OPINION

BILL VANCE, Justice.

Willie Frank Campbell was indicted for using a handgun (a deadly weapon) to threaten Waco Police Officer Benjamin Rush with imminent bodily injury while Rush was attempting to arrest Campbell — a first degree felony. Tex. Pen. Code Ann. § 22.02(a)(2), (b)(2) (Vernon 1994). A jury convicted Campbell, and he was sentenced to thirty-three years in prison. He brings four issues on appeal, asserting:

The evidence is legally insufficient to support the conviction.

His due process rights were violated because section 22.02 and the indictment refer to assault on a "public servant," but the indictment, charge, and verdict form refer to assault on a "peace officer" and a "police officer," and therefore the jury did not find him guilty of the offense as alleged.

The trial court's deadly weapon finding should be set aside because of the mistake complained about in issue two.

The trial court erred by denying a jury charge instruction on a lesser-included offense of resisting arrest using a deadly weapon, a third-degree felony.

We will reverse the judgment based on Campbell's issue about the lesser-included offense.

Facts

Campbell was wanted on outstanding warrants. He was spotted, on foot, by law enforcement officers. Officer Rush testified that he chased Campbell, and when he caught up to him, Campbell had his hands in his pockets as though he was attempting to discard something; he dropped something on the ground. Then Rush grabbed him around the upper body and tried to pull him down. Campbell resisted, "kind of hump[ed] over," and said "get back." Then, according to Rush, Campbell "kind of start[ed] straightening back up and [he had] a gun in his hand." Rush testified:

He's got the gun in his hand and I've got him around his arm like this so he — I'm kind of — I'm squeezing him, I'm like, "I've got to get away from him now," because I can't defend myself because my arms are up around the top of him. So he's got the gun in his hand and he starts — he's trying to turn to his left. When he turned to the left I just let him keep coming and when he comes to the left, he's got the gun up like this. . . . I just keep coming with him and I just kind of just shove him into the wall . . . . I tried to get my distance from him . . . .

Campbell argues that he never threatened the officer, but rather at most attempted to do so. Campbell testified that when Rush "bearhugged" him from behind, he tried to get away. Campbell bent over, and Rush was on Campbell's back. Finally, Rush pushed Campbell away. Campbell testified: I "had a gun in my hand and I was running down the breezeway and that's when I threw [the gun] on top of the roof." He said he pulled out the gun only as he began to run, and his purpose was to get rid of it. He denied ever saying "get back."

After the struggle with Rush, Campbell ran, discarding the gun along the way. Rush again pursued Campbell and eventually caught and arrested him. The gun was retrieved, and there was evidence it was not loaded.

Legal Sufficiency of the Evidence

In reviewing a legal sufficiency challenge, we view all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Lane v. State, 933 S.W.2d 504, 507 (Tex.Crim.App. 1996) (citing due process standard from Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We consider all the evidence, both direct and circumstantial, including evidence improperly admitted. Logan v. State, 48 S.W.3d 296, 299 (Tex.App.-Texarkana 2001) (citing Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App. 1993)), aff'd, 89 S.W.3d 619 (Tex.Crim.App. 2002).

As indicted, the statutory elements of aggravated assault applicable in this case are:

intentionally or knowingly threatening another with imminent bodily injury (the assault);

using or exhibiting a deadly weapon during the commission of the assault; and

committing the assault against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty

Tex. Pen. Code Ann. § 22.02(a)(2), (b)(2). Campbell was not charged with the alternate manner of committing this offense, i.e., causing serious bodily injury during an assault on a public servant (no deadly weapon element). Id. § 22.02(a)(1).

Although Campbell refuted some of Rush's testimony, there was evidence that Campbell and Rush scuffled and that Campbell produced a gun and said "get back." When we view all the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found beyond a reasonable doubt that Campbell intentionally threatened Rush with imminent bodily injury and, in the process, used or exhibited a gun. Lane, 933 S.W.2d at 507. We overrule the issue.

