## In The Court of Appeals Seventh District of Texas at Amarillo

No. 07

- 13

- 00120

- CR
BRIAN MARTINEZ, APPE LLANT

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 Ma rtinez 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 judgmen t. Sufficiency of the Evidence Appellant argues the e vidence is insufficient to support conviction because it does not illustrate that he e ntered the apartment of Gabriella Dominguez wi th the intent2

to commit theft, he was not found in possession of any i tems stolen from Dominguez, and Domin g uez 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. Cr im. App. 2010). Furthermore, that eviden ce 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. T EX

. P ENAL C ODE A NN

. § 30.02(a)(1) (West 2011). Next, a jury may infe r 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 in ferences are reasonabl e 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 evide nce 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 see n the apartment door open and entered to investigate. H e then left. Also of record is evidence that the two female tenant s noticed that their rooms had been ransacked and that items were missing. Dominguez’ car also was gone

.3

Thereafter, blood was fou nd on the damaged door to one of the female's bedroom s , 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 i n 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 cons istent with it being used to bypass a door lock. Neither tenant knew Bris coe. However, the latter had be en 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 t hen reveal ed that som eone 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 w as 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 Domin g uez/Mendoza apartment, its having been locked before they left, appellant's blood found on Domin g uez' previously locked bedroom door, the discovery of a broken kni fe that could have be en 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, the4

identification of appellant as the person in the stor e 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 Domin g uez/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

. Extran eous 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 ph ase, appellant supplied us with neither argument no r authority supporting the contention. Thus, it was inadequately briefed and, therefor e, 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. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 37.07 § 3(a)(1) (West Supp. 2013) (stating that a trial court may admit any evidence it deems rel evant 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 fo r 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.5

As for the evidence admitted during the guilt/inn ocence 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 Domin g uez/Mendoza apartment. As such , it could logic ally be viewed as evidence identifying appellant as the person 1) found by Domin g uez and Mendoza in their

a partment and 2) who committed that burglary. This is of import since e vidence of extraneous offense s is admissible to prove , among other things, ide ntity

. T EX

. R. E VID

. 404(b). 1 Additionally, appellant questioned the evidence identifying him as the person

encou ntered by Domin g uez and Mendoza. So, identity was relevant and the admissibility of the evidence in question to legitimately identify appell ant 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 sho tgun stolen in one burglary and later found in a vehicle involve d in another theft was admissible for purposes of proving identity even though the acts committed in the crimes were not identical ); s ee also Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003) (stating that the pertinent standard of review when dec iding 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 d iscretion is not abused if the decision falls within the zone of r easonable disagreement ).

1 At the time the evidence was admitted, the jury was instructed that the evidence could be considered for purposes of “int ent, knowledge, motive, opportunity, preparation, plan, identity, or absence of mistake or accident.” Appellant did not object to this instruction.6

Accordingly, the judgment is affirmed.
Brian Quinn Chief Justice Do not publish.