COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
LAURA JUAREZ, § No. 08-12-00365-CR Appellant, § Appeal from the v. § 210th District Court THE STATE OF TEXAS, § of El Paso County, Texas Appellee. § (TC#20120D02286) §
OPINION
Appellant Laura Juarez was convicted of murdering her husband by striking him with a
motor vehicle and was sentenced to ninety-nine years’ confinement. On appeal, Appellant
contends the trial court erred in refusing to suppress her recorded statement and in denying her
request to submit criminally negligent homicide as a lesser-included offense. Appellant also
asserts there is no evidence of mens rea to support her murder conviction. We affirm.
FACTUAL BACKGROUND
On February 10, 2012, Appellant and her husband, Salvador Juarez, went to a nightclub
with friends and became inebriated. At some point, Appellant became upset and jealous when
Salvador introduced himself to three other women who had joined them at their table. Later that night after Appellant and Salvador had returned home, Appellant called 9-1-1. She told the
responding firemen she had awakened to find Salvador was not breathing. When the firemen
informed Appellant that Salvador was dead, she told them they had consumed two bottles of liquor
at the club, and Salvador had been so drunk when they had returned home, she was required to
carry him into the apartment.
Appellant later repeated to police officer Melendez that she had awakened to find Salvador
not breathing. When Officer Melendez asked about marks he saw on Appellant’s neck, however,
Appellant admitted that she and Salvador had fought after she had caught him talking to one of her
friends. She said Salvador then left the apartment, and she later saw him standing by the front
gate of the apartment complex. Appellant asserted that she drove out and picked up Salvador in
their van, drove him back to the apartment, and then was forced to drag him out of the van and back
into the apartment bedroom because he had passed out. She had then fallen back asleep and
awakened later to find Salvador was not breathing.
When Sergeant Cox arrived, he and Officer Melendez found marks on the lower right leg
of Salvador’s body. Sergeant Cox also observed damage and tearing on the right side of
Salvador’s jeans in the same area. The officers overheard Appellant telling her friends that she
had crashed into the apartment complex gate. Officer Melendez examined the apartment
complex gate and verified it had been damaged. Sergeant Cox inspected the van and found
damage on the driver’s side fender and side panels. He also found green transfer paint on the
damaged portion of the white van and observed that the apartment complex gate was the same
green color. Cox examined the gate and found damage and debris indicating a vehicle had
2 possibly struck the fence.1
Officer Soto, who photographed the scene, noted the green fence had white paint on it and
that the Dodge Durango van driven by Appellant was white. Officer Madrid, who collected
evidence from the scene, collected paint scrapings from the green fence that contained white paint
transfer marks. She also observed green paint transfer marks on Salvador’s belt and shirt.
Charles Harmon, a collision re-constructionist, examined tire marks at the scene, the
damage to the fence, and the debris left from the vehicle. He noted that white paint had
transferred onto the green fence and that green paint had transferred onto the white Dodge
Durango van. Harmon found an acceleration mark on the roadway that matched the tires on
Appellant’s white Dodge Durango van, and found no signs of braking. Harmon determined that
the Durango van had struck the fence. The medical examiner, Dr. Juan Contin, performed an
autopsy and determined Salvador had been hit by a vehicle and had received multiple crush
injuries causing his death.
In Appellant’s custodial interview taken the morning of February 11, Appellant admitted
she had been driving the Dodge Durango van and had possibly struck Salvador when she turned
the steering wheel toward him and ran up on the sidewalk. Appellant admitted that she was still
upset at Salvador at the time, but denied aiming the car at Salvador or intending to kill him.
MOTION TO SUPRESS
At trial, Appellant sought to suppress the DVD recording of her custodial interview. In
her first issue, Appellant contends the trial court erred in denying her motion to suppress because
1 Appellant also told Sergeant Cox that she had fought with Salvador when she woke up and heard him talking on her phone with another female, that she went looking for Salvador in their van after he left the apartment, and that after finding him standing by the entrance to the apartment complex, she drove him back to the apartment and had to drag him into the apartment because he was unable to walk. 3 she did not knowingly, intelligently, and voluntarily waive her rights under Article 38.22 of the
Code of Criminal Procedure 2 and Miranda v. Arizona. 3 Appellant specifically contends that
“merely [nodding] her head” after a night of heavy drinking was “not a sufficient indication of
understanding and appreciat[ing]” her rights.
