Affirmed and Opinion filed April 28 , 20 20

.

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 N o. 82 903

- 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

A n associat e pas tor and gre e ter at the Overflow Church in Manvel, Texas chatted with appellant as he left church one Sun day. It was the day after a white2

supremacist drove his car into a group of peaceful protestors at a rally in North
Carolina. The pastor had spoken of t he 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 respond ed th at 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 packi ng” 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 war ning 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, a ppellant refused to sign

. As the officers were leaving, appe llant 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 re port 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 “w aiting for one of y’all to harass me so I can
show what happens when one of y’all harasses me

. ” He inquire d if he could “claim I fear you” and just ifiably 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, Binnicke r’s last name was Shanks, b ut she had changed her name by the time of trial. We refer to her in this opinion as Binnicker.3

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 somethi ng f o r 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 pock e ts 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, a ppellant left again , got into his car, and pulled up in front of the

p olic e 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 t o sh o ot.”
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
insinua tion 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 t h ird 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 officers4

Binnicker and McClain by threatening to kill Binnicker and by threatening to

assa ult M cClain. 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
supp ort 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 immine nt 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 Stat e presented legal ly 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 S upreme Court of t he 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 can not survive
constitutional muster. See id . at 70 7 (“ What is a threat must b e distinguish ed from

w hat 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, see5

Moff v. State , 131 S.W.3d 485, 488 (Tex. Crim. App. 200 4) , an “as appl ied”
chal lenge 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 appella nt must
preserv e 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 spee ch 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 wa nt to get in my sig hts 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 th at 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 poli tical 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 lis teners, we do not s ee 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 on6

the basis that appellant’s speech was not a true threat under the F irst Am endment. App ellant 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 pointin g two finger s 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

co ver tha t 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 appellan t’s Fir st 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 co nstitutionality of the statute, but asserts that the statute is unconstitutional as applied to h is 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 (Te x. 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 imprecis e” to

preserve erro r on complain t 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 appl ied constitutional challenge to retaliation statute under Watts ).7

II. Was the State r equired to p resent e vidence of an i mminent t hreat? Appellant also argues the State was required to show that he intentionally or knowingly threatened McCain with imminent bodi ly injury and faile d 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 a ny

reas onable 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. 3 07, 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. Cri m. 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 . E ach fact need not point di rectly 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 commit s an offense if the pers on 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 wa s charged with “intentio nally 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,8

a peace officer.” The jury charge define d “assault” as “intentiona lly or knowingly
or reck lessly 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)

.
T h ere are two typ es of assault : assault by causing bodily injury and as sault by threatening someon e with imminent bodily injury. Id

. Assault by causing bodily injury does not include a threat of imminent harm

. I d . § 22.01(a)(1) (de fining assault as “ intentionally, knowingly, or recklessly causes bodily injury to
another ” )

. Moreover, w e have hel d that t he retaliation sta tute “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 reta liation because terroristi c 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

o f 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.

— Fo rt Worth 1999, pet. ref ’ d) (same)

. T he 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 knowingl y threatened to h arm McCla in 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 th e First Amendment. We do not reach that issue because, as discussed, it is not preserved for our review.9

sev eral threatening statement s 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
McCl ain to “ tell [his] friends in blue tha t we got something for you. ” Appellant also told McClain, “You’re toast.” A ppellant 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 g un gestu re 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.

Conclus ion

We a ffirm the judgment of the t rial court.

/s/ Frances Bourliot Justice

Panel consists of Chief Justice Frost and Justices Christopher and Bourliot.
Publish

— T EX

. R. A PP

. P. 47.2( b).