                                Fourth Court of Appeals
                                       San Antonio, Texas
                                   MEMORANDUM OPINION

                                           No. 04-16-00400-CR

                                          Minerva ALCORTA,
                                               Appellant

                                                     v.

                                          The STATE of Texas,
                                                Appellee

                      From the 290th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2015CR9807
                              Honorable Melisa Skinner, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: January 31, 2018

AFFIRMED

           After finding Appellant Minerva Alcorta guilty of Garry Bean’s murder, a Bexar County

jury subsequently found Alcorta acted under the immediate influence of sudden passion and

assessed punishment at fifteen years’ confinement in the Institutional Division of the Texas

Department of Criminal Justice and a $10,000.00 fine.

           On appeal, Alcorta contends the trial court erred (1) in failing to include the lesser-included

offense of criminally negligent homicide and (2) by sua sponte including a self-defense instruction
                                                                                       04-16-00400-CR


in the jury’s charge. Alcorta further contends the evidence of intent is insufficient to support the

jury’s verdict. We affirm the trial court’s judgment.

                           FACTUAL AND PROCEDURAL BACKGROUND

       Several witnesses were called to testify before the jury. Because the issues raised by

Alcorta required a review of the entire record, we include a rather lengthy version of the facts.

A.     Bexar County Sheriff’s Officers and Paramedics

       1.      Deputy Eric Richards

       On November 22, 2013, Bexar County Sheriff’s Office Deputy Eric Richards responded

to a dispatch call. When Deputy Richards pulled up to the house, he and his partner knocked on

the door and Alcorta “opened the door in a frantic state with blood on her hands and her shirt.”

Alcorta told the officers, “a couple of times, I shot him, I shot him.” She then directed the officers

to the upstairs bedroom and informed the officers that the weapon was next to Bean.

       Deputy Richards collected and secured the firearm; he did not open or manipulate the

firearm and did not touch the weapon without the appropriate gloves. The officers located Bean,

partially facedown, with the top half of his body inside the closet area, and the bottom half of his

body more in the room’s living space. The firearm was located approximately three feet from

Bean’s feet.

       Deputy Richards testified that Alcorta had a blunt force trauma wound below her right eye

and blood on top of the eye. The deputy noted, however, the blood appeared to be “transfer blood”

and not from any injury sustained by Alcorta.

       The State introduced several pictures through Deputy Richards, including a picture

depicting a chair’s location prior to anyone moving anything in the residence. Deputy Richards

explained that he noted the location of a wooden chair based on Alcorta’s report of Bean using the

chair to hold her down. The deputy opined that it was possible the chair was potentially moved a
                                                 -2-
                                                                                  04-16-00400-CR


couple of inches to allow passage into the dining room. In the dining room, Deputy Richards

reported evidence of some type of disturbance involving wine bottles in the dining room, but the

officers never did establish exactly what transpired. There were three holes in the dining room

wall—one wine bottle was still hanging out of the wall and two additional wine bottles were on

the floor below the holes in the wall.

       2.      Barton Brandon

       Paramedic Barton Brandon was dispatched at 1:18 a.m. to Alcorta’s address. When

Brandon arrived, Bean was breathing and had a pulse. Brandon testified that Bean died while

being transported to the ambulance.

       3.      Deputy Janice Henry

       Deputy Janice Henry of the Bexar County Sheriff’s Office testified the “scrapes” on

Alcorta’s forearms, previously identified by Deputy Richards, were “blood smears.” When

Deputy Henry examined Alcorta the following morning, there were no visible injuries on Alcorta’s

forearms. On cross-examination, Deputy Henry explained that she did not photograph Alcorta’s

forearms because there were no injuries to photograph.

       4.      Detective Rubin Arevalos

       After first gathering evidence from the hospital, including Bean’s clothing and personal

items, Bexar County Sheriff’s Office Detective Rubin Arevalos proceeded to the residence.

Detective Arevalos testified that he remembered seeing a screwdriver located to the right of the

chair, but he did not think the screwdriver was marked or collected as evidence. He also

remembered seeing a book on the hardwood stairs.