The trial court held a Jackson v. Denno hearing to determine whether Appellant’s
statement was knowing and voluntary and thus admissible. See Jackson v. Denno, 378 U.S. 368,
84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). At the hearing, the DVD recording of Appellant’s
interview was played for the trial court. Detective Hernandez, who performed the recorded
interview, testified that he first made contact with Appellant in the morning and began her
custodial interview at the police headquarters around 9 a.m. Prior to recording, Hernandez spent
about an hour establishing rapport, obtaining identifying information, and allowing Appellant to
provide whatever details she wanted to give. During this time, Appellant was allowed to go to the
restroom. Hernandez advised Appellant that she was a suspect in the investigation into the death
of her husband and informed her of her Miranda rights. Appellant was allowed to read a Miranda
card setting out her rights. Appellant signed the Miranda card at 9:24 a.m. Hernandez testified
that Appellant did not appear to be intoxicated or under the influence of any drug or medication
that would affect her understanding or comprehension of her Miranda rights. Hernandez also
testified, and the DVD recording showed, that once the recording began, Hernandez advised
Appellant of her Miranda rights a second time, and that when Hernandez asked if Appellant
2 Article 38.22 establishes procedural safeguards for securing the privilege against self-incrimination. TEX. CODE CRIM. PROC.ANN. art. 38.22 (West 2005). It provides that no oral statement of an accused made as a result of custodial interrogation is admissible against the accused in a criminal proceeding unless (1) the statement was recorded, and (2) prior to the statement but during the recording, the accused was warned of his rights and knowingly, intelligently, and voluntarily waived those rights. Id. at 38.22, § 3. 3 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 4 understood and waived those rights, Appellant responded “uh-huh” and nodded her head in assent,
and when asked to clarify, responded “yes.” At no time did Appellant ask to terminate the
interview or request counsel. She was provided water and restroom breaks during the course of
the interview. Appellant did not indicate she did not understand English nor did she seek any
assistance from Hernandez in explaining the Miranda rights. Hernandez did not promise
Appellant anything in return for her statement, nor did he threaten, coerce, or place her under any
duress while she was giving the statement.
The trial court entered findings of fact and conclusions of law regarding whether
Appellant’s statement was voluntary and knowingly given. See TEX. CODE CRIM. PROC. ANN. art.
38.22, § 6 (West 2005). The trial court concluded that under the totality of the circumstances,
Appellant’s statement was obtained in compliance with Article 38.22 and that Appellant
intelligently, knowingly, and voluntarily waived her rights both before and during her recorded
statement. The trial court found that Appellant was calm, voluntarily answered the questions, and
did not appear to be under duress, and that Appellant was not threatened or coerced in any way so
as to render the statement involuntary. She was given restroom breaks and was offered water.
No promises were made in exchange for her statement. The court also determined that the
dialogue between Hernandez and Appellant showed that Appellant’s understanding was not
hindered by intoxication arising from medications, drugs, or alcohol. At no time did Appellant
indicate that she did not understand what she was doing. Appellant never asked to terminate the
interview, to seek counsel, nor did she indicate she did not understand her rights. Appellant was
calm, and there was no indication from the recording that she did not understand what was being
asked.
5 A trial court’s ruling at a suppression hearing is reviewed for an abuse of
discretion. Ramos v. State, 245 S.W.3d 410, 417-18 (Tex.Crim.App. 2008). In reviewing the
trial court’s decision, an appellate court must view the evidence in the light most favorable to the
trial court's ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006). We afford
almost total deference to a trial court’s determination of historical facts. See
Montanez v. State, 195 S.W.3d 101, 109 (Tex.Crim.App. 2006). We afford the same deference
to the trial court’s resolution of mixed questions of law and fact that turn on an evaluation of
credibility and demeanor, and review de novo only the court's resolution of mixed questions not
falling within this category. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). The
trial court’s ruling will be upheld if it is reasonably supported by the record and is correct under
any theory of law applicable to the case. Ramos, 245 S.W.3d at 418.
