            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                    NO. PD–0314–18



                             JEREMY CUEVAS, Appellant

                                             v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE THIRTEENTH COURT OF APPEALS
                              BEE COUNTY

              K EEL, J., delivered the unanimous opinion of the Court.

                                      OPINION

       The court of appeals reversed Appellant’s conviction for assault on a peace officer.

Cuevas v. State, No. 13-16-00220-CR, 2018 WL 1193029 at *4 (Tex. App.—Corpus

Christi–Edinburg March 8, 2018) (mem. op., not designated for publication). It held that

the evidence was insufficient to show that the complainant was discharging an official

duty when he was assaulted. Id. We granted the State’s petition for discretionary review

to decide whether a peace officer working as private security is discharging an official
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duty when he is acting under Texas Alcoholic Beverage Code Section 101.07.1 We hold

that the evidence was legally sufficient to show that the complainant was discharging an

official duty when Appellant assaulted him. We reverse the judgment of the court of

appeals and affirm the judgment of the trial court.

        Evidence is legally sufficient to support a conviction if, “viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Johnson v. State, 364

S.W.3d 292, 293-94 (Tex. Crim. App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307,

319 (1979)) (emphasis in Jackson). Assault of a public servant requires proof of

misdemeanor assault and that (1) the complainant was a public servant; (2) the actor knew

that the complainant was a public servant; (3) the complainant was discharging an official

duty when he was assaulted; and (4) the official duty was being discharged lawfully. Hall

v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005) (citing T EX. P ENAL C ODE §

22.01(b)(1)). The only issue here is whether the complainant was discharging an official

duty.

        The evidence showed that the complainant, a Bee County constable, was

moonlighting in his constable uniform as a security guard for a wedding reception at The

Grand, a licensed liquor establishment. The complainant’s twin brother, Clinton Bagwell

(“Clinton”), a part-time employee of The Grand, was working at the same event. The

        1
       Throughout the remainder of this opinion unless otherwise noted “Section” refers to the
Texas Alcoholic Beverage Code.
                                                                             Cuevas–Page 3

complainant and Clinton were tasked with ensuring that customers followed The Grand’s

rules. One of those rules prohibited customers from taking alcohol outside the premises;

that rule was necessary in order to protect The Grand’s beer and liquor licenses.

       Appellant, a member of the wedding party, kept breaking the rule, and Clinton

kept telling him not to. The third time Appellant broke the rule, Clinton summoned the

complainant and together they followed Appellant outside and told him that he could not

re-enter The Grand. Appellant, however, tried to push past them, jumped on the

complainant, and knocked him down. The complainant testified that at the time of the

assault he was “trying to keep the peace and keep the rules of the establishment intact”

and that he was enforcing the law by preventing Appellant from re-entering The Grand.

       The court of appeals held that the evidence was legally insufficient to show that

the complainant was discharging an official duty. Cuevas, 2018 WL 1193029 at *4. The

court reasoned that “the evidence establishes only that Bagwell confronted appellant at

the request of a Grand employee and that he was denying appellant re-entry in his

capacity as a Grand security guard.” Id. at *3. It emphasized that the complainant was

enforcing a “house rule” against Appellant and not trying to arrest him. Id. Although the

court of appeals acknowledged Section 28.10(b) as the statutory basis for the house rule,

it discounted it because Appellant would not have been criminally liable for violating it.

Id. at *3 n.4.

       The State points out that Section 101.07 requires peace officers to enforce the
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provisions of the Texas Alcoholic Beverage Code. One of those provisions prohibits

mixed beverage permit holders from allowing customers to take drinks off premises.

T EX. A LCO. B EV. C ODE § 28.10(b). The State concludes that a peace officer working

private security who enforces Section 28.10(b) is lawfully discharging an official duty.

We agree.

       By enforcing Section 28.10(b) as required by Section 101.07, the complainant was

discharging an official duty. It is immaterial that he was also enforcing a house rule, that

he was not trying to arrest Appellant, and that Appellant was not subject to prosecution

for violating Section 28.10(b) or any other law. A peace officer may discharge an official

duty even if it is also a private duty, and a person may be liable for assault on a public

servant even if he is not subject to arrest for some other crime when he commits the

assault. See T EX. P ENAL C ODE § 22.01(b)(1).

       Appellant maintains that the complainant was not discharging an official duty

because he “never took law enforcement action” and chose not to enforce Section

28.10(b) but instead had the bride’s father intervene with Appellant about following the

house rule. The testimony he cites, however, relates to Clinton rather than the

complainant.

       The evidence showed that the complainant was enforcing Section 28.10(b) when

Appellant jumped on him. Texas peace officers are bound by statute to enforce the

provisions of the Alcoholic Beverage Code. T EX. A LCO. B EV. § 101.07 (“All peace
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officers in the state, including those of cities, counties, and state, shall enforce the

provisions of this code and cooperate with and assist the commission in detecting

violations and apprehending offenders.”). The evidence was therefore sufficient to show

that the complainant was discharging an official duty when Appellant assaulted him.

        We reverse the judgment of the court of appeals and affirm the judgment of the

trial court.




Delivered: June 26, 2019

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