Summary
explaining that defendant's prior felony conviction did not increase degree of current offense "but rather increased only the punishment level that applies to the primary state jail felony offense"
Summary of this case from Wells v. StateOpinion
No. 07-17-00099-CR
06-01-2018
Donivan Dequan HENDERSON, Appellant v. STATE of Texas, Appellee
E. Alan Bennett, Waco, for Appellant. Tara Gough, for Appellee.
E. Alan Bennett, Waco, for Appellant.
Tara Gough, for Appellee.
Before CAMPBELL, PIRTLE, and PARKER, JJ.
Patrick A. Pirtle, Justice
On January 11, 2017, a Limestone County jury convicted Appellant, Donivan Dequan Henderson, of the state jail felony offense of possession of marihuana, in an amount of five pounds or less, but more than four ounces. In addition, the jury affirmatively found Appellant used or exhibited a deadly weapon, to-wit: a firearm, during the commission of the offense, enhancing the range of punishment to that of a third degree felony. Appellant elected to have the trial court assess punishment, and at the punishment hearing, he plead "true" to an enhancement allegation, further elevating the range of punishment to that of a second degree felony. The trial court assessed Appellant’s punishment at eleven years confinement in the Institutional Division of the Texas Department of Criminal Justice. The Judgment of Conviction reflected the jury’s affirmative finding regarding the use of a deadly weapon and the trial court’s finding of a prior final felony conviction. It further listed the "Degree of Offense" as a second degree felony. Appellant timely filed his notice of appeal.
Tex. Health & Safety Code Ann. § 481.121(b)(3) (West 2017).
An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that the accused used or exhibited a deadly weapon during the commission of the offense or during immediate flight following the commission of the offense. Tex. Penal Code Ann. § 12.35(c) (West Supp. 2017).
If it is shown on the trial of a state jail felony for which punishment may be assessed under Section 12.35(c) that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the second degree. Tex. Penal Code Ann. § 12.425(c) (West Supp. 2017).
Originally appealed to the Tenth Court of Appeals, this case was transferred to this court pursuant to a docket equalization order entered by the Texas Supreme Court. See Tex. Gov't Code Ann. § 73.001 (West 2013). We have applied precedent from that court where applicable. See Tex. R. App. P. 41.3.
By his first two issues, Appellant contends the evidence is (1) legally insufficient and (2) factually insufficient to establish that he used or exhibited a deadly weapon during the commission of the offense. By his third and final issue, he contends the trial court’s judgment contains an erroneous recitation concerning the degree of the offense. We will reform the judgment to reflect the correct degree of the offense as a state jail felony and affirm the judgment as reformed.
The issues listed in the Issues Presented portion of Appellant’s brief do not conform to the issues stated in either the Table of Contents portion of the brief or the Arguments portion of the brief. Because no arguments or authorities were presented as to the additional "issues" stated in the Issues Presented portion of the brief, we will not consider those issues. See Tex. R. App. P. 38.1(i) ; Lawton v. State , 913 S.W.2d 542, 558 (Tex. Crim. App. 1995) (holding that issues lacking substantive analysis are waived).
BACKGROUND
On October 27, 2015, Mexia Police Officer Justin Powell and Corporal Kristopher Dossey responded to a residential civil disturbance call. Upon arrival, Officer Powell smelled the odor of marihuana emanating from the residence and later observed what he believed to be a marihuana cigar being smoked. Three people were identified as being present at the residence, Appellant and his cousins, Kendall Henderson and Frederick Henderson. During conversations with the officers, Appellant admitted that they had been "smoking a few joints." The officers were unable to obtain consent to search the residence so, based on Appellant’s statement and the officers' observations, a search warrant was sought and obtained.
During execution of the search warrant, officers discovered a dish containing marihuana on the floor of one room. In the front bedroom of the residence, they located a "brick" of marihuana underneath a pair of pants and $970 inside a window air-conditioning unit. The search also revealed a firearm (a Taurus 9mm handgun) hidden between the mattress and the box springs of the bed in that bedroom. Further investigation showed the firearm to have been stolen during a recent burglary. A search of the kitchen revealed a bag of loose marihuana seeds, individually wrapped bags of marihuana, and a couple of scales typically used to weigh narcotics.
