Smith v. State

944 S.W.2d 453, 1997 Tex. App. LEXIS 1910, 1997 WL 166491
CourtCourt of Appeals of Texas
DecidedApril 10, 1997
DocketNo. 14-94-00942-CR
StatusPublished
Cited by11 cases

This text of 944 S.W.2d 453 (Smith v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. State, 944 S.W.2d 453, 1997 Tex. App. LEXIS 1910, 1997 WL 166491 (Tex. Ct. App. 1997).

Opinion

OPINION

O’NEILL, Justice.

Appellant, Marvin Dewayne Smith, was found guilty at a trial before the court of the felony offense of carrying a handgun on premises licensed to sell alcohol. Tex. Penal Code § 46.02(e) (Vernon 1994).1 The court found two enhancement paragraphs to be true, and assessed punishment at twenty-five years confinement in the Texas Department of Criminal Justice, Institutional Division. In three points of error, appellant claims the trial court erred in entering an affirmative finding of a deadly weapon and in overruling his motion to suppress. We affirm as modified.

Background

On April 8, 1994, Agents Dan Young and William Faulkner of the Texas Alcoholic Beverage Commission (TABC), set up surveillance at the Chung Sun Mart on Cullen Boulevard in Harris County. Officer Young had received information that people had been consuming alcoholic beverages on the premises of the store, which was only licensed to sell beverages to go, in violation of the Texas Alcoholic Beverage Code. At about 9:45 p.m., the officers observed a maroon Ford Taurus pull up to the store. The three male occupants of the vehicle, which included the appellant, entered the store, then returned to their car and began unloading twelve packs of beer from the trunk. The men carried the beer from the trank into the store. Believing that the licensed premises owner was attempting to purchase beer from an unauthorized source in violation of the Texas Alcoholic Beverage Code, the officers decided to enter the store.

[455]*455Upon entering the store, the officers saw appellant walk out of the storeroom. He proceeded toward Officer Young with his hand in the front of his pants. Young identified himself and requested to see appellant’s identification. Appellant became nervous and stepped behind a display rack. Young saw appellant make shoulder movements that indicated he was trying to pull something out of the front of his pants. Young looked behind the display rack and saw appellant holding a gun. Young pulled out his service revolver and ordered appellant to “freeze.” Appellant dropped the gun on the floor and kicked it away. Young handcuffed the appellant and retrieved the gun.

Points of Error One and Two

In his first point of error, appellant contends the trial court erred when it entered an affirmative deadly weapon finding2 in a simple possession case.

Appellant was convicted for the felony offense of carrying a handgun on a premises licensed to sell alcoholic beverages in violation of Tex. Penal Code Ann. § 46.02, which provides as follows:

(a) A person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club.
(b) Except as provided in Subsection (c), an offense under this section is a Class A misdemeanor.
(c) An offense under this section is a felony of the third degree if it occurs on any premises licensed or issued a permit by this State for the sale or service of alcoholic beverages.

(emphasis added).

An affirmative deadly weapon finding may be made where it is shown that a deadly weapon “was used or exhibited during the commission of a felony offense ... and that the defendant used or exhibited the deadly weapon_” TexUode CRIM. Pboc. Ann. art. 42.12 § Sg (a)(2) (Vernon 1989)(emphasis added). An affirmative deadly weapon finding will not be supported where the crime is mere possession, as opposed to possession that facilitates the commission of a separate and distinct felony. Narron v. State, 835 S.W.2d 642 (Tex.Crim.App.1992); Ex Parte Petty, 833 S.W.2d 145 (Tex.Crim.App.1992). In Narron and Petty, the defendants were charged with unlawful possession of a deadly weapon. They were found guilty of simple possession, and the trial courts entered affirmative deadly weapon findings. The Court of Criminal Appeals found that, because the weapons were not used to facilitate the associated felony, the affirmative deadly weapon findings were erroneous:

This court has interpreted “use” of a deadly weapon in the context of Article 42.12 § 3g (a)(2), V.AAC.P. to include simple possession if such possession facilitates the associated felony. Patterson v. State, 769 S.W.2d 938, 941 (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 Article 42.12 § 3g (a)(2) and Patterson, supra.

Narron, 835 S.W.2d at 644 (emphasis in original); Ex Parte Petty, 833 S.W.2d at 145 (emphasis in original).

The State claims the Court of Criminal Appeals implicitly overruled this line of cases in Hooks v. State, 860 S.W.2d 110 (Tex.Crim. App.1993). There, the defendant was charged with aggravated assault by threat with a deadly weapon, to-wit: a firearm. Id. at 111. Athough the trial court did not enter an affirmative deadly weapon finding, the Court noted that the evidence would have supported such a finding. Id. at 113-14. Because the crime in Hooks (aggravated assault by threat) would have been a misdemeanor (assault by threat) but for the use of a deadly weapon, the State claims, the deadly weapon was not used to facilitate the commission of an associated felony as described in Narron and Petty. The Court’s indication that entry of an affirmative deadly weapon finding would have been proper leads the [456]*456State to conclude that Hooks implicitly overrules Narron and Petty. We disagree.

In Hooks, the deadly weapon was used or exhibited in the commission of aggravated assault, an associated felony. The fact that use or exhibition of the gun was also an aggravating element of the offense is immaterial for purposes of the affirmative finding because the weapon was used to facilitate the felony. The present case is distinguishable because the gravaman of the offense is the mere carrying of a weapon with no associated felony. In other words, the felony for which appellant was convicted (carrying a handgun on premises licensed to sell alcohol) would have been a misdemeanor (carrying a handgun) but for the appellant being on premises licensed to sell alcohol. Tex. Penal Code Ann. § 46.02(a). Being on premises licensed to sell alcohol is not itself an offense, therefore mere carrying of the weapon cannot have been used to facilitate commission of an associated felony. The statute itself provides that an affirmative deadly weapon finding can only be made when the weapon is shown to have been “used or exhibited during the commission of a felony offense

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Bluebook (online)
944 S.W.2d 453, 1997 Tex. App. LEXIS 1910, 1997 WL 166491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-state-texapp-1997.