When

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Ramirez did not hang up, appellant “charged” at her and tried to grab her phone away. As he

“lunged” at her, he pushed her and came away with the cord attached to her walky-talky. He held

and yanked the cord, drawing it across Ramirez’s arm and burning her. The burn left a scar that

Ramirez showed the jury at trial.

       We can infer a defendant’s culpable mental state from his acts, words, and conduct.

Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). Considering the evidence in the

light most favorable to the verdict, it showed the following: appellant initiated the conflict by

repeatedly calling Ramirez as she drove to work; he escalated it by arriving at her workplace,

following her, and continuing to insult her throughout the store; in this state of anger, he charged

at her and pushed her and grabbed at her. We conclude that a reasonable jury could have inferred

from the evidence that appellant was aware of, but consciously disregarded, a substantial and

unjustifiable risk that he would injure Ramirez by his conduct. TEX. PENAL CODE ANN. § 6.03(c).

The State presented sufficient evidence to establish that appellant recklessly caused her injury.

We overrule his first issue.

       In his second issue, appellant argues he was harmed by the State’s reference to an

extraneous act during its opening statement. The prosecutor stated:

       And then you’ll also hear from Maria Ramirez. And Maria Ramirez is Lauren’s
       mom. She wasn’t at that Walmart that night. She wasn’t even in the state of
       Texas that night. What she knows is that at around the same time this assault
       would have occurred, she gets a phone call from the defendant and the defendant
       threatens her.

Appellant’s counsel objected to the reference to an extraneous offense, stating that it was

covered by the court’s pretrial order. The trial judge responded that counsel’s statement was true

and sustained the objection. Counsel then asked for an instruction for the jury to disregard the

prosecutor’s last statement. The judge complied, explaining to jurors that a statement during

argument was not evidence: evidence comes only from the witness stand and documents the


                                                –3–
judge admits into evidence. Counsel then asked for a mistrial, but the judge denied the motion.

During the trial, outside the presence of the jury, the judge ruled that testimony concerning

appellant’s threat to Ramirez’s mother was not admissible.

       Appellant contends that the reference to this threat denied his ability to receive a fair trial.

We disagree. Instructions to the jury are sufficient to cure most improprieties that occur during

trial, and we presume that a jury will follow the trial court’s instructions. Gamboa v. State, 296

S.W.3d 574, 580 (Tex. Crim. App. 2009). Appellant may rebut that presumption by pointing to

evidence that the jury failed to follow the trial court’s instructions. Thrift v. State, 176 S.W.3d

221, 224 (Tex. Crim. App. 2005). But appellant has identified no such evidence in this case.

Instead, he argues that because the evidence of any culpable mental state was so weak at trial,

revelation of this threat prevented his ability to receive a fair trial. We have already concluded

that sufficient evidence supports conviction based upon appellant’s reckless state of mind.

Accordingly, we conclude appellant suffered no harm from any error in the State’s opening

statement. We overrule appellant’s second issue.

       We affirm the trial court’s judgment.




                                                       /Jason Boatright/
                                                       JASON BOATRIGHT
                                                       JUSTICE

Do Not Publish
TEX. R. APP. P. 47

161328F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

GLENN TERRANCE MARTIN, Appellant                   On Appeal from the County Court at Law
                                                   No. 7, Collin County, Texas
No. 05-16-01328-CR        V.                       Trial Court Cause No. 007-81681-2016.
                                                   Opinion delivered by Justice Boatright.
THE STATE OF TEXAS, Appellee                       Justices Lang-Miers and Brown
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 18th day of October, 2017.




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