Opinion filed June 17, 2010




                                            In The


   Eleventh Court of Appeals
                                          __________

                                     No. 11-08-00281-CR
                                         __________

                         STEVEN FRANK GALVAN, Appellant

                                               V.

                               STATE OF TEXAS, Appellees


                              On Appeal from the 39th District Court

                                     Stonewall County, Texas

                                   Trial Court Cause No. 1855


                                          OPINION
       The jury convicted Steven Frank Galvan of aggravated assault with a deadly weapon.
The offense was enhanced to a first degree felony, and the jury assessed punishment at twenty-
five years. We affirm.
                                       I. Background Facts
       Galvan lived in a trailer behind Sheriff Bill Mullen’s house. Galvan had been drinking
on the day of the assault. This upset Sheriff Mullen and his wife because alcohol conflicted with
Galvan’s medicine. Sherriff Mullen’s wife found a bottle of whiskey and cans of beer inside
Galvan’s pickup, and she told him that Galvan had to move. Sheriff Mullen found Galvan at
Willie Turner’s house; handed him the whiskey bottle, the beer, and $300; and told him not to
come back home. Galvan took the items and then struck Sheriff Mullen on the head with the full
whiskey bottle. A struggle ensued, and Galvan hit Sheriff Mullen two more times before the
bottle broke. Turner came out of his house and helped Sheriff Mullen restrain Galvan.
       Galvan’s attorney filed a motion suggesting incompetency and requested a competency
examination. The trial court appointed Dr. Samuel Brinkman to examine and observe Galvan.
Dr. Brinkman examined Galvan and reported that he was incompetent to stand trial and that he
did not believe Galvan could attain competence to stand trial in the foreseeable future. Galvan
requested a jury trial on his competency. The jury found that Galvan was competent. A second
jury was selected to hear Galvan’s criminal case, and it found him guilty of aggravated assault
with a deadly weapon and assessed his punishment at twenty-five years confinement.
                                              II. Issues
       Galvan challenges his conviction on two grounds. First, he argues that the jury did not
have factually sufficient evidence to conclude that he was competent to stand trial and, second,
that the trial court abused its discretion when it denied his motion for mistrial.
                                   III. Competency to Stand Trial
       Galvan argues that the evidence is factually insufficient to support the jury’s competency
finding because Dr. Brinkman’s expert opinion was not effectively refuted. Because an accused
is presumed competent, a defendant must prove by a preponderance of the evidence that he does
not have the present ability to consult with his attorney or that he does not have a rational or
factual understanding of the proceedings against him. Manning v. State, 730 S.W.2d 744, 748
(Tex. Crim. App. 1987); see also TEX. CODE CRIM PROC. ANN. art. 46B.003(a) (Vernon 2006).
       We review the entire record of the competency hearing to determine whether the finding
of competence is so against the great weight and preponderance of the evidence that it is
manifestly unjust. See Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim. App. 1990) (adopting
civil standard for reviewing factual challenges when the defendant has the burden of proof and
the standard is proof by a preponderance of the evidence); Williams v. State, 191 S.W.3d 242,
248-51 (Tex. App.—Austin 2006, no pet.) (appellate court reviews the evidence offered at the
competency hearing when performing a factual sufficiency review). The jury is the judge of the
credibility of the witnesses and the weight to be given to the testimony. Wesbrook v. State, 29
                                                  2
S.W.3d 103, 111 (Tex. Crim. App. 2000). The jury may accept or reject all or any of a witness’s
testimony. Id.
       Galvan called Dr. Brinkman as an expert witness. Dr. Brinkman is a neuropsychologist.
He spent an hour with Galvan taking a history and performing a subjective evaluation. Galvan
then took several hours of standardized psychological tests. This testing revealed a verbal IQ of
fifty-seven, a performance IQ of fifty-nine, and a full-scale IQ of fifty-four. Galvan’s scores
indicated mental retardation, although Dr. Brinkman testified that additional testing would be
necessary to make that determination. Dr. Brinkman acknowledged that Galvan was being
manipulative and that he wanted to appear more impaired than he actually was, but in his
opinion, Galvan’s best IQ scores would still be in a borderline mental retardation category. He
testified that Galvan’s verbal interaction was not good and that he had to push Galvan to answer
questions. Dr. Brinkman determined that Galvan was not competent to stand trial because he did
not have an efficient present ability to consult with his attorney with a reasonable degree of
rational understanding. Because of this conclusion, he did not reach an opinion on whether
Galvan understood the proceedings against him.
       Dr. Brinkman agreed that his opinion was a subjective determination and that it was
impossible to know definitively if Galvan had been honest. Dr. Brinkman agreed that there was
evidence Galvan was malingering, but he testified that he did not administer any specialized
malingering tests because Galvan’s pattern of performance on different test types did not suggest
that it was necessary.
       The State called several lay witnesses. Deputy Rusty Harris testified that he had known
Galvan for about nine years, had frequent interaction with him during that time, and never had
any problems communicating with him. Dr. Brinkman had testified that when he saw Galvan his
head was down, he made little eye contact, and he appeared very sad and irritable. Conversely,
Deputy Harris testified that when he transported Galvan to Dr. Brinkman’s office that Galvan’s
demeanor was normal, that he did not have to pry any conversation out of him, and that Galvan
carried himself normally with his head upright. Although Dr. Brinkman believed Galvan had
difficulty communicating, he agreed that if Galvan had communicated with others on the ride to
his office, this would indicate that Galvan had successfully manipulated him. Deputy Harris
testified that he and Galvan talked and laughed the entire trip to and from Dr. Brinkman’s office.
                                                3
         Essie Ann Brazee, a former employee of the Stonewall County Sheriff’s office, testified
similarly. Brazee had known Galvan for approximately fifteen to twenty years and never had
any trouble communicating with him. She testified that she was working at the jail the night
Galvan was arrested and remembered conversing with Galvan without difficulty. That night he
said to her, “I screwed up, didn’t I?”
         Sherry Taylor testified that she had known Galvan for twelve years and that she worked
at Rolling Plains Detention Center where Galvan was housed. She conversed with Galvan a few
times, all without problems. She also testified that Galvan arrived at the detention center clean
cut and well groomed. Sometime later, when she asked him why he did not get a haircut, he
responded that he was waiting to be released.
         Galvan has directed us to additional testimony elicited at trial, including his own
testimony, to support his argument. This evidence is outside the scope of our review because we
are concerned with the sufficiency of the evidence presented to the competency jury and because
Galvan does not contend that his competency was presented to the trial court for further ruling
during the regular trial.          Moreover, even were we to consider Galvan’s trial testimony, it
indicates rather clearly that he was able to consult with his attorney. Galvan testified that he and
his counsel had an agreement that he would remain calm; he described his family, work,
educational, and medical history without any apparent difficulty; and he described in
considerable detail the events leading up to the confrontation with Sheriff Mullen and the
confrontation itself.
         After considering all of the evidence presented during the competency hearing, we hold
that the jury’s finding is not so against the great weight and preponderance of the evidence as to
be manifestly unjust. Dr. Brinkman’s opinion was not binding upon the jury. See City of
Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005) (even uncontroverted expert testimony does
not bind jurors unless the subject matter is one for experts alone).1                                 Dr. Brinkman’s
determination is necessarily subjective and, to some extent, dependent upon the information
provided him by Galvan. The jury was free to reject Dr. Brinkman’s opinion if, for example,
they believed that this opinion was undermined by Galvan’s intentional misconduct.

