Coleman v. State

145 S.W.3d 649, 2004 Tex. Crim. App. LEXIS 1613, 2004 WL 2179857

• Court: Court of Criminal Appeals of Texas
• Decided: September 29, 2004
• Docket: 146603, 148003
• Status: Published

Opinions

OPINION

MEYERS, J.,

delivered the unanimous opinion of the Court.

■ Appellant was found guilty of possession with intent to deliver cocaine weighing more than 4 grams and less than 200 grams, and PCP weighing at least 400 grams. The jury found that Appellant had used a deadly weapon, a firearm, during the commission of each offense and sentenced Appellant to 50 years imprisonment for the cocaine offense and 60 years imprisonment for the PCP offense, and assessed a fíne in the amount of $150,000. Appellant appealed, claiming that under the facts and circumstances presented at trial, the evidence was insufficient to support the jury’s finding that he used or exhibited a deadly weapon during the commission of each offense. The Court of Appeals affirmed the judgment of the trial court. We granted review to determine whether the evidence was sufficient to support the jury’s affirmative deadly weapon finding. We will affirm the decision of the Court of Appeals.

Facts

Two officers, Fuller and Lerma, were conducting narcotics surveillance in the 3800 block of Kashmere in Houston when they saw a truck drive up and park in front of 3818 Kashmere. The officers recognized the truck as one they had seen a few days earlier at 4908 Crane Street. Appellant got out of the truck, walked around to the front of it while talking on a cell phone, and then got back into the truck. A car then pulled up and stopped behind Appellant’s truck. A man got out of the car, got into the passenger’s seat of Appellant’s truck, and after a minute or two, got out of the truck and left. This pattern of behavior was observed two more times. Officer Lerma testified that because of this behavior, the officers believed that Appellant was involved in illegal activity with drugs.

Officer Fuller contacted Officer Gratz, who was in uniform and assisting the officers, and told him to approach and detain Appellant. Gratz handcuffed Appellant and placed him in the back seat of the patrol car. The officers smelled the odor of PCP emanating from Appellant’s truck when the door was opened. Officer Fuller approached Appellant and asked if there were narcotics in the truck, and Appellant said there were not. Officer Fuller then asked Appellant to give the officers consent to search his truck and his residence. After Appellant’s handcuffs were removed, Appellant read and signed a consent-to-search form.

The officers searched Appellant’s truck, but found no narcotics. They then asked Appellant where he lived, and Appellant gave them the wrong address.¹ Upon discovering that the truck Appellant was driving was registered at 4908 Crane, the officers asked him again and he gave them the Crane address. With Appellant’s consent, they then drove him to the residence, where Officers Fuller and Gratz opened the house door with a key from Appellant’s key chain. Appellant remained in the patrol car while the officers searched the house.

The house had two bedrooms: The front room contained a bed, a dresser, a television, and a safe, while the back room contained an entertainment center, a weight set, and some clothes and shoes piled on the floor. Inside the back room, Officer Fuller found a number of empty vials, which he testified were typically used “to sell PCP in and they also had a little dropper which they use to put the PCP in the vials.” Behind the entertainment center, he also discovered a juice bottle containing PCP. Appellant had told Officer Lerma that there might be some crack cocaine in the kitchen. When Lerma searched the kitchen, he discovered a small beaker-type glass containing crack cocaine as Appellant had said. In the dining room, more empty vials were found, as well as a large amount of powdered cocaine on a chair under the dining room table. In the front bedroom, the officers found a closed safe containing two large bottles of PCP, large amounts of money, jewelry, and Appellant’s college student identification card. Next to the safe, on a table beside the bed, the officers discovered two pieces of unopened mail addressed to Appellant at 4908 Crane. They also recovered a 9-millimeter pistol and a .22 rifle “from the front bedroom, with the bed.”² An assault rifle was also recovered, but the record does not indicate where in the house it was found. The utilities at the house were registered in Appellant’s name, and Appellant told an interviewer at the jail that he lived alone in the house.

Procedural history

At trial, during its deliberation at the guilt/innocence stage, the jury sent out a note regarding the deadly-weapon special issue. The note asked: “Please define ‘commission of the offense.’ Does this mean during the defendant’s detainment or in relation to the offense? Is this a specific point in time?” The court answered: “In these cases ‘commission of the offense’ means during the time the defendant possessed a controlled substance with intent to deliver it.”³ The jury found Appellant guilty of both the cocaine and the PCP offense, and also found that Appellant used a deadly weapon, a firearm, during the commission of each offense.

