FIRST DIVISION BARNES, P. J., GOBEIL and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
February 24, 2025
In the Court of Appeals of Georgia A24A1657. GALVEZ v. THE STATE.
GOBEIL, Judge.
Billy Milton Galvez was charged with malice murder and other crimes related
to the shooting death of Alejandro Ramirez. A Gwinnett County jury found him guilty
of voluntary manslaughter, aggravated assault, and possession of a firearm during the
commission of a felony. On appeal from the denial of his amended motion for new
trial, Galvez argues that the trial court erred (1) by overruling his demurrer, in which
he challenged the sufficiency of the indictment as to one of the aggravated assault
charges; and (2) in its instructions to the jury on the definition of aggravated assault.
For the reasons explained more fully below, we affirm. The record shows that on July 5, 2020, Albert Hernandez, a detective with the
Norcross Police Department, responded to a call at the Fusion Event Hall (“Fusion”)
at approximately 5:00 a.m. When he arrived, he observed a man, later identified as
Ramirez, lying on the ground while bystanders attempted to provide aid. Ramirez,
who was still alive at the time, had been shot twice.
Jennifer Cardona-Rodriguez, Galvez’s then-girlfriend, was with him on July 4,
2020. Cardona-Rodriguez, Galvez, and a friend, Jorge Avila, spent time together that
evening, and the three consumed alcohol and eventually drove to the woods to “have
[their] own” Fourth of July celebration. While in the woods, the group took turns
firing Galvez’s handgun. After drinking an entire bottle of tequila, the group traveled
to Fusion.
Although Cardona-Rodriguez was heavily intoxicated, she recalled being
involved in an altercation with Ramirez at Fusion at some point in the early morning
hours of July 5, 2020. According to Cardona-Rodriguez, as she was walking out of
Fusion with Avila to look for Galvez, Ramirez shoved her to the ground. She was
upset that Galvez was not there to defend her, and she and Avila went back to Avila’s
truck, where Galvez was waiting in the driver’s seat. Galvez drove away from the
2 scene, but drove back to Fusion after he and Cardona-Rodriguez continued to argue.
When they arrived, Avila saw Galvez grab his gun and shoot Ramirez. Avila recalled
that Galvez fired seven or eight shots. Cardona-Rodriguez did not see the shooting
because she had closed her eyes, but she heard gun shots, and then she felt the truck
drive away. Alvila later spoke to Galvez about what happened that night, and Galvez
expressed regret and admitted that he “f**ked up.” Ramirez ultimately died as a
result of his gunshot wounds.
Investigators discovered eight 9-millimeter cartridge casings in the Fusion
parking lot. Law enforcement conducted interviews with Cardona-Rodriguez and
Alvila, and subsequently arrested Galvez. Galvez was charged by indictment with
malice murder (Count 1), felony murder (Count 2), two counts of aggravated assault
(Counts 3 and 4), and three counts of possession of a firearm during the commission
of a felony (Counts 5, 6, and 7). As relevant here, Count 2 charged Galvez with felony
murder predicated on the offense of aggravated assault by shooting the victim. Count
3 of the indictment charged Galvez with committing aggravated assault by shooting
3 the victim with a deadly weapon.1 Count 6 charged Galvez with possessing a firearm
while committing aggravated assault as outlined in Count 3.
Galvez filed a general demurrer, arguing that the indictment failed to
sufficiently charge him with aggravated assault. The trial court conducted a hearing
on the demurrer, at which Galvez contended in pertinent part that in Count 3 of the
indictment, the State failed to specify whether Galvez had assaulted the victim by
committing a violent injury upon him or by committing an act which placed the victim
in reasonable apprehension of immediately receiving a violent injury. In a consolidated
order on all pre-trial motions, the trial court denied Galvez’s demurrer.
After a trial, Gwinnett County jury found Galvez guilty on Counts 3 and 6. With
respect to Count 2, the jury found Galvez not guilty of felony murder, but guilty of the
lesser-included offense of voluntary manslaughter. Galvez was acquitted on the
remaining counts. Galvez filed a motion for new trial, as amended. The trial court
denied the motion for new trial after a hearing, and this appeal followed.
