PLUMMER v. STATE

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Court of Criminal Appeals of Texas.

Marquis Andre PLUMMER, Appellant v. The STATE of Texas.

No. PD–1269–12.

Decided: October 09, 2013

Michael A. McEnrue, Houston, TX, for Marquis Andre Plummer. Carly Dessauer, Assistant District Attorney, Houston, TX, for The State of Texas.

OPINION

Appellant was convicted of unlawful possession by a felon of a firearm and possession of body armor. The trial judge entered a deadly-weapon finding in the body-armor case, and the question before us is whether, for purposes of Article 42.12, § 3g, the evidence shows that appellant “exhibited” the firearm in the commission of the offense of possession of body armor.1 The court of appeals upheld the deadly-weapon finding,2 and we granted review because this case raises an important issue of first impression: To support a deadly-weapon finding, must the “exhibition” of a deadly weapon facilitate, in some manner, the associated felony offense? Or is it sufficient that the exhibition of the deadly weapon occurs simultaneously with the felony but is unrelated to its commission?

We conclude that there must be some facilitation purpose between the weapon and the associated offense to support a deadly-weapon finding. Because there was no evidence that appellant's possession of a mini-Glock pistol facilitated his commission of the offense of possession of body armor, we delete the deadly weapon finding from the judgment.

I.

Appellant was charged with unlawful possession of a firearm3 and unlawful possession of body armor by a felon.4 He wore both a holstered firearm and a bullet-proof vest as part of his security-guard uniform. Because of a prior felony conviction, he was prohibited from possessing both the firearm and the bullet-proof vest.

The evidence at appellant's bench trial showed that, on March 30, 2010, Houston Police Officer Dannell Sanchez was dispatched to a wellness clinic on Cullen Blvd. to assist two Brazoria County deputies in serving a felony arrest warrant on one of the clinic's employees. When Officer Sanchez arrived at the clinic, he met appellant, who was sitting in the lobby, wearing a bullet-proof vest under a black T-shirt with “POLICE” written on it. Appellant seemed very nervous as he asked the officers what was happening. “One of the things that was a red flag for me, he had a Sam Brown or gun belt on and the gun in the holster was a lot smaller than what we would carry as a duty weapon․We call it a mini Glock and that's not a duty weapon.”

The officers were unable to find the person for whom they had the arrest warrant, but they began questioning appellant because they thought it odd for the wellness clinic to have a security guard. At first, appellant said he was with Brazoria County, but, when asked for his identification, he gave the officers a Fire Marshal identification card from Prairie View in Walker County. When Officer Sanchez ran appellant's identification, he found that appellant had been convicted of a felony in 2003 and his concealed-handgun license had been revoked. Officer Sanchez's supervisor verified that appellant was, in fact, employed by the Prairie View Fire Department, but he was not a licensed peace officer. The officers also verified that appellant was working as a substitute security guard.

The trial judge found appellant guilty of unlawful possession of a firearm by a felon and unlawful possession of body armor (the bullet-proof vest) by a felon. Referring to our precedent,5 the trial judge declined to enter a deadly-weapon finding in the possession-of-a-firearm-by-a-felon case. He did, however, enter a deadly-weapon finding in the body-armor case.

The court of appeals upheld the deadly-weapon finding, concluding that the simultaneous “display” of a weapon while committing another felony offense (possession of body armor) supported the finding even though the gun did not facilitate the felony offense.6 We granted review to decide whether the term “exhibit” in the deadly weapon statute carries with it the connotation that the deadly weapon must somehow facilitate or increase the risk of potential harm while committing the felony.

II.

Article 42.12 § 3g(a)(2) states that offenders who have “used or exhibited [a deadly weapon] during the commission of a felony offense or during immediate flight therefrom” are not eligible for judge-ordered community supervision.7 A deadly-weapon finding also requires an inmate to serve at least one-half of his prison sentence before he is eligible for parole.8 Thus, a deadly-weapon finding carries with it serious legal consequences.

