JOSE ALBERTO DIAZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM in part, REVERSE and REMAND in part; Opinion issued July 11, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01519-CR
No. 05-06-01520-CR
............................
JOSE ALBERTO DIAZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F05-48652-LR and F05-48653-KR
.............................................................
OPINION
Before Chief Justice Thomas and Justices Morris and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        After the trial court denied his motion to suppress, appellant Jose Alberto Diaz pleaded guilty in two cases: possession of cocaine with intent to deliver, a first degree felony, appellate number 05- 06-01519-CR (trial court number F05-48652-R), and possession of marijuana under five pounds and over four ounces, appellate number 05-06-01520-CR (trial court number F05-48653-R). In each case the trial court made a deadly weapon finding and assessed appellant's punishment at five years' confinement (to run concurrently) and a $1500 fine.   See Footnote 2 
        Appellant now appeals, raising two issues: whether his plea to the possession of marijuana was involuntary because he was not admonished on the correct punishment range for that offense, under the pleadings in the case, and whether the evidence is legally sufficient to sustain the trial court's deadly weapon finding. For reasons that follow, we reverse and remand the judgment in cause number 05-06-01520-CR (trial cause number F05-48653-R); however, we find the evidence is sufficient to sustain the trial court's deadly weapon finding. We affirm the judgment in appellate cause number 05-06-01519-CR (trial cause number F05-48652-R (possession of cocaine with intent to deliver).
Involuntariness of Plea in Cause Number 05-06-01520-CR
 
        The trial judge admonished appellant the punishment range for possession of marijuana under five pounds and over four ounces was 180 days to 2 years in a state jail, with an optional fine up to $10,000. Possession of marijuana under five pounds and over four ounces is a state jail felony. Tex. Health & Safety Code Ann. § 481.121(b)(3) (Vernon 2003). Appellant was correctly admonished of the unenhanced range of punishment for a state jail felony. Tex. Pen. Code Ann. § 12.35(a) & (b) (Vernon 2003).
        Here, however, the State filed a Special Plea of Use of a Deadly Weapon, thereby enhancing the range of punishment for the charged offense of possession of marijuana from a state jail felony to a third-degree felony. Tex. Pen. Code Ann. §12.35(c)(1) (Vernon 2003). Appellant was not admonished that if the trial court made a deadly weapon finding the range of punishment would be increased to that of a third degree felony, which is two to ten years and an optional fine not to exceed $10,000. Tex. Pen. Code Ann. § 12.34 (Vernon 2003).
Applicable Law
 
        Article 26.13(a) of the Texas Code of Criminal Procedure requires that prior to accepting a guilty plea, a trial court must admonish the defendant of the consequences of his plea. Tex. Code Crim. Proc. Ann. § 26.13(a) (Vernon Supp. 2006). The range of punishment is included within those admonishments. Id. A trial court is also required to admonish a defendant as to the consequences of any enhancement paragraphs. Williams v. State, 770 S.W.2d 81, 83 (Tex. App.-Dallas 1989, no pet.). Although the request for a deadly weapon finding was not included as an enhancement paragraph in the indictment, the State's Special Plea of Use of a Deadly Weapon put appellant on notice it would prove a deadly weapon was used or exhibited during the commission of the offense, or in flight after the commission of the offense, and it enhanced the punishment range within which appellant's punishment could be assessed. Tex. Pen. Code Ann. § 12.35(c)(1) (Vernon 2003).
        The trial court erred by admonishing appellant only of the range of punishment for a state jail felony and in not admonishing appellant that if the trial court made an affirmative finding of a deadly weapon the punishment range would be enhanced to that of a third-degree felony which is two to ten years'confinement in the penitentiary with an optional fine of $10,000. Admonishment error, however, is subject to a harmless error analysis.
Harm Analysis
 
