Background

• Polk waived a jury and pleaded not guilty to aggravated assault on a public servant with a deadly weapon; bench trial followed.
• The trial court found Polk guilty and true to the enhancement paragraph, sentencing him to twenty years’ confinement.
• The offense occurred when Officer Fobbs, an Arlington police officer working as off-duty security at Whataburger, investigated a suspected drug transaction.
• Polk allegedly accelerated the Nissan, striking Fobbs as he attempted to reach the keys, after being ordered to freeze.
• Polk was located and arrested later using the Nissan’s license plate; witnesses described conflicting accounts of Fobbs’ uniform.
• Polk challenged both the legal sufficiency of the law enforcement official-duty element and his knowledge that Fobbs was a peace officer.

Issues

Key Cases Cited

• Jackson v. Virginia, 443 U.S. 307 (U.S. 1989) (standard for legal sufficiency review in criminal cases)
• Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (no meaningful distinction between Jackson and Clewis standards)
• Thompson v. State, 426 S.W.2d 242 (Tex. Crim. App. 1968) (officer acting to stop crime may be on-duty; off-duty status not dispositive)
• Selvage v. State, 680 S.W.2d 17 (Tex. Crim. App. 1984) (officer can assume peace-officer role when responding to crime)
• Hafdahl v. State, 805 S.W.2d 396 (Tex. Crim. App. 1990) (officer is not off-duty once identification is made at scene)
• Brown v. Dillard's, Inc., 289 S.W.3d 340 (Tex. App.—Eastland 2009) (off-duty officers may be on-duty when observing or detaining crime)
• Wood v. State, 486 S.W.2d 771 (Tex. Crim. App. 1972) (officer authority extends beyond nominal duty status)
• Monroe v. State, 465 S.W.2d 757 (Tex. Crim. App. 1971) (on-duty status for police while performing duties)
• Beardsley v. State, 738 S.W.2d 681 (Tex. Crim. App. 1987) (credibility and weight left to fact-finder)