Galvan, Adam v. State ( 2015 )

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miHAL
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
ADAH GALVAN/
Appellant
VS.
TBE STATE OF TEXAS/
Appellee
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FILED IN
In Appeal No.10-13-00407-CR COURT OF CRIMINAL APPEALS
from the
Court of Appeals FEB 2Q 2015
for the Tenth Judicial District
Waco, Texas «. „, A
Abel Acosta, Clerk
Adam Galvan/ Pro Se
TDCJ-ID#1895561
Telford Unit
3899 State Hwy 98
New Boston, Tx 75570
RECEIVED IN
COURT OF CRIMINAL APPEALS
FEB 18 2015
Abel Acosta, Clerk
TABLE OF CONTENTS
INDEX OF AUTHORITIES III
STATEMENT REGARDING ORAL ARGUMENT 1
STATEMENT OF THE CASE 2
STATEMENT OF PROCEDURAL HISTORY 2
GROUND FOR REVIEW 3
DID THE EVIDENCE SHOW THE REQUIRED CULPABLE
MENTAL STATE?
ARGUMENT NUMBER ONE 3
PRAYER FOR RELIEFv 7
CERTIFICATE OF SERVICE 7
APPENDIX[Opinion]
II
INDEX OF AUTHORITIES
CASES
Arcenaux v. State,803 s.w.2d 267(Tx.Cr.App.1990) 7
Ortiz v. State,144 s.w.3d 225(Tx-App.2004) 6
Scott v. State,861 s.w.2d 440(Tx.App.1993) 6
STATUTES
TEX. PENAL CODE 22.02 5
TEX. PENAL CODE 22.05 6
T.R.A.P. RULE 66.3(a),(f) 3
III
NO.
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
ADAM GALVAN
VS.
THE STATE OF TEXAS
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
Appellant respectfully submits this Petition for Discretionary
Review and moves this Honorable Court grant review of this
cause and offers the following in support thereof:
STATEMENT REGARDING ORAL ARGUMENT
The Appellant request oral argument in this case because
such argument may assist the Court in applying the facts to the
issues raised. It is suggested that oral argument may help
simplify the facts and clarify the issues.
STATEMENT OF THE CASE
Appellant was arrested and charged with aggravated assault
on a public servant, all stemming from a traffic assault wherre
appellant was acting nervous and refused orders to remove his
hand from his pocket. Appellant was subsequently forcibly removed
from the vehichle and his hand was forcibly removed from his
pocket revealing a handgun. Appellant never made any verbal
threats or tried to fire the handgun. The only words Appellant
spoke were "don't shoot me.", seconds before being shot by
officers. Appellant was tased numerous times during the events
that led up to his shooting.
STATEMENT OF PROCEDURAL HISTORY
In Cause NO.F47144 the Appellant was charged with three
counts of the offense of aggravated assault on a public servant.
The Appellant was convicted of such offense on November 7,
2013 and appealed his conviction. On November 26, 2014 the
Waco Court of Appeals affirmed the conviction. No motion for
rehearing was filed. Appellant no brings this, his Petition
for Discretionary Review.
GROUND FOR REVIEW
I.
DID THE EVIDENCE SHOW THE REQUIRED CULPABLE MENTAL STATE?
ARGUMENT NUMBER ONE
A. Reasons for Review
Two(2) reasons for review are presented. First, the Waco
Court of Appeals decision here is in direct conflict with the
decisions of this Honorable Court and the lower appellate courts.
T.R.A.P.66.3(a). Finally, the Court of Appeals has so far de
parted from the accepted and usual course of judicial proceedings,
or so far sanctioned such a departure by a lower court, as
to call for an exercise of the Court of Criminal Appeals, power
of supervision.T.R.A.P.66.3(f) .
B. Argument
Appellant requests this court grant Petition to exercise
its power to supervise this State's lower courts. Specifically,
this court should grant his petition to examine the ruling of
the Waco Court of Appeals and its holding that the evidence
was sufficient to support conviction for aggravated assault
on a public servant.
1. Factual background
The State's first witness was Officer Davenport who testified
about the traffic stop of Appellant. He stated that Appellant
appeared overly nervous and would not follow commands. He person
ally tased Appellant at least five times over the course of the
arrest .(R.R.7 at 30,99). At no point did Davenport see a firearm
nor did he hear any verbal threat from Appellant(R.R.7 at 93-94,
101) .
