Affirmed and Opinion filed October 30, 1992




                                          In The

                                GJuuri of Appeals
                      JTiftlf liatrlirt of Ofexas at Satins
                                   No. 05-92-00378-CR



                          ANTHONY D. BINGHAM, Appellant

                                            V.


                           THE STATE OF TEXAS, Appellee


                    On Appeal from the 219th Judicial District Court
                                 Collin County, Texas
                          Trial Court Cause No. 219-80869-91



                                    OPINION

                      Before Justices Thomas, Kaplan, and Wiggins
                               Opinion By Justice Kaplan

      A jury convicted Anthony D. Bingham of aggravated assault of a peace officer with

a deadly weapon. Punishment, enhanced by one prior conviction, was assessed at thirty-

eight years' confinement. In two points of error, appellant contends that: (1) he was

denied due process because the State filed a more serious charge against him after he

appealed an unrelated case, and (2) the evidence is insufficient to support the conviction.
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We overrule both points of error and affirm the trial court's judgment.

                                   FACTUAL BACKGROUND

      Collin County Deputy Sheriff Allen Barnes testified that he was on routine patrol

when he noticed appellant's pick-up truck parked on the side ofthe road. Deputy Barnes
recognized appellant from past encounters and called dispatch to see if there were any
outstanding warrants for his arrest. The sheriffs department confirmed that there was an
outstanding arrest warrant. Deputy Barnes returned to the place where the truck was
parked. Appellant had left the scene. He returned several minutes later in another car with
his mother and stepfather carrying a can of gasoline.

       Deputy Barnes told appellant that he had awarrant for his arrest. Appellant became
belligerent, "using very loud, very profane language." Deputy Barnes testified that he knows
appellant has a bad temper. Appellant yelled, "It is going to take more than one of you to
take me to jail, m     f       . Shoot me, m         f   , shoot me, God d   it." Appellant
walked toward the back of his truck. Deputy Barnes sensed that a physical confrontation

was about to ensue. He called for assistance. Deputies Terry Kimbell, Robert Burch, and

Danny Wilson responded to the call. Appellant became increasingly agitated, pacing back

and forth.


       Deputies Barnes and Kimbell approached appellant to effectuate the arrest.

Suddenly, appellant grabbed a tire iron out of the stake hole in the side of his truck. He
drew it back in a threatening manner. Deputy Barnes testified that he believed either he



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or Deputy Kimbell would be seriously injured or killed if appellant did not drop the tire

iron. Deputy Barnes drew his service weapon. Appellant dropped the tire iron and was

arrested.


       Deputy Kimbell testified that he was off-duty when he noticed Deputy Barnes
confront appellant on the side of the road. He stopped his car and walked toward them.
Appellant was shouting obscenities. Deputy Kimbell said that appellant drew back the tire
iron "in a motion to swing it in an attempt to hit myself or . . . deputy [Barnes]."
       Deputy Burch testified that by the time he and Deputy Wilson arrived, appellant had
drawn the tire iron. He believed that appellant was going to use the tire iron to hit one of

the officers.


       Maggie Weaver, appellant's mother, was at the scene ofthe incident. She testified
that appellant had run out ofgas and that she and her husband had picked him up. Weaver
said that appellant stumbled and accidently knocked the tire iron off the truck. One of the

deputies drew his gun when appellant reached down to pick up the tire tool. She testified
that appellant never raised the tire iron above his head and never took a swing at anyone.

       Wayne Weaver, appellant's step-father, testified that the tire iron fell offthe truck.

A scuffle ensued when he reached downto pick it up. Weaver testified that appellant never

raised the tire iron above his head, never swung it at anyone, and never made any

threatening motions toward any of the deputies.

        Appellant was originally charged with resisting arrest with a deadly weapon. This



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charge was dismissed. He was subsequently re-indicted for aggravated assault of a peace
officer with a deadly weapon. The jury found appellant guilty. This appeal follows.

                                                   RETALIATION


         Inhis first point oferror, appellant contends that he was denied due process because
the State filed a more serious charge against him after he appealed an arson conviction1.
Appellant claims that this action constitutes retaliation or prosecutorial vindictiveness.
                                                 1. Applicable Law

         The due process clause of the United States Constitution prohibits retaliation or
vindictiveness on the part of the State. North Carolina v. Pearce, 395 U.S. 711, 725 (1969).
Adefendant may not be penalized for exercising his constitutional right to appeal. Thigpen
v. Roberts, 468 U.S. 27, 30-31 (1984); Blackledge v. Perry, 417 U.S. 21, 27-28 (1974);
McFadden v. State, 544 S.W.2d 159,162 (Tex. Crim. App. 1976); Fisher v. State, 511 S.W.2d

506, 509 (Tex. Crim. App. 1974).