       Detective Arevalos took an inventory of the bedroom. The officers located a sawed-off

shotgun and a Glock handgun from the dresser in the bedroom. A rifle was located in a different

bedroom in the house.
                                              -3-
                                                                                    04-16-00400-CR


        Once downtown, Detective Arevalos spoke to Alcorta. He Mirandized her and Alcorta

indicated she wished to speak to the officer. She initialed each warning and signed the form.

        Alcorta told Detective Arevalos that she and Bean were at a pool tournament with a group

of friends. Around 8:00 p.m., the group moved from one pool hall to a second pool hall where

they stayed for the remainder of the evening. Bean drank approximately six or seven beers; she

drank only one. The argument began when Bean started displaying “bad gamesmanship” toward

the other team. On the drive home, Alcorta relayed that Bean was driving fast and the couple

continued to argue.

        When they arrived home, Alcorta said that she ran straight to the door and tried to lock

Bean out. He was yelling from the outside, but he was able to enter the house through the garage.

Bean proceeded to drag Alcorta to the garage and lock her outside of the residence. According to

Alcorta, Bean was in the house, she was in the garage, and he was no longer threatening her. When

Alcorta tried to get back into the house, Bean attempted to force the door closed. During the

struggle, Alcorta’s arm “got stuck” and Bean “closed the door on her arm.” After he slammed the

door, Alcorta’s crying drew Bean’s attention; when he opened the door, she rushed into the house.

        Alcorta ran toward the stairs, but claimed Bean grabbed her by her ponytail and prevented

her from going up the stairs. She continued that while Bean was pulling her by the ponytail, he

hit her from behind. Detective Arevalos testified that Alcorta’s description of the incident was

confusing because, based on her version of the events, the bruise should have been on the left side

of the face, but it was on her right side.

        Alcorta told Detective Arevalos that she fell to the wooden floor and Bean came from

behind her and pushed the chair on top of her, on “her chest area.” Alcorta further claimed that

Bean pinned her down and prevented her from moving around. Alcorta said she was on her back,



                                               -4-
                                                                                      04-16-00400-CR


and the chair was on her neck and arm, with all of Bean’s weight on the chair. Alcorta was kicking

Bean and Bean lost his balance. Alcorta was able to push the chair, and run up the stairs.

       Alcorta was afraid that Bean “might pull a gun on her.” Alcorta knew there was a gun in

the bedroom because she had hidden it from him several weeks earlier. She was adamant that only

she knew the firearm’s location. Alcorta denied that Bean had ever pointed the gun at her or

threatened her, but admitted that two years before the incident, Bean pushed her.

       Bean came in the bedroom and began “going through the drawers, where the guns were.”

Alcorta claimed they both reached for the firearm, and grabbed it at the same time. Alcorta

explained they were both standing; she had the handle of the gun, Bean had the barrel, and they

were both tugging at it. Alcorta further explained that as soon as they stepped backward, the gun

went off at the same time they released their hands. Alcorta told Detective Arevalos that Bean

tripped over the dog bed and was falling backwards and that was why the gun went off. She did

not describe it as violent struggle. To the detective, Alcorta’s description was more like wrestling;

when the gun went off, they both dropped it. Alcorta never told Detective Arevalos that Bean

pulled the weapon on her.

       Detective Arevalos observed some bruising to the right side of Alcorta’s eye and blood on

her shirt and hand. He also noticed other small specks of blood on Alcorta’s shirt and a scratch on

her arm. Detective Arevalos did not see any evidence of injury or trauma on Alcorta’s neck.

Specifically, Detective Arevalos testified that he did not see any evidence of a chair being

depressed against Alcorta’s neck, especially with a man’s body weight on the chair.

       Detective Arevalos also noted several inconsistencies in what he witnessed at the scene

and how Alcorta described the incident. Although Alcorta described a struggle, there was nothing

in the bedroom to suggest that a struggle occurred. Based on the medical examiner’s report,

Detective Arevalos explained the bullet traveled in a slightly downward trajectory. But, Alcorta’s
                                                -5-
                                                                                     04-16-00400-CR


version of events did not match the medical examiner’s drawings. Additionally, Alcorta told

Detective Arevalos that she was attempting to attend to Bean’s wound when the officers arrived.

Yet, when she called 911, she reported that she did not know where Bean’s wound was located.