Willie Coleman was called next and stated he was dispatched
to the call. When he arrived, he noticed that the other officers
were unable to overpower Appellant, he proceeded to tase App
ellant fifteen times(R.R.7 at 147). At no point did Coleman
ever see the weapon(R.R.7 at 162).
Detective Bagwell was the State's third witness. He arrived
at the scene when he heard of a difficult traffic stop, he
proceeded to draw his weapon on Appellant when he felt like
he was not complying with instructions. Once he grabbed Appellant
out of the car and threw him to the ground, he proceeded to get
on top of him and try to get the gun out from under Appellant .
(R.R.7 at 182-86). He testified that he was never threatened,
Appellant's gun was never fired and Bagwell never told him he
was under arrest(R.R.7 at 221-223)
Officer Lerner stated that he was called to the scene be
cause there was a subject with a gun. He never observed
Appellant get shot; however he saw him repeatedly tased and he
personally drive stunned him numerous times(R.R.7 at 250-51).
Chief Deputy Rogers testified that he was called to assist
the traffic stop, he tased Appellant and ultimately shot him
in the back(R.R.8 at 16-17). He he never was threatened by
Appellant and he never saw a weapon in Appellant's hand(R.R.
8 at 27,30) .
Charles Wallace testified that, although he didn't see any
thing, he heard Appellant scream "don't shoot me" then heard
a gunshot.(R.R.8 at 95-96).
2. Did the evidence show the required culpable mental state?
Before a person may be found guilty of aggravated assault
under section 22.02 of the Texas penal Code, he must first
satisfy all the elements of at least one theory of simple assault
There are three theories or phases of assault:(1) intentionally,
knowingly, or recklessly causing bodily injury;(2) intentionally,
or knowingly threatening another with immenint bodily injury;
and (3) intentionally or knowingly causing physical contact
with another when the other person knows or should reasonably
believe that the other will regard the contact as offensive
or provocative. The second theory,(the one Appellant has been
convicted of) intentionally or knowingly threatening another
with imminent bodily injury is a conduct offense and has no
required result. The offense is satisfied if the accused in
tentionally or knowingly engaged in the prohibited conduct-
threatening with imminent bodily injury.
The evidence shows that Appellant was forcfully removed from
the vehichle and his hand holding the handgun was forcibly
exhibited by officers. Appellant was then tased upwards of
thirty times. There can be no question that during the thirty
tasings Appellant had little or no control over his bodily
functions, it is even quite possible that he was unable to
release the gun if he wanted to. So even if the officers felt
the weapon was pointed at them at various times during the
altercation, Appellant did this recklessly, not intentionally
or knowingly.
The evidence and the record shows in this case that, even
though Appellant never intentionally or knowingly threatened
officers with imminent bodily injury, he did recklessly engage
in conduct that placed the officers in danger of serious bodily
injury, as a result engaging in deadly conduct, sees TEX. PENAL
CODE §22.05; Scott V. State,861 s.w.2d 440,448(Tx.App.1993)
Deaedly conduct is a lesser-incluiped offense of aggravated
assault if deadly conduct differs from aggravated assault only
in the respect that a less culpable mental state is required,
see Ortiz v. State,144 s.w.3d 225,231-32.
The evidence does not support.intentionally or knowingly
only recklessly in Appellant's action therefore aggravated
APPENDIX
assault as alleqed in the indictment and jury charge was never
shown. The verdict of guilty was therefore contrary to the law
and the evidence, see Arcenaux v. State,803 s.w.2d 267,270-71
(Tx.Cr.App.1990).
PRAYER FOR RELIEF
For the reasons stated above, it is respectfully submitted
that the Court of Criminal Appeals of Texas should grant this
Petition for Discretionary Review.
Respectfully submitted/
AAcxm fkc\\)cx/*
Adam Galvan, Pro Se
TDCJ-ID# 1895561
Telford unit
3899 State Hwy 98
New Boston, Texas 75570
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing
has been mailed, U.S. mail, postage prepaid, to the Office of
the Criminal District Attorney for Johnson County, Guinn Justice
Center, 204 S. Buffalo Street, Cleburne, Texas 76033, and to
the State prosecuting Attorney, P.O. Box 12405, Austin, Texas
78711, on thisV^ day of -Jon iary, 2015.