1. Galvez first argues that the trial court erred by overruling his demurrer to the
indictment. Specifically, he points out that in Count 3 of the indictment, the State
1 Count 4 of the indictment charged him with committing aggravated assault by pointing a firearm at the victim’s head. 4 failed to specify which of the two possible methods Galvez employed in committing
simple assault as an element of aggravated assault. This argument is unavailing.
[T]he purpose of an indictment is to enable the defendant to prepare his defense intelligently and to protect him from double jeopardy. And an indictment is technically correct and sufficient if it states the offense in the terms and language of the Code or in language so plain that the jurors understand the nature of the charged offense.
Issa v. State, 340 Ga. App. 327, 334 (3) (796 SE2d 725) (2017) (citations and
punctuation omitted). To that end,
the true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.
Id. at 334-335 (3) (citation and punctuation omitted).
In this case, Count 3 of the indictment charged Galvez with aggravated assault
with a deadly weapon by “mak[ing] an assault upon the person of Alejandro Ramirez
with a deadly weapon, to wit: a handgun, by shooting the victim with a firearm[.]”
5 These allegations essentially track the language of OCGA § 16-5-21 (a) (2), which
provides in relevant part that a person commits aggravated assault when he “assaults
. . . [w]ith a deadly weapon or with any object, device, or instrument which, when used
offensively against a person, is likely to or actually does result in serious bodily
injury.” By tracking the language of the statute, the State “presented a technically
correct allegation.” State v. Austin, 297 Ga. App. 478, 479 (677 SE2d 706) (2009).
Accordingly, because the indictment was “substantially in the language of the Code[,
it was] sufficient in form and substance.” Id. at 480 (citation, punctuation and
emphasis omitted).
With respect to Galvez’s argument that the indictment was void because it
failed to allege the specific manner in which he committed simple assault, — i.e., that
he attempted to commit a violent injury to the person of another or that he committed
an act which placed another in reasonable apprehension of immediately receiving a
violent injury — this contention is without merit.
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FIRST DIVISION BARNES, P. J., GOBEIL and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
February 24, 2025
In the Court of Appeals of Georgia A24A1657. GALVEZ v. THE STATE.
GOBEIL, Judge.
Billy Milton Galvez was charged with malice murder and other crimes related
to the shooting death of Alejandro Ramirez. A Gwinnett County jury found him guilty
of voluntary manslaughter, aggravated assault, and possession of a firearm during the
commission of a felony. On appeal from the denial of his amended motion for new
trial, Galvez argues that the trial court erred (1) by overruling his demurrer, in which
he challenged the sufficiency of the indictment as to one of the aggravated assault
charges; and (2) in its instructions to the jury on the definition of aggravated assault.
For the reasons explained more fully below, we affirm. The record shows that on July 5, 2020, Albert Hernandez, a detective with the
Norcross Police Department, responded to a call at the Fusion Event Hall (“Fusion”)
at approximately 5:00 a.m. When he arrived, he observed a man, later identified as
Ramirez, lying on the ground while bystanders attempted to provide aid. Ramirez,
who was still alive at the time, had been shot twice.
Jennifer Cardona-Rodriguez, Galvez’s then-girlfriend, was with him on July 4,
2020. Cardona-Rodriguez, Galvez, and a friend, Jorge Avila, spent time together that
evening, and the three consumed alcohol and eventually drove to the woods to “have
[their] own” Fourth of July celebration. While in the woods, the group took turns
firing Galvez’s handgun. After drinking an entire bottle of tequila, the group traveled
to Fusion.
Although Cardona-Rodriguez was heavily intoxicated, she recalled being
involved in an altercation with Ramirez at Fusion at some point in the early morning
hours of July 5, 2020. According to Cardona-Rodriguez, as she was walking out of
Fusion with Avila to look for Galvez, Ramirez shoved her to the ground. She was
upset that Galvez was not there to defend her, and she and Avila went back to Avila’s
truck, where Galvez was waiting in the driver’s seat. Galvez drove away from the
2 scene, but drove back to Fusion after he and Cardona-Rodriguez continued to argue.
