Page 26 - TPA Journal November December 2022

Joe C. Tooley, Legal Digest Editor
Joe C. Tooley, Attorneys & Counselors, Rockwall, Texas
www.TooleyLaw.com 972-722-1058

TEXAS POLICE ASSOCIATION

LEGAL DIGEST

November-December 2022

AUTHOR’S NOTE: It is the goal of this submission to extract those portions of relevant appellate
opinions or the syllabus of the legal reporter which bear directly upon law enforcement methods
and provide guidance for officers on an operational level. Much of the information pertaining to
these cases is lifted verbatim from the court opinion or syllabus with independent analysis inserted
as appropriate. Due to clarity for training purposes, the distinction between quotes from the
opinions and inserted analysis is not always identified and legal citations within the opinion are
often omitted. Emphasis is placed upon reported decisions from the Fifth Circuit Court of Appeals
and the Texas Court of Criminal Appeals.

EVIDENCE – THREAT TO OFFICER him of the charged offense; and the district court
did not respond reasonably to a question the jury
As a prelude to the threatening-a-federal-official submitted to the court during its deliberations.
conviction at issue in this appeal, Daniel Polanco, a Regarding the sufficiency issue, and because
former agent for the United States Customs and Polanco moved for a judgment of acquittal at the
Border Patrol, was convicted of conspiracy to close of the Government’s case and after both sides
possess, with intent to distribute, five kilograms or rested, he preserved that issue, and our review is,
more of cocaine; possession, with intent to therefore, de novo. He claims: his statement to the
distribute, five kilograms or more of cocaine; and agent was ambiguous and subject to interpretations
making false statements to a government agent. that did not imply physical harm; and the evidence
Following a post-trial hearing, the district court was insufficient for a reasonable jury to find the
denied his motion for a judgment of acquittal and a threat was made with the requisite intent.
new trial. In exiting the courtroom at the
conclusion of that hearing, Polanco threatened a For the following reasons, a reasonable jury could
federal agent, who was involved in prosecuting find Polanco threatened to assault a federal law
Polanco. According to the agent, Polanco said to enforcement officer, “with intent to impede,
him: “This is going to come back to you intimidate, or interfere with [him while he was
motherfuckers. You will see”. engaged] in the performance of official duties, or
with intent to retaliate against [him due to] the
As a result of this conduct, he was convicted by a performance of official duties”.
jury of threatening a federal official, in violation of,
inter alia, 18 U.S.C. § 115(a)(1)(B). Polanco Although Polanco asserts his statement was
asserts: the trial evidence was insufficient to covict ambiguous and subject to interpretations that did

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