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APPELLANT
IN THE
TENTH COURT OF APPEALS
No. 10-13-00407-CR
ADAM GALVAN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 413th District Court
Johnson County, Texas
Trial Court No. F47144
MEMORANDUM OPINION
Adam Galvan was charged and convicted of three counts of aggravated assault
of a public servant. TEX. PENAL CODE Ann. § 22.02(b)(2)(B) (West 2011). He was
sentenced to 60 years in prison for each count. Because the evidence was sufficient to
support his conviction for each count and the trial court did not err in denying Galvan's
motion to quash, motion to suppress, and request for jury instructions on lesser
included offenses, the trial court's judgment is affirmed.
Background
Brian Davenport, an officer with the Cleburne Police Department, was watching
a house where drug activity was suspected and observed what he thought to be a drug
transaction between a passenger of a vehicle and a resident of the house. He followed
the vehicle; and when he observed a traffic violation, he initiated a traffic stop. Because
of the way the vehicle stopped, Davenport thought the occupants of the vehicle might
run; so he requested back up. Other officers arrived; and when the passenger of the
vehicle, later identified as Galvan, would not take his right hand out of his jacket
pocket, he was removed from the vehicle and taken to the ground. Galvan still refused
to remove his hand from his jacket pocket. While officers struggled with Galvan on the
ground, Galvan's hand was finally pulled from the jacket pocket, revealing a gun in
Galvan's hand with his finger on the trigger. Officers continued to struggle with and
tased Galvan to make him release the gun, all with no success. As a last resort, Galvan
was shot by one of the officers. Galvan continued to struggle but finally let go of the
weapon. Galvan continued to struggle with officers and EMS personnel and ultimately
had to be sedated before he could be transported to a local hospital.
Sufficiency of the Evidence
In his first issue, Galvan asserts the evidence is insufficient to support his
convictions for aggravated assault of a public servant pursuant to Counts I, II, and III of
the indictment. Specifically, he contends there was no testimony that he verbally
Galvan v. State Page 2
threatened the officers or that he pointed a gun at the officers or used or exhibited a
firearm.
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the
light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts." Jackson, 443 U.S. at 319. "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." Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).
The Court of Criminal Appeals has also explained that our review of "all of the
evidence" includes evidence that was properly and improperly admitted. Conner v.
State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,
326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence
are treated equally: "Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
Galvan v. State Page 3
establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is
well established that the factfinder is entitled to judge the credibility of witnesses and
can choose to believe all, some, or none of the testimony presented by the parties.
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
Galvan argues that because he did not verbally threaten anyone and Rogers did
not personally see the gun in Galvan's hand, the evidence is insufficient to support his
convictions. Galvan also argues that because he did not point the gun at anyone, he did
not use or exhibit a firearm as alleged in the indictment.
The indictment alleged Galvan committed aggravated assault by threat with a
firearm against Brian Davenport, an officer with the Cleburne Police Department; Sean
Bagwell, a detective with the Cleburne Police Department; and Danny Rogers, the
Deputy Chief of the Cleburne Police Department. A person commits an "aggravated
assault "if the person commits assault as defined in" Texas Penal Code "§ 22.01 and the
person . . . uses or exhibits a deadly weapon during the commission of the assault."
Tex. Penal Code Ann. § 22.02(a) (West 2011). A firearm is a deadly weapon, per se.
Tex. Penal Code Ann. § 1.07(a)(17)(A) (West 2011). Mere possession of a deadly
weapon does not equate to "use or exhibit" under the Texas Penal Code. McCain v.
State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). Rather, the determining factor is that
the deadly weapon was "used" infacilitating the underlying crime. Id.
Further, section 22.01 provides, "A person commits an "assault" if the person . . .
Galvan v. State Page 4
knowingly threatens another with imminent bodily injury . . . ." TEX. PENAL CODE Ann.