When they arrived, Avila saw Galvez grab his gun and shoot Ramirez. Avila recalled
that Galvez fired seven or eight shots. Cardona-Rodriguez did not see the shooting
because she had closed her eyes, but she heard gun shots, and then she felt the truck
drive away. Alvila later spoke to Galvez about what happened that night, and Galvez
expressed regret and admitted that he “f**ked up.” Ramirez ultimately died as a
result of his gunshot wounds.
Investigators discovered eight 9-millimeter cartridge casings in the Fusion
parking lot. Law enforcement conducted interviews with Cardona-Rodriguez and
Alvila, and subsequently arrested Galvez. Galvez was charged by indictment with
malice murder (Count 1), felony murder (Count 2), two counts of aggravated assault
(Counts 3 and 4), and three counts of possession of a firearm during the commission
of a felony (Counts 5, 6, and 7). As relevant here, Count 2 charged Galvez with felony
murder predicated on the offense of aggravated assault by shooting the victim. Count
3 of the indictment charged Galvez with committing aggravated assault by shooting
3 the victim with a deadly weapon.1 Count 6 charged Galvez with possessing a firearm
while committing aggravated assault as outlined in Count 3.
Galvez filed a general demurrer, arguing that the indictment failed to
sufficiently charge him with aggravated assault. The trial court conducted a hearing
on the demurrer, at which Galvez contended in pertinent part that in Count 3 of the
indictment, the State failed to specify whether Galvez had assaulted the victim by
committing a violent injury upon him or by committing an act which placed the victim
in reasonable apprehension of immediately receiving a violent injury. In a consolidated
order on all pre-trial motions, the trial court denied Galvez’s demurrer.
After a trial, Gwinnett County jury found Galvez guilty on Counts 3 and 6. With
respect to Count 2, the jury found Galvez not guilty of felony murder, but guilty of the
lesser-included offense of voluntary manslaughter. Galvez was acquitted on the
remaining counts. Galvez filed a motion for new trial, as amended. The trial court
denied the motion for new trial after a hearing, and this appeal followed.
1. Galvez first argues that the trial court erred by overruling his demurrer to the
indictment. Specifically, he points out that in Count 3 of the indictment, the State
1 Count 4 of the indictment charged him with committing aggravated assault by pointing a firearm at the victim’s head. 4 failed to specify which of the two possible methods Galvez employed in committing
simple assault as an element of aggravated assault. This argument is unavailing.
[T]he purpose of an indictment is to enable the defendant to prepare his defense intelligently and to protect him from double jeopardy. And an indictment is technically correct and sufficient if it states the offense in the terms and language of the Code or in language so plain that the jurors understand the nature of the charged offense.
Issa v. State, 340 Ga. App. 327, 334 (3) (796 SE2d 725) (2017) (citations and
punctuation omitted). To that end,
the true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.
Id. at 334-335 (3) (citation and punctuation omitted).
In this case, Count 3 of the indictment charged Galvez with aggravated assault
with a deadly weapon by “mak[ing] an assault upon the person of Alejandro Ramirez
with a deadly weapon, to wit: a handgun, by shooting the victim with a firearm[.]”
5 These allegations essentially track the language of OCGA § 16-5-21 (a) (2), which
provides in relevant part that a person commits aggravated assault when he “assaults
. . . [w]ith a deadly weapon or with any object, device, or instrument which, when used
offensively against a person, is likely to or actually does result in serious bodily
injury.” By tracking the language of the statute, the State “presented a technically
correct allegation.” State v. Austin, 297 Ga. App. 478, 479 (677 SE2d 706) (2009).
Accordingly, because the indictment was “substantially in the language of the Code[,
it was] sufficient in form and substance.” Id. at 480 (citation, punctuation and
emphasis omitted).
