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IN THE COURT OF CRIMINAL APPEALS OF TEXAS

ADAH GALVAN/ Appellant
VS. TBE STATE OF TEXAS/ Appellee

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

In Appeal No.10-13-00407-CR from the 

## Court of Appeals FEB 2Q 2015 for the Tenth Judicial District Waco, Texas «. „, A 

### Abel Acosta, Clerk 

## FILED IN 

# COURTOFCRIMINALAPPEALS

Adam Galvan/ Pro Se TDCJ-ID#1895561 Telford Unit 3899 State Hwy 98 New Boston, Tx 75570



## RECEIVEDIN COURTOFCRIMINALAPPEALS FEB 18 2015 Abel Acosta, ClerkTABLE 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]

IIINDEX 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

IIINO.
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 observedAppellant 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 norequired result. The offense is satisfied if the accused in tentionally or knowingly engaged in the prohibited conductthreatening 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 aggravatedAPPENDIXassault 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. /\cxcwgy L3Cv\vl)<c>./\ APPELLANTIN 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 hisconvictionfor each count and the trial court did not err in denyingGalvan's motion to quash, motion to suppress, and request for jury instructions on lesser included offenses, the trial court'sjudgmentis affirmed.Background 

### Brian Davenport, an officer with the Cleburne PoliceDepartment, was watching a house where drug activity was suspected and observed what he thoughtto be a drug transactionbetween apassenger 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 wasremovedfromthevehicle andtakento theground. Galvanstillrefused to remove his hand from his jacketpocket. While officers struggled with Galvan on the ground, Galvan's hand was finally pulled from the jacketpocket, 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 theofficers. Galvan continued to struggle butfinally let go of the weapon. Galvancontinued to struggle withofficers andEMS personnel andultimately hadto be sedatedbeforehe couldbe transported to a localhospital. Sufficiency ofthe Evidence 

### In his first issue, Galvan asserts the evidence is insufficient to support his 

### convictionsfor aggravated assaultofapublic servantpursuanttoCountsI, II, andIIIof 

### the indictment. Specifically, he contends there was no testimony that he verbally
Galvan v. State Page 2threatened 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 sufficiencyissue as follows: 

### In determining whetherthe evidence is legally sufficientto 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 essentialelements of the crimebeyond a reasonable doubt. 

### Jackson v.Virginia, 443U.S. 307, 318-19 (1979); Hooperv.State, 214S.W.3d 9, 

### 13 (Tex. Crim. App. 2007). This "familiarstandard 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 

### supportthe conviction." Hooper, 214 S.W.3d at 13. Luciov. 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 ifthe 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 anactor, andcircumstantialevidence alone can besufficientto
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.2d459, 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 notuse or exhibit afirearm as allegedin the indictment. 

### The indictment alleged Galvan committed aggravated assault by threat with a firearm against Brian Davenport, an officerwith the Cleburne Police Department; Sean 

### Bagwell, a detective with the Cleburne Police Department; and Danny Rogers, the Deputy Chief of the CleburnePolice 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 deadlyweapon 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, 22S.W.3d 497, 503 (Tex. Crim. App. 2000). Rather, the determining factor is that 

### the deadly weapon was "used"infacilitatingthe underlying crime. Id. 

### Further, section22.01 provides, "Apersoncommits an "assault" if the person . . .
Galvan v. State Page 4

### knowingly threatens another with imminentbodily injury . . . ." TEX. PENALCODEAnn. § 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, 

### 26S.W.3d89, 97 (Tex. App.—Waco2000, pet. ref'd). Indetermining whether apersonis 

### "threatened" for purposes of the assault statute, the crucial inquiry is whether the assailantacted in such amanner as wouldunderthe 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 

### hisjacket pocket. When the passenger door was opened, Bagwell pulled Galvan out and took him to the ground with the help ofRogers. Galvan was pinned to the ground whileBagwell tried to pull Galvan's hand out of Galvan's pocket. At the sametime, 

### Rogers was struggling to hold Galvan's left arm down. WhenBagwell succeeded in pulling Galvan's hand out of his pocket, he saw that Galvan was holding a chromecolored hand gun and had his finger on the trigger. Rogers and Davenport heard 

### BagwellyellthatGalvanhad a gun. Davenportsaw the gun andGalvan'sfinger on the trigger, aswell. Davenport thenjoinedthe struggle to obtaincontrol of the weapon in
Galvan's hand. 

### Eachofficertestified that while Davenport and Bagwellwere struggling to obtain
Galvan v. State Page5

### 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 ofhis 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 theoffense in plain andintelligible language becauseit 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 foraggravated 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 6granted.
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 trialjudge's ruling
on amotionto quash acharging instrumentdenovo. Smith v. State, 309 S.W.3d 10,13-14 (Tex. Crim. App. 2010); Turnerv. 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 shouldbe granted only when the language concerning the defendant's conduct is so vague or indefinite as to deny thedefendantnotice of the acts he allegedly committed. Turner, 435 S.W.3d at 286. 

