Gun ownership == using it in crime, Texas court rules
Declan McCullagh
declan at well.com
Wed Nov 12 08:01:00 PST 2003
Toby Wade Beyer, Appellant Vs. State of Texas, Appellee
No. 11-02-00323-CR
COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND
November 5, 2003, Filed
PRIOR HISTORY: Appeal from the 266th District of Erath County.
DISPOSITION: Affirmed.
COUNSEL: For Plaintiff or Petitioner: Andrew Ottaway, Attorney At Law,
Granbury, TX.
For Defendant or Respondent: John Terrill, District Attorney, Stephenville, TX.
JUDGES: Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.
OPINIONBY: TERRY McCALL
OPINION: Appellant pleaded guilty to the first degree felony offense of the
manufacture of methamphetamine. The jury assessed punishment at 20 years
confinement and found that appellant used or exhibited a deadly weapon
during the commission of the offense. The trial court entered a deadly
weapon finding in its judgment. See TEX. CODE CRIM. PRO. ANN. art. 42.12, '
3g(a)(2) (Vernon Supp. 2003). We affirm.
In his sole point of error, appellant complains that the evidence was
insufficient to support the jury's finding that he used or exhibited a
deadly weapon in the commission of the offense. HN1To determine if the
evidence is legally sufficient, we must review all of the evidence in the
light most favorable to the verdict [*2] and determine whether any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d
560, 99 S. Ct. 2781 (1979); Jackson v. State, 17 S.W.3d 664
(Tex.Cr.App.2000). To determine if the evidence is factually sufficient, we
must review all of the evidence in a neutral light and determine whether
the evidence supporting guilt is so weak as to render the conviction
clearly wrong and manifestly unjust or whether the evidence supporting
guilt, although adequate when taken alone, is so greatly outweighed by the
overwhelming weight of contrary evidence as to render the conviction
clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236
(Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001);
Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958
S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.
1996).
HN2The Court of Criminal Appeals has defined the terms "use" and "exhibit"
as they are used in Article 42.12, section 3g(a)(2). [*3] Gale v. State,
998 S.W.2d 221, 225 (Tex.Cr.App. 1999); Patterson v. State, 769 S.W.2d 938,
941 (Tex.Cr.App.1989). The "use" of a deadly weapon during the commission
of a felony offense extends to any employment of a deadly weapon, even its
simple possession, if such possession facilitated the associated felony.
Patterson v. State, supra. A defendant's use of a deadly weapon in the
sense of protecting and facilitating his possession of a controlled
substance constitutes "use" of a deadly weapon under Article 42.12, section
3g(a)(2). Gale v. State, supra; Patterson v. State, supra.
In this case, the evidence showed that law enforcement officers searched
appellant's residence, pursuant to a search warrant, on December 12, 2001.
Investigator Gerald Wayne Rogers of the S.T.O.P. Narcotics Task Force
participated in the search. Investigator Rogers testified that, other than
the officers, appellant was the only person present at the residence during
the search. The officers discovered methamphetamine during the search. They
also discovered a working methamphetamine laboratory in the residence and
ingredients [*4] necessary to manufacture methamphetamine.
Investigator Rogers said that appellant's residence was equipped with
surveillance equipment. The officers saw their vehicles on the surveillance
television in the living room to the left of the front door. The officers
found a loaded sawed-off double-barreled shotgun on a couch that was near
the television. Investigator Rogers said that a person sitting on the couch
could watch the surveillance on the television and be ready to shoot the
shotgun if anybody came in the front door. Investigator Rogers testified
that, in his experience, individuals who are involved in manufacturing
methamphetamine are generally well armed. Investigator Rogers said that the
shotgun was a deadly weapon that was used in the commission of the offense
of manufacturing the methamphetamine.
Appellant does not deny that the shotgun was a deadly weapon or that he was
in possession of it. Rather; he argues that there was no evidence to
support the jury's finding that his possession of the shotgun facilitated
the associated felony of manufacturing methamphetamine. We disagree. Based
on the evidence, a rational trier of fact could find that the shotgun
facilitated appellant's [*5] offense of manufacturing. The officers found
the loaded shotgun on the couch near the surveillance television. The
evidence was legally and factually sufficient to establish that appellant
"used" the shotgun in the sense that it protected and facilitated his
manufacturing of the methamphetamine. Gale v. State, supra; Patterson v.
State, supra. Appellant's sole point of error is overruled.
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
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