Due Process

Campbell claims that his due process rights were violated because the statute and the indictment refer to assault on a "public servant," whereas the indictment, charge, and verdict form refer to assault on a "peace officer" and "police officer." The statute reads in part: "the offense is a felony of the first degree if the offense is committed . . . against a person the actor knows is a public servant. . . ." Tex. Pen. Code Ann. § 22.02(b)(2). The indictment reads in part: "that the said Benjamin Rush was then and there a public servant, to-wit: a police officer. . . ." The charge reads in part: Campbell is charged with aggravated assault "on a public servant . . .," followed by "[s]uch assault is aggravated assault when committed upon a peace officer in the lawful discharge of official duty when the person committing the assault knows or has been informed that the person assaulted is a public servant." The charge continues with a set of instructions referring multiple times to " peace officers" and the presumption that the assaulter knew the victim was a peace officer if the victim was wearing a distinctive uniform. The application paragraph at the end of the charge repeats parts of the indictment including the phrase "a public servant, to-wit: a police officer," and concludes "then you will find the defendant guilty of aggravated assault on a peace officer, as charged in the indictment." The verdict form states: "We, the jury, find the defendant . . . guilty of the offense of aggravated assault of a peace officer, as alleged in the indictment."

The statute uses the term "public servant." The indictment uses two terms: "public servant" and "police officer." The charge uses three terms: "public servant, "police officer," and "peace officer." The verdict form uses the term "peace officer." Campbell says this is constitutional error requiring analysis under Rule 44.2(a). Tex.R.App.P. 44.2(a).

None of the terms are defined in the charge. Section 1.07 of the Penal Code provides definitions of "peace officer" and "public servant."

(36) "Peace officer" means a person elected, employed, or appointed as a peace officer under Article 2.12, Code of Criminal Procedure, Section 51.212 or 51.214, Education Code, or other law.

(41) "Public servant" means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if he has not yet qualified for office or assumed his duties:

(A) an officer, employee, or agent of government;

(B) a juror or grand juror; or

(C) an arbitrator, referee, or other person who is authorized by law or private written agreement to hear or determine a cause or controversy; or

(D) an attorney at law or notary public when participating in the performance of a governmental function; or

(E) a candidate for nomination or election to public office; or

(F) a person who is performing a governmental function under a claim of right although he is not legally qualified to do so.

Tex. Pen. Code Ann. § 1.07(36), (41) (Vernon 1994).

The use of two terms not contained in the statute and the mixing of two or three terms in the various instruments used at trial can result in confusion. However, we do not think this is a due process error or even a "variance" question. See Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App. 2001) (discussing variances between the indictment and the evidence at trial). Furthermore, any complaint about the adequacy of the indictment was waived by failure to object. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2002).

Rather, this is simple charge error which was not objected to at trial; we review unpreserved charge error in a criminal case for "egregious harm." Huizar v. State, 12 S.W.3d 479, 484-85 (Tex.Crim.App. 2000); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (opinion on reh'g). Errors that result in egregious harm are those which affect "the very basis of the case," deprive the defendant of a "valuable right," or "vitally affect a defensive theory." Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996) (citing Almanza, 686 S.W.2d at 172). In deciding whether there is egregious harm, we look to (1) the charge itself, (2) the state of the evidence, including what issues were contested, and the weight of the probative evidence, (3) the arguments of counsel, and (4) any other relevant information revealed by the record of the trial as a whole. Hutch, 922 S.W.2d at 171 (citing Bailey v. State, 867 S.W.2d 42, 43 (Tex.Crim.App. 1993) (citing Almanza)).

The State argues that a "public servant" is a broad term including "peace officers" and "police officers." Under the definitions in section 1.07, we agree. Furthermore, whether Rush was a public servant, a police officer, a peace officer, or some combination of these, was never an issue at trial. In addition, the indictment, charge, and verdict form, taken as a whole, sufficiently informed the jury that they had to find that Rush was a public servant carrying out his official duties, and that Campbell knew it. We conclude that the use of several — at least overlapping — terms in the charge and verdict form did not affect "the very basis of the case," deprive the defendant of a "valuable right," or "vitally affect a defensive theory." Hutch, 922 S.W.2d at 171. We overrule the issue.

