Officer makes felony stop of suspect accused of threatening someone with a gun. Def. has hand in pocket threatening to shoot officer. No weapon displayed. Officer calls for back up and controls situation arrests suspect. Loaded pistol with round in chamber found in suspect pocket.

Did defendant use or exhibit D.W. under statute?

Added info - suspect has reputation for being armed and officer was aware of it.

See Guerrero v. State, 2000 Tex.App.LEXIS 3253-defendant/passenger exited the car holding a shirt. Shirt had a shotgun under it, but shotgun was not pointed at the trooper. No verbal threats made like in your case. Trooper drew down when he saw the gun barrel underneath the shirt. Conviction affirmed. Even tho def.'s intent to threaten is the issue in your case, what about arguing concept of "action beats reaction" + the verbal threat to explain why officer felt threatened in your case even tho the gun was in def.'s pocket?

Might look at Young v. State, No. 11-03-00311-CR, 2004 Tex. Appl LEXIS 8641. There the victim never was aware of the knife until the police found it, but he did threaten the victim with harm.

Thanks for the caselaw and help!