Affirmed and Opinion filed October 30, 1992

In The 

### GJuuri ofAppeals 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 thirtyeight 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.. \

We overrule both points of error and affirm the trial court'sjudgment. FACTUAL BACKGROUND Collin County Deputy Sheriff Allen Barnes testified that he was on routine patrol when henoticed appellant's pick-up truck parked on the side ofthe road. Deputy Barnes 

### recognized appellant from past encounters and called dispatch to see ifthere 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. Appellanthadleftthe scene. Hereturned severalminutes laterin anothercarwith his mother and stepfathercarrying a can ofgasoline. 

### DeputyBarnes told appellantthathe had awarrantforhis arrest. Appellantbecame belligerent, "usingveryloud, veryprofane language." DeputyBarnes testifiedthathe knows 

### appellant has abad temper. Appellantyelled, "It is going to take more than one ofyou 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 tothe call. Appellant became increasingly agitated, pacing back
and forth. Deputies Barnes and Kimbell approached appellant to effectuate the arrest. 

### Suddenly, appellant grabbed atire iron out ofthe stake hole in the side ofhis truck. He drew it back in a threatening manner. Deputy Barnes testified that hebelieved 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 andwas
arrested. 

### Deputy Kimbell testified that he was off-duty when he noticed Deputy Barnes confront appellant on the side ofthe road. He stopped his car and walked toward them. 

### Appellantwas shouting obscenities. Deputy Kimbell said that appellant drew back the tire iron "in a motion to swing it in an attempt to hitmyself or . . . deputy [Barnes]." 

### Deputy Burch testified thatby the time he and DeputyWilson arrived, appellanthad drawn the tire iron. He believed thatappellant was going to use the tire iron to hit one of
the officers. 

### Maggie Weaver, appellant's mother, was atthe scene ofthe incident. She testified that appellanthad run out ofgas and that she and her husband had picked him up. Weaver said that appellant stumbled and accidently knocked the tire iron offthe truck. One ofthe deputies drew his gun when appellant reached down topick up the tire tool. She testified that appellant never raised the tireiron above his head andnever took a swing at anyone. Wayne Weaver, appellant's step-father, testified that the tire iron fell offthetruck. 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

-3-^ charge was dismissed. Hewas subsequently re-indicted for aggravated assault of a peace officer with a deadly weapon. Thejury found appellant guilty. This appeal follows. RETALIATION 

### Inhis first point of error, 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 ofthe State. North Carolina v. Pearce, 395 U.S. 711, 725 (1969). Adefendant may notbe 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); Fisherv. State, 511 S.W.2d 506, 509 (Tex. Crim. App. 1974). 2. Application ofLaw to the Facts 

### Appellant was indicted for resisting arrest in March 1991. The State subsequently filed amotion to dismiss thatindictment. Assistant DistrictAttorney DavidWaddill testified 

### thatthe originalindictmentwas dismissedbecausethe State couldnotprovethe casebeyond a reasonable doubt. The State explained inits briefthat it could not prove that appellant

1Appellantwas convicted ofarson in an unrelatedcase. We reversed this conviction because ofthe trial court'sfailure to submita juryinstructiononaccomplicewitnesstestimony. Binghamv. State, 833S.W.2d538(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 aPeace Officer at alater 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 apeace officer with a deadly weapon on August 20, 1991. 

### Although appellantwas re-indicted on amore serious charge afterhe 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 prosecutorialvindictiveness. We overrule appellant's first point of error. SUFFICIENCY OF THE EVIDENCE 

### In his second point oferror, 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 ofReview Our review ofthe sufficiency ofthe evidence is limited to detenmning whether, 

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

-5-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 andtheweight 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). Thejury may accept orreject 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 himwith adeadly 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 ofhis 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 ofinflicting death or serious bodily injury, or (2) anything that inthe manner ofits use orintended use is capable ofcausing 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 othergrounds, 725 S.W.2d 256 (1987). Ifthe weapon was not

-6-- ^ actually used to cause death or serious bodily injury, however, the State must prove two elements: (1) the weapon must be capable ofcausing 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. Hebelieved that ifappellant did not drop the tire iron, either he orDeputy Kimbell would 

### be seriously injured orkilled. 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 tohit one ofthe officers. Although Maggie Weaver and Wayne Weaver testified that appellant never made any threatening motions towards any of the deputies with the tire iron, thejury 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 bodilyinjury.

-7-We overrule appellant's second point oferror. Thejudgment is affirmed.

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

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