On appeal, Appellant argued that the evidence was insufficient to support an affirmative finding on the deadly-weapon issue. Coleman v. State, 113 S.W.3d 496, 502 (Tex.App.Houston [1st Dist.] 2003). The Court of Appeals, citing Patterson v. State, 769 S.W.2d 938 (Tex.Crim.App.1989), determined that the following factors could enable a rational jury to find that Appellant used a firearm to facilitate his possession of the narcotics: 1) the guns were found “in close proximity to the narcotics,” in the same bedroom as the safe which contained the large bottle of PCP, money, jewelry, and Appellant’s college student identification card; 2) mail found in the front bedroom was addressed to Appellant; and 3) the State presented evidence that Appellant lived in the house alone. Coleman, 113 S.W.3d at 502-03. Thus, the court held that the evidence was sufficient to support a finding that Appellant used or exhibited a deadly weapon during the commission of the offense. Id. at 503.

In this appeal, Appellant maintains that the evidence was insufficient to establish that he used or exhibited a deadly weapon during the commission of each offense because: 1) he was handcuffed and sitting in the back of a patrol car at the time of the search and thus had no access to the guns; 2) there was no evidence that his fingerprints were on the guns or that the guns were registered in his name; 3) no evidence established the guns as deadly weapons, and because there was no one present at the time the weapons were found, the danger was only hypothetical;⁴ 4) the weapons were not located in close proximity to the drugs; 5) no drugs were discovered in the front bedroom or any area shown to be under Appellant’s exclusive control;⁵ and 6) there was no evidence of Appellant’s actual physical possession or control of the weapons. We will discuss the validity of these more thoroughly below.

Standard of review

Because Appellant is challenging the legal sufficiency of the evidence, this Court must view the evidence in the light most favorable to the verdict. Gale v. State, 998 S.W.2d 221, 223 (Tex.Crim.App.1999). In doing so, we must determine whether a rational trier of fact could have found beyond a reasonable doubt that Appellant used the guns to facilitate possession and delivery of the narcotics. Id.

Meaning of “exhibit” versus “use”

The deadly weapon finding is important to Appellant in that it affects his eligibility for parole. Section 508.145(d) of the Texas Government Code states that “an inmate serving a sentence ... for an offense for which the judgment contains an affirmative finding under Section 3g(a)(2) of [Article 42.12, Code of Criminal Procedure]” must serve a longer period, without consideration of good conduct time, before he may be released on parole. Tex. Gov’t Code Ann. sec. 508.145(d) (Vernon 2004). Article 42.12 section 3g(a)(2) applies “when it is shown that a deadly weapon as defined in Section 1.07, Penal Code, was used or exhibited during the commission of a felony offense.... ” Tex.Code Ceim. PRoc. Ann. art. 42.12, sec. 3g(a)(2) (Vernon 2004) (emphasis added). It is this “used or exhibited” language in article 42.12, section 3g(a)(2) that is under discussion today.

Patterson, cited by both parties, is the key Texas case discussing the difference between the meaning of “exhibit” and the meaning of “use” in article 42.12 of the Texas Code of Criminal Procedure. 769 S.W.2d at 941. The Court explained that while the word “use” typically means that a deadly weapon must be “utilized, employed, or applied in order to achieve its intended result ‘the commission of a felony offense or during immediate flight therefrom,’ ” that “use” could mean “any employment of a deadly weapon, even simple possession, if such possession facilitates the associated felony.” 769 S.W.2d at 941. The word “exhibit,” however, requires a weapon to be “consciously shown, displayed) or presented to be viewed.” Id. Thus, as the Patterson Court explained, one can “use” a weapon without exhibiting it, but not vice versa. Id. Neither side disputes that the weapons at issue in this case were not “exhibited” within the meaning of the article, and we will therefore discuss only whether a rational jury could have found that the weapons were “used” during the commission of each felony.

In Patterson, the defendant was convicted of possession of methamphetamine and using or exhibiting a deadly weapon during the offense. Id. at 939. The police had kicked in the door to the house, and the defendant had been sitting at the end of a sofa. Id. Lying next to the defendant on an end table were a bag with methamphetamine inside, a wallet containing over nine hundred dollars, and a “gun boot.” Id. Upon the police entering, the defendant raised his hands and told the officers he had a gun between his legs, and that there was another gun at the end of the sofa. Id. On appeal, the defendant argued that he possessed the gun to protect the money, not the narcotics. Id. at 940. This Court concluded that a rational trier of fact could have determined that the defendant had used the firearm during the commission of the offense because the jury could have determined that the firearm protected and facilitated the defendant’s care, custody, and management of the contraband. Id. at 942.