§ 22.01(a) (West 2011). A person can communicate a threat by conduct as well as by
words. McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984); St. Clair v. State,
26 S.W.3d 89, 97 (Tex. App.—Waco 2000, pet. ref'd). In determining whether a person is
"threatened" for purposes of the assault statute, the crucial inquiry is whether the
assailant acted in such a manner as would under the circumstances signify an immediate
threat of danger to a person of reasonable sensibility. Olivas v. State, 203 S.W.3d 341,
347 (Tex. Crim. App. 2006).
Evidence
When Galvan encountered the officers, he would not take his right hand out of
his jacket pocket. When the passenger door was opened, Bagwell pulled Galvan out
and took him to the ground with the help of Rogers. Galvan was pinned to the ground
while Bagwell tried to pull Galvan's hand out of Galvan's pocket. At the same time,
Rogers was struggling to hold Galvan's left arm down. When Bagwell succeeded in
pulling Galvan's hand out of his pocket, he saw that Galvan was holding a chrome-
colored hand gun and had his finger on the trigger. Rogers and Davenport heard
Bagwell yell that Galvan had a gun. Davenport saw the gun and Galvan's finger on the
trigger, as well. Davenport then joined the struggle to obtain control of the weapon in
Galvan's hand.
Each officer testified that while Davenport and Bagwellwere struggling to obtain
Galvan v. State Page 5
possession and control of the firearm in Galvan's hand, Galvan was moving his arm,
hand, and the gun along the ground, trying to free himself from the grip of the officers.
Each officer also testified that, at various times, he thought the gun was pointed in his
direction and was in fear of his life or felt threatened.
The evidence shows that Galvan did not "merely" possess the gun. Rather, it
shows that he used it in a manner that made each officer feel threatened or that his life
was in danger. In other words, it facilitated the commission of the assault by threat.
Thus, the evidence is sufficient to prove both that he threatened the officers and that he
used or exhibited a deadly weapon while doing so. Galvan's first issue is overruled.
Motion to Quash
In his second issue, Galvan asserts the trial court erred in denying Galvan's
motion to quash the indictment. Galvan argued at trial that the indictment lacked
specificity and did not set forth the offense in plain and intelligible language because it
used the words "pointing a firearm" at a police officer when describing the type of
threat made in each count. Thus, his argument continued, he had insufficient notice of
what he was being charged with. The State then offered to abandon that specific
language in all counts because, it argued, manner and means language was not
necessary in the indictment for aggravated assault. Galvan disagreed and argued that,
with or without the language, the indictment lacked specificity. Galvan's motion to
quash was overruled, and the State's motion to strike the disputed language was
Galvan v. State Page 6
granted.
Law
The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d
599, 601 (Tex. Crim. App. 2004). Thus, an appellate court reviews a trial judge's ruling
on a motion to quash a charging instrument de novo. Smith v. State, 309 S.W.3d 10,13-14
(Tex. Crim. App. 2010); Turner v. State, 435 S.W.3d 280, 286 (Tex. App.-Waco 2014, pet.
ref'd). The charging instrument must convey sufficient notice to allow the accused to
prepare his defense. State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998). A
motion to quash should be granted only when the language concerning the defendant's
conduct is so vague or indefinite as to deny the defendant notice of the acts he allegedly
committed. Turner, 435 S.W.3d at 286.
Subject to rare exceptions, an indictment tracking the language of the statute will
satisfy constitutional and statutory requirements, and the State need not allege facts that
are merely evidentiary in nature. Mays, 967 S.W.2d at 406. Those rare exceptions are
where the prohibited conduct is statutorily defined to include more than one manner or
means of commission or where a statute uses an undefined term of indeterminate or
variable meaning and requires more specific pleading in order to notify the defendant
of the nature of the charges against him. St. Clair v. State, 26 S.W.3d 89, 94 (Tex. App.—
Waco 2000, pet. ref'd) (citing Saathoffv. State, 891 S.W.2d 264, 266 (Tex. Crim. App. 1994)
and State v. Mays, 967 S.W.2d404, 407 (Tex. Crim. App. 1998)).
Galvan v. State Page 7
Galvan was charged with aggravated assault of a public servant and was alleged
to have threatened the officers with imminent bodily injury and used or exhibited a
deadly weapon, that being a firearm. The indictment tracked the language of the
statute. There is nothing defined or undefined in that statute as it is charged in the
indictment that includes one or more manner or means of commission of the offense or
requires a more specific pleading to notify Galvan of the charges against him; and
Galvan points to nothing to suggest that there is. Accordingly, the trial court did not err
in denying Galvan's motion to quash. Galvan's second issue is overruled.