       During a second interview, Alcorta’s description of her use of the chair still did not match

the crime scene photographs. Additionally, Alcorta told the detective that she used a stick to block

the door from closing, but Detective Arevalos was unable to locate a stick at the scene. Alcorta

also claimed that she did not know if the gun was loaded when she went for the gun.

       As to the firearm, during her second interview, Alcorta told Detective Arevalos that she

did not realize her finger was on the trigger. She acknowledged moving the gun after she dropped

it, but did not tell them to where she moved it. This differed from her earlier version when she

reported that she dropped the gun, grabbed the phone, and called 911. Finally, Alcorta told

Detective Arevalos that she was smashing the headlights on Bean’s motorcycle before she pried

the garage door open. When asked about the wine bottles sticking out of the wall and on the floor,

Alcorta could not provide an explanation.

B.     Medical and Science Witnesses

       1.      Medical Examiner

       Bexar County Medical Examiner Kimberly Molina testified that Bean was sixty-four years

old, five feet, eleven inches tall, and weighed approximately 230 pounds. She testified the bullet

entered the side of Bean’s arm, traveled across the arm, creating a larger wound, and then entered

his right chest. The bullet did not exit the body. Bean’s death was caused by the bullet to his

chest. Molina also testified Bean was not intoxicated at the time of his death; she saw evidence of

recent, unhealed scratches on his chest, forearm, and right foot. She did not, however, see evidence

of powder tattooing, burn marks, stippling, or “evidence of close range shooting where the firearm

was discharged in close proximity to the deceased skin.”
                                                -6-
                                                                                        04-16-00400-CR


        2.      Firearms Expert

        David Pendleton, a firearms examiner with the Bexar County Criminal Investigation

Laboratory testified the bullet that killed Bean was fired from the .41 Magnum Smith & Wesson,

model 58 revolver. Based on Alcorta’s testimony, Pendleton testified the firearm should have a

light or “hair trigger” pull. The first step of his assessment was to determine whether anyone

manipulated the firearm after Bean was shot.

        Pendleton testified that he had no reason to believe the pistol grip had ever been removed

prior to his examination of the weapon. Additionally, he denied moving the screw or attempting

to manipulate the hammer weight on the firearm. According to Pendleton, if the gun had fired one

time, and no one opened the cylinder, he would expect the depressed primer to be in the twelve

o’clock position. But when Pendleton opened the cylinder, it was in the six o’clock position,

leading him “to believe that it was at some point opened, or moved in some form or fashion.”

Pendleton further testified that the firearm was not a “hair trigger;” if it was a “hair trigger” at the

time it was discharged causing the death of Bean, it was manipulated before it came to his office.

        Defense expert, gunsmith Greg Ferris, testified the grips on the firearm were aftermarket

grips. Ferris also tested the trigger pull mechanism on each chamber. Ferris examined the strain

screw which is used to allow resistance and release of the main spring. Ferris explained that

tightening or loosening the screw “changes the resistance of the hammer in its travels.” He opined

the screw “had been backed down at least half a turn” from the factory settings, giving the trigger

a lighter trigger pull.

        3.      Forensic Evidence

        Catherine Haskins-Miller, forensic scientist in serology and DNA selection, testified to

several blood tests run at the State’s request. Specifically, with regard to the blood swab from the



                                                  -7-
                                                                                     04-16-00400-CR


staircase, she could not exclude Bean as having given the blood sample. In fact, she estimated that

Bean was “one in 517 quadrillion, 1 trillion people” that fit the same profile.

C.     Lay Witnesses

       1.      Misty Cruz

       Misty Cruz lived in the house directly to the right of Alcorta’s house and her bedroom was

on the side closest to Alcorta’s residence. Cruz testified she awoke at 12:05 a.m. to a loud noise,

a “loud, jarring maybe a clap or a bang type of noise.” She then heard three loud bangs, she

specifically explained that they did not sound like gunshots. In her opinion, the bangs sounded as

though someone was banging on her front door.

       Contrary to the timeline provided by Alcorta, Cruz estimated approximately ten to fifteen

minutes elapsed between the three bangs and the arrival of law enforcement. She further estimated

that approximately ten minutes elapsed between the first loud noise and the three loud bangs.

