Affirmed and Memorandum Opinion filed January 29, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00588-CR

                        THERESA SERRANO, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 337th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1490307


                  MEMORANDUM OPINION

      Appellant Theresa Serrano appeals her conviction for the murder of her wife,
complainant Karen Sanqui. A jury found appellant guilty and assessed her
punishment at 45 years in prison. In two issues, appellant contends that (1) the
evidence was insufficient to support the jury’s conclusion that she possessed the
required mental state for murder, and (2) the trial court erred in refusing to instruct
the jury on the defense of necessity. We affirm.
                                       Background

       At trial, appellant and the State presented sharply contrasting evidence
regarding the events that led to Sanqui’s death. Appellant testified that Sanqui was
killed when a handgun discharged as appellant was trying to prevent Sanqui from
killing herself. The State presented evidence refuting many of appellant’s assertions
and suggesting that she intentionally or knowingly caused Sanqui’s death.

       Appellant and Sanqui were married in 2008, but by September 2016, they
were living apart. Appellant testified that Sanqui had been estranged from her family
due to their marriage and Sanqui began acting differently after Sanqui’s mother
became ill and subsequently died. According to appellant, after her mother’s death,
Sanqui became depressed, lost weight, became more masculine in appearance,
including cutting her hair, and started keeping a large number of dogs.1 On
September 16, 2016, appellant says that she went to Sanqui’s house to discuss their
finances, but Sanqui was not home. Appellant says that she let herself in, cared for
the dogs, packed some of her clothing in a bag, and then fell asleep while waiting
for Sanqui. Eventually, appellant woke and called Sanqui, and they spoke on the
phone before Sanqui arrived at the house. Appellant said that at first, the discussion
was civil, but when Sanqui arrived and saw that appellant had packed a bag, Sanqui’s
demeanor changed. According to appellant, Sanqui kept several guns in the house,
and at this point, Sanqui grabbed a handgun and pointed it at appellant. After
appellant ran to a bathroom and shut the door, Sanqui threatened to kill herself.
Appellant said that Sanqui had made similar threats while holding a gun three or
four times in the previous year.

       Sanqui entered the bathroom, squatted next to appellant, and pointed the

       1
         Appellant’s mother confirmed in her testimony that Sanqui had lost weight and cut her
hair short.

                                              2
handgun alternately at appellant and her own chin. According to appellant, Sanqui
said that she knew she had messed up and that appellant was moving on with her life
and getting engaged to someone else. After appellant pushed Sanqui away and they
both stood up, Sanqui continued to say that she knew appellant was “happy with
someone else” and that Sanqui had “lost [appellant] forever.” At that point,
according to appellant, Sanqui again threatened to kill herself, and when Sanqui
cocked the handgun’s hammer, appellant grabbed the gun and they struggled over
control of it. The gun then discharged and Sanqui fell to the floor, having been shot
in the forehead. Appellant called 911 and attempted to stop the bleeding. Sanqui was
subsequently transported to a hospital where she was pronounced dead.

      Harris County Sheriff’s deputies responded to the scene, and Sergeant
Veronica Riojas took a statement from appellant. Riojas testified that appellant
vacillated between being calm and upset during their conversation and that she made
sounds like she was vomiting but did not actually vomit. Riojas described this action
as appearing to be “fake.” Riojas further opined that she thought appellant’s
responses seemed rehearsed, and she noted that appellant’s knowledge of the
handgun varied, referring to it at times as “the .22” and referencing “the clip” but
then not knowing what the hammer was called and referring to it as “the thingy.”

      During the interview, which was played for the jury, appellant said that she
told Sanqui that she wanted a divorce, wanted to see other people, and was not in
love with Sanqui anymore. Appellant stated that after Sanqui’s mother died, Sanqui
began drinking heavily, gambling, and taking drugs, some of which she had obtained
from her cousin. Appellant said that Sanqui was depressed and had previously
threatened to kill herself and appellant. Appellant asserted that a friend of theirs,
Jessica Escobar, had warned her about Sanqui’s suicidal tendencies because Sanqui
had allegedly tried to hang herself while in the Air Force.

