Ian Smith aka Michael Copeland v. The State of Texas--Appeal from 230th District Court of Harris County

Affirmedand Opinion filed October 10, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01147-CR

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IAN SMITH a/k/a MICHAEL COPELAND, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 672,947

O P I N I O N

Appellant, Ian Smith, was charged by indictment with the felony offense of illegal investment. He was subsequently convicted by a jury and sentenced by the trial court to 25 years confinement and a fine of $50,000. In one point of error, appellant contends the trial court erred in entering on the judgment an affirmative finding of the use or exhibition of a deadly weapon. We affirm.

In August of 1993, appellant and his co-defendant met two undercover narcotics officers, Officer DeBlanc and Officer Arista, for the purpose of purchasing 150 pounds of marihuana for $96,000, in the parking lot of a shopping mall in Harris County. DeBlanc had 15 pounds of flash marihuana for appellant to examine. As appellant examined the marihuana, DeBlanc and Arista noticed a bulge in appellant s t-shirt. Arista further observed the end of a semi-automatic pistol sticking out of appellant s t-shirt.

Appellant then said the marihuana looked good and showed the officers a canvas bag that appeared to contain $96,000. DeBlanc gave the bust signal notifying the other officers to arrest appellant. As the officers approached, appellant ran through the parking lot, toward Bissonnet and the Southwest Freeway. During the chase, Sergeant Miller saw appellant reach toward his waistband under his t-shirt, pull out a weapon and throw it to the ground. Miller retrieved the weapon and discovered it was loaded.

In his sole issue on appeal, appellant contends the evidence is legally insufficient to support the trial court=s affirmative finding of the use or exhibition of a deadly weapon. In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict. Weightman v. State, 975 S.W.2d 621, 624 (Tex. Crim. App. 1998). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). Thus, this court must determine whether a rational trier of fact could find beyond a reasonable doubt that the visible possession of a weapon facilitated appellant=s delivery of a controlled substance.

A deadly weapon is used when it is employed or utilized to achieve its purpose and is exhibited if it is consciously shown or displayed during the commission of an offense. Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). Use refers to any employment of a deadly weapon, even by simple possession if that possession facilitates the underlying felony. Id.

Appellant, citing Ex parte Petty, 833 S.W.2d 145 (Tex. Crim. App. 1992), contends he did not use or exhibit a weapon, but only possessed it. In Petty, the defendant was convicted of unlawful possession of a firearm by a felon. The trial court made an affirmative finding of the use or exhibition of a deadly weapon. The Court of Criminal Appeals reformed the judgment and deleted the affirmative finding. The court held that mere possession of a deadly weapon will not support an affirmative finding of a deadly weapon unless the possession facilitated the commission of the associated felony. Id. Where the gravamen of the offense is possession of a deadly weapon, it cannot logically be facilitated by the offense itself. Thus, Petty is distinguishable from the case presented here.

Here, the associated felony was illegal investment in unlawful contraband. Accordingly, the issue presented is whether appellant s possession of a firearm facilitated his illegal investment, i.e., his purchase of narcotics.

The Court of Criminal Appeals held in Patterson that mere possession of a firearm arguably facilitated the defendant s possession of illegal contraband. In that case, police obtained a search warrant for the defendant s home. They knocked on his door and seconds later kicked it in. 769 S.W.2d at 939. The defendant was on the couch with a gun boot next to him. Id. As an officer approached him, he stated, I have a gun right here, but I=m not going to touch it. Id. Patterson had a firearm between his left leg and the end of the sofa. Id. A subsequent search revealed contraband and $905 in cash. Id. The court determined that a rational trier of fact could find that [Patterson] used the firearm during the commission of the felony offense of possessing the contraband, in a sense that the firearm protected and facilitated appellant=s care, custody, and management of the contraband. Id. at 942.

We find appellant used his weapon in a similar manner here. In other words, a rational trier of fact could determine that appellant used a weapon to protect his cash and to facilitate a narcotics purchase. DeBlanc testified that he negotiated the sale of 150 pounds of marihuana to appellant for $96,000 and during the transaction appellant tried to move the transaction to a different location. Appellant had a canvas bag with him that contained only $12,000 and cut paper that looked like money. Thus, Officer DeBlanc suspected that appellant planned to pay less than what he bargained for. Although appellant did not actually have the contraband in his possession at the time he possessed the firearm, a trier of fact could rationally determine that the weapon protected his interest in either purchasing or taking the narcotics, and, thus using the firearm in the underlying felony.

Appellant further argues that the trial court could not make an affirmative finding because a special issue was not presented to the jury. We disagree. When the trial court is the trier of fact at the punishment stage, as it was here, the court has the authority to make an affirmative finding as to the use or exhibition of a deadly weapon even if the jury has not answered a special issue. Ross v. State, 59 S.W.3d 754, 756 (Tex. App.CAustin 2001, pet. ref d); Adams v. State, 40 S.W.3d 142, 146 (Tex. App.CHouston [14th Dist.] 2000, pet. ref d).

We conclude that any reasonable fact finder could have found that appellant used or exhibited a firearm during the underlying felony beyond a reasonable doubt. Thus, we hold the evidence is legally sufficient to support an affirmative finding of a deadly weapon. Appellant s sole issue is overruled.

We affirm the trial court=s judgment.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed October 10, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish C Tex. R. App. P. 47.3(b).