Appellant argues that the record does not show she explicitly waived her rights. But we
note that “a waiver [of] one’s right to an attorney may be found in an express written or oral
statement or may be inferred from actions and words of the person interrogated.” Barefield v.
State, 784 S.W.2d 38, 41 (Tex.Crim.App. 1989) (citing Mays v. State, 726 S.W.2d 937, 946
(Tex.Crim.App. 1986)); Joseph v, State, 309 S.W.3d 20, 24 (Tex.Crim.App. 2010) (waiver can be
inferred from the actions and words of the person interrogated). The oral-confession statute does
not require an express verbal statement from an accused that he waives his rights prior to giving a
statement. Barefield, 784 S.W.2d at 40–41. Rather, the voluntariness of a confession is assessed
by looking at the totality of the circumstances. Id.
Ultimately, the question is not whether Appellant “explicitly” waived her Miranda rights,
but whether she did so knowingly, intelligently, and voluntarily. Joseph, 309 S.W.3d at 25. To
6 evaluate whether Appellant knowingly, intelligently, and voluntarily waived her Miranda rights,
the Court of Criminal Appeals instructs us to apply the standard outlined in Moran v. Burbine, 475
U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). Joseph, 309 S.W.3d at 25. First, the
relinquishment of the right must have been voluntary in the sense that it was the product of a free
and deliberate choice rather than intimidation, coercion, or deception. Id. Second, the waiver
must have been made with full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it. Id. Applying this standard, we agree with the trial
court that the totality of the circumstances indicated that Appellant knowingly, intelligently, and
voluntarily waived her Miranda rights.
We begin our analysis by noting two important things. First, before her statement was
recorded, Appellant signed a Miranda waiver card that explicitly informed Appellant of her
Miranda rights, and noted that she understood those rights and knowingly, intelligently, and
voluntarily waived those rights. While signing the waiver card did not fulfill the requirement
under section 3 of Article 38.22 that “prior to the statement but during the recording” the accused
was warned of his rights and knowingly, intelligently, and voluntarily waived those rights, it is
strong evidence of a knowing and voluntary waiver. Second, during the recorded statement,
Appellant did not, as she contends, merely nod her head when asked for a second time if she
understood and waived her rights. Rather, after being informed of her rights, Appellant explicitly
and affirmatively responded that she understood and knowingly, intelligently, and voluntarily
waived those rights:
Q. Okay. For that — I read you your — your — your rights. You understand, ma’am?
A. Yes.
7 Q. Yes? Okay. Now, there’s a small statement here that I need to advise you on. Just tell me if you understand this, ma’am, okay?
“I understand my rights and I hereby knowingly, intelligently, and voluntarily waive these rights.”
With that being said, I would like to talk to you and get your side of the story. Do you understand these?
A. Uh-huh.
Q. Yes?
When an officer explicitly asks a suspect if she is willing to give up her Miranda rights, “[t]his
question, if answered affirmatively, results in an express waiver.” Joseph, 309 S.W.3d at 29
(Cochran, J. concurring). When police obtain an express waiver from the suspect, whether
written or oral, the State’s task to meet its burden of proof “is not so difficult.” Id.
The totality of the circumstances surrounding the interrogation shows Appellant’s wavier
was voluntary and resulted from a free and deliberate choice without intimidation, coercion, or
deception. Both the testimony and the recording show that immediately after being warned by
Officer Hernandez that she had the right to remain silent and that she did not have to make any
statement to anyone, Appellant willingly participated in the interview. At no time during the
statement did Appellant request an attorney, and at no time did she ask that the interview be
stopped. She was given restroom breaks, and was offered and given water. The recording shows
no evidence of intimidation or coercion or that Appellant appeared to be under duress or
distraught. Rather, her emotional state was calm. Officer Hernandez testified, and the recording
shows, that he did not coerce Appellant in any way and that at no time did he promise Appellant
8 anything in exchange for giving a statement.