Deadly Weapon Finding

The Code of Criminal Procedure requires that when there is an "affirmative finding" by the factfinder that the defendant used a "deadly weapon" during the commission of an offense, the trial court must enter the finding in the judgment, and if the deadly weapon is a firearm, that fact shall also be entered. Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2) (Vernon Supp. 2001); Polk v. State, 693 S.W.2d 391, 396 (Tex.Crim.App. 1985). When, as here, a jury is the finder of fact, the trial court may not enter a "deadly weapon" finding in the judgment unless: (1) the indictment includes an allegation of a "deadly weapon," and the verdict states the defendant is guilty as charged in the indictment, (2) the indictment does not allege "deadly weapon," but does allege a weapon that is per se a deadly weapon, and the verdict states the defendant is guilty as charged in the indictment, or (3) the jury has affirmatively answered a special issue on "deadly weapon" use. Polk, 693 S.W.2d at 396; Davis v. State, 897 S.W.2d 791, 793 (Tex.Crim.App. 1995) (citing Polk, 693 S.W.2d at 396). A firearm is per se a deadly weapon. Tex. Pen. Code Ann. § 1.07(17)(A).

Campbell's complaint is built on his third issue which we have overruled. But that aside, the indictment alleged that Campbell used a "deadly weapon, to-wit: a handgun," and the verdict form stated that the jury found Campbell guilty "as alleged in the indictment," thereby satisfying Polk. Polk, 693 S.W.2d at 396. We overrule the issue.

Lesser-Included Offense

Campbell argues that the jury should have been given an instruction on a lesser-included offense of resisting arrest using a deadly weapon, a third-degree felony. Tex. Pen. Code Ann. § 38.03(a), (d) (Vernon 1994). A defendant may be convicted of a lesser-included offense. Tex. Code Crim. Proc. Ann. art. 37.08 (Vernon 1981). Before the defendant is entitled to have the jury instructed on a lesser-included offense, some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001). Furthermore, "[t]he evidence must establish the lesser-included offense as a valid rational alternative to the charged offense." Id. (citing Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993)). The purpose of granting the instruction is to prevent (a) an acquittal even though the jury believed the defendant to be guilty of the lesser-included offense, and (b) a "guilty" finding even though the jury did not believe the defendant committed the greater offense. Bignall v. State, 887 S.W.2d 21, 24 (Tex.Crim.App. 1994). The policy of the Court of Criminal Appeals is to liberally permit the instruction when warranted. Id.

This issue may arise when (1) the evidence refutes or negates the element which establishes the greater offense, or (2) the evidence conflicts about whether the greater or lesser offense was committed. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992). Whether a lesser-included instruction should be given is determined on a case-by-case basis. Bartholomew v. State, 871 S.W.2d 210, 212-13 (Tex.Crim.App. 1994). "Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge." Bignall, 887 S.W.2d at 23.

The predicate issue is whether the other offense is in fact lesser-included. Mathis v. State, 67 S.W.3d 918, 925 (Tex.Crim.App. 2002). The Code of Criminal Procedure defines lesser-included offenses:

An offense is a lesser-included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). We note that in the typical situation under article 37.09(1), the greater offense has an "extra" element that the lesser offense does not, e.g., the various "aggravated" statutes which increase the degree of an offense by "adding" an element to the base offense. Tex. Pen. Code Ann. §§ 20.04 (aggravated kidnaping), 22.02 (aggravated assault), 22.021 (aggravated sexual assault), 29.03 (aggravated robbery), 37.03 (aggravated perjury), 49.09 (felony DWI). But when, as here, the contention is made that the facts of the case raise the issue of a lesser-included offense, we must inquire whether the State, in presenting its case to prove the offense charged, presented facts that could constitute the lesser offense. Bartholomew, 871 S.W.2d at 212; Broussard v. State, 642 S.W.2d 171, 173 (Tex.Crim.App. 1982).

As the court reiterated in Bartholomew:

Whether one offense bears such a relationship to the offense charged [so as to be considered a lesser included offense] is an issue which must await a case by case determination, both because the statute defines lesser included offenses in terms of the offense charged and because it defines lesser included offenses in terms of the facts of the case.

