Affirmed and Opinion filed April 28, 2020.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00689-CR

                    DARYL EDWARD BARNES, Appellant

                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 412th District Court
                           Brazoria County, Texas
                       Trial Court Cause No. 82903-CR


                                     OPINION

      In two issues, appellant Daryl Edward Barnes challenges the legal
sufficiency of the evidence in support of the jury’s finding that he committed
retaliation by threatening to assault a police officer. We affirm.

                                     Background

      An associate pastor and greeter at the Overflow Church in Manvel, Texas
chatted with appellant as he left church one Sunday. It was the day after a white
supremacist drove his car into a group of peaceful protestors at a rally in North
Carolina. The pastor had spoken of the incident during the service, exhorting the
congregation to “focus on being together rather than being divided.” Appellant told
the greeter that the pastor should have stood up for what was right and addressed
the issue directly. The greeter responded that the pastor wanted the congregation
“to walk in love, not hate.” Appellant, becoming “hyper,” said he was going to
confront the pastor directly. The greeter told appellant “it’s not the time for us to
pack emotions,” to which he responded, “oh, I’m packing” and patted a messenger
bag he was carrying. The greeter alerted one of the deacons, who followed
appellant out of the church and watched him get into his car and drive away.

       Church officials called the police and asked for a criminal trespass warning
advising appellant not to return to the church. Officer Binnicker and Deputy
Whatley went to appellant’s apartment to give him the warning.1 After some
discussion about signing the warning, appellant refused to sign. As the officers
were leaving, appellant told Binnicker, “I’ll see you in court,” “I am going to kill
you in court,” and “I’m going to destroy you.”

       Less than an hour later, appellant went to the Manvel Police Station and
spoke to Officer McClain in the lobby. Appellant said he wanted to report
suspicious activity and prostitution by the Pearland Police Department but quickly
launched into a rant about “systems” that the police have “to protect each other.”
He then stated that he had been “waiting for one of y’all to harass me so I can
show what happens when one of y’all harasses me.” He inquired if he could “claim
I fear you” and justifiably shoot McClain “on sight.” He asked McClain if he had
children, a wife, or a girlfriend and the color of her hair. Referring to McClain’s

       1
          At the time, Binnicker’s last name was Shanks, but she had changed her name by the
time of trial. We refer to her in this opinion as Binnicker.

                                             2
girlfriend, he said, “When she runs up on my car, I could just shoot at her . . . if I
fear her.” He also made the following statements, among others:

          • “Mess with me. I can’t wait to get you in court.”

          • “Go back and tell all your little friends in blue that we got something
            for you.”

          • “You’re toast.”
      Appellant then left and returned approximately five minutes later. He spoke
with McClain and Binnicker in the lobby and continued his rant. Binnicker told
appellant she needed to do a pat down for safety. Appellant emptied his pockets
and lifted his shirt, but the officers did not do a pat down. After a few minutes,
Binnicker told appellant he needed to leave. After continuing to rant for a few
more minutes, appellant left again, got into his car, and pulled up in front of the
police station door.

      Appellant then pointed with his right hand “at his eyes and ma[d]e his two
fingers into the shape of a gun[,] pull[ed] his thumb down as if [he were] firing the
firearm[,] and then [showed] a motion of recoiling as if [he were] going to shoot.”
Binnicker testified she saw the hand gesture as a threat because of appellant’s
comments at church earlier that day about packing a firearm, appellant’s statement
at his apartment that he was going to kill Binnicker, and appellant’s later
insinuation that he was going to shoot Binnicker and McClain.

      McClain testified that he was aware appellant had referenced a firearm at the
church and threatened to kill Binnicker when she delivered the criminal trespass
warning and the gesture by appellant was “a third instance where [he was]
referencing a gun.” McClain took the hand gesture to be a threat.

      Appellant was charged with two counts of retaliation against peace officers


                                          3
Binnicker and McClain by threatening to kill Binnicker and by threatening to
assault McClain. The jury acquitted appellant of retaliation by threatening to kill
Binnicker but found appellant guilty of retaliation by threatening to assault
McClain.

                                     Discussion

       In two issues, appellant contends that the evidence is legally insufficient to
support the jury’s finding of retaliation based on his use of a “finger gun” on the
grounds that his gesture was free speech protected by the First Amendment of the
United States Constitution and the State did not present evidence of an imminent
threat of harm. We first turn to appellant’s first argument, concluding it was not
preserved for appellate review, and then discuss the second argument, concluding
the State was not required to present evidence of an imminent threat of harm and
the State presented legally sufficient evidence of retaliation by threat.