Once Appellant was arrested and searched, the officers did not find any drugs or drug paraphernalia on his person; however, he did have $420 in $20 bills in his pants pocket. After his arrest, Appellant told officers that Frederick had nothing to do with the marihuana and he denied living at the residence. Kendall, however, told the officers that all three of the suspects lived there.
Two days after his arrest, Appellant was interviewed by Mark Roark, an investigator with the Limestone County Sheriff’s Department, regarding the stolen firearm. During that interview, Appellant told Roark that he had purchased the firearm from a person Roark was investigating in connection with the unrelated burglary. Appellant stated that he had purchased the firearm "for protection from the robberies and thefts in Mexia."
Officer Chip Hundley of the Mexia Police Department, who had assisted in the original search of the residence, opined at trial that the packaging of the marihuana in individual baggies and the existence of large sums of money in $10 and $20 denominations was indicative of a street-level narcotics distribution operation. Hunley further testified that it was common for firearms to be found in and around a narcotics distribution operation because they were used to protect the operatives and their investment in illegal drugs.
Defense witnesses offered testimony placing into question whether Appellant lived at the residence searched. Appellant’s ex-girlfriend testified that his personal belongings were still at her house when he was arrested, while his current girlfriend testified that he lived with her in Waco at the time of his arrest. Appellant did not testify.
ISSUE ONE—LEGAL SUFFICIENCY OF DEADLY-WEAPON FINDING
By his first issue, Appellant contends the record contains no evidence that he exhibited a firearm during the commission of the offense in question and the discovery of a firearm under a mattress does not constitute legally sufficient evidence to justify a finding that he used a deadly weapon to facilitate possession of any of the marihuana he was alleged to have possessed.
STANDARD OF REVIEW
The only standard recognized by the Texas Court of Criminal Appeals in reviewing the sufficiency of the evidence necessary to support each element of a criminal offense the State is required to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Brooks, 323 S.W.3d at 912. In determining whether the evidence is legally sufficient to support a conviction, this court considers all the evidence in the light most favorable to the verdict and determines whether, based on that evidence and reasonable inferences to be drawn therefrom, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Winfrey v. State , 393 S.W.3d 763, 768 (Tex. Crim. App. 2013) ; Lucio v. State , 351 S.W.3d 878, 894 (Tex. Crim. App. 2011). As a reviewing court, we must defer to the jury’s credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. Brooks , 323 S.W.3d at 899.
Therefore, when reviewing the sufficiency of the evidence, we view the evidence "in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." Queeman v. State, 520 S.W.3d 616, 623 (Tex. Crim. App. 2017) ; Anderson v. State , 416 S.W.3d 884, 888 (Tex. Crim. App. 2013) (citing Jackson , 443 U.S. at 318-19, 99 S.Ct. 2781 ). Because the jury is the sole judge of the credibility of witnesses, the reviewing court must not usurp that role by substituting its own judgment for that of the jury. Montgomery v. State , 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). The duty of the reviewing court is simply to ensure that the evidence presented supports the jury’s verdict and that the State has presented legally sufficient evidence to establish the offense charged. Id. When the reviewing court is faced with a record supporting contradicting inferences, the court must presume that the fact finder resolved any such conflicts in favor of the verdict, even if not explicitly stated in the record. Id. "Under this standard, evidence may be legally insufficient when the record contains either no evidence of an essential element, merely a modicum of evidence of one element, or if it conclusively establishes a reasonable doubt." Britain v. State , 412 S.W.3d 518, 520 (Tex. Crim. App. 2013) (citing Jackson , 443 U.S. at 320, 99 S.Ct. 2781 ).
USE OR EXHIBITION
Appellant contends the evidence is legally insufficient to establish that he "used or exhibited" a deadly weapon in the course of the commission of the primary offense of possession of marihuana. Because the firearm in question, a 9mm semi-automatic handgun, was concealed by the mattress at the time the officers conducted their search of the residence, the State concedes the weapon was not "exhibited" in the course of the commission of the offense. The State does, however, vigorously contend that a rational fact finder could have inferred that Appellant "used" the firearm to facilitate the commission of that offense.