Bartholomew, 871 S.W.2d at 212 (citing Day v. State, 532 S.W.2d 302, 315-16 (Tex.Crim.App. 1976) (opinion on reh'g)). "It is not a question of whether or not the offense charged is capable of being established on some theory that does not show the lesser included offense." Broussard, 642 S.W.2d at 173. Therefore, we apply article 37.09(1) to the evidence adduced at trial to determine whether Campbell was entitled to a charge on the lesser-included offense of resisting arrest. See Tex. Code Crim. Proc. Ann. art. 37.09(1).

The key language in resolving this issue is found in subparts "a" and "d" of the resisting arrest statute. The question is whether the elements in these subparts are "established by proof of the same or less than all the facts required to establish the commission of the offense charged," i.e., the aggravated assault. Id.

According to Campbell's argument, the elements of the two statutes match up this way:

Aggravated Assault

Intentionally or knowingly threatened Rush with imminent bodily injury, committed the crime against Rush knowing that Rush is a public servant who is lawfully attempting to make an arrest, and used or exhibited a deadly weapon.

Tex. Pen. Code Ann. § 22.02(a)(2), (b)(2).

Resisting Arrest

By using force against Rush, intentionally prevented or obstructed Rush from effecting an arrest, and used a deadly weapon.

Tex. Pen. Code Ann. § 38.03(a), (d).

Therefore, to succeed, Campbell must demonstrate that:

The evidence that he intentionally or knowingly threatened Rush with imminent bodily injury also establishes that he used force against Rush.

The evidence that he committed the aggravated assault knowing that Rush was a public servant lawfully attempting to arrest Campbell also establishes that he intentionally prevented or obstructed Rush from effecting his arrest.

The evidence that he used or exhibited a deadly weapon also establishes that he used a deadly weapon.

The Court of Criminal Appeals found resisting arrest to be a lesser-included offense of aggravated assault in Sutton, but not by threat of bodily injury using a deadly weapon as is asserted in this case. Sutton v. State, 548 S.W.2d 697, 699 (Tex.Crim.App. 1977). Support also comes from Bell v. State, where the Court held that reckless conduct is a lesser-included offense of aggravated assault under the facts of that case. Bell v. State, 693 S.W.2d 434, 439 (Tex.Crim.App. 1985). The defendant fired his weapon into an occupied trailer home. Id. at 436. He was indicted for threatening the occupant with imminent bodily injury using a deadly weapon. Id. The lesser-included offense was recklessly engaging in conduct that placed another in danger of serious bodily injury. Id.; Tex. Pen. Code Ann. § 22.05(a) (Vernon 1994). The Court said the same facts proved the elements of each offense. Bell, 693 S.W.2d at 439.

Regarding the second pair of elements, the evidence that shows how the aggravated assault occurred also establishes that Campbell prevented or obstructed Rush from arresting him. Therefore, as for this pair of elements, article 37.09(1) is satisfied.

But there is a problem with the first pair of elements, i.e., whether the evidence that Campbell "threatened [Rush] with imminent bodily injury" establishes that he "used force against" Rush. The Penal Code does not provide a definition of "using force against" or of those terms individually. Courts have concluded that non-cooperation with an arrest is not an act of "use of force against" a peace officer under the resisting arrest statute, for example:

shaking off an arresting officer's detaining grip. Anderson v. State, 707 S.W.2d 267, 269 (Tex.App.-Houston [1st Dist.] 1986, no pet.).

pulling away from an arresting officer after being arrested. Young v. State, 622 S.W.2d 99, 100-01 (Tex.Crim.App. [Panel Op.] 1981).

crawling away from an arresting officer. Leos v. State, 880 S.W.2d 180, 181 (Tex.App.-Corpus Christi 1994, no pet).

Thus, refusing to cooperate with being arrested does not constitute resisting arrest by force. However, we have held that evidence of non-cooperation combined with violent swings of the body and a forward movement causing the officer and the defendant to fall off a porch was sufficient to establish resisting arrest. Bryant v. State, 923 S.W.2d 199, 206 (Tex.App.-Waco 1996, pet ref'd).

We conclude that the evidence adduced by the State to prove Campbell threatened Rush with imminent bodily harm, i.e., producing a gun, saying "get back," and engaging Rush with physical resistance, also establishes a "use of force against" Rush by Campbell, and not merely non-cooperation or a "pulling away." Therefore, article 37.09(1) is satisfied as to the first pair of elements.

