Page 27 - TPA Journal November December 2022

not imply physical harm, the record establishes that of the part proposed by Polanco. Arguably, that
the jury: resolved the factual question as to the proposal and lack of objection constitute waiver or
meaning of his statement; rejected an innocent invited error. We need not decide that question
interpretation of it; and found the statement was a because, even if review is instead under the more
threat to commit bodily harm. Our court defers to lenient plain-error standard, the challenge fails.
the jury’s decision. Facts discernable from the Polanco must show a forfeited plain error (clear or
record, including, inter alia, testimony regarding obvious error, rather than one subject to reasonable
the context in which Polanco made his statement dispute) that affected his substantial rights. If he
and the reaction of those who heard or learned makes that showing, we have the discretion to
about it, support that his statement could be correct the reversible plain error, but generally
reasonably inferred to constitute a threat to assault should do so only if it “seriously affect[s] the
the agent. The resolution of any conflicts in the fairness, integrity or public reputation of judicial
evidence is, of course, the sole role of the jury. proceedings”.

Further, there was sufficient circumstantial Polanco has not shown that the court committed
evidence for a reasonable jury to find Polanco plain error in providing the unobjected-to answer to
made the threat with intent to retaliate against the the jury’s question, which focused on whether
agent due to his performance of official duties. Polanco’s remark constituted a “threat to assault”.
The evidence supported that Polanco directed the In answer, the court referred the jury to a sentence
remark to the agent because of his role in in the jury instructions that defined “threat to
prosecuting Polanco for serious drug offenses. assault” as a threat to commit bodily harm. Polanco
does not contend the original instruction was an
Polanco also contends the evidence was insufficient incorrect statement of law or challenge the
to prove he had the subjective intent to threaten the accuracy of the instruction. The court’s answer was
agent. But, our court uses an objective standard in “reasonably responsive” to the jury’s question and
deciding whether a statement is a threat under 18 permitted the jury to understand the issue.
U.S.C. § 115(a)(1)(B) and considers the intent of Moreover, the court’s written response that the jury
the speaker only to evaluate whether the threat was refer to a sentence in the original instructions was
made intentionally or knowingly. To the extent proper.
Polanco challenges our prior decisions or asserts
decisions of other courts should be applied, his AFFIRMED.
challenge fails because our court is bound by our
precedent, absent a change in the law, U.S. v. Polanco, 5 th Cir., No. 20-20585, Feb.
reconsideration by our full court, or an intervening
th
28 , 2022.
Supreme Court decision. He offers no basis for us
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to determine that Elonis v. United States, in which
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the Supreme Court considered whether a different
EVIDENCE – ASSAULT ON PUBLIC SERVANT
statute using the word threat—18 U.S.C. §
875(c)—required that the defendant know of the
After a jury trial, Appellant David Earl Spillman,
threatening nature of the communication, extends
Jr. was convicted of two counts of assault of a
to an offense under § 115(a)(1)(B).
public servant and one count of possession of
methamphetamine. The court of appeals affirmed.
Turning to Polanco’s other issue, his challenge to
the court’s response to a jury question during its We granted Appellant’s petition for discretionary
review to determine whether the evidence is
deliberations, Polanco proposed referring the jury
sufficient to support his assault of a public servant
to part of the jury instructions, and did not object to
convictions. Because the evidence could enable a
the court’s answer to the jury, which was a subpart
Nov.-Dec. 2022 www.texaspoliceassociation.com • (512) 458-3140 23