PITTS MARSHALL v. STATE (2025)

OPINION

In this appeal from a judgment of conviction for aggravated assault of a public servant, the question is whether an ICE agent was a public servant for purposes of Texas law. Our answer is yes.

BACKGROUND

The key facts in this case are not in dispute, as the episode was largely captured on surveillance footage.

Appellant drove into a parking lot that serviced a nondescript office building, with the apparent intention of breaking into a vehicle. Unbeknownst to him, the office building housed a joint task force of state and federal law enforcement officers.

In part because his vehicle was so unfamiliar, appellant drew the attention of two federal officers who were peering down into the parking lot from their window in the adjacent office building. Those officers were Luis Serrano, a special agent with Immigration, Customs, and Enforcement; and Jose Dugger, a supervisor at Homeland Security Investigations, which is a special division within ICE.

When appellant brought his vehicle to rest, a passenger exited and began to peer into the driver's side door of an unoccupied truck. The federal officers, who knew the true owner of that truck, suspected that criminal activity was afoot, and so they ran from their office into the parking lot to confront appellant and his passenger.

Serrano approached appellant's vehicle from the front, while Dugger approached from the rear. As they got nearer, they heard glass shattering. That noise came from the passenger, who had just punched out the driver's side window of the unoccupied truck. The federal officers pulled out their service weapons and announced that they were police, though they were not dressed in uniforms.

In an attempt to flee, the passenger returned to appellant's vehicle, but he did not shut the door. When Dugger tried to apprehend the passenger, appellant shifted the vehicle into reverse, ran over Dugger's foot, and nearly pinned Dugger against the truck. At that moment, Serrano fired two shots into appellant's front windshield, neither of which hit any person. Appellant then immediately brought his vehicle to a complete stop and surrendered to the federal officers.

Appellant was charged with the state crime of aggravated assault on a public servant, with Dugger alleged as the public servant. Appellant pleaded not guilty to that charge, but a jury found otherwise. He now brings this appeal, arguing that Dugger, as a federal ICE agent, cannot be a public servant under Texas law, and therefore, that the evidence is legally insufficient to support the aggravating element of the offense.

JUDICIAL ESTOPPEL

As a threshold matter, we must first resolve the prosecution's argument that appellant is estopped from bringing his sufficiency challenge. The prosecution bases this argument on three points, which we address in turn.

In the first point, the prosecution refers to a passage from voir dire, in which the prosecution told the venire panel that a “public servant is a person employed or otherwise designated as an officer, employee, or agent of the government.” The prosecution suggests that appellant is estopped from bringing a sufficiency challenge because defense counsel never objected to this statement, which properly tracked the statutory definition of a public servant. See Tex. Penal Code § 1.07(a)(41). The prosecution cites to no authority for such a remarkable proposition, and we reject any suggestion that counsel's failure to object to a proper statement resulted in estoppel.

In the second point, the prosecution refers to Dugger's trial testimony, in which he asserted that he was a public servant. The prosecution suggests again that appellant is estopped because defense counsel did not object to this testimony. But once more, the prosecution cites to no authority that counsel's omission can amount to affirmative estoppel. We reject any such argument, especially when the testimony at issue concerns a question of law.

And in the third point, the prosecution refers to the closing statements of defense counsel, who, in his zealous advocacy, attempted to persuade the jury that appellant did not knowingly assault a public servant:

And then there is the plainclothes issues. Both Dugger and Serrano admitted that they were in plainclothes. So now, yes, after the fact ․ we know that they were public servants, agents at the time; but, to my client, they looked like men running up to them with guns and wrestling them.

The prosecution contends that appellant is estopped because defense counsel admitted in these remarks that Dugger was a public servant. The only binding authority cited by the prosecution in support of this argument is Bryant v. State, 187 S.W.3d 397 (Tex. Crim. App. 2005), but that case examined the effect of a written stipulation, which is “a kind of judicial admission.” Id. at 400. Bryant is inapposite because defense counsel in this case made a jury argument, not a stipulation. And because jury arguments are not evidence, “they are of no consequence in a sufficiency analysis.” See Cary v. State, 507 S.W.3d 750, 755 (Tex. Crim. App. 2016).

We therefore reject the prosecution's argument that appellant is estopped from bringing his sufficiency challenge.

SUFFICIENCY OF THE EVIDENCE

Appellant's sufficiency challenge turns on the meaning of the statute under which he was prosecuted. In such challenges, the question is whether the proven conduct actually constitutes an offense. See Walker v. State, 594 S.W.3d 330, 336 (Tex. Crim. App. 2020). We determine such questions by engaging in a matter of statutory interpretation, for which our review is de novo. Id.