Campbell's final challenge comes with the third pair of elements. The resisting arrest statute requires Campbell to have "used" the gun, whereas under the aggravated assault statute, Campbell could have either "used" or "exhibited" the gun. Thus if the two terms mean something different and the evidence could prove only an "exhibition," then resisting arrest cannot be a lesser-included offense under these facts.

The meaning of the terms "use" and "exhibit" in relation to a deadly weapon has been discussed in the context of a deadly weapon finding under article 42.12, § 3g(a). Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2). In Patterson v. State, the Court of Criminal Appeals applied the Code Construction Act as required by the Penal Code. Patterson v. State, 769 S.W.2d 938, 940 (Tex.Crim.App. 1989); Tex. Pen. Code Ann. § 1.05 (Vernon 1994). Generally, the Court said, in relation to a deadly weapon, the term "use" means to utilize, employ, or apply the deadly weapon to achieve an intended result. Patterson, 769 S.W.2d at 941. "Use" includes simple possession if the possession facilitates the commission of the associated felony. Id. To "exhibit" a deadly weapon means to consciously show, display, or present for viewing the deadly weapon during the commission of a crime. Id. "[O]ne can `use' a deadly weapon without exhibiting it, but it is doubtful one can exhibit a deadly weapon during the commission of a felony without using it." Id. Applying these definitions in the present case, it is clear from the evidence that Campbell exhibited the gun because it was "consciously show[ed], display[ed], or present[ed] for viewing" during the commission of a crime. Id. And because "it is doubtful one can exhibit a deadly weapon during the commission of a felony without using it," the jury was not precluded from finding that Campbell "used" the gun. Id.

As we have noted, "[a]nything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge." Bignall, 887 S.W.2d at 23. The evidence shows that Campbell "used" the gun. See id. Producing the gun could be viewed as facilitating Campbell's resisting arrest because it caused Rush to release Campbell, who then fled. Also, by producing the gun, Campbell utilized, employed, or applied it to achieve an intended result. Id. Therefore, evidence that Campbell "used" the gun satisfies the third pair of elements.

We conclude that the requirements of article 37.09(1) are met, as the evidence which proved that Campbell committed the aggravated assault also proved the elements of resisting arrest. We believe that a rational jury could have found that Campbell resisted arrest rather than that he assaulted Rush, and the jury should have been given that alternative. Wesbrook, 29 S.W.3d at 113.

Having found that the trial court erred in not giving the instruction, we must conduct a harm analysis. When a complaint about an error in the charge is properly preserved — as here by requesting the instruction — reversal is required if the error caused "some" harm to the accused. Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon Supp. 2002); Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App. 2000) (quoting Almanza, 686 S.W.2d at 171). "In the context of Almanza, supra, and Article 36.19, supra, the presence of any harm, regardless of degree, which results from preserved charging error, is sufficient to require a reversal of the conviction. Cases involving preserved charging error will be affirmed only if no harm has occurred." Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986).

The Court of Criminal Appeals has held that failure to give a lesser-included instruction is "some" harm because the jury is not given the option to convict on the lesser-included offense. E.g., Saunders v. State, 913 S.W.2d 564, 571 (Tex.Crim.App. 1995) (citing Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980)) (danger is that the jury will convict of some offense, i.e., the greater offense, only because of no alternative); Ross v. State, 861 S.W.2d 870, 877 (Tex.Crim.App. 1992); Mitchell v. State, 807 S.W.2d 740, 742 (Tex.Crim.App. 1991); also Jiminez v. State, 953 S.W.2d 293, 299-300 (Tex.App.-Austin 1997, pet. ref'd). We sustain the issue.

Conclusion

Having sustained Campbell's issue about the lesser-included offense of resisting arrest, we reverse the judgment and remand the cause for a new trial.

BILL VANCE, Justice.

ORDER DENYING REHEARING

PER CURIAM

A majority of the justices who participated in the decision in this case have not voted to grant the State's Motion for Rehearing, filed on February 20, 2003. Accordingly, the motion is denied. TEX. R. APP. P. 49.3.

Motion for Rehearing denied

CONCURRING OPINION ON DENIAL OF REHEARING