       I.     Was appellant required to preserve error on his First Amendment
              challenge?

       Appellant argues his use of a finger gun was protected free speech under the
First Amendment as determined by the Supreme Court of the United States in
Watts v. United States, 394 U.S. 705 (1969). Appellant contends his gesture was
not a “true threat” under Watts and thus his conviction cannot survive
constitutional muster. See id. at 707 (“What is a threat must be distinguished from
what is constitutionally protected speech.”). Appellant did not raise this issue
below but argues it is part of his legal sufficiency challenge and he was not
required to preserve error. The State contends appellant waived this issue by failing
to object in the trial court.

       Although appellant couches his First Amendment argument as part of a legal
sufficiency challenge that does not need to be preserved for appellate review, see

                                           4
Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004), an “as applied”
challenge to the constitutionality of a statute cannot be raised for the first time on
appeal. See Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex. Crim. App. 2008)
(“[W]e should not overturn the well-established requirement that appellant must
preserve an ‘as applied’ constitutional challenge by raising it at trial.”) (citing Tex.
R. App. Proc. 33.1, and Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App.
1995)). Appellant contends that his use of a finger gun constitutes protected First
Amendment speech and, as such, his conviction under the retaliation statute is
unconstitutional. Accordingly, he challenges the constitutionality of the retaliation
statute as applied to him.

      During oral argument, appellant’s counsel asserted that the Watts case stands
for the proposition that he was not required to preserve error. In that case, the
defendant was convicted of knowingly and willingly threatening the President
based on his statement, “If they ever make me carry a rifle the first man I want to
get in my sights is L.B.J.” 394 U.S. at 706. At the close of the government’s case,
the defendant’s trial counsel moved for judgment of acquittal on the basis that
there was no evidence the defendant “made a threat against the life of the
President.” Id. The Court concluded that the statute at issue “which makes criminal
a form of pure speech, must be interpreted with the commands of the First
Amendment clearly in mind. What is a threat must be distinguished from what is
constitutionally protected speech.” Id. at 707. The Court further held that the “kind
of political hyperbole engaged in by” the defendant was not a true threat under the
statute and “[t]aken in context, and regarding the expressly conditional nature of
the statement and the reaction of the listeners, we do not see how it could be
interpreted otherwise.” Id. at 708. Preservation of error was not at issue.

      Here, appellant did not move for a directed verdict or otherwise object on

                                           5
the basis that appellant’s speech was not a true threat under the First Amendment.
Appellant argued only that a video admitted at trial did not substantiate McClain’s
allegation that appellant made the finger gun gesture:

      [T]he officer testified as to the assault that he was talking about and
      that assault was Mr. Barnes pointing two fingers at him, simulating a
      gun and recoil. We’ve watched the video several times. The video
      does not substantiate the officer’s claim. He even admits on the record
      that, no, you can’t see it. He also admits that there is footage that does
      cover that area that he did not have and does not have. So we don’t
      think that a reasonable juror can come to a conclusion beyond a
      reasonable doubt on either [count of retaliation] and we would ask for
      a directed verdict on those areas.
      We conclude appellant’s First Amendment challenge is an “as applied”
challenge to the constitutionality of the retaliation statute. Estes v. State, 546
S.W.3d 691, 698 (Tex. Crim. App. 2018) (“[I]n an as-applied [constitutional]
challenge, the claimant concedes the general constitutionality of the statute, but
asserts that the statute is unconstitutional as applied to his particular facts and
circumstances.”). Because appellant did not raise his challenge in the trial court, he
has forfeited his claim for review. See Burton v. State, 194 S.W.3d 686, 688 (Tex.
App.—Houston [14th Dist.] 2006, no pet.) (“[B]y failing to request that the trial
court find the statute unconstitutional as applied to him, appellant has waived this
argument on appeal.”); see also Golliday v. State, 560 S.W.3d 664, 670 (Tex.
Crim. App. 2018) (“Parties are not permitted to bootstrap a constitutional issue
from the most innocuous trial objection.”); Vasquez v. State, 483 S.W.3d 550, 556
(Tex. Crim. App. 2016) (holding appellant’s objection was “too imprecise” to
preserve error on complaint that his statement was admitted in violation of Fifth
Amendment under Miranda v. Arizona, 384 U.S. 436 (1966)). Cf. Puckett v. State,
801 S.W.2d 188, 193 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d)
(analyzing as applied constitutional challenge to retaliation statute under Watts).