Motion to Suppress-Voluntariness
Next, Galvan contends the trial court erred in overruling his motion to suppress
because his recorded statement was involuntary. Galvan asserts his statement was
involuntary because it was uncontroverted that he was under the influence of a large
amount of medication at the time the statement was taken, the officer taking the
statement never inquired about what medications Galvan was taking, and Galvan
appeared "out of his mind" during the taking of the statement. See Oursbourn v. State,
259 S.W.3d 159, 172 (Tex. Crim. App. 2008) ("fact scenarios that can raise a state-law
claim of involuntariness (even though they do not raise a federal constitutional claim)
include the following: (1) the suspect was ill and on medication and that fact may have
rendered his confession involuntary...").
The determination of whether a confession is voluntary is based on an
Galvan v. State Page 8
examination of the totality of circumstances surrounding its acquisition. Wyatt v. State,
23 S.W.3d 18, 23 (Tex. Crim. App. 2000). The trial court is the "sole and exclusive trier of
fact and judge of the credibility of the witnesses" and the evidence presented at a
hearing on a motion to suppress, particularly when the motion is based on the
voluntariness of a confession. Delao v. State, 235 S.W.3d 235, 238-39 (Tex. Crim. App.
2007); Green v. State, 934 S.W.2d 92, 98-99 (Tex. Crim. App. 1996). Additionally, given
this vital role, great deference is accorded to the trial court's decision to admit or
exclude such evidence, which will be overturned on appeal only where a flagrant abuse
of discretion is shown. Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford almost total
deference to the trial court's determinations of historical facts, especially when those
determinations involve assessment of witness credibility and demeanor. See Masterson
v. State, 155 S.W.3d 167,170 (Tex. Crim. App. 2005).
Texas Ranger, Don Stoner, was called to investigate the shooting of Galvan by
Deputy Chief Rogers. Stoner initially visited with Galvan at the hospital on January 18,
2013, four days after the shooting. On that day, Galvan was in ICU. The nurses told
Stoner that Galvan was on medication but that Galvan was stable and could understand
everything; so it was fine for Stoner to ask Galvan questions. Once Stoner began asking
questions, Galvan began to breath heavy as if he were hyperventilating. The nurses
told Stoner that this was just an act put on by Galvan. Galvan's speech also became
Galvan v. State Page 9
lethargic, and Stoner decided to talk to Galvan at a later date.
Stoner went back to the hospital to talk to Galvan on January 24, 2013. Galvan
was no longer in ICU and had been moved to a private room. Stoner asked a nurse
how Galvan was doing. She replied that he was fine and was due to be released in the
near future. When Stoner entered the room, Galvan was alert and attentive. He was
talking to an officer in the room, and was sitting up and watching TV. Galvan's speech
was not slurred, and he was able to have a normal conversation with Stoner. Galvan
appeared coherent, did not appear intoxicated, and appeared to have normal mental
and physical faculties.
Stoner read Galvan his statutory rights under article 38.22(2)(b) of the Texas
Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22(2)(b) (West
2005). Galvan indicated to Stoner that he understood those rights and agreed to talk to
Stoner. Stoner then recorded the interview with Galvan, which was admitted into
evidence at the motion to suppress hearing. Stoner assured the trial court that he never
made any promises or threats to Galvan and did not coerce Galvan in any way before
Galvan made his statement.
Stoner acknowledged that, prior to the second interview, he did not talk to
Galvan's doctor and did not ask about any medication Galvan may have been under the
influence of at the time of the second interview. Stoner also acknowledged that during
the second interview, Galvan started talking about the Freemasons following him and
Galvan v. State Page 10
that that story did not make any sense.
The trial court denied Galvan's motion to suppress. In its findings of fact and
conclusions of law, the trial court found that Galvan had the mental capacity to
understand and to waive his rights and that Galvan was alert, coherent, and showed no
signs of confusion when he knowingly, intelligently, and voluntarily waived his rights.