"Use" and "exhibition" are clearly distinguishable terms. Patterson v. State , 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). In Patterson, the court explained that "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. at 941. In Plummer v. State, 410 S.W.3d 855, 858 (Tex. Crim. App. 2013), the Court of Criminal Appeals did, however, postulate the possibility that an antique gun exhibited solely for display purposes might not be eligible for a deadly-weapon finding.
Relying on Judge Cochran’s concurring opinion in Coleman v. State, 145 S.W.3d 649, 660 (Tex. Crim. App. 2004), Appellant contends evidence simply proving the simultaneous possession of a firearm and marihuana does not sufficiently establish, beyond a reasonable doubt, a conclusion that the firearm facilitated the commission of the offense of possession of marihuana. Similarly, this court has recently held that "[m]ere possession of a deadly weapon during the commission of a felony is not enough; rather, the deadly weapon must facilitate the associated felony to support a deadly weapon finding." Mayes v. State, 536 S.W.3d 102, 109 (Tex. App.—Amarillo 2017, pet. ref'd) (citing Plummer , 410 S.W.3d at 864-65 ). Therefore, before a reviewing court can find that the evidence presented supports a fact finder’s conclusion that a deadly weapon was used in the commission of an offense "there must be some facilitation purpose between the weapon and the associated offense...." Plummer, 410 S.W.3d at 856.
In ascertaining whether a weapon has facilitated the commission of any given offense, courts have developed a number of factors and legal theories which are helpful in evaluating the legal sufficiency of the evidence supporting a "deadly-weapon" finding. In Coleman , Judge Cochran listed at least seven factors courts might use to ascertain whether a deadly-weapon finding was appropriate. In a drug possession case involving a firearm, those factors include: (1) the type of firearm used; (2) whether or not the firearm was loaded; (3) whether the firearm was lawfully acquired; (4) the proximity of the firearm to the drugs; (5) the proximity or accessibility of the firearm to the accused; (6) the quantity of drugs involved; and (7) any evidence indicating a non-facilitating purpose. Coleman , 145 S.W.3d at 659-60 (Cochran, J., concurring) (internal citations omitted). In addition, the Court of Criminal Appeals has also considered: (8) whether the actor was specifically aware of the presence of the firearm; (9) whether the firearm was "employed or utilized" in order to acquire or retain the drugs; (10) whether the firearm actually caused any injury or increased the risk of injury. Plummer , 410 S.W.3d at 858-59 (internal citations omitted).
Here, the weapon in question was a 9mm semi-automatic handgun that appeared to be operational. Because a "deadly weapon" is defined as "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury," the weapon in question was a deadly weapon. TEX. PENAL CODE ANN. § 1.07(17) (West Supp. 2017). Although the firearm was not admitted into evidence due to its being returned to its rightful owner, testimony established that it was designed to be used as a firearm and was, therefore, a deadly weapon by definition. Clearly, this factor weighs in favor of a deadly-weapon finding.
As to the question of whether, at the time of its seizure, the firearm was loaded, the testimony provided at trial was vague. The officers who handled the firearm simply could not remember, one way or the other, whether it was loaded. Therefore, this factor is either neutral or weighs slightly against a deadly-weapon finding.
While evidence established that the firearm in question was stolen, additional evidence indicated that Appellant was not involved with its theft. This fact does not, however, mean that this factor weighs against a deadly-weapon finding. Appellant testified that he acquired the firearm in a questionable, off-the-street transaction from a person being criminally investigated for burglary, potentially indicating his willingness to do business with persons of shady character. More importantly, he testified that he purchased the firearm (indicating actual knowledge of its presence and a personal tie to the residence where it was found) to protect himself from potential criminal activity, i.e., to protect himself and his possessions. As noted in Plummer , "[t]he nature of the illegal drug trade invites the possibility of violence and encourages drug dealers to carry deadly weapons to protect themselves and their inventory." Plummer , 410 S.W.3d at 859, n.23. Appellant also acknowledged the presence of the marihuana when he indicated to the investigating officers that (1) he and the other two occupants had been "smoking a few joints" and (2) Frederick had nothing to do with the marihuana. These factors weigh in favor of a deadly-weapon finding.
As to the proximity of the firearm to either Appellant or the drugs, the evidence established the firearm was located in the same bedroom as the large brick of marihuana and the quantity of small-denomination money surreptitiously stashed in the air-conditioning unit. While the evidence did not establish with any certainty who customarily slept in that particular bedroom, it did establish a connection between Appellant and the residence. Accordingly, these factors also weigh in favor of a deadly-weapon finding.