The Court of Appeals also discussed another case, Wynn v. State, 847 S.W.2d 357 (Tex.App.Houston [1st Dist.] 1993), aff'd on other grounds, 864 S.W.2d 539 (Tex.Crim.App.1993). In Wynn, the police had been called about two men walking around the neighborhood knocking on doors. When officers arrived, one of the men, Shepherd, pointed down the street to a garage that was on fire. Id. The officer called the fire department and requested an ambulance. The defendant told the officers that he was replacing a gas tank in the car in the garage when a fire started. Shepherd confronted the defendant in front of Officer Braunig, accusing the defendant of trying to burn down his house. Id. Later, Shepherd denied it was his house. When the fire was out and the officers were pulling the car out of the garage, the gas tank fell off the car and the officers noted that the gas tank had two separate compartments, much like those often used to hide drugs. Id. The defendant signed a consent form permitting the police to seai’ch the house, and the officers placed the defendant and Shepherd in a patrol car during the search.

In the kitchen, the officers found scales, a plastic bag with cocaine inside it, and other drug paraphernalia. They also found two pounds of cocaine, $34,000 under a chest, a briefcase containing over $70,000, a firearm silencer, and other such items in one of the bedrooms. Id. at 359. In another bedroom, they found two handguns hidden beneath a blanket. They found the defendant’s wallet in his bedroom (the middle bedroom), but no guns or narcotics were found in that room. Id. The jury found the defendant guilty of possession with intent to deliver a controlled substance, and also found that he had used or exhibited a deadly weapon during the commission of the offense. Id. at 358. In reversing the trial court, the Court of Appeals in Wynn considered the following factors persuasive: 1) the defendant was in the patrol car while the police searched the house and “he was not in the house with the drugs and the guns as in Patterson; ” 2) neither the guns nor the drugs were found in the middle bedroom, which was the only bedroom linked specifically to the defendant; 3) the defendant’s fingerprints were not found on the guns or in the bedroom where the guns were found; 4) clothing found in the bedroom where the gun was found did not belong to the defendant; and 5) at least two other people had access to the house. Id. at 360-61.

Appellant interprets Wynn to mean that, “where no individual is observed in actual physical control over the weapon, and where the weapon is found a significant distance from the controlled substance, then the evidence is not sufficient to support an affirmative finding of use or exhibition of a deadly weapon during the commission of an alleged narcotics offense.” We disagree with such a sweeping statement. First, we believe a defendant’s proximity to the guns at the time of the search is not dispositive. Second, in Wynn, the guns and narcotics were found in a room containing clothes that did not belong to the defendant, and no narcotics or guns were found in the only bedroom linked to Wynn. Additionally, evidence was presented at the Wynn trial that at least two other people had access to the house. Id. at 361. Here, however, drugs and weapons were found in the only bedroom with a bed, mail found in that bedroom was addressed to Appellant, he told an interviewer that he lived in the house alone, and the utilities were registered in his name. Furthermore, although the trial court in Wynn found that “a handgun was used and exhibited,” the Court of Appeals reformed the judgment because the jury was charged on the defendant only as a party, and in such a case, at that time,⁶ there had to be evidence that the defendant “personally used a deadly weapon” in order to support a deadly weapon finding.” ⁷ Id. at 361 (emphasis added), citing Reyes v. State, 741 S.W.2d 414, 432 (Tex.Crim.App.1987). Appellant was not charged as a party. For the many reasons just discussed, we do not find Wynn to be on point in our decision-making process today.

Another case, Gale, 998 S.W.2d 221, involved an affirmative deadly-weapon finding for a defendant who was found guilty of possession of marijuana. In Gale, undercover officers conducted a “knock-and-talk” and spoke with the defendant and his wife at their home. Id. at 223. The defendant and his wife showed the officers to their closet, in which the officers found a mini-rifle and a trash bag containing 20 pounds of marijuana separated into smaller bags. Id. In the same closet, but not contained in the trash bag, were two other rifles, a handgun, bullets, and a box containing $4500 in cash. Id. In determining that a rational jury could find that the defendant had used the weapons to facilitate possession of marijuana, the Court noted that the case was not one in which “a person’s weapons are found in a gun cabinet or closet completely separate from the criminal enterprise; here, all the weapons were virtually inches away from the contraband and its alleged proceeds.” Id. at 226.