Although Stoner did not talk to Galvan's doctor and did not ask about any
medication Galvan may have been on prior to the admitted interview, there is nothing
in the record to suggest that Galvan was incoherent and thus, his statement
involuntary. Further, although Galvan started talking about the Freemasons following
him, there was nothing in the record to suggest he was hallucinating, thus rendering his
statement involuntary. Accordingly, based on the totality of the circumstances, the trial
court did not abuse its discretion in denying Galvan's motion to suppress. Galvan's
third issue is overruled.
Lesser Included Offense Instructions
In his last issue, Galvan contends the trial court erred in denying his request for a
jury instruction on several lesser-included offenses.1 At the charge conference, Galvan
requested instructions to the jury on the lesser offenses of aggravated assault with a
deadly weapon, assault by threat, and resisting arrest.
1Although Galvan mentions in thetitle ofthis issue thathe also contends the trial court erred in denying
his request for a voluntariness instruction, he does not brief that portion of the issue. Thus, thatportion
of the issue presents nothing for review and is overruled.
Galvan v. State Page 11
Courts apply the Aguilar/Rousseau test to determine whether an instruction on a
lesser-included offense should be given to the jury. Cavazos v. State, 382 S.W.3d 377, 382
(Tex. Crim. App. 2012); Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993).
First, we determine if the proof necessary to establish the charged offense also includes
the lesser offense. Cavazos, 382 S.W.3d at 382; Hall, 225 S.W.3d at 535-36. If this
threshold is met, we then consider whether some evidence shows that if the appellant is
guilty, he is guilty only of the lesser offense. See Cavazos, 382 S.W.3d at 382; Rice v. State,
333 S.W.3d 140,145 (Tex. Crim. App. 2011).
Aggravated Assault with a Deadly Weapon and Assault by Threat
Galvan states in his brief that the offenses of aggravated assault with a deadly
weapon and assault by threat are lesser offenses that meet the first step of the
Aguilar/Rousseau test. The State does not dispute this assertion. Thus, assuming
without deciding these offenses meet the first step of the test, we now consider whether
there is some evidence that if Galvan is guilty, he is guilty only of the lesser offense.
To show that if Galvan was guilty, he was only guilty of aggravated assault with
a deadly weapon, there would have to be some evidence that Galvan did not know the
officers were public servants lawfully discharging an official duty. See Tex.PENAL CODE
ANN. § 22.02(b)(2)(B) (West 2011). However, there was no testimony to suggest that any
of the officers were not identifiable as public servants and were not discharging an
official duty. Accordingly, the trial court did not err in denying Galvan's request for a
Galvan v. State Page 12
jury instruction on the offense of aggravated assault with a deadly weapon.
To show that if Galvan was guilty, he was only guilty of assault by threat, there
would, again, have to be some evidence that Galvan did not know the officers were
public servants lawfully discharging an official duty, see Tex. Penal Code Ann. §
22.02(b)(2)(B) (West 2011), or that no deadly weapon was used or exhibited, see id. at
(a)(2). Again, there was no testimony to suggest that the officers were not identifiable
as public servants and were not discharging an official duty or that a deadly weapon
was not used or exhibited. Accordingly, the trial court did not err in denying Galvan's
request for a jury instruction on the offense of assault by threat.
Resisting Arrest
Galvan also states in his brief that resisting arrest is a lesser offense of aggravated
assault by threat of a public servant and meets the first step of the Aguilar/Rousseau test.
However, as charged in this case, the offense of resisting arrest is not a lesser-included
offense of the charged offense of aggravated assault against a public servant. See TEX.
Code Crim. Proc. Ann. art. 37.09 (West 2006); Brumbalow v. State, 432 S.W.3d 348, 352
(Tex. App.—Waco 2014, no pet.). Because the first step of the Aguilar/Rousseau test was
not met, we need not discuss the second step. See Brumbalow, 432 S.W.3d at 352.
Accordingly, the trial court did not err in denying Galvan's request for a jury
instruction on the offense of resisting arrest.
Galvan v. State Page 13
Because the trial court did not err in denying the requested lesser offense
instructions, Galvan's fourth and final issue is overruled.
Conclusion
Having overruled each issue on appeal, we affirm the trial court's judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed November 26, 2014
Do not publish
[CRPM]
Galvan v. State Page 14