       2.      Eric Joseph Mireles

       Eric Joseph Mireles, Alcorta’s twenty-eight year old son, testified he was at his mother’s

house the night before the shooting and that she told him that she wanted to play in a pool

tournament the following night. Mireles left the house about 8:30 p.m.; Alcorta and Bean had

already left. After the incident, Mireles testified that his mother told him Bean grabbed the gun

first and that she tried to take it away from him. He further testified that his brother brought the

sawed-off shotgun into the house, but his mother had taken it away from him.

D.     Verdict

       On June 13, 2016, after five days of testimony, and finding Alcorta guilty of murdering

Bean, the jury assessed punishment at fifteen years’ confinement in the Institutional Division of

the Texas Department of Criminal Justice and a $10,000.00 fine. On appeal, Alcorta asserts jury

charge error and insufficiency of the evidence pertaining to intent to commit murder.
                                                -8-
                                                                                       04-16-00400-CR


                                          CHARGE ERROR

       In her first two issues on appeal, Alcorta contends the trial court erred in (1) failing to

include the lesser offense of criminally negligent homicide in the jury charge and (2) sua sponte

including a definition of self-defense in the jury charge.

A.     Standard of Review

       In resolving a challenge to the jury charge, we first determine whether error exists. Ngo v.

State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If we find error, we analyze that error for

harm under the applicable standard set out in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.

1984) (op. on reh’g). See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If, as

here, the defendant did not object to the alleged error at trial, we will reverse only if the error is

“so egregious and created such harm that the defendant ‘has not had a fair and impartial trial.’” Id.

(quoting Almanza, 686 S.W.2d at 171).

       Article 36.14 of the Texas Code of Criminal Procedure requires the trial court to deliver a

written charge to the jury “distinctly setting forth the law applicable to the case.” Certain issues

may be forfeited if their inclusion in the charge is not requested. Zamora v. State, 411 S.W.3d

504, 513 (Tex. Crim. App. 2013). If the trial court undertakes to charge the jury on a defensive

issue, that issue is included in the law applicable to the case. Barrera v. State, 982 S.W.2d 415,

416 (Tex. Crim. App. 1998). Otherwise, unless “a rule or statute requires an instruction under the

particular circumstances,” the defendant must timely request a defensive issue or object to its

omission from the charge in order for it to be considered law applicable to the case. Oursbourn v.

State, 259 S.W.3d 159, 179–80 (Tex. Crim. App. 2008); see also Williams v. State, 273 S.W.3d

200, 223 (Tex. Crim. App. 2008) (“[A] party can forfeit the right to complain about the omission

of a defensive issue because the defensive issue must be requested before the trial court has a duty

to place it in the charge, and so no ‘error’ occurs absent a request.”).
                                                 -9-
                                                                                      04-16-00400-CR


D.     Criminally Negligent Homicide

       1.      Lesser Included Offense Charge

       Appellate courts apply a two-prong test to determine whether a defendant was entitled to a

charge on a lesser-included offense. See Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim.

App. 1993) (en banc); see also TEX. CODE CRIM. PROC. art. 37.09 (defining lesser-included

offense). First, the lesser-included offense must be included within the proof necessary to establish

the offense charged; and, second, the record must show some evidence that would permit a rational

jury to find that if the defendant is guilty of an offense, he is guilty only of the lesser offense.

Feldman v. State, 71 S.W.3d 738, 750–51 (Tex. Crim. App. 2002); Rousseau, 855 S.W.2d at 672;

see also Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012) (“First, the court

determines if the proof necessary to establish the charged offense also includes the lesser offense.

If this threshold is met, the court must then consider whether the evidence shows that if the

Appellant is guilty, he is guilty only of the lesser offense.”) (citation omitted).

       2.      Inclusion of Criminally Negligent Homicide

       A person commits criminally negligent homicide if he causes the death of another by

criminal negligence. TEX. PENAL CODE ANN. § 19.05(a). The Texas Penal Code defines acting

with “criminal negligence” as follows:

       (d) A person acts with criminal negligence, or is criminally negligent, with respect
       to circumstances surrounding his conduct or the result of his conduct when 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.

See TEX. PENAL CODE ANN. § 6.03(d) (West 2011). The offense of criminally negligent homicide

“involves inattentive risk creation, that is, the actor ought to be aware of the risk surrounding his



                                                 - 10 -
                                                                                       04-16-00400-CR


conduct or the results thereof but fails to perceive the risk.” Stadt v. State, 182 S.W.3d 360, 364

(Tex. Crim. App. 2005) (internal quotation omitted).