                                          3
       Regarding the night Sanqui died, appellant described Sanqui cocking the
hammer after which a struggle ensued for control of the gun. Appellant said that she
put both of her hands on Sanqui’s hands and stuck a finger behind the trigger but
then the gun fired. She maintained that she knew the bullet struck Sanqui’s head, but
she did not know where. She further suggested that everyone they knew was aware
of Sanqui’s depression. When Riojas attempted to question appellant a couple of
months later to clarify some of her statements, appellant refused to answer Riojas’s
questions. A recording of this attempted interview was also played for the jury.

       Sergeant Riojas additionally described obtaining information from several
sources casting doubt on appellant’s version of events. This information included
Sanqui’s medical records, which showed she tested negative for depression, did not
show any signs of alcohol or drug abuse, and had not lost the amount of weight
appellant suggested that she did. Riojas also obtained appellant’s cell phone, and
activity logs from the phone were admitted into evidence. According to these logs,
the texts between appellant and Sanqui in the days leading up to Sanqui’s death
showed that it was appellant, not Sanqui, who was having more difficulty with the
break up, it was appellant who spoke of wanting to die, and it was appellant who
threatened Sanqui.2 In contrast to appellant’s texts, Sanqui’s communication to
appellant did not reveal much in the way of sadness or anger and referenced nothing
in regards to suicidal or otherwise violent thoughts. Additionally, in email messages
appellant sent to herself from her phone, she further described her pain, her suicidal

       2
          For example, in one among several such messages, appellant told Sanqui “I want to die
Karen you have no idea how much I want to die.” In other messages to Sanqui, appellant said, “I
find it interesting that at a time like this u can go out n have fun n move on so easily . . . while I
cry every night” and “these past few days have been hell for me n u are a fucking horrible person.”
Approximately 10 hours before appellant called 911 to report Sanqui’s injury, she sent Sanqui
messages that included the following language: “you make me sick . . . I really don’t like you . . .
I want you to hurt and being f****** pain . . . I have so much hate for you” and “U think im
playing u have no idea . . . how much I f******* hate you.”

                                                  4
thoughts, and her anger toward Sanqui.3 These emails further demonstrated that
although appellant had started a relationship with another woman, she was merely
pretending to be in love with that woman.

        Jessica Escobar—the friend whom appellant said warned her about Sanqui’s
prior suicide attempt—denied in her testifimony that such an attempt had occurred
or that she had told appellant so. Escobar further stated that she had observed no
indication that Sanqui was depressed or suicidal. Sanqui’s cousin, Francine Maher,
denied that she had provided any drugs to Sanqui as appellant claimed. Maher further
explained that while Sanqui had been sad about her mother’s death, she did not seem
clinically depressed, and Maher did not know Sanqui to abuse alcohol or prescription
drugs. Sanqui’s sister, Larizza Seng, testified that Sanqui had cut her hair short after
breaking up with appellant because Sanqui preferred it short, whereas appellant had
preferred she keep it long. Seng further stated that she did not know Sanqui to abuse
alcohol or drugs and she saw no indication Sanqui was depressed or suicidal.4

        Forensic pathologist Dr. Kathryn Pinneri testified that she performed an
autopsy on Sanqui, and she concluded that the characteristics of the fatal bullet
wound indicated that the gun had been pressed tightly against Sanqui’s forehead at
the time that the weapon was discharged. She further opined that such a wound was
inconsistent with a struggle over the gun at the time of discharge because had there
been a struggle, the gun would not have been placed so tightly against the forehead.


        3
          Among other comments in the emails, appellant stated “this depression is completely
taking me over,” “I hate her the love I have is turning into something else my heart hurts soooo
much I hurt so much . . . I have to morn her death because she is no longer that woman I married,”
and “if I could die I would . . . if I could commit suicide n still go to heaven I would do it in a heart
beat. A life is not worth living if its not a life with her.”
        4
       As appellant points out, Escobar admitted that she did not know appellant kept a large
number of dogs at her house and Maher acknowledged that she had never been to appellant’s
house.