                                        2. Application of Law to the Facts

          Appellant was indicted for resisting arrest in March 1991. The State subsequently
filed a motion to dismiss that indictment. Assistant District Attorney David Waddill testified

that the original indictment was dismissed because the State could not prove the case beyond
a reasonable doubt. The State explained in its brief that it could not prove that appellant



    1Appellant was convicted of arson in an unrelated case. We reversed this conviction because of the trial court's failure to
 submit ajury instruction on accomplice witness testimony. Bingham v. State, 833 S.W.2d 538 (Tex. App.-Dallas1992, pet. filed).



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resisted arrest as defined in section 38.03 of the Penal Code because there was no actual

force used against an officer. The motion to dismiss stated the case would be "re-indicted
as Aggravated Assault on a Peace Officer at a later date." The indictment for resisting
arrest was dismissed on May 8, 1991. Appellant did not appeal the arson case until July 5,
1991. Appellant was re-indicted for aggravated assault of a peace officer with a deadly
weapon on August 20, 1991.
       Although appellant was re-indicted on amore serious charge after he gave notice of
appeal, we cannot conclude that he was penalized for exercising his constitutional rights.
One month before appellant appealed his arson conviction, the State indicated that the
aggravated assault case would be filed. The record does not support appellant's claim of
retaliation or prosecutorial vindictiveness.

       We overrule appellant's first point of error.

                           SUFFICIENCY OF THE EVIDENCE

       In his second point of error, appellant contends that the evidence is insufficient to
 establish that the tire iron was used as a weapon or in a manner indicating an intent to

 cause death or serious bodily injury.

                                    1. Standard of Review


        Our review of the sufficiency of the evidence is limited to detenmning whether,

 viewing the evidence in the light most favorable to the prosecution, the trier of fact could
 have found the essential elements of the crime beyond a reasonable doubt. Jackson v.



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Virginia, 433 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex Crim. App.),

cert, denied, 112 S.Ct. 202 (1991). The jury is the exclusive judge of the credibility of the

witnesses and the weight to be given their testimony. Bonham v. State, 680 S.W.2d 815, 819

(Tex. Crim. App. 1984), cert, denied, 474 U.S. 865 (1985). The jury may accept or reject

any portion of a witness' testimony. Id.

                                    2. Applicable Law

       Appellant was charged with aggravated assault of a peace officer with a deadly
weapon. As applied to this case, the elements of the offense are: (1) that appellant
intentionally or knowingly threatened Deputy Barnes with imminent bodily injury, (2) by
threatening him with a deadly weapon, (3) when appellant knew orhad been informed that
Deputy Barnes was a peace officer, and (4) that Deputy Barnes was then acting in the
lawful discharge of his official duty. Tex. Penal Code Ann. § 22.01(a)(2) (Vernon 1989);
Tex. Penal Code Ann. § 22.02(a)(2)(A) (Vernon Supp. 1992).

       The Penal Code defines "deadly weapon" as (1) a firearm or anything manifestly

designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or

(2) anything that in the manner of its use or intended use is capable of causing death or
injury. Tex. Penal Code Ann. § 1.07(a)(ll) (Vernon 1974). An instrument may be a
deadly weapon though no wounds were inflicted. Dominique v. State, 598 S.W.2d 285, 286
(Tex. Crim. App. [Panel Op.] 1980); Garza v. State, 695 S.W.2d 726, 728 (Tex.
App.-Dallas 1985), affd on other grounds, 725 S.W.2d 256 (1987). Ifthe weapon was not



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actually used to cause death or serious bodily injury, however, the State must prove two

elements: (1) the weapon must be capable of causing the requisite harm, and (2) there

must be evidence that the weapon was displayed or used in a manner indicating an intent

to cause death or serious bodily injury. Orosco v. State, 590 S.W.2d 121, 124 (Tex. Crim.

App. [Panel Op.] 1979); Garza, 695 S.W.2d at 728.

                             3. Application of Law to the Facts

       Deputy Barnes testified that appellant drew the tire back in a threatening manner.
He believed that if appellant did not drop the tire iron, either he or Deputy Kimbell would

be seriously injured or killed. Deputy Kimbell testified that appellant drew back the tire
iron "in a motion to swing it in an attempt to hit myself or the deputy." Deputy Burch

believed that appellant was going to use the tire iron to hit one of the officers. Although
Maggie Weaver and Wayne Weaver testified that appellant never made any threatening
motions towards any of the deputies with the tire iron, the jury was free to reject their

testimony. The evidence is sufficient to establish that appellant used or displayed the tire

iron in a manner indicating an intent to cause death or serious bodily injury.




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      We overrule appellant's second point of error. The judgment is affirmed.




                                                           G^vxy.



Do Not Pubhsh
Tex. R. App. P. 90
920378F.U05




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