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
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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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Glenn Terrance Martin v. State
Combined Opinion