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 
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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. 
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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 
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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. 
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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).

 

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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. 
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Accordingly, the judgment is affirmed. 

Brian Quinn 

Chief Justice 

Do not publish.