With respect to Galvez’s argument that the indictment was void because it
failed to allege the specific manner in which he committed simple assault, — i.e., that
he attempted to commit a violent injury to the person of another or that he committed
an act which placed another in reasonable apprehension of immediately receiving a
violent injury — this contention is without merit. Indeed, our Supreme Court has
addressed this very argument and has explained that “[i]t is not necessary that an
indictment charging a defendant with aggravated assault specify the manner in which
the simple assault was committed, but it must set forth the aggravating aspect.” Chase
6 v. State, 277 Ga. 636, 638 (1) (592 SE2d 656) (2004). Here, the indictment alleged that
Galvez had assaulted the victim, and that the assault was aggravated by Galvez’s use
of a handgun. In sum, because the indictment in this case “used the language of the
statute, included the essential elements of the offense, and was sufficiently definite to
advise [Galvez] of what he must be prepared to confront, it was not void.” Issa, 340
Ga. App. at 335 (3) (citation and punctuation omitted). Given the foregoing, the trial
court did not err by overruling Galvez’s demurrer to the indictment.
2. Galvez also contends that his conviction on Count 3 should be reversed
because the trial court erred when it instructed the jury that simple assault could be
committed in either of two methods, when neither method was charged in the
indictment. We discern no reversible error.
At the charge conference, defense counsel objected to the proposed instruction
on simple assault. The trial court then instructed the jury on aggravated assault and
simple assault as follows:
For aggravated assault, the State must prove that the defendant assaulted another person with a deadly weapon. To prove assault, the State does not have to prove that the other person was actually injured.
7 A firearm, when used in a way a firearm is ordinarily used, is a deadly weapon.
A person commits simple assault when the person attempts to commit a violent injury to the person of another or commits an act that places another in reasonable apprehension of immediately receiving a violent injury. Such an assault is an act that places another in reasonable apprehension or fear of immediately receiving a violent injury. If there is a demonstration of violence with an apparent ability to inflict injury so as to cause a person against whom it is directed to reasonably fear the injury, then the assault is complete, even though the assailant may never have been within striking distance.
After the jury retired to deliberate, defense counsel renewed his objection to the jury
instructions.
As an initial matter, it is axiomatic that appellate courts review the trial court’s
charge to the jury as a whole “to determine whether the jury was fully and fairly
instructed on the law of the case.” Manning v. State, 303 Ga. 723, 728 (4) (814 SE2d
730) (2018). Here, the trial court instructed the jury that the “burden of proof rests
upon the State to prove every material allegation of the indictment and every essential
element of the crime charged beyond a reasonable doubt.” The trial court also sent
the indictment (which, as noted above, alleged that Galvez committed aggravated
8 assault in Count 3 by shooting the victim with a firearm) out with the jurors for their
deliberation. Accordingly, the trial court cured any defect in the charge by
“provid[ing] the jury with the indictment and instruct[ing] the jury that the State was
required to prove every material allegation in the indictment and every essential
element of the crime charged beyond a reasonable doubt.” Simpson v. State, 302 Ga.
875, 877 (2) (808 SE2d 718) (2017).
Furthermore, the jury did make the requisite finding that Galvez shot the
victim, given that proof of a shooting was required for the jury to convict Galvez of
voluntary manslaughter, which, as the trial court instructed the jury, required the jury
to find that Galvez “caused the death of [the victim.]” In other words, though the jury
was not explicitly instructed that it must find that Galvez shot the victim in order to
convict him of aggravated assault as charged in Count 3, the jury did in fact make such
a finding when it found him guilty of voluntary manslaughter. Lyons v. State, 309 Ga.
15, 19-21 (3) (843 SE2d 825) (2020).
When viewed as a whole, the jury charges in this case did not impermissibly
broaden the manner in which the jury could convict Galvez of aggravated assault, nor
did it relieve the State of its burden of proving that Galvez shot Ramirez in order for
9 the jury to find Galvez guilty of that crime. Accordingly, any possible error in the trial
court’s jury instructions was harmless, and we affirm the court’s denial of Galvez’s
amended motion for new trial. Depriest v. State, 319 Ga. 874, 881 (4) (907 SE2d 274)
(2024).
Judgment affirmed. Barnes, P. J., and Pipkin, J., concur.