Damien Lewis Benton v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 1, 2023
• Docket: 05-21-00806-CR
• Status: Published

Opinion

AFFIRMED and Opinion Filed March 1, 2023

S In the Court of Appeals Fifth District of Texas at Dallas No. 05-21-00806-CR

DAMIEN LEWIS BENTON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 15th Judicial District Court Grayson County, Texas Trial Court Cause No. 072413

MEMORANDUM OPINION Before Justices Molberg, Partida-Kipness, and Carlyle Opinion by Justice Carlyle On June 3, 2020, an eyewitness called 911 after she saw appellant Damien

Lewis Benton pointing a long gun at houses in the area. Another witness, a former

military ammunition specialist, testified she heard a gunshot that sounded like it

came from a .22. Police arrived soon after and arrested Mr. Benton, who had gunshot

residue on his hands. They found a loaded .22 rifle nearby, along with spent cartridge

casings matching ammunition found both inside the rifle and inside Mr. Benton’s

car. When interviewed by police, Mr. Benton admitted firing the rifle multiple times

at someone he claimed was shooting at him. The State charged Mr. Benton with unlawfully possessing a firearm as a felon,

see TEX. PENAL CODE § 46.04, and requested a special issue as to whether he used

or exhibited a deadly weapon during the offense, see TEX. CODE CRIM. P. art.

42A.054(b). The jury convicted Mr. Benton, affirmatively found that he used or

exhibited a deadly weapon, and assessed punishment at fifteen years’ imprisonment.

On appeal, Mr. Benton contends the evidence is insufficient to support the

deadly weapon finding, arguing that such a finding is impermissible in cases like

this where the “gravamen of the primary offense” is the deadly weapon’s possession.

We disagree.

The deadly weapon statute’s purpose “is to discourage and deter felons from

taking and using deadly weapons with them as they commit their crimes.” Plummer

v. State, 410 S.W.3d 855, 864 (Tex. Crim. App. 2020). The felon-in-possession

statute likewise aims “to keep violent offenders from arming themselves and moving

about the community.” Boyd v. State, 899 S.W.2d 371, 374 (Tex. App.—Houston

[14th Dist.] 1995, no pet.) (cleaned up); see Shepperd v. State, 586 S.W.2d 500, 503

(Tex. Crim. App. Panel No. 2 1979).

The court of criminal appeals has explained that “in order to ‘use’ a deadly

weapon for affirmative finding purposes, the weapon must be utilized to achieve an

intended result, namely, the commission of a felony offense separate and distinct

from ‘mere’ possession.” Narron v. State, 835 S.W.2d 642, 644 (Tex. Crim. App.

1992); In Ex Parte Petty, 833 S.W.2d 145, 145 (Tex. Crim. App. 1992). More

–2– recently, however, the court has clarified that a deadly weapon finding requires only

“some facilitation connection between the weapon and” the associated felony. See

Plummer, 410 S.W.3d at 865. To that end, the court suggests the weapon must

“increase the risk of harm,” “otherwise contribute to the result,” or play a role in

“enabling, continuing, or enhancing” the associated felony. Id.

Here, although the State did not charge Mr. Benton with a separate felony

based on his conduct, there is ample support for finding that he used or exhibited the

gun while unlawfully possessing it. See TEX. CODE CRIM. P. art. 42A.054(b). The

evidence establishes that Mr. Benton fired the gun in a residential neighborhood. In

fact, he admitted firing it multiple times and at another person. Thus, this case is

distinguishable from Narron and Petty, where the trial courts entered deadly weapon

findings based on “mere possession.” See Narron, 835 S.W.2d at 644; Petty, 833

S.W.2d at 145–46. Indeed, by firing the gun in this manner, Mr. Benton increased

the risk of harm associated with unlawfully possessing the gun, and thus there is

“some facilitation connection” between the deadly weapon and the associated

felony. See Plummer, 410 S.W.3d at 865.

Moreover, the deadly weapon finding here amplifies the purposes underlying

these statutes, where a violent offender armed himself and moved about the

community, visiting this increased danger on an entire neighborhood. See Plummer,

410 S.W.3d at 865; Boyd, 899 S.W.2d at 374.

–3– We affirm the trial court’s judgment.

/Cory L. Carlyle/ CORY L. CARLYLE JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b)

210806F.U05

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DAMIEN LEWIS BENTON, On Appeal from the 15th Judicial Appellant District Court, Grayson County, Texas No. 05-21-00806-CR V. Trial Court Cause No. 072413. Opinion delivered by Justice Carlyle. THE STATE OF TEXAS, Appellee Justices Molberg and Partida-Kipness participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered March 1, 2023

–5–