The statute under which appellant was prosecuted is Section 22.02 of the Texas Penal Code, which has two pertinent subsections. Subsection (a) defines the offense for aggravated assault. It provides that a person commits that offense if he commits a regular assault, plus he either causes serious bodily injury, or he uses or exhibits a deadly weapon during the commission of the assault. Subsection (b) then provides that an aggravated assault is a felony of the second degree, unless the prosecution proves an additional aggravating element, which elevates the offense to a felony of the first degree. One such aggravating element is that the offense was committed “against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty.” See Tex. Penal Code § 22.02(b)(2)(B); see also Calton v. State, 176 S.W.3d 231, 235 (Tex. Crim. App. 2005) (explaining that the public servant element is an aggravating element of the offense, rather than a punishment enhancement).

When interpreting this statute, our default rule is that we must construe all words and phrases in context and according to their common usage. See Tex. Gov't Code § 311.011(a). But to the extent that any words and phrases have acquired a technical or particular meaning, whether by legislative definition or otherwise, we must construe them accordingly. See Tex. Gov't Code § 311.011(b); see also Tex. Penal Code § 1.05(b) (providing that the Code Construction Act applies to penal statutes, unless a different construction is required by the context).

Here, “public servant” has a legislative definition. In pertinent part, it means “a person elected, selected, appointed, employed, or otherwise designated as ․ an officer, employee, or agent of government.” See Tex. Penal Code § 1.07(a)(41)(A).

The focus of this case is on that final phrase of seven words. Did Dugger, as a federal ICE agent, qualify as “an officer, employee, or agent of government”? Our analysis begins by examining the word at the very end.

A. “Government”

The Penal Code defines “government” in three subsections as:

(A) the state;

(B) a county, municipality, or political subdivision of the state; or

(C) any branch or agency of the state, a county, municipality, or political subdivision.

Tex. Penal Code § 1.07(a)(24).

Though all three of these subsections reference “the state,” that phrase has no legislative definition of its own. In the absence of such a definition, the parties have offered their own competing interpretations. Appellant contends that the phrase means only the State of Texas, whereas the prosecution contends that the phrase is broad enough to encompass the Federal Government.

The prosecution defends its argument with two separate authorities, the first being Rice v. State, 195 S.W.3d 876 (Tex. App.—Dallas 2006, pet. ref'd). That case involved a prosecution for impersonating a public servant, but the question there was not whether “the state” includes the Federal Government. Id. at 879. Instead, the question was whether “the state” could include other states in the union. Id. at 881. The court of appeals answered that question in the affirmative. The court's rationale was two-pronged: first, “state” has a dictionary definition of “a body politic organized for civil rule and government,” which can describe other states; and second, public policy dictates that no one should be placed at risk of submitting to the pretended authority of an individual impersonating an agent of a governmental unit, regardless of whether that unit is this state or any other state. Id.

The prosecution in our case does not rely on the public policy rationale advanced in Rice, but it does refer to the dictionary definition of “state,” which the prosecution suggests could describe the Federal Government as well.

For its second authority, the prosecution refers to an earlier decision from our own court, Calhoun v. State, No. 14-09-00936-CR, 2011 WL 398077 (Tex. App.—Houston [14th Dist.] Feb. 8, 2011, no pet.) (mem. op., not designated for publication). That case also involved a prosecution for impersonating a public servant, but unlike in Rice, the defendant was alleged to have impersonated a federal agent from the FBI. Id. at *1. There was a variance between that allegation and the evidence established at trial, but this court, relying on an expansive application of Rice, nonetheless concluded that “the state” included the Federal Government. Id. at *4–5 (“Similar reasoning would allow the definition of ‘state’ to include the federal government.”).

We are not bound by Rice, as it is not a decision from this court or a higher court. Nor are we bound by Calhoun because it is unpublished and lacks precedential value. See Tex. R. App. P. 47.7(a).

We are not persuaded by Calhoun either because its holding cannot be reconciled with Montgomery v. State, 571 S.W.2d 18 (Tex. Crim. App. 1978). The issue in that case concerned an enhancement allegation that the defendant had previously been convicted of the federal offense for making a false written statement to a firearms dealer. Id. at 19. Under a rule that had been applicable at that time, the defendant's prior federal conviction could only be used for enhancement purposes if the offense of conviction was also a felony under Texas law. Id. The prosecution argued that the federal conviction satisfied this rule because the defendant's conduct described the Texas offense for tampering with a governmental record, but the Court of Criminal Appeals disagreed. Id. It held that the defendant could not have been prosecuted in Texas for making a false entry in a record of the Federal Government because “the definition of ‘government,’ as set forth in [the prior version of Section 1.07(a)(24)], does not include the federal government, but only the state, counties, municipalities, or political subdivision of the state.” Id. at 20.¹

The Court did not perform any sort of statutory analysis before making this holding, but the holding is still consistent with our established canons of statutory construction. Foremost among these canons are the presumptions that every word in the statute was chosen for a discrete purpose, and that the Legislature intended for the entire statutory scheme to be effective. See Herron v. State, 625 S.W.3d 144, 153 (Tex. Crim. App. 2021).