          3.     Arguments of the Parties

          Alcorta contends the trial court erred in failing to include the lesser-included charge of

criminally negligent homicide. The State counters that Alcorta never requested nor objected to the

trial court’s failure to include a criminally negligent homicide charge.

          4.     Analysis

          Criminally negligent homicide is a lesser-included offense of murder. See Jackson v. State,

248 S.W.3d 369, 371 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Therefore, the only

question is whether the jury could have rationally determined that, if Alcorta was guilty, she was

guilty only of the lesser-included offense of criminally negligent homicide. Cavazos, 382 S.W.3d

at 382. The offense of criminally negligent homicide involves inattentive risk creation; that is, the

actor ought to be aware of the risk surrounding his conduct or the results thereof, but fails to

perceive the risk. Goodman v. State, 190 S.W.3d 823, 831 (Tex. App.—Fort Worth 2006, pet.

ref’d).

          Simply because the defendant did not intend the result does not automatically entitle her to

a charge on criminal negligence. See Wong v. State, 745 S.W.2d 563, 565 (Tex. App.—Waco

1988, no pet.). “[T]he evidence must establish the lesser-included offense as ‘a valid, rational

alternative to the charged offense.’” Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007)

(quoting Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999)). When raised by the

evidence, the trial judge must “instruct the jury on statutory defenses, affirmative defenses, and

justifications.” Walters v. State, 247 S.W.3d 204, 208–09 (Tex. Crim. App. 2007) (citing TEX.

PENAL CODE ANN. §§ 2.03, 2.04).



                                                 - 11 -
                                                                                       04-16-00400-CR


       The evidence adduced at trial was that “[Bean] was trying to grab the gun . . . I grabbed it,

he grabbed it, and it went off.” However, the State also presented evidence, and a reasonable jury

could have inferred, that (1) Alcorta misled officers regarding the conditions that led to Bean’s

injuries; (2) Alcorta misled officers about her injuries; (3) Alcorta manipulated the conditions at

the residence; and (4) Alcorta moved or changed evidence, including the firearm, the dining room

chair, and the wine bottles. To prevail, Alcorta had to present evidence that, although she ought

to have been aware of the risk surrounding her conduct or the results thereof, she failed to perceive

the risk. See Goodman, 190 S.W.3d at 831. However, nothing in the record indicates that Alcorta

did not perceive the risk of discharging the firearm. See Hall, 225 S.W.3d at 536. We, therefore,

conclude the trial court did not err in failing to instruct the jury on criminally negligent homicide.

See Cortez, 469 S.W.3d at 598.

       Accordingly, we overrule Alcorta’s alleged charge error regarding the lack of a criminally

negligent homicide instruction and turn to whether the trial court’s inclusion of the self-defense

instruction was in error.

C.     Self-Defense Instruction

       1.      Inclusion of Self-Defense Instruction

       A defendant is entitled to an instruction on any defense supported by the evidence, even if

the evidence is weak, contradicted, or lacks credibility. See Shaw v. State, 243 S.W.3d 647, 658

(Tex. Crim. App. 2007). “Self-defense is a justification for one’s actions, which necessarily

requires admission that the conduct occurred.” Anderson v. State, 11 S.W.3d 369, 372 (Tex.

App.—Houston [1st Dist.] 2000, pet. ref’d). In other words, to be entitled to an instruction on self-

defense, a defendant must first admit the conduct charged and then offer evidence justifying the

conduct. Id.



                                                - 12 -
                                                                                           04-16-00400-CR


          2.      Arguments of the Parties

          Alcorta contends the trial court erred in submitting the self-defense instruction because she

neither admitted committing the offense nor presented evidence on the issue of self-defense.

Further, the court’s instruction was in direct contradiction to her argument that the shooting was

an accident. The State counters that Alcorta not only failed to object to the trial court’s charge,

but affirmatively endorsed the charge as submitted.