In Appellant’s case, the drugs were found all over the house. And, as already noted, two guns were found in a room inside a safe containing two large bottles of POP and large amounts of cash. Although Appellant was handcuffed rather than present in the house as the defendant was in Gale, we have already stated that we do not find the defendant’s presence to be necessary.⁸ In Gale, the Court stressed the proximity of the weapons to the drugs, not the proximity of the guns to the defendant. Id. at 226. The real question is whether the weapons are found to have facilitated Appellant’s possession and intended distribution of the drugs. In this case, a rational jury could have found that Appellant “used” the weapons in order to facilitate his possession and distribution of the narcotics.

In Sanchez v. State, 906 S.W.2d 176 (Tex.App.Ft. Worth 1995, no writ), the defendant was convicted of aggravated possession with intent to deliver cocaine, and the jury made an affirmative deadly-weapon finding. The officers discovered weapons next to cocaine in the defendant’s bedroom closet, and there were other weapons and a drug ledger in the same bedroom. Id. at 181. Additionally, the defendant admitted that he owned the guns, his mother and sisters testified that they knew nothing of the drugs or weapons, and police testified that guns are often used by drug dealers to protect themselves. Id. Though the defendant was not present during the officers’ search of his house, the Court of Appeals stated that “the cumulative effect of factors enumerated above is sufficient to warrant a rational trier of fact to conclude that Sanchez ‘used’ the firearms to facilitate his care, custody, and management of the contraband.” Id. Likewise, the “cumulative effect” of the factors discussed here in Appellant’s case could have allowed a rational jury to determine that he used the weapons to protect the narcotics and the proceeds therefrom. As the trial judge in Appellant’s case instructed the jury, “during the commission of the offense” in a drug possession case means just that: while in possession of drugs with intent to deliver them, the defendant is committing the offense. It is irrelevant that Appellant was not in the residence at the time the officers discovered the weapons.

Conclusion

Viewing the facts in the light most favorable to the verdict below, we hold the evidence sufficient to support an affirmative finding that Appellant used a deadly weapon during the commission of each offense. The jurors were free to believe or disbelieve portions of the testimony given by the State and by the defense, and the jury could have reasonably believed that the guns protected or facilitated Appellant’s possession of the drugs with intent to deliver. We therefore affirm the Court of Appeals.

COCHRAN, J., filed a concurring opinion, in which PRICE, JOHNSON, and HOLCOMB, JJ., joined.

1 . There is discussion in the record about whether Appellant gave the wrong address or simply mis-spoke.

2 .The record does not indicate where the guns were found, i.e., whether they were found under the bed, on the bed, etc.

3 . Neither the accuracy of the jury charge nor the judge’s response to the jury questions is disputed.

4 . Appellant cites to Cates v. State, 102 S.W.3d 735 (Tex.Crim.App.2003), in support of this argument. However, the issue in Cates was whether a car driven by Cates was used as a deadly weapon, because a car is not a deadly weapon per se. Section 1.07(a)(17) of the Texas Penal Code specifically defines firearms as deadly weapons. Tex. Penal Code Ann. § 1.07(a)(17) (Vernon 2003). Thus, Cates is inapplicable to Appellant’s case, as is the issue of whether the weapons found in the residence were deadly weapons.

5 . We note that some of Appellant’s arguments are not entirely accurate statements of the record. For example, the record indicates that, as to ”4),” weapons were discovered in the same bedroom as two bottles of PCP, and as to ”5),” PCP was indeed found in the safe in the front bedroom.

6 .At the time of the Wynn trial, Article 42.12, § 3g(a)(2), stated: (a) The provisions of Sections 3 and 3 c of this Article do not apply: ⅝ ⅜ ⅛ (2) to a defendant when it is shown that the defendant used' or exhibited a deadly weapon as defined in Section 1.07(a)(ll), Penal Code, during the commission of a felony offense or during immediate flight therefrom. ...

The statute was amended in 1991 to include the phrase, "or was a party to the offense and knew that a deadly weapon would be used or exhibited.”

7 . The court stated that "since the law of the parties is involved, the affirmative finding must show that the appellant used or exhibited the deadly weapon." Id. at 361.

8 . Officer Fuller testified that, for safety purposes and to preserve evidence, it is police policy to place a detainee in the patrol car during the search of a residence. It does not make sense to say that because the officers handcuffed Appellant and put him in the car during the search, that the Appellant is therefore immune from a deadly-weapon finding.