Likewise, the totality of the circumstances surrounding the interrogation also shows
Appellant’s waiver was made with full awareness of both the nature of the rights being abandoned
and the consequences of the decision to abandon them. Before her recorded statement was taken,
Hernandez advised Appellant that she was a suspect in the investigation and informed her of her
Miranda rights. Appellant was allowed to read the Miranda card, which advised her of her rights
to remain silent, to have an attorney, and to terminate the interview at any time, and Hernandez
explained that he was advising her of her rights because she was a subject of the investigation into
the death of her husband. Appellant signed the Miranda card, representing that she was making a
knowing, intelligent, and voluntary waiver of her rights. Despite Appellant’s contention that this
was all done after a night of heavy drinking, there was no indication that Appellant appeared to be
intoxicated or under the influence of any drug or medication that would affect her understanding or
comprehension of her Miranda rights and the consequences of wavier. Also contrary to
Appellant’s contention, during the recording, Appellant explicitly answered “yes” when asked if
she understood her rights and was waiving those rights. Appellant never indicated that she did
not understand English, nor did she seek any assistance from Hernandez in explaining the Miranda
rights. At no time did Appellant indicate she did not understand or know her rights or what she
was doing. We also find it significant that Appellant explicitly waived her rights twice: once
when she signed the Miranda card and again during the recorded interview.
The totality of the circumstances and our review of the DVD recording of the interview
show that Appellant knowingly, intelligently, and voluntarily waived her rights under Article
38.22 and Miranda. We conclude the trial court did not abuse its discretion in denying
9 Appellant’s motion to suppress. Appellant’s first issue is overruled.
LESSER-INCLUDED OFFENSE
This case was submitted to the jury on murder and the lesser-included offense of
manslaughter. The jury found Appellant guilty of murder. Appellant contends the trial court
erred in refusing to submit the lesser-included offense of criminally negligent homicide.
Specifically, Appellant relies on her own statements in her recorded interview that she did not
intend to hit Salvador with the vehicle. She argues that because the trial court determined it was
necessary to charge the jury on the lesser-included offense of manslaughter, which requires a
finding of recklessness, it was also required to submit the lesser-included offense of criminally
negligent homicide, because the “evidence in the case at bar supports a finding of negligence just
as much as it supports a finding of recklessness[.]” We disagree.
We apply a two-part inquiry to determine whether an instruction on a lesser-included
offense should be given to the jury. Hall v. State, 225 S.W.3d 524, 535-36 (Tex.Crim.App.
2007); McKinney v. State, 207 S.W.3d 366, 370 (Tex.Crim.App. 2006); Rousseau v. State, 855
S.W.2d 666, 672 (Tex.Crim.App.), cert. denied, 510 U.S. 919 (1993). First, the requested
instruction must indeed be a lesser-included offense of the offense charged. Hall, 225 S.W.3d at
535-36. Second, before the lesser offense should be submitted, there must be some evidence in
the record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only
of the lesser offense. Id. at 536; Guzman v. State, 188 S.W.3d 185, 188-89 (Tex.Crim.App.
2006).
The first step is a question of law and begins with the offense and the indictment. Hall,
225 S.W.3d at 535. Whether a jury instruction must be given on a lesser offense does not depend
10 on the evidence to be produced at the trial but is determined by comparing the elements of the
charged offense, as alleged in the indictment or information, with the elements of the potential
lesser-included offense. Id. at 535-36. Appellant was charged with murder in two manners: (1)
by intentionally and knowingly causing the death of Salvador Juarez by striking him with a motor
vehicle; and (2) by striking Salvador Juarez with a motor vehicle, an act clearly dangerous to
human life, with the intent to cause serious bodily injury, that caused his death. An offense is
considered to be a lesser-included offense if, among other things, “it differs from the offense
charged only in the respect that a less culpable mental state suffices to establish its commission[.]”
