Ex Parte Petty

Court of Criminal Appeals of Texas

Ex Parte Petty

833 S.W.2d 145, 1992 Tex. Crim. App. LEXIS 156, 1992 WL 139280

CourtCourt of Criminal Appeals of Texas

DecidedJune 24, 1992

Docket71467

StatusPublished

Cited by64 cases

This text of 833 S.W.2d 145 (Ex Parte Petty) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ex Parte Petty, 833 S.W.2d 145, 1992 Tex. Crim. App. LEXIS 156, 1992 WL 139280 (Tex. 1992).

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Opinions

OPINION

CAMPBELL, Judge.

This is a post-conviction application for a writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P., in which Applicant challenges an affirmative finding that he used a deadly weapon based solely on his unlawful possession of a handgun.

On October 12, 1990, Applicant pled guilty to unlawful possession of a firearm by a felon and punishment was assessed at confinement for six years in the Texas Department of Criminal Justice, Institutional Division. The trial court entered an affirmative finding that the Applicant used or exhibited a deadly weapon, to-wit, “A Firearm,” during the commission of the offense or during immediate flight therefrom. This affirmative finding was based solely on Applicant’s unlawful possession of a handgun, the only offense with which Applicant was charged.

Applicant contends that under Art. 42.12, § 3g(a)(2), V.A.C.C.P., a felon’s possession of a deadly weapon does not, by itself, constitute “use” during the commission of the felony offense of unlawfully possessing a deadly weapon.

This Court has interpreted “use” of a deadly weapon in the context of Art. 42.12, § 3g(a)(2) to include simple possession if such possession facilitates the associated felony. Patterson v. State, 769 S.W.2d 938 (Tex.Cr.App.1989). Therefore, 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. See Art. 42.12, § 3g(a)(2) Patterson. supra.

In Patterson, we determined that the weapon was “used” to protect drugs. In the present case, the weapon was not “used” in furtherance of any collateral felony. Thus, because there was no associated felony facilitated by the Applicant’s pos[146]*146session of the deadly weapon, the holding in Patterson dictates that the affirmative finding of the use of a deadly weapon was error.

Accordingly, the relief sought is granted. The judgment in Cause No. 0400724D in the 297th District Court of Tarrant County, styled The State of Texas v. Adolphus Quinn Petty is reformed to delete the following language:

The COURT Affirmatively Finds That The Defendant Used Or Exhibited A Deadly Weapon, To-Wit, A Firearm, During The Commission Of The Offense Or During Immediate Flight Therefrom.

All other relief is denied. Copies of this opinion will be sent to the Texas Department of Criminal Justice, Institutional Division and Board of Pardons Division.

WHITE, J., concurs in result.

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OPINION

CAMPBELL, Judge.

This is a post-conviction application for a writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P., in which Applicant challenges an affirmative finding that he used a deadly weapon based solely on his unlawful possession of a handgun.

On October 12, 1990, Applicant pled guilty to unlawful possession of a firearm by a felon and punishment was assessed at confinement for six years in the Texas Department of Criminal Justice, Institutional Division. The trial court entered an affirmative finding that the Applicant used or exhibited a deadly weapon, to-wit, “A Firearm,” during the commission of the offense or during immediate flight therefrom. This affirmative finding was based solely on Applicant’s unlawful possession of a handgun, the only offense with which Applicant was charged.

Applicant contends that under Art. 42.12, § 3g(a)(2), V.A.C.C.P., a felon’s possession of a deadly weapon does not, by itself, constitute “use” during the commission of the felony offense of unlawfully possessing a deadly weapon.

This Court has interpreted “use” of a deadly weapon in the context of Art. 42.12, § 3g(a)(2) to include simple possession if such possession facilitates the associated felony. Patterson v. State, 769 S.W.2d 938 (Tex.Cr.App.1989). Therefore, 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. See Art. 42.12, § 3g(a)(2) Patterson. supra.

In Patterson, we determined that the weapon was “used” to protect drugs. In the present case, the weapon was not “used” in furtherance of any collateral felony. Thus, because there was no associated felony facilitated by the Applicant’s pos[146]*146session of the deadly weapon, the holding in Patterson dictates that the affirmative finding of the use of a deadly weapon was error.

Accordingly, the relief sought is granted. The judgment in Cause No. 0400724D in the 297th District Court of Tarrant County, styled The State of Texas v. Adolphus Quinn Petty is reformed to delete the following language:

The COURT Affirmatively Finds That The Defendant Used Or Exhibited A Deadly Weapon, To-Wit, A Firearm, During The Commission Of The Offense Or During Immediate Flight Therefrom.

All other relief is denied. Copies of this opinion will be sent to the Texas Department of Criminal Justice, Institutional Division and Board of Pardons Division.

WHITE, J., concurs in result.

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Bluebook (online)

833 S.W.2d 145, 1992 Tex. Crim. App. LEXIS 156, 1992 WL 139280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-petty-texcrimapp-1992.

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