                                                   5
Toxicology results from the autopsy were negative for the presence of alcohol in
Sanqui’s system, and Pinneri stated that she saw no indication during the autopsy
that Sanqui abused alcohol or drugs.

      The State additionally presented evidence that appellant’s testimony
regarding the handling of the handgun was not credible. Appellant stated that Sanqui
cocked the gun, the gun discharged during a struggle, and appellant then placed the
gun on the side of the bathtub without otherwise doing anything to it. The testimony
of Raquel Pipkin, a firearms examiner with the Harris County Institute of Forensic
Sciences, indicated that if the gun was handled as appellant described, the spent
cartridge would have remained aligned with the barrel. However, crime scene
investigator Deputy Mark McElvany testified that when he recovered the handgun,
it contained two cartridges: a spent cartridge in the one o’clock position and a live
round in the twelve o’clock position aligned with the barrel. According to Pipken’s
testimony, this could have occurred if the gun had been fired, re-cocked (thus turning
the cylinder clockwise), de-cocked so that the hammer was down, and then placed
in the location where McElvany found it on the edge of the bathtub. Pipken
additionally noted that when the handgun was cocked, the space between the rear of
the trigger and the trigger guard—where appellant asserted she stuck her finger—
would have been approximately .147 inches wide and too narrow for an adult finger.

      At the close of evidence, appellant requested that the jury be instructed on the
defense of necessity. The trial court denied this request.

                            Sufficiency of the Evidence

      In her first issue, appellant challenges the sufficiency of the evidence to
establish that she had the requisite mental state for murder. In assessing the
sufficiency of the evidence to support a conviction, we must consider all of the
evidence in the light most favorable to the verdict and determine whether, based on
                                          6
that evidence and reasonable inferences therefrom, a rational trier of fact could have
found the challenged element or elements of the crime beyond a reasonable doubt.
See Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014); see also Jackson
v. Virginia, 443 U.S. 307, 318–19 (1979). In reviewing historical facts that support
conflicting inferences, we presume that the jury resolved any conflicts in the State’s
favor and defer to that resolution. Whatley, 445 S.W.3d at 166. We do not sit as a
thirteenth juror and may not substitute our judgment for that of the factfinder by
reevaluating the weight and credibility of the evidence. Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010). As judge of the credibility of the witnesses, a jury
may choose to believe all, some, or none of the testimony presented. Cain v. State,
958 S.W.2d 404, 407 n.5 (Tex. Crim. App. 1997).

      Appellant was charged with murder under section 19.02(b) of the Texas Penal
Code, which provides that “[a] person commits an offense if he: (1) intentionally or
knowingly causes the death of an individual; [or] (2) intends to cause serious bodily
injury and commits an act clearly dangerous to human life that causes the death of
an individual.” Tex. Penal Code § 19.02(b). A person acts intentionally with respect
to a result of her conduct when it is her conscious objective or desire to cause the
result. Tex. Penal Code § 6.03(a); Herrera v. State, 367 S.W.3d 762, 770 (Tex.
App.—Houston [14th Dist.] 2012, no pet.). A person acts knowingly with respect to
a result of her conduct when she is aware her conduct is reasonably likely to cause
the result. Tex. Penal Code § 6.03(b); Herrera, 367 S.W.3d at 770. Appellant asserts
that the evidence does not support the jury’s conclusion that she intentionally or
knowingly caused Sanqui’s death or intended to cause serious bodily injury and
committed an act clearly dangerous to life that caused Sanqui’s death.

      Intent and knowledge are typically fact questions for the jury and are almost
always proven through circumstantial evidence. Childs v. State, 21 S.W.3d 631, 635

                                          7
(Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). A jury may infer intent or
knowledge from any facts that tend to prove their existence, including the acts,
words, and conduct of the accused, the method of committing the offense, and the
nature of the wounds inflicted on the victim. See Hart v. State, 89 S.W.3d 61, 64
(Tex. Crim. App. 2002); Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1996).