TEX. CODE CRIM. PROC. ANN. art. 37.09(3)(West 2006). An indictment for murder differs from
criminally negligent homicide only in the required culpable mental state. Murder as charged in
the present case required that Appellant either intentionally or knowingly caused Salvador’s death,
or with the intent to cause serious bodily injury committed an act clearly dangerous to human life
that resulted in his death. TEX. PENAL CODE ANN. § 19.02(b)(1, 2)(West 2011). Criminally
negligent homicide requires only that the death be caused “by criminal negligence.” Id. at §
19.05(a)(West 2011). Because the potential lesser-included offense of criminally negligent
homicide is distinguishable from the offense of murder as charged by only a lesser culpable mental
state, it is a lesser-included offense. Stafford v. State, 248 S.W.3d 400, 413 (Tex.App. –
Beaumont 2008, pet. ref’d).
Second, some evidence must exist in the record that would permit a jury to rationally find
that if the appellant is guilty, he is guilty only of the lesser offense. Hall, 225 S.W.3d at 536;
Rousseau, 855 S.W.2d at 672-73; Salinas v. State, 163 S.W.3d 734, 741 (Tex.Crim.App. 2005).
The evidence must be evaluated in the context of the entire record. Moore v. State, 969 S.W.2d 4,
11 8 (Tex.Crim.App. 1998). There must be some evidence from which a rational jury could acquit
the appellant of the greater offense while convicting him of the lesser-included offense. Id. The
court may not consider whether the evidence is credible, controverted, or conflicts with other
evidence. Id. Anything more than a scintilla of evidence may entitle a defendant to a charge on
a lesser offense. Hall, 225 S.W.3d at 536. It is not sufficient, however, that the jury merely may
disbelieve crucial evidence pertaining to the greater offense. See Skinner v. State, 956 S.W.2d
532, 543 (Tex.Crim.App. 1997), cert. denied, 523 U.S. 1079 (1998). Rather, there must be some
evidence directly germane to the lesser-included offense before an instruction is warranted. Id.;
Ramirez v. State, 976 S.W.2d 219, 227 (Tex.App. – El Paso 1998, pet. ref’d).
Thus, we must determine whether there was some evidence in the record that would have
permitted a rational jury to find that, if Appellant was guilty, she was guilty of only criminally
negligent homicide. A person acts with criminal negligence:
[W]hen he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.
TEX. PENAL CODE ANN. § 6.03(d)(West 2011). After reviewing the record, we have found
nothing in the record, not even the testimony in Appellant’s recorded statement, to suggest
Appellant failed to perceive or was unaware that a risk of death or serious bodily injury existed.
See Tompkins v. State, 774 S.W.2d 195, 211 (Tex.Crim.App. 1987), aff’d, 109 S.Ct. 2180 (1989)
(quoting Mendieta v. State, 706 S.W.2d 651, 653 (Tex.Crim.App. 1986) (“It is encumbent that the
record contain evidence showing an unawareness of the risk before a charge on criminally
negligent homicide is required.”)). The physical evidence showed that in striking Salvador,
12 Appellant accelerated toward the fence without braking. Appellant acknowledged that she was
still upset when she saw Salvador standing by the fence, and that she turned the van and drove up
on the sidewalk “straight to the fence,” crashing her van into the fence where Salvador was
standing. While Appellant stated that “I wasn’t aiming at him” and “I didn’t mean to,” there is no
evidence that Appellant was unaware that a risk of death or serious bodily injury existed from
turning her van straight at the fence and driving up on the sidewalk toward Salvador. Speculation
that Appellant did not intend the result is not evidence of a lack of awareness or perception of the
risk her conduct created. See Tompkins, 774 S.W.2d at 212 (“Just because it might be speculated
that appellant did not intend the result, given the admissible evidence, such does not change his
awareness or perception of the risk his conduct created.”); see also Godsey v. State, 719 S.W.2d
578, 584 (Tex.Crim.App. 1986) (a defendant’s claim that he did not intend to kill cannot be
“plucked out of the record and examined in a vacuum”). Because there was no evidence
Appellant was unaware of the risk her conduct created, Appellant was not entitled to an instruction
on the lesser-included offense of criminally negligent homicide.
