COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-15-00153-CR

NO. 02-15-00154-CR

NO. 02-15-00155-CR

ANTHONY ROBERT SAFIAN APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NOS. 1383629D, 1383630D, 1386101D

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MEMORANDUM OPINION1 ON REMAND2

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1See Tex. R. App. P. 47.4.

2A new panel was assigned to this case on remand because the three 

original panel members have retired from the court.
2

I. INTRODUCTION

A jury convicted Appellant Anthony Robert Safian of aggravated assault on

a public servant, possession of less than one gram of heroin, and evading arrest 

while using a vehicle. See Tex. Penal Code Ann. § 22.02(a)(2), (b)(2)(B) (West

2011), § 38.04(a) (West 2016); Tex. Health & Safety Code Ann. § 481.115(a)–(b) 

(West 2017). In his brief on original submission to this court, Safian raised three

points challenging the sufficiency of the evidence to support his convictions for 

aggravated assault on a public servant and possession of less than a gram of 

heroin and to support the jury’s finding that he had used a deadly weapon during 

the evading arrest offense. In a separate point, Safian argued that the trial court 

erred by denying his request for an instruction in the jury charge concerning 

deadly conduct as a lesser-included offense of aggravated assault on a public 

servant. 

We held that the evidence was sufficient to support Safian’s convictions 

and the jury’s deadly-weapon finding and that deadly conduct was not a lesserincluded offense of aggravated assault under article 37.09 as the latter offense 

was charged in the indictment. See Safian v. State (Safian I), Nos. 02-15-00153-

CR, 02-15-00154-CR, 02-15-00155-CR, 2016 WL 828337, at *9 (Tex. App.—Fort 

Worth Mar. 3, 2016) (mem. op., not designated for publication), rev’d, 543 

S.W.3d 216 (Tex. Crim. App. 2018) (Safian II). Accordingly, we affirmed the 

judgments in trial court cause numbers 1383629D (evading arrest while using a 

vehicle) and 1383630D (aggravated assault on a public servant), we modified the 
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judgment in trial court cause number 1386101D (possession of less than one 

gram of heroin) to reflect a conviction for a state-jail felony because the judgment 

incorrectly described the offense as a third-degree felony, and we affirmed that 

judgment as modified. See id. at *9.

On Safian’s petition for discretionary review, the Texas Court of Criminal 

Appeals concluded that deadly conduct, as a matter of law, is a lesser-included 

offense of the charged offense of aggravated assault by threat where it is alleged 

that appellant used or exhibited a motor vehicle as a deadly weapon. Safian II, 

543 S.W.3d at 217, 219, 224. Because on original submission this court

performed only the first step of the two-step analysis for determining whether 

Safian was entitled to the deadly conduct lesser-included offense instruction, the 

court of criminal appeals remanded this case for us to conduct the second step. 

Id. at 217, 224. After conducting the second step of the lesser-included offense 

analysis, we again affirm Safian’s conviction for aggravated assault on a public 

servant.

3

 

3Because the issue remanded to us deals solely with Safian’s conviction 

for aggravated assault on a public servant, the outcomes of Safian’s appeals

from his convictions for evading arrest while using a vehicle and for possession 

of less than one gram of heroin remain unchanged from our prior opinion.
4

II. FACTUAL BACKGROUND4

In September 2014, Fort Worth Police Department (FWPD) Officer Juan 

Trujillo and another officer, while undercover, were monitoring a home where 

they suspected that illegal drug sales were occurring. The home was in an area 

in which drug-related crime was common. The officers saw a truck pull into the 

driveway of the home, and Safian exited the truck and went inside. Less than 

five minutes later, he left the home, got back into the truck, and drove away. In 

an unmarked car, Officer Trujillo and his partner began to follow Safian.

Eventually, Safian stopped in the middle of a narrow residential road that 

had overgrown vegetation and uneven pavement on its sides.5 Officer Trujillo’s 

partner honked a horn several times, but the truck remained in the road 

approximately fifteen feet in front of the officers’ car. The officers saw Safian 

lean toward his truck’s center console; Officer Trujillo believed that Safian was 

“ingesting . . . narcotics in his arm.”