      Circumstantial evidence is as probative as direct evidence and can be
sufficient on its own to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007). “In circumstantial evidence cases, it is not necessary that every fact and
circumstance ‘point directly and independently to the defendant’s guilt; it is enough
if the conclusion is warranted by the combined and cumulative force of all the
incriminating circumstances.’” Temple v. State, 390 S.W.3d 341, 359-60 (Tex. Crim.
App. 2013) (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App.
1993)).

      We begin our analysis of the evidence by noting that appellant admitted she
was present at the time Sanqui sustained her fatal injury and appellant was
involved—at least to some extent—in actions that resulted in Sanqui sustaining that
injury. Appellant argues that the evidence demonstrated Sanqui committed suicide
or died accidentally as they struggled over the handgun and does not support a
finding beyond a reasonable doubt that appellant intentionally or knowingly caused
Sanqui’s death. Appellant’s argument, however, is based almost entirely on her own
statements and version of events. As stated, the jury was responsible for assessing
appellant’s credibility, and it was free to discount some or all of the evidence
supporting her position.

      As described above, much of appellant’s testimony, as well as her statement
to police on the night of Sanqui’s death, was contradicted by other evidence a
reasonable factfinder could have accepted. For example, appellant asserted that

                                          8
Sanqui was having substantial difficulty overcoming the breakup of their marriage,
but the text messages between the two of them and the emails appellant sent to
herself on the days leading up to Sanqui’s death revealed that it was appellant not
Sanqui who was having difficulty with the breakup. Appellant testified that Sanqui
had been suicidal and had attempted suicide in the past, but the text messages and
emails showed that it was appellant, not Sanqui, who spoke of suicide, and the friend
that appellant claimed told her about Sanqui’s prior suicide denied that it happened
or that she had told appellant about it.

      Additionally, Sanqui’s sister and cousin refuted appellant’s claims that Sanqui
had been depressed since her mother died and had been abusing alcohol and drugs.
Medical records further discredited the notion that Sanqui had been abusing alcohol
and drugs. Most critically, the pathologist who conducted Sanqui’s autopsy
explained why it was highly improbable, if not impossible, that Sanqui was shot
during a struggle over a handgun. Also, the testimony of the firearms examiner
suggested appellant was untruthful regarding how the handgun was handled. A
rational trier of fact could have rejected appellant’s statements on these matters.
Moreover, false statements, inconsistent statements, and implausible explanations
given to law enforcement are probative of wrongful conduct and often indicative of
guilt. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (holding
defendant’s false and inconsistent statements and implausible explanations were
indicative of his complicity in the murder of his wife); King v. State, 29 S.W.3d 556,
565 (Tex. Crim. App. 2000) (concluding that defendant’s false statements made after
murder indicated “consciousness of guilt and an attempt to cover up the crime”).

      In finding beyond a reasonable doubt that appellant acted intentionally or
knowingly, the jury also could have considered the threatening messages appellant
sent to Sanqui as evidence of her guilt, including these messages sent just a few

                                           9
hours before the fatal encounter: “you make me sick . . . I really don’t like you . . . I
want you to hurt and being f****** pain [sic] . . . I have so much hate for you” and
“U think im playing u have no idea . . . how much I f******* hate you.” See, e.g.,
Ross v. State, 133 S.W.3d 618, 621 (Tex. Crim. App. 2004). Appellant’s texts
expressing her desire for Sanqui to suffer pain support a finding that appellant at
least intended to cause serious bodily injury. See Tex. Penal Code § 19.02(b)(2).
Additionally, the jury could have concluded that the pathologist’s testimony that the
handgun was pressed tightly to Sanqui’s forehead when it discharged was evidence
that Sanqui’s death was the result of an intentional or knowing act and not of an
accidental discharge during a struggle.

       Viewing all the evidence in the light most favorable to the verdict, we
conclude that the jury could have rationally found beyond a reasonable doubt that
appellant intentionally or knowingly caused Sanqui’s death or intended to cause
serious bodily injury and committed an act clearly dangerous to life that caused
Sanqui’s death. See Whatley, 445 S.W.3d at 166. Accordingly, we overrule
appellant’s first issue.