Moreover, even if the trial court erred in refusing to charge the jury on criminally negligent
homicide, that error was harmless. See Masterson v. State, 155 S.W.3d 167, 171-72
(Tex.Crim.App. 2005), cert. denied, 546 U.S. 1169 (2006); Stafford, 248 S.W.3d at 415; Flores v.
State, 215 S.W.3d 520, 530-31 (Tex.App. – Beaumont 2007), aff’d, 245 S.W.3d 432
(Tex.Crim.App. 2008). This case was submitted to the jury on murder and the lesser-included
offense of manslaughter, which would have allowed the jury to find that Appellant recklessly
caused Salvador’s death by disregarding a risk of which she was aware. The jury, however,
rejected manslaughter and convicted Appellant of murder. Any error in refusing to submit
13 criminally negligent homicide was harmless because the jury’s rejection of the intervening
manslaughter instruction indicates the jury legitimately believed Appellant was guilty of the
charged offense of murder along with its higher culpability. Further, under the record before us,
the manslaughter option is not a less plausible theory of culpability than criminally negligent
homicide. Stafford, 248 S.W.3d at 415. Accordingly, under the facts of this case, and in light of
the jury’s conviction of Appellant of murder instead of the lesser-included offense of
manslaughter, any error in failing to charge the jury on criminally negligent homicide did not harm
Appellant. Masterson, 155 S.W.3d at 171-72; Stafford, 248 S.W.3d at 415.
We conclude the trial court did not abuse its discretion in refusing the requested instruction
on criminally negligent homicide. Issue Two is overruled.
MENS REA
In Issue Three, Appellant contends the State failed to prove the mens rea element to
support her murder conviction, and that therefore the trial court erred in failing to direct a verdict
of not guilty. To support this argument, Appellant again relies on her statements in the recorded
interview that she did not aim the vehicle at Salvador and did not intend to kill or injure him.
A challenge to a trial court’s ruling on a motion for directed verdict is actually a challenge
to the sufficiency of the evidence to support the conviction. Madden v. State, 799 S.W.2d 683,
686 (Tex.Crim.App. 1990), cert. denied, 499 U.S. 954 (1991). In a legal sufficiency review, we
consider all the evidence in the light most favorable to the verdict, and the reasonable inferences
that flow from it, to determine whether any rational jury could have found the essential elements of
the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,
2789, 61 L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App. 2010).
14 In performing our sufficiency review, we do not re-evaluate the weight and credibility of
the evidence or substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d
735, 740 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1131(2000). We presume the fact finder
resolved any conflicting inferences in favor of the verdict and defer to that resolution. Jackson,
443 U.S. at 326, 99 S.Ct. at 2793; Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007).
We determine only whether the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to the verdict.
Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.Crim.App. 2007). Each fact is not required to point
directly and independently to the guilt of the appellant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction. Id. at 13 (citing Johnson v.
State, 871 S.W.2d 183, 186 (Tex.Crim.App. 1993)). Circumstantial evidence is as probative as
direct evidence, and circumstantial evidence alone can be sufficient to establish guilt. Guevara v.
State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004).
We measure the sufficiency of the evidence by the elements of the offense as defined by
the “hypothetically correct jury charge” for the case. Miles v. State, 357 S.W.3d 629, 631
(Tex.Crim.App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997)). A
hypothetically correct jury charge “accurately sets out the law, is authorized by the indictment,
does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s
theories of liability, and adequately describes the particular offense for which the defendant was
tried.” Id.
The first paragraph of the indictment alleges Appellant intentionally or knowingly caused
the death of Salvador by striking him with a motor vehicle. See TEX. PENAL CODE ANN. §
15 19.02(b)(1)(West 2011). The second paragraph of the indictment alleges Appellant intentionally,
with intent to cause serious bodily injury to Salvador, committed an act clearly dangerous to
human life; namely, striking Salvador with a motor vehicle that caused his death. See TEX. PENAL
CODE ANN. § 19.02(b)(2)(West 2011). Therefore, to satisfy a hypothetically-correct jury charge,
the State was required to prove that Appellant either: (1) intentionally or knowingly caused
Salvador’s death by striking him with a motor vehicle; or (2) with intent to cause Salvador serious
bodily injury, intentionally struck him with a motor vehicle and caused Salvador’s death.4
Appellant contends the evidence is insufficient to show she acted intentionally or
knowingly because in her recorded statement she stated that she drove only in the direction of the
fence, not at Salvador, and that she repeatedly denied she intended to kill or harm her husband.