Officer Trujillo called for a marked police unit to join him and his partner 

there. FWPD Officer Matthew Pearce arrived. He parked his patrol car about 

ten feet in front of Safian’s truck with the vehicles facing each other and exited 

his patrol car. He saw the truck remaining in the middle of the road, which he 

 

4We set forth only the facts that are pertinent to the issue on remand, as 

taken from the background section of our original opinion. See Safian I, 2016 

WL 828337, at *1.

5Officer Trujillo opined that two cars would not be able to safely pass each 

other on the road. He also testified that the road had deep potholes.
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believed to be a traffic offense. After Officer Pearce had taken a few steps 

toward Safian’s truck and had unholstered his gun, according to Officer Trujillo, 

Safian sat up “really straight,” put the truck into gear, and quickly “sped towards 

Officer Pearce.” Officer Trujillo saw Officer Pearce’s eyes “get really big” as the 

truck spun its tires and moved toward Officer Pearce. From Officer Trujillo’s 

vantage point, he initially thought that the truck had hit Officer Pearce. But 

Officer Trujillo then saw Officer Pearce get into his patrol car and begin following 

Safian. After a long chase in which Safian ran stop signs, drove the wrong way 

into oncoming traffic, and traveled at speeds of forty to fifty miles over the speed 

limit, he crashed with another vehicle. 

III. NO EVIDENCE EXISTS THAT SAFIAN WAS GUILTY ONLY OF DEADLY CONDUCT

In his third point,

6 Safian argues that the trial court erred by denying his 

request for an instruction concerning deadly conduct as a lesser-included offense 

in the jury charge for aggravated assault on a public servant. 

A. Standard of Review

We use a two-step analysis to determine whether an appellant was entitled 

to a lesser-included offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex. 

Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. 

App.), cert. denied, 510 U.S. 919 (1993). First, the lesser offense must come 

within article 37.09 of the code of criminal procedure. Tex. Code Crim. Proc. 

 

6We did not request, nor did the parties file, new briefing when this case 

was submitted after remand.
6

Ann. art. 37.09 (West 2006); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 

1998). An offense is a lesser-included offense of another offense, under article 

37.09(1), if the indictment for the greater-inclusive offense either (1) alleges all of 

the elements of the lesser-included offense or (2) alleges elements plus facts 

(including descriptive averments, such as nonstatutory manner and means, that 

are alleged for purposes of providing notice) from which all of the elements of the 

lesser-included offense may be deduced. Ex parte Watson, 306 S.W.3d 259, 

273 (Tex. Crim. App. 2009) (op. on reh’g). 

Second, some evidence must exist in the record that would permit a jury to 

rationally find that if the appellant is guilty, he is guilty only of the lesser offense. 

Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 

2005); Rousseau, 855 S.W.2d at 672–73. Meeting this threshold requires more 

than mere speculation; it requires affirmative evidence that both raises the 

lesser-included offense and rebuts or negates an element of the greater offense. 

Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012). The evidence 

must be evaluated in the context of the entire record. Moore, 969 S.W.2d at 8. 

The court may not consider whether the evidence is credible, controverted, or in 

conflict with other evidence. Id. Anything more than a scintilla of evidence may 

be sufficient to entitle a defendant to a lesser charge. Hall, 225 S.W.3d at 536.

B. Law on Aggravated Assault on a Public Servant and Deadly Conduct

As charged in the pertinent indictment, a person commits aggravated 

assault on a public servant by intentionally or knowingly threatening a public 
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servant with imminent bodily injury and using or exhibiting a deadly weapon 

during the commission of the offense. See Tex. Penal Code Ann. § 22.01(a)(2)

(West Supp. 2017), § 22.02(a)(2), (b)(2)(B). A person commits deadly conduct if 

he “recklessly engages in conduct that places another in imminent danger of 

serious bodily injury.” Id. § 22.05(a) (West 2011).

C. Analysis of Second Step

As set forth above, the court of criminal appeals concluded that in this case

under the first step of the lesser-included offense analysis, deadly conduct, as a 

matter of law, is a lesser-included offense of the charged offense of aggravated 

assault by threat because the indictment alleged that Safian used or exhibited a 

motor vehicle as a deadly weapon. See Safian II, 543 S.W.3d at 217, 219, 224. 

