¶1dissenting.
¶2I respectfully dissent.
¶3Appellant was charged with disorderly conduct under TEX.PENAL CODE ANN. § 42.01(a)(2) (Vernon Supp.1982-1983) which reads:
(a) A person commits an offense if he intentionally or knowingly: ...
(2) makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace; ...
¶4As noted by the majority, the generally accepted definition of “breach of the peace”, and the one used by the trial court in this case, includes the admonition to the jury that “[ajctual or threatened violence is an essential element of a breach of the peace.” [Emphasis added.] Woods v. State, 152 Tex.Cr.R. 338, 213 S.W.2d 685, 687 (1948).
¶5Jimmerson v. State, 561 S.W.2d 5 (Tex. Cr.App.1978), clearly indicates that the use of anything short of “fighting words” does not constitute a violation of the statute. See also Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Under the evidence in this record and the circumstances of this case, the gesture made by appellant did not constitute “fighting words” which tended to incite an immediate breach of the peace. Appellant’s ground of error asserting the insufficiency of the evidence should be sustained.
¶6The principal, Mr. Farris, testified that his reaction was one of shock and anger, but that he did not attack Estes, and under no circumstances would he have attacked Estes or retaliated physically. He also admitted that there was no violence, no fights, and no indication of fights or violence, and that though some looks and glances were exchanged among the faculty as well as among the students, there was no actual disturbance of any kind. According to Far-ris' testimony, the ceremony proceeded peacefully to its conclusion.
¶7Three other witnesses confirmed the fact that there was no violence nor any threat of violence following appellant’s conduct. These witnesses, as did Farris, simply described the reaction of the audience, at least those of the audience who actually saw the gesture, as one of disgust, disbelief, shock, and anger. One of these witnesses, a student, testified that there was “not a realistic possibility of a fight breaking out” and *877that this was a common gesture used all the time.
¶8The State, in its brief, attempts to argue that this gesture toward Farris advocated the personal carnal knowledge of Farris, and that it “impliedly denied the normality of Mr. Farris’ sexual desires and practices”. The State says that the gesture questioned the normality of the sexual desires and practices of anyone who submitted himself to employment in such a degenerate organization as the Grand Prairie Independent School District. In oral argument, the State tried to contend that this gesture had homosexual implications against the person toward whom it was directed.
¶9These arguments seem rather extreme and unfounded and evidence the State’s need to impute greater meaning to appellant’s gesture than actually existed. The gesture had no personal sexual connotations, normal or otherwise, to Farris or to anyone else present at this ceremony. It was simply a tasteless expression of appellant’s negative opinion of the principal of his high school and probably of the whole school.
¶10While I certainly do not condone appellant’s foolish, childish, and totally repulsive conduct, I do not think that the evidence offered by the State was sufficient to satisfy the controlling burden of proof in this case. The State was required under § 42.-01(a)(2) to prove that the gesture tended to incite an immediate breach of the peace. Even viewing the evidence in the light most favorable to the verdict, it falls short of the requisite proof.
¶11This is not to say that the giving of the infamous “finger salute” will not, in any case, constitute “fighting words” or will not, in any case, tend to incite an immediate breach of the peace under the statute. I would simply hold that given the circumstances at the time this gesture was made and the evidence of the reaction to the gesture, appellant’s conduct, reprehensible as it was, did not cause or even tend to cause or incite an immediate breach of the peace.
¶12The judgment should be reversed and the trial court ordered to dismiss the disorderly conduct complaint against appellant.