According to our seminal decision in Patterson v. State, the term “ ‘exhibited a deadly weapon’ means that the weapon was consciously shown or displayed during the commission of the offense.”9 The actor must be specifically aware of the fact that he was using a deadly weapon during the felony. The term “used a deadly weapon” means that “the deadly weapon was employed or utilized in order to achieve its purpose.”10 Therefore, the actor must use the item or object as a deadly weapon, not for some other purpose.11 We then 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.”12 Since Patterson, we have sometimes considered “exhibit” as a part of, or subset of, “use.”13

A. The Expansion of Deadly–Weapon Findings

The Patterson decision opened the door for expanded interpretations of “use and exhibit a deadly weapon during the commission of a felony.”

One expansion is that the term now includes any instrument that threatens or causes serious bodily injury, even when the instrument is not inherently or intentionally deadly. In Tyra v. State,14 we held that a car was a deadly weapon during the commission of an involuntary manslaughter.15 Even though a car is not intended to be a deadly weapon, it can be “used with deadly effect” in the commission of manslaughter.16 That reasoning was then applied to felony DWIs when no one was actually injured.17 Based on Tyra and the DWI cases, Texas courts have upheld deadly-weapon findings when the object caused the injury or increased the risk of injury during the commission of the felony; these findings include an uncovered septic tank into which a child fell, the sexual organ of an HIV-positive man who raped a child, and the sedatives that accidentally caused the death of a dental patient .18 In each of these cases, as in Tyra, the object was found to be a deadly weapon because it caused or facilitated the injury (or risk of injury) posed by the associated felony.

A second expansion of Patterson permits deadly-weapon findings when a jury could infer, in the absence of actual harm or threat, that the weapon “facilitated” the associated felony. For example, when a defendant possesses both guns and drugs, a jury may make a deadly-weapon finding even though he did not overtly use or brandish a gun because the weapon reasonably could have “protected and facilitated appellant's care, custody, and management of the contraband.”19

A third expansion of Patterson's reach permits a deadly-weapon finding even when the weapon is not found on or near the defendant. In Coleman v. State,20 the defendant was handcuffed in a patrol car while police officers searched his house and found a large quantity of drugs in a safe, along with two guns and a large amount of cash.21 These facts generated a “cumulative effect” sufficient to show that the weapons had facilitated the possession of drugs by protecting them and the profits from their sale.22 The 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.23 The “drug fortress theory” supposes that firearms stored at a drug-manufacturing or distribution location might be used to defend against police or thieves.24 A second theory, the “more than strategic proximity theory,” requires an evidentiary connection between the guns and drugs to establish that the guns “facilitated or could have facilitated the drug trafficking offense.”25 Both theories recognize that drug dealers frequently use guns to protect themselves and their merchandise.

B. Limitations on Deadly–Weapon Findings

Since Patterson, deadly-weapon findings have been upheld when the evidence showed some relationship between the weapon and the associated felony. However, we have declined to uphold deadly-weapon findings when the weapon was present but did not facilitate a separate felony. For example, in Ex parte Petty,26 we held that the offense of possession of a firearm by a felon could not support a deadly-weapon finding because the weapon was not used “to achieve an intended result, namely, the commission of a felony offense separate and distinct from ‘mere’ possession.”27 Similarly, in Narron v. State,28 we deleted the deadly weapon finding because the short-barreled shotgun was both the subject of the conviction and the basis of the deadly-weapon finding. The shotgun had not been used to facilitate any other felony.29

Conversely, as a part of the Patterson expansionary interpretation, we have upheld deadly-weapon findings when the evidence showed that the weapon facilitated the associated felony even though it was not overtly used. In McCain v. State,30 the evidence showed that the “home invasion” defendant had a long, dark object sticking from his back pocket, which the homeowner-victim thought was a knife. She was afraid that the defendant would use the knife against her during the aggravated robbery even though he never brandished it in a threatening manner.31 We upheld the deadly-weapon finding because “the knife was exhibited during the criminal transaction, or at least, that its presence was used by appellant to instill in the complainant apprehension, reducing the likelihood of resistance during the encounter.”32 But the defendant's act of having the knife in his pocket while he committed the felony was not sufficient; “the determining factor is that the deadly weapon was ‘used’ in facilitating the underlying crime.”33

