                                   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

Do not publish.




                                     6
