Opinion
No. 05-16-00425-CR
03-29-2017
MIGUEL CERVANTES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4 Dallas County, Texas
Trial Court Cause No. F-1476507-K
MEMORANDUM OPINION
Before Justices Bridges, Myers, and Brown
Opinion by Justice Brown
Following a jury trial, Miguel Cervantes appeals his conviction for violation of a protective order. In a single issue, appellant contends the evidence is insufficient to support an affirmative deadly weapon finding. We affirm.
The indictment in this case alleged that, on or about October 12, 2014, appellant:
did then and there intentionally and knowingly commit assault against MARIA QUIROZ, hereinafter called complainant, to-wit: said defendant did intentionally, knowingly and recklessly cause bodily injury to complainant by FORCING COMPLAINANT ONTO A FLOOR AND BY STRIKING COMPLAINANT WITH A HAND, in violation of an order issued, to-wit: by the 292ND JUDICIAL DISTRICT COURT of DALLAS County, TEXAS, signed by the Court on MARCH 24TH, 2014.See TEX. PENAL CODE ANN. § 25.07(a) (West Supp. 2016). The indictment further alleged that appellant used and exhibited a deadly weapon, specifically a firearm, during the commission of the offense. Appellant pleaded not guilty.
Quiroz testified at trial that she and appellant married in 2013. In February 2014, Quiroz applied for a protective order against appellant because she had been a victim of family violence. A protective order was issued on March 24, 2014, in part prohibiting appellant from committing family violence against Quiroz. The order was to remain in effect for two years.
At about two p.m. on the afternoon of October 11, 2014, Quiroz went to the library for an English class. Appellant met her outside the library and told her she needed to follow his instructions or she was going to die. Appellant took a small gun out of his pocket and aimed it at the side of Quiroz's body. Quiroz was scared and asked appellant if she could go enroll herself in class. They both went inside the library, and Quiroz went to class. Appellant was "right on [her] side" during the class, which lasted more than an hour. After class, appellant took Quiroz's keys from her purse and drove her in her car to his hotel. Quiroz testified that she did what appellant wanted her to do because she was very scared. She went to the hotel room with appellant, instead of running or flagging someone down, because he had a gun. Appellant told her to take off her clothes. When the prosecutor asked Quiroz if appellant still had the gun at that time, Quiroz stated he "just put it someplace," but she did not know where. Quiroz was crying; appellant told her to "shut up." He slapped her face and threw her to the floor. Then he grabbed her by the hair, picked her up, and threw her on the bed. Appellant had sex with Quiroz without her consent. She testified she remembered that when appellant was "getting rid of his clothing," she saw him holding the gun and he put it with his belongings. Quiroz asked appellant if she could go home, and he hit her. He also threatened to shoot her in the head and take her to the river so no one would ever see her again. Appellant and Quiroz left the hotel to eat at a nearby restaurant. Quiroz did not alert anyone at the restaurant because she was afraid appellant would kill her if she did. After they ate, they returned to the hotel, and appellant sexually assaulted Quiroz again. Quiroz had no idea where the gun was at that point. Sometime after midnight, while appellant was in the bathroom, Quiroz ran out of the room. Appellant ran after her, and they struggled in the parking lot. Quiroz got into the vehicle of a driver who stopped to help her and went to a police station where she told the police what had happened. On cross-examination, Quiroz testified that when she and appellant arrived at the hotel room, she saw him wrap the gun with some kind of clothing, or maybe a towel or sheet, and put it in the closet.
The jury found appellant guilty and also found that he used or exhibited a deadly weapon, specifically a firearm, during the commission of the offense. The jury assessed appellant's punishment at thirty-three years confinement. The trial court included a deadly weapon finding in the judgment.
In his sole issue, appellant contends the evidence is insufficient to support the deadly weapon finding because: (1) his use of the firearm occurred prior to, not during, the assault in violation of the protective order, and (2) the State failed to prove the firearm posed an actual danger, as opposed to a hypothetical danger, to Quiroz. We disagree.