While this testimony constitutes some evidence that Appellant may have lacked the necessary
intent or knowledge, it was not the only evidence of mens rea before the jury. The physical
evidence showed that Appellant did in fact strike Salvador crushing him against the fence, and that
in striking Salvador, Appellant accelerated toward the fence without braking. And, in her
statement, Appellant acknowledged that she was still upset when she saw Salvador standing by the
fence, and that she turned the van toward the fence, drove up on the sidewalk “straight to the
fence,” and crashed her van into the fence where Salvador was standing. Whether a defendant
had the requisite intent to commit an offense is a fact question for the jury. Brown v. State, 122
S.W.3d 794, 799 (Tex.Crim.App. 2003), cert. denied, 541 U.S. 938 (2004). Proof of a culpable
mental state generally relies upon circumstantial evidence. Dillon v. State, 574 S.W.2d 92, 94
4 A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct, when it is his conscious objective or desire to engage in the conduct or cause the result. TEX. PENAL CODE ANN. § 6.03(a)(West 2011). A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. TEX. PENAL CODE ANN. § 6.03(b)(West 2011). 16 (Tex.Crim.App. 1978); Agripino v. State, 217 S.W.3d 707, 715 (Tex.App. – El Paso 2007, no pet.).
Ordinarily, proof of a culpable mental state must be inferred from the acts, words, and conduct of
the accused and the surrounding circumstances. Ledesma v. State, 677 S.W.2d 529, 531
(Tex.Crim.App. 1984); Agripino, 217 S.W.3d at 715. The jury could have reasonably inferred
from the evidence that Appellant either intentionally or knowingly caused Salvador’s death by
striking him with a motor vehicle or intended to cause Salvador serious bodily injury by striking
him with a motor vehicle thereby causing his death. Further, the jury was not required to believe
Appellant’s claims that she did not aim the vehicle at Salvador and did not intend to kill or harm
him. The jury was free to believe some, all, or none of the testimony and other evidence
presented. See McFarland v. State, 928 S.W.2d 482, 496 (Tex.Crim.App. 1996). In light of the
physical evidence and Appellant’s repeated attempts to withhold information and misdirect the
police concerning exactly what had happened that night, the jury could have reasonably rejected
Appellant’s claims that she did not intend to kill Salvador or cause him serious bodily injury.
Viewing all the evidence in the light most favorable to the verdict, we conclude the jury
could have found beyond a reasonable doubt that Appellant, as alleged in the indictment,
intentionally or knowingly caused Salvador’s death, or with the intent to cause serious bodily
injury, intentionally committed an act clearly dangerous to human life by striking Salvador with
her vehicle causing his death. Because the evidence was sufficient to support the jury’s finding of
the mens rea necessary to convict Appellant of murder, the trial court did not err in denying
Appellant’s motion for directed verdict. Issue Three is overruled.
CONCLUSION
The trial court did not abuse its discretion in refusing to suppress Appellant’s recorded
17 statement, because the evidence and the recording demonstrated that Appellant knowingly,
intelligently, and voluntarily waived her Miranda rights. The trial court did not abuse its
discretion in refusing to submit criminally negligent homicide as a lesser-included offense,
because there was no evidence that Appellant was unaware that a risk of death or serious bodily
injury existed. In any event, in light of the jury’s conviction of Appellant of murder instead of the
lesser-included offense of manslaughter, any error in failing to charge the jury on criminally
negligent homicide was harmless. The trial court did not err in refusing to grant directed verdict,
because the evidence was legally sufficient to support the mens rea element of the murder
conviction. Accordingly, we affirm the trial court’s judgment.
STEVEN L. HUGHES, Justice
January 28, 2015
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)