                               Instruction on Necessity

       In her second issue, appellant contends that the trial court erred in refusing to
instruct the jury on the defense of necessity. A defendant is entitled to an instruction
on a defensive issue if it is raised by the evidence, whether that evidence is strong or
weak, unimpeached or contradicted, and regardless of whether the trial court
considers the defense credible. Walters v. State, 247 S.W.3d 204, 209 (Tex. Crim.
App. 2007); Kenny v. State, 292 S.W.3d 89, 100 (Tex. App.—Houston [14th Dist.]
2007, pet. ref’d). To raise a defensive issue, the evidence must raise each element of
the defense. E.g., Stefanoff v. State, 78 S.W.3d 496, 499 (Tex. App.—Austin 2002,
pet. ref’d). Evidence is sufficient to raise a defensive element when a rational juror

                                           10
could accept it as sufficient to prove that element. Id. A defendant’s testimony alone
may be sufficient to raise a defensive issue. Williams v. State, 630 S.W.2d 640, 643
(Tex. Crim. App. 1982). When evidence from any source raises a defensive issue
and the defendant properly requests a jury instruction or question on it, the trial court
must submit the issue to the jury. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim.
App. 1993).

      The Penal Code presents the defense of necessity as follows:

      Conduct is justified if:
      (1) the actor reasonably believes the conduct is immediately necessary
      to avoid imminent harm;
      (2) the desirability and urgency of avoiding the harm clearly outweigh,
      according to ordinary standards of reasonableness, the harm sought to
      be prevented by the law proscribing the conduct; and
      (3) a legislative purpose to exclude the justification claimed for the
      conduct does not otherwise plainly appear.
Tex. Penal Code § 9.22. The requirements of subsections 9.22(1) and (2) must be
satisfied by evidence, while subsection (3) presents a question of law. Pennington v.
State, 54 S.W.3d 852, 857 (Tex. App.—Fort Worth 2001, pet. ref’d). To be entitled
to an instruction on necessity, a defendant must admit to the conduct—the act and
the culpable mental state—of the offense charged. Juarez v. State, 308 S.W.3d 398,
399 (Tex. Crim. App. 2010).

      As discussed in detail above, in this case, appellant has steadfastly denied both
the conduct charged and the requisite mental state. To prove murder, the State was
required to prove that appellant intentionally or knowingly caused Sanqui’s death or
intended to cause serious bodily injury and committed an act clearly dangerous to
human life that caused Sanqui’s death. See Tex. Penal Code § 19.02(b). Appellant
maintained throughout trial that either Sanqui killed herself or the gun went off while


                                           11
appellant was struggling with Sanqui in an attempt to get the gun away from her.

      In her brief, appellant emphasizes her own testimony that she believed she
had no choice but to try to get the handgun from Sanqui to prevent Sanqui from
committing suicide; i.e., “[s]he believed it was necessary to attempt to grab the gun
in order to prevent deathly harm to her wife.” And this indeed was appellant’s
defense in a nutshell. But appellant did not testify or otherwise argue that she
intentionally or knowingly caused Sanqui’s death or intended to cause serious bodily
injury and committed an act clearly dangerous to human life that caused Sanqui’s
death. She asserted that she was trying to prevent death or injury, not cause it. In
other words, appellant did not admit to the conduct—the act or the culpable mental
state—of the offense charged; she steadfastly denied the conduct. See Juarez, 308
S.W.3d at 399.

      The necessity defense is simply inapplicable to the circumstances presented
in this case. See, e.g., Young v. State, 991 S.W.2d 835, 839 (Tex. Crim. App. 1999)
(holding defendant was not entitled to necessity instruction when he asserted he did
not commit the offense charged because he did not have the requisite intent or
perform the actions alleged). Accordingly, the trial court did not err in refusing to
instruct the jury on necessity. We overrule appellant’s second issue.

      We affirm the trial court’s judgment.




                                       /s/    Jerry Zimmerer
                                              Justice


Panel consists of Justices Wise, Jewell, and Zimmerer.
Do Not Publish — TEX. R. APP. P. 47.2(b).


                                         12
