Man gets 90 days in jail, deferred adjudication for sexual assault of a child

The following story includes details of sexual assault that may be disturbing to some readers. Please proceed with caution.

SAN MARCOS — Lilly Roberts’ life slowed down on Thursday, April 25, as she and her family sat on the front bench inside the courthouse, while Hays County 22nd District Judge Bruce Boyer sentenced David Ryan Serna, 24, to 90 days in county jail and 10 years deferred adjudication for her sexual assault almost five years ago.

CONTRIBUTED PHOTO
Lilly Roberts spends time with the San Marcos Police Department Therapy K-9, Sophie, to calm her prior to her abuser’s sentencing.[/caption]

Roberts, then 14, woke up on the morning of June 13, 2019, and began to get dressed for her great-aunt's celebration of life. She and her mother, Tara Zapata, described her great-aunt as being the glue and matriarch of the family and although they were all in mourning, the family agreed that it would not be a day of grief, but of love.

At the celebration was Serna, then 19, who is Roberts’ cousin. He was one of the older cousins and many looked up to him, as he was the “cool kid,” said Zapata. That night, Serna invited Roberts to EVO Entertainment in Kyle with some of their friends to distract them from their grief. Zapata was reluctant; Roberts was 14 and it was nearing 10 p.m., but her daughter convinced her by noting that she doesn’t see the family very often and it would be good for them to console each other.

When Serna arrived at Roberts’ house, he was the only one in the car, but quickly told her that they would be on their way to pick up the others — only this never happened, Roberts said. Beginning their drive in Kyle, their destination turned out to be an empty parking lot near Creedmoor.

“He had told me to get in the backseat,” recalled Roberts. “I thought I was just being respectful [because] we were going to pick my older cousins up, so as the youngest, I should get in the backseat, let them sit in the front. But then he had gotten in the back seat, as well, and told me to take my clothes off.”

She stated that the next moments, however long, are only available in pieces. Her anxiety at what she knew was to come caused her to lose consciousness multiple times: flashes of her cousin, nude with her; a hand on the back of her head, shoving it toward his lower half; being moved into various positions; hands holding her in place; bleeding; and fingers violating her.

Next, she said she was directed by Serna to get dressed and purchase Plan B, an emergency contraceptive, from Walgreens in San Marcos.

“I waited up for her. She came in … and she didn’t want to talk with me. She said, ‘I’m just tired mom, I’m going to go take a shower and sleep,’” explained Zapata. “I was just glad she was home and looking back, her demeanor was a little off. [I think] she should have came in a little bit more excited.”

Roberts recalled that she then went into the bathroom and sobbed, as she scrubbed her body for more than an hour in an attempt to remove the abuse that she endured.

On December 15, 2019, Serna was arrested for sexual assault of a child and made bail the same day. Nearly five years later, Serna signed a plea agreement, which stated that he did in fact have sexual intercourse with a minor, but it was not by force. He faced a superseding indictment in December 2022, adding two more charges of sexual assault to the case. On April 24, 2024, Roberts and Serna faced each other once more in the courtroom for his punishment hearing.

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“My hope for this punishment, of course, is for healing for my daughter and myself, as well as our family who've been affected by this event. Regarding the justice system, I have a little faith in it, as far as the right punishment goes, for the act committed. Receiving probation without doing a day of jail time, for three counts of sexual [assault] of a child, would be a slap in the face to my daughter, and to any other victims who are hurting in silence or, like my daughter, who’s been awaiting justice for five years. If this was handled sooner, while my daughter was still a minor, and not pushed out for five years until she was a legal adult, there would be no smirks to her, no slander, no lies. There’s right and wrong. There’s black and white. There’s justice and there’s not,” said Zapata in a separate interview with the Hays Free Press.

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The Punishment Hearing

The family filled the right side of the courtroom, as they waited for the hearing to begin. As a warning, Judge Boyer noted that he recognizes that this is an emotional case, but he expected everyone to remain cordial with no outbursts.

The prosecution, which was overseen by Hays County Assistant District Attorney Katie Arnold, began its opening statement.

“The effects that this has had on [Roberts] include lots of different counseling. She’s had some issues in school; she has had issues with depression,” said Arnold. “It has greatly impacted her family and so, I just want the court to know that this is not a sexual assault, but for the age. This is, in fact, a rape case.”

Serna was defended by attorney Billy McNabb, who chose to simply state that he pleaded to no accusation of force, only the acknowledgement that the victim was underage.

Arnold proceeded to ask Roberts numerous questions, which detailed her experience with depression over the years, such as being in both inpatient and outpatient programs, lower grades in school and suicide attempts. Roberts explained that she began to get piercings and dyed her hair because when she looked in the mirror, she did not want to recognize the person she was. She did not want to see a victim.

When asked what virginity meant to Roberts, she said the following: “Innocence. It is something you give to somebody out of love … That was a very important thing to me, my virginity and finding that special one and having my happily ever after. Regardless of if that’s how it would play out or not, it was stolen from me.”

After passing the witness, McNabb began to question Roberts’ story. He focused on four months after the event, when Roberts told her family what happened. According to McNabb, Roberts was at her grandmother’s house after an argument with her mother, when her phone was taken, and Roberts was upset. In this argument, she revealed that she was having sex with her boyfriend. Roberts responded stating that she lied about this because she did not want her mother to find out about the sexual assault, which she had written in her phone. Eventually, at her grandmother’s house, she told the truth about Serna.