When those presumptions are applied to the definition of “government,” we can infer that the Legislature contemplated the existence of “a county ․ of the state.” See Tex. Penal Code § 1.07(a)(24)(B). This definition would make little sense if “the state” included the Federal Government because the Federal Government is not comprised of any counties. Thus, to give effect to the word “county,” we must accordingly construe “the state” to exclude the Federal Government.

Similarly, when we examine the statutory scheme as a whole, we can also discern that the Legislature intended for “the state” to be separate from the Federal Government. That intent is expressed most obviously in the legislative definition of “law”—which appears in the same definition section as “government,” just several subsections beneath it. In pertinent part, the Legislature defined “law” to mean “the constitution or a statute of this state or of the United States.” See Tex. Penal Code § 1.07(a)(30).² If “state” included “the United States,” then the second prepositional phrase in this definition would be superfluous. This superfluity is avoided if “state” is properly construed as excluding the Federal Government.³ Indeed, the natural understanding of this word, when read in context, is that “state” simply means the State of Texas, as appellant has argued. Cf. State v. Heath, 696 S.W.3d 677, 694 (Tex. Crim. App. 2024) (“Article 39.14's use of the word ‘state’ means exactly what one would think it means—the ‘State of Texas.’ ”).

When this court issued its opinion in Calhoun, it did not cite to Montgomery or otherwise try to suggest that Montgomery was no longer good law—quite possibly because the parties in Calhoun had not raised Montgomery at all in their briefing. Also, by the time that Calhoun submitted, the Court of Criminal Appeals had long since overruled Montgomery in Ex parte Blume, 618 S.W.2d 373 (Tex. Crim. App. 1981), although that overruling addressed only the part of Montgomery concerning the enhancement rule about prior federal convictions. Id. at 376 (“Insofar as Montgomery and Smith turn on the application of this rule, they are overruled.”). By our reading, Blume did not purport to disturb the other holding in Montgomery, which excluded the Federal Government from the meaning of “the state.” That ruling still remains good law, and as a lower appellate court, we are bound to follow it under the principle of stare decisis. See Dean v. State, 449 S.W.3d 267, 269 (Tex. App.—Tyler 2014, no pet.) (continuing to follow the holding from Montgomery that “the state” excludes the Federal Government).

B. “Officer, Employee, or Agent”

Having determined that “the state” means only the State of Texas, and that “government” likewise excludes the Federal Government, the question remains whether Dugger, as a federal ICE agent, may still qualify as “an officer, employee, or agent” of the State of Texas.

No one contends that Dugger is an “employee” of the State, nor is there any evidence that would support such a finding. That just leaves the two other categories of public servants: officers and agents.

The prosecution argues that Dugger may be considered an “officer” of Texas because Dugger was “working in a multi-agency task force on behalf of the State of Texas.” This argument is unpersuasive for two reasons.

First, as an evidentiary matter, Dugger did not testify that he worked “on behalf of” the State of Texas. Rather, he testified that he supervised a team “consisting of special agents and state and local law enforcement.”

Second, as a legal matter, there is no textual basis in the statutory definition of public servant for a person who merely “supervises” an officer of government. And we, as a court, cannot supply that text under the guise of statutory construction. See State ex rel. Vance v. Hatten, 600 S.W.2d 828, 831 (Tex. Crim. App. 1980) (“The courts may not, under the guise of construction, amend a statute by adding provisions thereto, no matter how desirable such additions might seem to be.”).

But what about “agent”? Though not defined in the Penal Code, its ordinary meaning is well understood. Black's Law Dictionary defines an agent as “someone who is authorized to act for or in place of another.” In their original briefing, the parties never considered whether this ordinary meaning could apply to Dugger. We requested supplemental briefing on that question because we were independently aware that the Legislature had already bestowed ICE officers—and many other federal officers—with the traditional state authority to make arrests, searches, and seizures for state felony offenses. See Tex. Code Crim. Proc. art. 2A.002(a)(3) (providing that such officers “have the powers of arrest, search, and seizure under the laws of this state as to felony offenses only”).⁴

Appellant responds that “agent” has a more technical meaning. He refers exclusively to a number of civil authorities, all of which recognize that an agency relationship cannot exist unless the agent is subject to the control of a principal. E.g., Walker Ins. Servs. v. Bottle Rock Power Co., 108 S.W.3d 538, 549 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“An agent is one who consents to the control of another, the principal, who has manifested consent that the agent shall so act.”). He then argues that an agency relationship is lacking here because Article 2A.002 does not purport to control ICE, and relatedly, ICE has never consented to any sort of control by the State.