Under the second step, we look to see if there is some evidence in the record 

that would permit a jury to rationally find that if Safian is guilty, he is guilty only of 

the lesser offense of deadly conduct. See Hall, 225 S.W.3d at 536.

Safian contends that he “only acted recklessly [as] shown by the evidence 

that though his vehicle came near the area where [Officer] Pearce was situated, 

he steered his pickup truck off the pavement to the right of [Officer] Pearce and 

his patrol car in making his getaway.” Safian also contends that the condition of 

the pavement made it impossible for him to drive very fast and that he did not 

swerve toward Officer Pearce. The portions of the record cited in Safian’s brief 

do not support these contentions. Instead, Safian’s steering his pickup truck off 
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the pavement is consistent with testimony that two cars could not drive side by 

side on the narrow road without one car driving on the grass. 

Moreover, the record demonstrates that Safian’s conduct in driving 

towards Officer Pearce was intentional or knowing, not reckless. As set forth in 

our opinion on original submission in analyzing the sufficiency of the evidence to 

support whether Safian intentionally or knowingly threatened Officer Pearce with 

a deadly weapon,

the jury could have reasonably inferred that [Safian] intentionally or 

knowingly threatened Officer Pearce with a deadly weapon from (1) 

Officer Trujillo’s testimony that upon [Safian’s] seeing Officer Pearce, 

[Safian] “sped towards [him]” at a high enough rate of speed to spin 

his tires and kick up dust from the rear of the truck; (2) Officer 

Trujillo’s testimony that [Safian’s] truck drove close enough to Officer 

Pearce that he thought it hit Officer Pearce; (3) Officer Pearce’s 

testimony that after he and [Safian] made eye contact and he told 

[Safian] to not move, [Safian] “yanked . . . down” the gearshift, “hit 

the gas[,] and accelerated towards [Officer Pearce]”; (4) Officer

Pearce’s testimony that he had to throw himself into his patrol car to 

avoid getting hit and that the truck would have struck him had he not 

done so; (5) Officer Pearce’s testimony that [Safian’s] truck came 

within a foot of striking his patrol car’s door; and (6) Officer Pearce’s 

testimony that he feared for his safety.

Safian I, 2016 WL 828337, at *4; see also St. Clair v. State, 26 S.W.3d 89, 97 

(Tex. App.—Waco 2000, pet. ref’d) (holding that appellant intentionally or 

knowingly threatened officer with imminent bodily injury by pointing vehicle in 

officer’s direction and accelerating, causing officer to take cover because he “was 

in fear of being struck by the car” as it accelerated toward him). Because no

evidence indicates that Safian was acting only recklessly, there is no evidence

that Safian is guilty only of deadly conduct. See Dixon v. State, 358 S.W.3d 250, 
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258–59 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (stating that although 

facts—that appellant at times during the chase drove on a trail used by vehicles 

and drove in an opposite direction from the victim—might be indicative of lesserincluded offenses of deadly conduct or reckless driving, “this evidence does not 

show that the defendant is guilty only of the lesser-included offense” in light of 

testimony that he was chasing victim while on that trail and almost struck her with 

his truck). Safian thus has not met the second step of the Hall analysis and was 

not entitled to a lesser-included instruction on deadly conduct. See Amaro v. 

State, 287 S.W.3d 825, 830–31 (Tex. App.—Waco 2009, pet. ref’d) (holding that 

appellant was not entitled to lesser-included instruction on deadly conduct

because second step of Hall analysis was not met). Accordingly, we hold that 

the trial court did not err by denying Safian’s request for an instruction on deadly 

conduct, and we overrule Safian’s third point.

IV. CONCLUSION

Having overruled Safian’s third point, which contains the sole issue before 

us on remand, we affirm the trial court’s judgment in 1383630D that reflects

Safian’s conviction for aggravated assault on a public servant.

/s/ Sue Walker

SUE WALKER

JUSTICE

PANEL: WALKER, PITTMAN, and BIRDWELL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)
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DELIVERED: June 14, 2018