                                  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?

               A. 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


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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)




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