We would agree that, if there were evidence of state control over ICE, then such control would be a strong indication of an agency relationship. Cf. Edwards v. State, 97 S.W.3d 279, 289–90 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd) (holding that the defendant was an employee of the Harris County Jail because he was subject to the Jail's control). But we do not believe that such control is necessary. The Court of Criminal Appeals has previously described an agency relationship without making any reference to an element of control. See Wilkerson v. State, 173 S.W.3d 521, 529 (Tex. Crim. App. 2005) (“The term ‘agency’ denotes a consensual relationship which exists between two persons or parties where one of them is acting for or on behalf of the other.”). The Court has also recognized that an agency relationship can arise merely from the existence of a joint venture arrangement. See Alvarado v. State, 853 S.W.2d 17, 24 (Tex. Crim. App. 1993).

Appellant responds that this construction will lead to absurd results. He explains that if Dugger is treated as a public servant here, based solely on the authorization given to him under Article 2A.002, then so must an ordinary individual effectuating a citizen's arrest, for which there is also a statutory authorization. See Tex. Code Crim. Proc. art. 14.01(a) (“A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.”). He also refers to other sorts of authorizations—like driving, hunting, and fishing licenses—and argues that such recipients would also need to be treated as agents of the State.

But there are significant differences between these various authorizations. Article 2A.002 authorizes ICE officers to exercise the state police powers of arrest, search, and seizure—not just the power of arrest as in Article 14.01. Also, Article 2A.002 confers this authority on ICE officers who have necessarily completed law enforcement training, which is not true of those performing a citizen's arrest under Article 14.01, or of any other individual obtaining a driving or recreational license. See 8 C.F.R. § 287.5 (discussing the powers afforded to ICE agents after they have completed law enforcement training). We reject the argument that ordinary citizens are transformed into agents of the State by such qualitatively different sorts of authorizations. See Wilkerson, 173 S.W.3d at 528–29 (holding that a statute that required ordinary citizens to report child abuse did not transform any person who suspected child abuse into a law enforcement agent).

Appellant argues that, even if an ICE officer could be regarded as an agent of the State under Article 2A.002, the facts of this case would not permit such a finding because Article 2A.002 only authorizes an arrest for state felony offenses, and the greatest offense for which Dugger could have made an arrest was burglary of a motor vehicle, which is only a misdemeanor. See Tex. Penal Code § 30.04. We disagree. At the time of the arrest, appellant had already used his vehicle—a deadly weapon—in the commission of an assault, thereby completing an aggravated assault, which is a felony offense. See Tex. Penal Code § 22.02.

Appellant argues on similar lines that, even if an ICE officer could be acting as an agent of the State, there is no evidence that Dugger had been acting under state authority. We disagree again, because Dugger specifically testified that he announced himself as police when he approached appellant and his passenger.

For all of the foregoing reasons, we conclude that Dugger was an agent of the State when he effectuated an arrest under the statutory authority conferred to him by Article 2A.002. We likewise conclude that the evidence is legally sufficient to support appellant's conviction for aggravated assault of a public servant.

CONCLUSION

The trial court's judgment is affirmed.

FOOTNOTES

1.   The prior definition of “government” was organized under Section 1.07(a)(15) of the Texas Penal Code. See Act effective Jan. 1, 1974, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 884, 887. Other than the purely stylistic addition of subsections and line breaks, the text of that legislative definition has remained unchanged.

2.   The prior definition of “law” was organized under Section 1.07(a)(20) of the Texas Penal Code. See Act effective Jan. 1, 1974, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 884, 888.

3.   Outside this particular statute, there are many additional examples where the Legislature simultaneously referred to both the state and the United States within the same provision, which demonstrates that the Legislature intended for such terms to serve separate and discrete purposes. See, e.g., Tex. Penal Code § 8.06(b) (defining a “law enforcement agent” for purposes of the entrapment defense as including the “personnel of the state and local law enforcement agencies as well as of the United States”); Tex. Penal Code § 32.54(a)(1) (defining a “military record” as a record obtained through “service in the armed forces of the United States or the state military forces”); Tex. Gov't Code § 432.165 (providing that a person may be court-martialed for knowingly making a false claim “against the United States, the state, or an officer of the United States or the state”).

4.   This authority dates back nearly fifty years, but in that span of time, it has not always been organized under the same statutory provision. See Act effective Aug. 29, 1977, 65th Leg., R.S., ch. 396, § 2, 1977 Tex. Gen. Laws 1082, 1082. Article 2A.002 is the most recent codification.

Tracy Christopher, Chief Justice