          3.      Charge Conference regarding Self Defense Instruction

          The trial court’s proposed charge included a self-defense instruction to which the State

objected was inappropriate. The trial court defended its inclusion—“there [was] obviously an

altercation in this case.” Yet, the trial court acknowledged that Alcorta denied “any culpable

mental state at all.” The trial court further explained,

          Alcorta said that she was in fear for her life; so she raises the issue; she is basically
          saying that she didn’t mean to shoot him, and I didn’t even know my finger was on
          the trigger, she argued that she never intended for any of this to happen, she was in
          a struggle for her life, and so she didn’t even know her finger was on the trigger
          and the gun just went off.

The trial court reasoned that separating self-defense from Alcorta’s other actions was not feasible.

The record contained evidence upon which a reasonable juror could believe that every step Alcorta

took was in an effort to defend herself. The trial court concluded, “I think it would be a huge, huge

error for the Court not to put self-defense in this charge.”

          Defense counsel replied, “I agree completely with this Honorable Court.” (emphasis

added).

          The trial court reiterated, “I think self-defense goes in this charge.” In response to the trial

court’s inquiry whether the defense wanted any additional changes, defense counsel replied, “No

judge, I’m satisfied as it is.”



                                                    - 13 -
                                                                                       04-16-00400-CR


       4.      Harm Analysis

       Assuming without deciding that the trial court erred in including the self-defense charge,

because defense counsel not only failed to request a charge on self-defense, but affirmatively told

the trial court that Alcorta did not have any objection with the charge as presented by the trial

court, Alcorta must show egregious harm. See Almanza, 686 S.W.2d at 171.

       We assess whether Alcorta suffered egregious harm “in light of the entire jury charge, the

state of the evidence, including the contested issues and weight of probative evidence, the

argument of counsel and any other relevant information revealed by the record of the trial as a

whole.” Id. “Egregious harm is a difficult standard to prove and such a determination must be

done on a case-by-case basis.” Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011)

(internal quotations omitted). “Errors which result in egregious harm are those that affect the very

basis of the case, deprive the defendant of a valuable right, vitally affect the defensive theory, or

make a case for conviction clearly and significantly more persuasive.” Id. at 490.

       Here, the charge properly instructed the jury that the State was required to disprove self-

defense beyond a reasonable doubt. The charge contained numerous instructions pertaining to the

jury’s duty to consider all the evidence in the case. The charge set forth the State’s burden to prove

the case beyond a reasonable doubt, as well as the jury’s duty to acquit if it has a reasonable doubt

as to appellant’s guilt. Under Almanza, the record must demonstrate the appellant has suffered

actual, not just theoretical, harm from the erroneous jury instructions. Id. Considering the record

as a whole, we cannot conclude Alcorta suffered egregious harm from the inclusion of the

instruction. We, therefore, overrule Alcorta’s issue relating to the trial court’s inclusion of the

self-defense instruction.

       In her final issue, Alcorta contends the State failed to present sufficient evidence of intent

to support the jury’s guilty verdict.
                                                - 14 -
                                                                                      04-16-00400-CR


                                 SUFFICIENCY OF THE EVIDENCE

A.     Standard of Review

       In reviewing the sufficiency of the evidence, “we view all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Adames v. State, 353 S.W.3d 854,

860 (Tex. Crim. App. 2011); accord Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011).

“This standard recognizes the trier of fact’s role as the sole judge of the weight and credibility of

the evidence. . . .” Adames, 353 S.W.3d at 860; accord Gear, 340 S.W.3d at 746. The reviewing

court must also give deference to the jury’s ability “‘to draw reasonable inferences from basic facts

to ultimate facts.’” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson

v. Virginia, 443 U.S. 307, 319 (1979)). “Each fact need not 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. (citing Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.

App. 1993)).

       We may not substitute our judgment for that of the jury by reevaluating the weight and

credibility of the evidence. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We defer

to the jury’s responsibility to resolve any conflicts in the evidence fairly, weigh the evidence, and

draw reasonable inferences. See Hooper, 214 S.W.3d at 13; King, 29 S.W.3d at 562. The jury

alone decides whether to believe eyewitness testimony, and it resolves any conflicts in the

evidence. See Hooper, 214 S.W.3d at 15; Young v. State, 358 S.W.3d 790, 801 (Tex. App.—

Houston [14th Dist.] 2012, pet. ref’d). In conducting a sufficiency review, “[w]e do not engage in

a second evaluation of the weight and credibility of the evidence, but only ensure that the jury

reached a rational decision.” Young, 358 S.W.3d at 801.