The code of criminal procedure authorizes the entry of a deadly weapon finding when it is shown the defendant used or exhibited a deadly weapon as defined in section 1.07 of the penal code during the commission of a felony offense. TEX. CODE CRIM. PROC. ANN. art. 42.12,§ 3g(a)(2) (West Supp. 2016). Under section 1.07, a firearm is a deadly weapon per se. TEX. PENAL CODE ANN. § 1.07(a)(17)(A) (West Supp. 2016). If the State alleges and proves that a weapon is a firearm, or anything else manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, the State need not prove that the object was actually capable of causing death. Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991); Grant v. State, 33 S.W.3d 875, 881 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd) (no requirement that gun be loaded to be considered deadly weapon).
A defendant uses a deadly weapon during the commission of the offense when the weapon was employed or utilized to achieve its purpose. Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). Use of a deadly weapon refers to the wielding of a firearm with effect, but also extends to any employment of a deadly weapon, even its simple possession, if such possession facilitates the associated felony. Plummer v. State, 410 S.W.3d 855, 864-65 (Tex. Crim. App. 2013); Patterson, 769 S.W.2d at 941. To exhibit a deadly weapon, the weapon need only be consciously displayed during the commission of the offense. Patterson, 769 S.W.2d at 941. Thus, one can use a deadly weapon without exhibiting it, but it is doubtful one can exhibit a deadly weapon during the commission of a felony without using it. Id. In the context of violent offenses, if a person exhibits a deadly weapon, without overtly using it to harm or threaten while committing a felony, the deadly weapon still provides intimidation value that assists the commission of the felony. Plummer, 410 S.W.3d at 862. In reviewing appellant's issue, we review the record to determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt that appellant used or exhibited a firearm during commission of the offense. See Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003).
Appellant argues that the evidence is insufficient to support the deadly weapon finding because there was no evidence he displayed the firearm when he assaulted Quiroz in violation of the protective order. He acknowledges the evidence shows he had possession of a firearm during what he describes as "a separate offense (possibly aggravated kidnapping)" that occurred before the assault, but maintains this is insufficient. We conclude there was sufficient evidence appellant used the firearm to facilitate his violating the protective order. When he first met Quiroz at the library, appellant wielded the gun by aiming it at her to establish control over her and force her to accompany him to his hotel room where he assaulted her. Quiroz went the hotel room because appellant had a gun. Quiroz saw the gun in the hotel room. Although appellant put it in the closet and did not overtly brandish the gun again, he further used it to facilitate the offense simply by having it in the hotel room during the assault. The presence of the weapon, especially after appellant had previously held it to Quiroz's side, provided intimidation value that aided appellant in assaulting Quiroz and thus violating the protective order.
Appellant also complains that the evidence is insufficient because there was no evidence the gun was loaded and thus posed an actual danger to Quiroz. The case cited by appellant in support of this argument involved a motor vehicle alleged to be a deadly weapon, not a firearm. See Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). In that case, to prove the vehicle was a deadly weapon, the State had to show the defendant's manner of using the vehicle was capable of causing death or serious bodily injury. See id.; TEX. PENAL CODE ANN. § 1.07(a)(17)(B). In this case, because the weapon was a firearm, an object deadly by design, the State was not required to prove the gun was loaded and actually capable of causing death. See Grant, 33 S.W.3d at 881. Viewing the evidence in the light most favorable to the verdict, we conclude the evidence is sufficient to support an affirmative finding that appellant used or exhibited a deadly weapon during the commission of the offense. We overrule appellant's sole issue.
We affirm the trial court's judgment.
/Ada Brown/
ADA BROWN
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b). 160425F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 4, Dallas County, Texas
Trial Court Cause No. F-1476507-K.
Opinion delivered by Justice Brown, Justices Bridges and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 29th day of March, 2017.