We have reiterated this “facilitation” requirement in other decisions. In Whatley v. State,34 a solicitation-of-capital-murder prosecution, the defendant had solicited hitmen and provided them with a pistol with which they were to commit the murder.35 We upheld the deadly-weapon finding because “[a]ny employment of a deadly weapon qualified if it ‘facilitates the associated felony.’ “36 Mere exhibition of the pistol supported a deadly-weapon finding only because the pistol facilitated the associated felony by its “persuasive impact ․ [as] a part of the request or the attempt to induce conduct,” enhancing the defendant's solicitation request.37

C. Legislative History

Because the “plain language” of Article 42.12, § 3g(a) is ambiguous and does not answer the question of whether the exhibition of a deadly weapon must, in some respect, facilitate the commission of the associated felony, we may consult the legislative history of the statute.38 Although the legislative record discussing the specific terms in the deadly-weapon statute is skimpy,39 the general purpose of the statute is well documented. One witness testifying before the 1977 Senate subcommittee on the deadly-weapon provision stated that it was “intended to send a message to criminals to leave their firearms at home.”40 All of the discussion during the hearing centered on the commission of dangerous, violent felonies, and the use of obvious weaponry, such as guns, grenades, and knives. The House sponsor for the bill explained that

[I]t is a bill ․ that deals with the situation of those people who have been involved with serious criminal acts. Those acts in almost every instance are those that deal with violent crime, the crime that deals with a weapon ․ has intimidated and perhaps injured or killed or maimed some victim. It provides that there will be no probation in certain circumstances in a case dealing with a violent act.41

The statute's structure also suggests that the law is intended to deter and punish those involved in serious violent felonies. The section immediately preceding the deadly-weapon provision in Section 3g(a)(2) is the section listing the specific offenses labeled as the “ ‘3g’ offenses.”42 Almost all of these listed offenses are violent acts involving physical threat or harm. Thus, the two “3g” sections enhance punishments for those who commit serious felony offenses that cause or threaten physical harm or whose use or exhibition of a deadly weapon during the commission of a felony causes harm or the threat of harm.

In the context of violent offenses, the term “exhibit” contains an implicit element of facilitation. If one exhibits a deadly weapon—or, in the words of Patterson, “consciously displays” it43 —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. Conversely, if one commits a nonviolent offense that does not involve harm or the threat of harm, the presence of a deadly weapon does not necessarily further or facilitate the offense.

Other states addressing the scope of deadly-weapon findings have frequently adopted a facilitation requirement to avoid absurd results.44 The Wisconsin Supreme Court, in a case involving drug possession, adopted an “adequate nexus”45 requirement that requires the state “to prove the defendant possessed the weapon to facilitate commission of the predicate offense.”46 Similarly, the Oklahoma Court of Criminal Appeals required more than “mere possession” of a deadly weapon and looked for a “nexus between the crime charged and possession of a gun.”47 Recently, the South Carolina Supreme Court agreed that its legislature, in drafting its weapon enhancement statute, “intended to penalize possession of a firearm only when possession furthers or is intended to further a violent crime.”48 The United States Supreme Court has interpreted the federal statute increasing penalties for using or carrying a firearm during a drug offense as requiring, at a minimum, that “the firearm must have some purpose or effect with respect to the drug trafficking crime․ [T]he gun at least must “facilitat[e], or ha[ve] the potential of facilitating,” the drug trafficking offense.”49

With this general background, we turn to the present case.

III.

Appellant contends that “exhibited a firearm” means that the firearm must facilitate or in some way further the associated felony. The State responds that the word “exhibit” should be construed broadly, according to its plain meaning, and without any requirement of facilitation or relationship with the associated offense.