### Subjectto rare exceptions, an indictment tracking the language of the statute will satisfy constitutional and statutoryrequirements, and the State need not allegefacts that are merely evidentiary in nature. Mays, 967S.W.2d at 406. Those rare exceptions are where the prohibited conductis 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 thenature of the charges against him. St. Clairv. State, 26S.W.3d 89, 94(Tex. App.— 

### Waco 2000, pet. ref'd)(citing Saathoffv. State, 891 S.W.2d264, 266 (Tex. Crim. App. 1994) and Statev. Mays, 967S.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 ofthe offense or 

### requires a more specific pleading to notify Galvan of the charges against him; and Galvan points tonothing to suggestthat there is. Accordingly, the trial court did not err in denying Galvan's motionto quash. Galvan's second issue isoverruled.
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 ofinvoluntariness (even though they do not raise a federal constitutional claim) 

### include thefollowing: (1) the suspect was ill and on medication and that fact may have rendered his confessioninvoluntary..."). 

### The determination of whether a confession is voluntary is based on an Galvan v. State Page 8

### examination ofthe totality of circumstances surrounding its acquisition. Wyatt v. State, 

### 23S.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 aflagrant 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. SeeMasterson v. State,155 S.W.3d 167,170 (Tex. Crim. App. 2005). 

### Texas Ranger, DonStoner, was called to investigate the shooting ofGalvan 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 medicationbut that Galvan was stable and could understand 

### everything; so it wasfine for Stonerto askGalvanquestions. OnceStonerbeganasking questions, Galvan began to breath heavy as if he werehyperventilating. The nurses toldStoner that this was just an act put on by Galvan. Galvan's speechalso became
Galvan v. State Page 9

### lethargic, and Stonerdecided to talk to Galvan at alater date. Stoner wentback 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 anofficerin the room, and was sitting up and watchingTV. 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). Galvanindicated to Stoner that heunderstood 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 beenunderthe 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 10thatthat story did notmake 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 waivehis rights and thatGalvanwas alert, coherent, and showedno 

### signsofconfusionwhen heknowingly, 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, althoughGalvan startedtalking about theFreemasons following him, there was nothing in the record to suggest he washallucinating, thus rendering his statement involuntary. Accordingly, based on the totality of thecircumstances, 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, Galvancontends the trial courterred in denyinghis requestfor a 

### juryinstruction on severallesser-included offenses.1 At the chargeconference, Galvan 

### requested instructions to the jury on the lesser offenses ofaggravated assault with a deadlyweapon, assaultby threat, andresisting arrest.
1AlthoughGalvanmentionsin thetitleofthisissuethathealsocontends thetrialcourterredindenying his requestfor avoluntariness instruction, hedoes notbriefthatportionof theissue. 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 shouldbe givento 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 thatifthe appellantis 

### guilty, he is guilty only of the lesser offense. See Cavazos, 382S.W.3d at 382; Ricev.State, 333 S.W.3d 140,145 (Tex. Crim. App. 2011). 

### AggravatedAssaultwith a Deadly Weapon andAssault byThreat Galvan states in his briefthat 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 offensesmeet the first step of the test, we now consider whether there is some evidence thatifGalvanis guilty, he is guilty only of the lesser offense. To show thatifGalvanwas guilty, he was only guilty ofaggravated assaultwith 

### a deadly weapon, there would have to be some evidence that Galvan did not know the officers were public servants lawfully discharging anofficial duty. SeeTex.PENALCODE ANN. §22.02(b)(2)(B) (West2011). 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 indenying Galvan's request for a
Galvan v. State Page 12

### jury instructionon the offense ofaggravated assaultwith adeadly weapon. To show that ifGalvan was guilty, he was only guilty ofassaultby 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 notidentifiable 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 instructionon the offense of assault by threat. ResistingArrest 

### Galvan also states in his brief that resisting arrestis a lesser offense ofaggravated 

### assault by threat of a public servant and meets the first step of theAguilar/Rousseau test. 

### However, as charged in this case, theoffense ofresisting arrest is not alesser-included offense of the charged offense ofaggravated 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 theAguilar/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 instructiononthe offense ofresisting 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 overruledeach issue on appeal, we affirm the trial court'sjudgment.

TOM GRAY ChiefJustice Before ChiefJustice Gray, Justice Davis, and Justice Scoggins Affirmed 

### Opiniondelivered and filed November26, 2014 Do notpublish [CRPM]

Galvan v. State Page 14