The evidence further established that the marihuana was an integral part of a street-level drug distribution operation. Some marihuana was found in baggies customarily used for distribution, while the bulk of the marihuana was found in a brick, typically associated with distribution rather than personal use. Furthermore, there were two sets of scales potentially used to measure the quantity of marihuana customarily packaged for distribution, and the police located a substantial sum of money in small-denomination bills, indicative of usual and customary street-level drug transactions. Finally, while the firearm in question was not used to cause any injury during the search of the residence and the seizure of the marihuana in question, it could have contributed to an escalated risk of injury in the event of a confrontational encounter with the police rather than a simple civil disturbance call. All these factors weigh in favor of a deadly-weapon finding.
All in all, having considered these various factors "in the light most favorable to the verdict," based on the evidence and reasonable inferences that could be drawn from that evidence, we find a rational fact finder could have found the essential elements of a deadly-weapon finding beyond a reasonable doubt. Issue one is overruled.
ISSUE TWO—FACTUAL SUFFICIENCY
In his second issue, Appellant suggests that the Court of Criminal Appeals should revisit the plurality opinion of Brooks v. State , 323 S.W.3d 893, 902 (Tex. Crim. App. 2010), concerning factual sufficiency reviews. While Appellant acknowledges that the Texas Court of Criminal Appeals abolished "factual sufficiency review" as it applied to criminal convictions in Brooks, 323 S.W.3d 893, he nonetheless contends this court should reverse and remand his conviction based on factual insufficiency because the evidence was "so obviously weak as to undermine confidence in the jury’s deadly weapon finding." Appellant contends that to properly prove use of a deadly weapon, the State should have offered more detailed evidence regarding the firearm, such as its exact location relative to the edge of the mattress and whether it was easily accessible to anyone in the room. Although interesting, we need not address Appellant’s arguments for overruling the current precedent established by Brooks because under the time-honored principle of stare decisis , this court is bound to follow clear precedent established by a higher court. See Adams v. State, 502 S.W.3d 238, 244 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd). Accordingly, we overrule Appellant’s second issue.
ISSUE THREE—REFORMATION OF JUDGMENT
Relying on the seminal case of Ford v. State, 334 S.W.3d 230, 235 (Tex. Crim. App. 2011), the State concedes the prior felony conviction enhancement allegation did not change the degree of the offense of conviction and that this court should, therefore, reform the judgment to reflect the offense in this case as a third degree felony. The State, however, misreads the full implication of Ford and its application to the facts of this case.
In Ford, the Texas Court of Criminal Appeals compared the language found in Texas Penal Code Section 12.42, with the language found in Section 12.35(c) and concluded that Section 12.35(c) did not increase the degree of the offense. Id. (relying on State v. Webb, 12 S.W.3d 808 (Tex. Crim. App. 2000) ). Because both sections used the language "shall be punished for," the court concluded that, based on its prior holdings, "[w]hen applicable, Section 12.35(c) increases the punishment level for a 12.35(a) state jail felony to a third-degree felony, but the primary offense itself remains a state jail felony." Ford, 334 S.W.3d at 234.
Applying this same logic, because Section 12.425 likewise provides that "[i]f it is shown on the trial of a state jail felony for which punishment may be enhanced under Section 12.35(c) that the defendant has previously been finally convicted of a felony other than a state jail felony under Section 12.35(a), on conviction the defendant shall be punished for a felony of the second degree," then Section 12.425 must likewise increase the punishment level only, with the primary offense remaining a state jail felony. See TEX. PENAL CODE ANN. § 12.425 (West Supp. 2017) (emphasis added). See also Ford, 334 S.W.3d at 234. Section 12.425 increases the range of punishment applicable to the primary offense; it does not increase the degree, grade, or severity level of the primary offense. Applying this principle to the facts of this case, we conclude Appellant’s prior felony conviction did not increase the degree of his current offense but rather increased only the punishment level that applied to the primary state jail felony offense. Accordingly, we sustain Appellant’s third issue and order that the Judgment of Conviction be reformed to reflect the "Degree of Offense" as a state jail felony.
CONCLUSION
As reformed, the judgment of the trial court is affirmed.