        Failure to admonish on the direct consequences of a guilty plea is statutory rather than constitutional error. Burnett v. State, 88 S.W.3d. 633, 637 (Tex. Crim. App. 2002). A critical direct consequence of a guilty plea is the maximum punishment that can be assessed for the offense to which the defendant proposes to plead guilty. Burnett, 88 S.W.3d at 637. If the error does not affect appellant's substantial rights, we must disregard it. See Tex. R. App. P. 44.2(b). Neither the appellant nor the State has any formal burden to show harm or harmlessness under rule 44.2(b). Burnett, 88 S.W.3d at 637. Neither the State nor appellant must demonstrate harm when a non- constitutional error has occurred. Rather, it is the appellate court's duty to assess harm after a proper review of the record. Id. A conviction must be reversed on direct appeal if the record shows that a defendant was unaware of the consequences of his plea and that he was misled or harmed by the trial court's failure to admonish him regarding the range of punishment. Id.
        Here, there is nothing from which this court could reasonably infer appellant knew he would be subject to the enhanced punishment range of two to ten years' confinement if the trial court made a deadly weapon finding when he pleaded guilty to possession of marijuana. Consequently, we are “left with 'grave doubt'” about the harmlessness of the trial court's error. In cases of grave doubt as to harmlessness appellant must win. Id. at 638.
        Moreover, the State concedes the trial court erred when it incorrectly admonished appellant about the range of punishment in the possession of marijuana case, and further concedes appellant was harmed by such error. Consequently, we hold appellant's plea was involuntary in trial court cause number F05-48653-R, and that appellant was harmed thereby. We reverse the judgment in appellate cause number 05-06-01520-CR and remand that case to the trial court for proceedings consistent with this opinion.
Sufficiency of Evidence to Support Deadly Weapon Finding
 
        In issue two, appellant contends the evidence is legally insufficient to sustain the trial court's affirmative deadly weapon finding. The standard of review for legal sufficiency is well established. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Chambers v. State, 711 S.W.2d 240, 245 (Tex. Crim. App. 1986). The fact finder is the sole judge of conflicts in the evidence, the weight of the evidence, and the credibility of witnesses. Upton v. State, 853 S.W.2d 548, 552 (Tex. Crim. App. 1993).
        Here, appellant challenges the legal sufficiency of the evidence to support the affirmative finding a deadly weapon was used during the offenses. We must determine, therefore, whether a rational trier of fact could have found beyond a reasonable doubt appellant used the guns to facilitate possession and delivery of the narcotics. See Gale v. State, 998 S.W.2d 221, 223 (Tex. Crim. App. 1999).
        The Texas Court of Criminal Appeals has held that the term “exhibited” requires conscious display of the weapon. See Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). However, the word “used” has been more broadly interpreted. The Court of Criminal Appeals has held that for purposes of a deadly weapon finding, the word “used” means the deadly weapon was employed or utilized in order to achieve its purpose. Id. Possession alone which facilitates a felony offense constitutes “use.” Id. However, possession of a weapon alone is not sufficient. A weapon must be “used” to achieve an intended result such as a felony offense separate and distinct from possession of the weapon. See Narron v. State, 835 S.W.2d 642, 644 (Tex. Crim. App. 1992). Proximity to the guns at the time of a search is not dispositive of “use.” Coleman v. State, 145 S.W.3d 649, 654 (Tex. Crim. App. 2004). The phrase “'during the commission of the offense' in a drug possession case means just that: while in possession of drugs with intent to deliver them, the defendant is committing the offense.” Coleman, 145 S.W.3d at 655.
Application
 
        In this case Epley found a shotgun in a bedroom closet and a pistol under the sofa cushion in a front room of appellant's apartment. The weapons were loaded, ready to be fired, and in working order. The drugs were found in the kitchen. The trial court was within its prerogative as fact finder to discredit appellant's testimony the weapons were not loaded and were for his personal protection, not to facilitate the offense. A rational factfinder could have found, as the trial court did, that appellant used a deadly weapon to facilitate his drug possession and delivery. The evidence is legally sufficient to support the trial court's affirmative finding of a deadly weapon in each case.
        We affirm the judgment in appellate cause number 05-06-01519-CR (trial cause number F05-48652-R) (possession of cocaine with intent to deliver). We reverse the judgment in appellate cause number 05-06-01520-CR (trial court cause number F05-48653-R) (possession of marijuana) and remand that case to the trial court for proceedings consistent with this opinion.
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
061519F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 Ordinarily, possession of marijuana under five pounds and over four ounces would be a state jail felony; however, because the State filed a Special Plea of Use or Exhibition of a Deadly Weapon and the trial court made a deadly weapon finding, appellant was subject to the range of punishment for a third-degree felony, not a state jail felony. See Tex. Pen. Code Ann. § 12.35(c)(1) (Vernon 2003) (“[a]n 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 . . . a deadly weapon . . . was used or exhibited during the commission of the offense[.]”). We also note the State's brief incorrectly states appellant was convicted of possession of marijuana with intent to deliver; however, appellant was indicted for and found guilty of possession of marijuana, not possession of marijuana with intent to deliver.