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 
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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.
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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 
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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 
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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 
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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).
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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, 
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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.
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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).