         1
          See also Graham v. State, 566 S.W.2d 941, 950 (Tex. Crim. App. 1978) (it is not necessary for the State to present
expert medical testimony that a defendant is sane in order to counter the defense experts).
                                                             4
Dr. Brinkman believed that Galvan had intentionally exaggerated the degree of his impairment
but did not believe this had impacted his assessment. There was evidence that Galvan was more
successful than Dr. Brinkman realized. For example, Galvan had no difficulty communicating
with Deputy Harris immediately before and after Dr. Brinkman’s examination, and he modified
his behavior and appearance for his competency examination. The jury’s verdict did not go
against the great weight of the evidence nor was it manifestly unjust. Galvan’s first issue is
overruled.
                                               IV. Motion for Mistrial
       In his second issue, Galvan asserts that the trial court abused its discretion by denying his
motion for a mistrial following the State’s comment on his right to remain silent. Galvan
testified in his own defense and claimed that Sheriff Mullen was the aggressor and that Sheriff
Mullen choked him and put dirt in his mouth.                     The prosecutor asked Galvan on cross-
examination why he did not relate his version of the events to Texas Ranger Dwayne Williams
when he came to see him. Galvan’s counsel objected, alleging that this was an improper
comment on Galvan’s post-Miranda2 silence.                    Although the trial court initially denied the
objection, Galvan never answered the question and the trial court reconsidered its ruling and
sustained the objection. It then gave the jury an instruction to disregard.
       A mistrial is an extreme remedy for prejudicial effects occurring during the trial process.
Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). A trial court’s denial of a motion
for mistrial is upheld in the absence of an abuse of discretion. Id.
       A comment on a defendant’s post-arrest silence violates the Fifth Amendment prohibition
against self-incrimination. Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995).
However, an improper comment does not lead to automatic reversal and an effective instruction
to disregard will ordinarily cure the prejudicial effect. Perez v. State, 187 S.W.3d 110, 113 (Tex.
App.—Waco 2006, no pet.). An instruction to disregard will be presumed effective unless the
facts of the case suggest the impossibility of removing the impression produced on the minds of
the jury. Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988). The effectiveness of a
curative instruction is determined on a case-by-case basis. Johnson v. State, 83 S.W.3d 229, 232
(Tex. App.—Waco 2002, pet. ref’d).                    Although not specifically adopted as definitive or
       2
           Miranda v. Arizona, 384 U.S. 436 (1966).
                                                          5
exhaustive, the courts have looked to several factors to determine whether an instruction to
disregard cured the prejudicial effect: (1) the nature of the error; (2) the persistence of the
prosecution in committing the error; (3) the flagrancy of the violation; (4) the particular
instruction given; (5) the weight of the incriminating evidence; and (6) the harm to the accused
as measured by the severity of sentence. Id.
         Although the nature of the constitutional right affected was serious, its prejudicial effect
is limited for several reasons. Galvan never answered the question. The State did not persist in
questioning Galvan about his silence or mention it during closing argument. The trial court
timely instructed the jury “to disregard [counsel’s] last question.”3                           Finally, the improper
question did not change the outcome of the case in light of all the evidence supporting Galvan’s
conviction.
         We cannot say that the trial court abused its discretion in denying the mistrial motion, and
we overrule Galvan’s second issue.
                                                     V. Conclusion

         The judgment of the trial court is affirmed.




                                                                   RICK STRANGE
                                                                   JUSTICE


June 17, 2010
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




         3
           Courts have held similar instructions adequately cured any error. See Waldo, 746 S.W.2d at 755-56 (“Jury is
instructed to disregard the last comment of the witness.”); Mendoza v. State, 959 S.W.2d 321, 324 (Tex. App.—Waco 1997, pet.
ref’d) (“I again instruct the jury that they will not consider the last statement made by the State’s attorney for any purpose
whatsoever.”); Johnson, 83 S.W.3d at 232 (“Ladies and gentlemen, please disregard the last question by the prosecutor.”).
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