We agree with appellant and those states that have held that an overly expansive interpretation of “exhibit” can lead to absurd results.50 To consider the absurd results which might occur without a facilitation requirement, let us put Patterson's “doubtful scenario” of displaying a deadly weapon without using it51 in specific terms. Imagine the typical bank-robbery scenario: Dangerous Dan races into the bank and hands a note to the teller—“Your money or your life. I have a gun in my pocket.” Dan's hand is tucked into his sagging jacket pocket. The teller hands over the money, and Dan runs out the door into the waiting arms of Officer Obie who removes a Beretta pistol from Dan's jacket pocket. Dan has “used” a deadly weapon during the commission of the offense even though he did not “exhibit” it.

But now suppose the reverse scenario: Chef Charlie is carrying his 18–inch butcher knife in one hand as he carries a large pan of dirty cooking oil in his other hand out the restaurant's back door, and he then carefully pours the oil into the nearby lake. The knowing unauthorized discharge of a pollutant into a lake is a felony offense,52 and Charlie consciously displayed his butcher knife as he committed that offense. But the display of the butcher knife had no relationship to the felony. Or imagine the bank president who has a fancy loaded derringer displayed prominently on his desk while he cheerfully embezzles money from a widow's account by forging her signature on checks; he is consciously displaying his prized derringer at the same time that he commits a felony, but the two actions, though simultaneous, are unrelated. Or suppose that Dangerous Dan has a rifle rack in the cab of his truck. He always keeps his Ruger SR–22 autoloading deer-hunting rifle in that rack. One night he is driving home from a busy day of shooting and drinking when he is stopped for speeding and then arrested for DWI. Because he has two prior DWI convictions, Dan is charged with felony DWI. He has exhibited his rifle, a deadly weapon, during the commission of the felony offense of DWI, but that exhibition was wholly unrelated to the commission of the offense and did not help facilitate its commission.

Or, closer to home, take this scenario: Mr. Plummer is a felon who is working as a security guard, and he is wearing a holster with a small handgun in it at the same time he is wearing a bullet-proof vest under his black T-shirt. He is committing the felony offense of possession of body armor by a felon and he is also consciously wearing his holster with a handgun in it, but does the display of the handgun have any relationship to the commission of the possession of body-armor offense? That deadly weapon may be “exhibited” in some sense, but it is not being “used” during the commission of the offense.

The purpose of the deadly weapon provision is to discourage and deter felons from taking and using deadly weapons with them as they commit their crimes.53 Better an unarmed bank robber than an armed one, as the probability of actual violence during the robbery is increased when deadly weapons are involved.54 But the deterrence rationale works only if the actor makes a conscious decision to “use” or “exhibit” the weapon to assist in committing the felony.55 Thus, the mere possession of a deadly weapon during a felony offense is not covered by the statute.56 Had the Legislature intended that mere possession could trigger a deadly-weapon finding, it could easily have said so. Because the Legislature did not do so, it is only when the possession of the deadly weapon “facilitates the associated felony” that the factfinder may make an affirmative finding.57

Appellant's possession of body armor and the handgun is distinguishable from cases where deadly-weapon findings have been upheld. Although the mini-Glock in this case is a deadly weapon by nature, it did nothing to increase the risk of harm or otherwise contribute to the result of wearing body armor. Here, the handgun did not play any role in enabling, continuing, or enhancing the offense of possession of body armor. Both the body armor and the pistol were used for a common purpose-looking like a security guard-but neither offense, possession of body armor or possession of a deadly weapon, facilitated or furthered the commission of the other offense. There is no facilitation connection between the two. The facts in this case are like those in Narron and Petty. Appellant's mini-Glock was simply being possessed at the same time he possessed the body armor.

In sum, we hold that a deadly-weapon finding for a felony offense must contain some facilitation connection between the weapon and the felony. The deadly weapon must, in some manner, help facilitate the commission of the felony. Because there is no such evidence of any facilitation in this case, we conclude that the court of appeals erred in upholding the deadly-weapon finding. Therefore, we delete the deadly-weapon finding from the judgment, and we affirm the court of appeals's judgment as reformed.

COCHRAN, J., delivered the opinion of the Court in which MEYERS, PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, and ALCALA, JJ., joined.

KELLER, P.J., concurred.

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