'Shooting the bird' may be rude, but it's not a crime Texas appeals court orders that Robert Lee Coggin be acquitted of disorderly conduct charges. 10.15.03 Gerald Russell photos May 4, 2011 9:05 AM Whether appellant made the gesture was in question. John Pastrano testified that appellant "shot me the bird" with his right hand when passing Pastrano's vehicle. Robin Pastrano testified similarly: "I looked, because I was curious to see who it was, and I saw him flipping us off." Both positively identified appellant in the courtroom as the man who made the gesture. Appellant denied making the gesture, although he testified that he has "given the bird to people on many occasions." Viewing the evidence in Gerald Russell photos May 4, 2011 9:05 AM "given the bird to people on many occasions." Viewing the evidence in the light most favorable to the judgment, the evidence was legally sufficient to establish that appellant made the gesture. Gerald Russell photos May 4, 2011 9:06 AM Thus, we are left with the question of whether appellant's gesture tends to incite an immediate breach of the peace. "Actual or threatened violence is an essential element of a breach of the peace." Woods, 213 S.W.2d at 687. The test is whether the words, "when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction." Cohen, 403 U.S. at 20; see also Virginia v. Black, 123 S. Ct. 1536, 1547 (2003). Gerald Russell photos May 4, 2011 9:07 AM Whether particular words constitute fighting words is a question of fact. Duran, 921 S.W.2d at 785. This "requires careful consideration of the actual circumstances surrounding the expression, asking whether the expression 'is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.'" Texas v. Johnson, 491 U.S. 397, 409 (1989) (quoting Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)). Language that is merely harsh and insulting Gerald Russell photos May 4, 2011 9:09 AM Language that is merely harsh and insulting does not generally rise to the level of fighting words; derisive or annoying words only rise to such level when they plainly tend to excite the addressee to a breach of the peace. Duran, 921 S.W.2d at 785. It is not enough that the words merely arouse anger or resentment. See Skelton v. City of Birmingham, 342 So. 2d 933, 937 (Ala. Crim. App. 1976). Anything short of the use of fighting words does not constitute a violation of the statute. Jimmerson, 561 S.W.2d Gerald Russell photos May 4, 2011 9:16 AM Here, the record and circumstances of this case do not demonstrate that appellant's gesture "tends to incite an immediate breach of the peace." Tex. Pen. Code. § 42.01(a)(2). John Pastrano, one of two witnesses to the incident, testified as follows: Q. What was your reaction when this happened, sir? A. It made me angry. It kind of, you know, resulted back into, you know, as if I wanted to react to it, as in an angry mode, you know, to somewhat defend, you know, myself, as well as the disrespect of my wife. Gerald Russell photos May 4, 2011 9:16 AM Q. And what did you do as a result of that? A. I went ahead and dialed 9-1-1 due to the fact-because the vehicle had went on after that. Although the gesture may have been provocative, there is no evidence that Pastrano was moved to violence or restrained himself from retaliating. Instead, he had the composure to call 911 on his cell phone and report not the gesture but reckless driving. Robin Pastrano similarly testified that she was angry: Gerald Russell photos May 4, 2011 9:17 AM Robin Pastrano similarly testified that she was angry: Q. How-what did you think of that gesture? How did that affect you? A. I was angry and scared and upset all at one time. Q. Okay. Do you find that-that gesture offensive to you, ma'am? A. Yes, sir. * * * Q. How long did you stay upset about this? A. A few days, it made me upset, maybe two or three days. Not that not [sic] long, but it did make me very upset. Gerald Russell photos May 4, 2011 9:19 AM There is no showing that Pastrano and his wife were in fact violently aroused or that appellant intended such a result. See Cohen, 403 U.S. at 20. Taking serious offense does not necessarily lead to disturbing the peace, and we may not prohibit conduct on that ground alone. See Johnson, 491 U.S. at 408-09. "The fact that speech arouses some people to anger is simply not enough to amount to fighting words in the constitutional sense." Cannon v. City & County of Denver, 998 F.2d 867, 873 (10th Cir. 1993). Gerald Russell photos May 4, 2011 9:27 AM But given the circumstances--the brief exposure to the gesture as one car passed the other, made stranger to stranger, causing momentary hostility on Pastrano's part--we cannot conclude that appellant's conduct tends to incite an immediate breach of the peace. There was no actual or threatened violence, "which is an essential element of a breach of the peace." Woods, 213 S.W.2d at 687. That the gesture may be thrust upon unsuspecting or sensitive viewers falls short of the type of conduct in a public place Gerald Russell photos May 4, 2011 9:29 AM tends to incite an immediate breach of the peace. There was no actual or threatened violence, "which is an essential element of a breach of the peace." Woods, 213 S.W.2d at 687. That the gesture may be thrust upon unsuspecting or sensitive viewers falls short of the type of conduct in a public place that would incite those present to violence. See Cohen, 403 U.S. at 21-22 (in the presence of many people at a courthouse, wearing jacket bearing the term "F--- the draft" did not constitute fighting words). Gerald Russell photos May 4, 2011 9:52 AM Furthermore, to incite an immediate breach of the peace contemplates a face-to-face encounter, such as occurred in Estes, or at least something more than the impersonal, brief encounter of one motorist passing another. For example, a motorist shouting an obscenity and making the same gesture to a group of abortion protestors did not rise to the level of fighting words because the vehicle was across the street from the group and traveling at a high rate of speed. Sandul v. Larion, Gerald Russell photos May 4, 2011 10:02 AM Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997). When a passing motorist shouted "sooey" to a police officer, he did not violate the statute because there was "no direct face-to-face contact or other exigent circumstances." Garvey v. State, 537 S.W.2d 709, 711 (Tenn. Crim. App. 1976); see also Matter of Welfare of S.L.J., 263 N.W.2d 412, 420 (Minn. 1978) (when young girl shouted obscenity to police officer who was standing fifteen feet away "rather than eye-to-eye, there was no reasonable likelihood Gerald Russell photos May 4, 2011 10:03 AM (when young girl shouted obscenity to police officer who was standing fifteen feet away "rather than eye-to-eye, there was no reasonable likelihood that [the words] would tend to incite an immediate breach of the peace or to provoke violent reaction by an ordinary, reasonable person"); Herschfield v. Commonwealth, 417 S.E.2d 876, 877-78 (Va. App. 1992) (when one neighbor shouted obscenity to another, "distance and barriers" precluded an immediate breach of the peace). Gerald Russell photos May 4, 2011 10:03 AM We hold that the evidence was legally insufficient to establish that appellant's gesture tends to incite an immediate breach of the peace. Because the evidence is legally insufficient to support appellant's guilt, we reverse the judgment of conviction and render a judgment of acquittal.

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