He stated that there were more issues happening with Roberts prior to Serna and not all of her symptoms were a direct cause. For example, McNabb stated that, yes, Roberts was severely depressed, but that there were notes from counselors that stated she had expressed these feelings due to struggles in her relationship or because of familial discourse.

He also stressed that Roberts did not mention bleeding or fainting spells in interviews,  which she denied.

“You said in response to prosecutor questions that you didn’t resist because you were in such fear of what was going on. That’s what you said, correct?” asked McNabb.

“That I did not resist?” Roberts responded.

“Correct. Because you had fear at the time of what you led [Serna] to do,” said McNabb, but Roberts was quick to respond: “My body froze. It was not a decision to make.”

Later, a large number of Roberts’ medical history was printed, where Arnold noted that there were multiple instances of Roberts stating her story to therapists and where she explicitly cited Serna as the reason for post-traumatic stress disorder symptoms, depression and more.

The defense's expert witness was Dr. Lee Carter, a psychologist specializing in sexual abuse cases, with more than 40 years of experience. Carter previously met Serna to conduct a sexual violence risk (SVR-20) assessment to decide whether he is a good candidate for rehabilitation.

Carter explained that there is more than strictly looking at the offense, but also analyzing the individual himself and his history and qualities. He stated that the test does require some subjectivity, but there are guidelines which score the individuals based on their risk factor: “Comparing him to individuals who are known to be high risk to sexual offenses, he scores at a low level, giving me confidence in saying that they’re comfortable with the notion of him being a good candidate for probation.”

The psychologist stated that he does not reach back out to victims after the analysis, so there is no way to know if a crime is committed again, when Arnold asked.

Carter explained that opportunity, vulnerability, sexual desire and more are important when sex offenders are choosing their victim and that he would classify a 14-year-old girl as vulnerable. So, Arnold alluded that Roberts, at the time, would fit into these classifications necessary to be a victim.

“Does David Serna tend to blame the victim in that letter written to probation as opposed to taking responsibility?” asked Arnold.

“You can say that, yes,” said Carter.

Carter was released from his witness testimony as counsel began their closing statements.

“She didn’t make up that [they had sex]. I mean, it happened; he admitted it. It’s just they have two different versions about how it happened,” began McNabb. “His account of it, in it being consensual, makes more sense when you look at the situation in the family and how close they are. They’re not actually cousins. I know they call themselves cousins, [but they are not blood related] … [Serna] let his judgment go out the window when something was happening and he’s a young guy and hormones were raging, but he understands that he’s earned that label as a sex offender.”

He continued, stating that this was Roberts’ “Hail Mary” because it prevented her from being in trouble for having sex with her boyfriend. He also cited her previous mental health issues and how she did not initially state facts when she was interviewed by detectives,. McNabb said that her story changed and “every 15- [or] 16-year-old ever exhibited some of the things that they described the lady is exhibiting now, being withdrawn and things like that.”

Finally, he mentioned the report from Carter and the recommended punishment of probation.

Arnold, once again, cited Roberts’ medical notes and made clear that, although the defendant “looks like a 12 -year-old boy,” he was a 19-year old who took advantage of a 14-year-old girl.

“Judge, you have enough experience to know that a lot of times, and you’ve heard enough, to know that a lot of times things are not said all at once to one person, that sometimes things come out over time. That does not make [Roberts] a liar. That makes her like every other victim in a child sexual assault case,” emphasized Arnold.

She used the case of Jose Nasipak in 453rd Judicial District Judge Sherri Tibbe’s court for an example when it comes to probation recommendations. Nasipak had 28 counts of child pornography and was recommended probation, but Judge Tibbe sentenced him to 80 years in prison.

“I am asking the court for prison time because that is what the facts of this case warrant,” concluded Arnold.

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As Roberts, her mother and other family members gathered in the courtroom, she sat on the front bench. Her family had revealed earlier to the Hays Free Press that there had been whispers of probation due to the defendant’s “baby face,” but this is not what they were praying for.

“Justice to me, is seeing him being handcuffed and walked out of the courtroom after being sentenced to prison time. Before today, I was hoping for anything over 10 years prison time, now, I just want prison time. Why should a rapist, who admitted to the charges of this heinous crime he did to my daughter, walk free without serving a day in jail?” Zapata told the Hays Free Press. “It’s taken this long for her to get justice. It’s torn our family apart. My family that I once loved is a family now I don’t claim.”

Judge Boyer read out his sentence of 10 years deferred adjudication, with 90 days in county jail and the requirement to register as a sex offender. He specified that if Serna violated his probation, he would be facing up to 20 years in prison. Zapata began to cry, but Roberts sat in silence until given time to speak to Serna one last time:

“No amount of jail time can compare to the innocence stolen. No sentence could compare to the misery I had to endure everyday in my own head. Memories missed out on because of my isolated state of mind. Friendships were lost; families were broken, [but] a family doesn’t protect evil. I know that now. Romans 12:19: Beloved, avenge not yourselves, but leave it to me, the wrath of God, for it is written. Vengeance is mine; I will pay, says the Lord. So, I give it to God. I will heal. I will find peace and I will prosper,” said Roberts.

Boyer reasoned that, due to the fact that Serna has no previous criminal records and that Roberts did have ongoing difficulties at play prior to the incident, the sexual assault did not necessarily introduce all of the symptoms she experienced, but it may have aggravated them.

“A slap on the hand [after] a prolonged five years of court resets,” said Zapata. "David Ryan Serna is a rapist who pleaded guilty for three counts of sexual assault of a child. Am I okay with him getting 10 years probation? I’m glad that we finally have some kind of justice, but can you really call that justice?”

Serna’s 90 days in county jail began on April 26.