                                          6
      II.    Was the State required to present evidence of an imminent
             threat?
      Appellant also argues the State was required to show that he intentionally or
knowingly threatened McCain with imminent bodily injury and failed to do so. The
State contends it was not required to show the threat of bodily injury was
imminent.

      When reviewing sufficiency of the evidence, we view all the evidence in the
light most favorable to the verdict and determine, based on that evidence and any
reasonable inferences therefrom, whether any rational factfinder could have found
the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d
743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19
(1979)). We do not sit as a thirteenth juror and may not substitute our judgment for
that of the factfinder by reevaluating the weight and credibility of the evidence.
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we defer to
the factfinder to fairly resolve conflicts in testimony, weigh the evidence, and draw
reasonable inferences from basic to ultimate facts. Id. This standard applies equally
to both circumstantial and direct evidence. Id. Each fact need not point directly and
independently to the appellant’s guilt as long as the cumulative effect of all
incriminating facts is sufficient to support the conviction. Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007).

      Under the retaliation statute, “A person commits an offense if the person
intentionally or knowingly harms or threatens to harm another by an unlawful
act . . . in retaliation for or on account of the service or status of another as a . . .
public servant.” Tex. Pen. Code § 36.06(a)(1)(A). Appellant was charged with
“intentionally or knowingly threaten[ing] to harm . . . McClain . . . [by] assault[ing
him] in retaliation for or on account of [McClain’s] service . . . as a public servant,


                                           7
a peace officer.” The jury charge defined “assault” as “intentionally or knowingly
or recklessly caus[ing] bodily injury to another” or “intentionally or knowingly
threaten[ing] another with imminent bodily injury.” See also id. § 22.01(a)(1)-(2).

        There are two types of assault: assault by causing bodily injury and assault
by threatening someone with imminent bodily injury. Id. Assault by causing bodily
injury does not include a threat of imminent harm. Id. § 22.01(a)(1) (defining
assault as “intentionally, knowingly, or recklessly causes bodily injury to
another”). Moreover, we have held that the retaliation statute “does not require that
the threat to harm in retaliation be imminent.” See Coward v. State, 931 S.W.2d
386, 389 (Tex. App.—Houston [14th Dist.] 1996, no pet.) (holding terroristic
threat is not lesser included offense of retaliation because terroristic threat
“requires proof that the person making the threat intended to place the victim in
fear of imminent bodily injury”). So have several sister courts. See, e.g., Wiggins v.
State, 255 S.W.3d 766, 770 (Tex. App.—Texarkana 2008, no pet.) (“The offense
of retaliation does not necessitate the threatened harm be imminent.”); In re D.D.,
101 S.W.3d 695, 697 (Tex. App.—Austin 2003, no pet.) (“Fear of imminent bodily
injury is not an element of retaliation.”); Helleson v. State, 5 S.W.3d 393, 396
(Tex. App.—Fort Worth 1999, pet. ref’d) (same). The State was not required to
show an imminent threat to harm McClain to establish retaliation by threat of
assault—the State needed to show only that appellant intentionally or knowingly
threatened to harm McClain with bodily injury.2 We turn to the evidence presented
at trial.

        Appellant confronted McClain in the lobby of the police station less than an
hour after Binnicker served appellant with the criminal trespass warning. He made
        2
         Appellant argues that the “true-threats principle” articulated in Watts requires the threat
of harm to be imminent under the First Amendment. We do not reach that issue because, as
discussed, it is not preserved for our review.

                                                 8
several threatening statements to McClain, including references to showing
officers “what happens when one of y’all harasses me,” justifiably shooting
McClain “on sight,” shooting McClain’s girlfriend “if I fear her,” and instructing
McClain to “tell [his] friends in blue that we got something for you.” Appellant
also told McClain, “You’re toast.” Appellant then left only to return five minutes
later and continue his rant. After all this, appellant drove his car in front of the
police station door and made the finger gun gesture as if he were “firing [a]
firearm.” Both McClain and Binnicker interpreted the gesture as a threat because
of appellant’s words and actions earlier in the day. The gesture was the third
instance that day in which appellant alluded to the use of a gun.

      We conclude that a rational jury could have found based on the cumulative
effect of all this evidence, not just the use of a finger gun, that appellant committed
retaliation by threatening to assault McClain. We overrule appellant’s issues.

                                     Conclusion

      We affirm the judgment of the trial court.




                                        /s/       Frances Bourliot
                                                  Justice



Panel consists of Chief Justice Frost and Justices Christopher and Bourliot.
Publish — TEX. R. APP. P. 47.2(b).




                                              9
