                                  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" in facilitating 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 Bagwell were 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 Saathoff v. State, 891 S.W.2d 264, 266 (Tex. Crim. App. 1994)

and State v. Mays, 967 S.W.2d 404, 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 the title of this issue that he also contends the trial court erred in denying
his request for a voluntariness instruction, he does not brief that portion of the issue. Thus, that portion
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