                                                - 15 -
                                                                                       04-16-00400-CR


B.     Arguments of the Parties

       Alcorta contends the evidence was insufficient to show that it was her conscious objective

or desire to engage in the conduct of grabbing a gun and shooting Bean to death. She further

contends the evidence is insufficient to show either Alcorta (1) knowingly caused Bean’s death or

(2) grabbed the gun with knowledge that her conduct in grabbing the gun was reasonably certain

to cause Bean’s death.

       The State counters the evidence supports that Alcorta and Bean were in a physical

altercation that resulted in Bean’s death. The State further alleges that Alcorta gave conflicting

versions of the events surrounding Bean’s death and the evidence is sufficient to support the jury’s

conclusion that Alcorta intentionally caused Bean’s death.

C.     Evidence of Intent

       “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). The State is not required to produce

direct evidence of the requisite culpable mental state. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim.

App. 2002). In fact, the requisite culpable mental state is almost always proved circumstantially.

See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991) (“[M]ental culpability is of

such a nature that it generally must be inferred from the circumstances under which a prohibited

act or omission occurs.”). The trier of fact may infer intent from the acts, words, and conduct of

the accused. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004); Manrique v. State,

994 S.W.2d 640, 649 (Tex. Crim. App. 1999).              The defendant’s actions may show an

understanding and common design to do the illegal act, including events occurring before, during,

and after the commission of the offense. See Guevara v. State, 152 S.W.3d at 50. Circumstantial



                                                - 16 -
                                                                                      04-16-00400-CR


evidence will suffice to meet that burden. Ex parte Weinstein, 421 S.W.3d 656, 668 (Tex. Crim.

App. 2014).

       Alcorta met the officers at the door and reported that she shot Bean. She later told officers

that she and Bean were in a verbal argument during a pool tournament that continued throughout

the drive home. When she and Bean arrived at the house, she proceeded to lock Bean out of the

house. Bean subsequently entered the residence through the garage. Bean was then able to forcibly

remove Alcorta from the residence and temporarily lock her in the garage.

       The State presented evidence, however, contesting the remainder of Alcorta’s version of

the events. Alcorta reported that when she regained entry into the residence, Bean prevented her

from going up the stairs, and then proceeded to grab her hair, hit her in the face, and used a chair

to push her into the floor. Alcorta’s appearance, however, did not suggest she had been held down

with a chair; and, the chair, about which Alcorta spoke, was in a different location than she

described. Additionally, although Detective Arevalos testified Alcorta had bruising on the right

side of her face, her description of Bean hitting her in the face should have resulted in bruising on

the left side of her face. Alcorta further told officers that once she forced herself loose, she

immediately ran upstairs to the bedroom. She reported Bean was able to grab the firearm at the

same time Alcorta pulled it from the dresser drawer. Yet, Alcorta’s son testified she initially told

him that Bean took the firearm and that Alcorta tried to take it from Bean.

       Alcorta also told the officer that as she and Bean struggled for the firearm, the gun “went

off” and Bean fell backwards. Yet, the medical examiner testified there was no evidence on Bean’s

body of close range firing. Finally, the firearms expert testified the firearm appeared tampered

with indicating the firearm was manipulated after the single shot was fired.

       The jury heard all of the evidence; resolution of any conflicts was solely within the jury’s

purview. See Jackson v. Virginia, 443 U.S. 307, 326 (1979); Adames, 353 S.W.3d at 860. The
                                                - 17 -
                                                                                   04-16-00400-CR


jury could have rationally resolved the conflicts in the evidence and concluded that Alcorta

intentionally and knowingly caused Bean’s death. Viewed in the light most favorable to the

verdict, a rational juror could have found the essential elements to support a jury finding that

Alcorta formed the intent to commit Bean’s murder. See Adames, 353 S.W.3d at 860; Gear, 340

S.W.3d at 746. Accordingly, we hold the evidence is sufficient to support the element of intent.

                                         CONCLUSION

       Having overruled each of Alcorta’s issues on appeal, we affirm the trial court’s judgment.

                                                 Patricia O. Alvarez, Justice

DO NOT PUBLISH




                                              - 18 -
