Gary Lee Nelms v. The State of Texas--Appeal from 51st District Court of Tom Green County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00242-CR
Gary Lee Nelms, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT
NO. A-94-0149-S, HONORABLE DICK ALCALA, JUDGE PRESIDING

Following a bench trial, the court below found Gary Lee Nelms guilty of using a deadly weapon during the commission of a felony and sentenced him to forty-eight years confinement. See Tex. Code Crim. Proc. Ann. art. 42.12, 3g (West Supp. 1997). We will modify the judgment and affirm it as modified.

 
THE CONTROVERSY

In a search of Nelms's person, a police officer found in his watch pocket a quantity of methamphetamine less than 28 grams, and in his right front pocket a derringer pistol. Nelms did not resist the search and did not attempt to remove the pistol from his pocket. When the officer asked Nelms if he had any weapons, Nelms directed the officer's attention to the pistol in his pocket.

Nelms pleaded guilty to possessing the methamphetamine, a second degree felony. See Tex. Health & Safety Code Ann. 481.115 (West 1992). He pleaded not true to the indictment allegation that he used a deadly weapon during commission of the felony. The trial judge's finding that the allegation was true prohibits community supervision and limits good-time credit for parole eligibility.

 
DISCUSSION AND HOLDING

The State was obliged to show "that a deadly weapon . . . was used or exhibited during the commission of a felony offense or during immediate flight therefrom." See Tex. Code Crim. Proc. Ann. art. 42.12, 3g(a)(2) (emphasis added). Nelms contends, in effect, that the evidence is insufficient to show his use of the pistol. We disagree.

The "simple possession" of a deadly weapon may amount to a use of it within the meaning of the statute, "if such possession facilitates the associated felony." Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989) (affirming and quoting, Patterson v. State, 723 S.W.2d 308, 315 (Tex. App.--Austin 1987)). The issue reduces to whether a rational trier of fact could find, beyond a reasonable doubt, that Nelms's possession of the pistol facilitated his possession of the contraband. We believe the finding justified by the evidence.

In Patterson, the appellant was found to have used a deadly weapon in the statutory sense when the evidence showed the following: a .45 caliber pistol was loaded and concealed between appellant's leg and the end of the couch upon which he sat; he was seated next to an end table upon which rested the contraband and related items, a holster for a .45 caliber pistol, and certain of appellant's personal effects; and appellant did not appear to be under the influence of drugs, made no furtive gesture or attempt to flee, raised his hands at an officer's approach, and stated he had a "gun" but was not going to use it. Id., 723 S.W.2d at 315, 769 S.W.2d at 939.

In the present case, the evidence shows Nelms's simultaneous control of a loaded pistol and contraband, each concealed on his person in a different pocket. The association between the pistol and the contraband, in time and place, is obvious; and we believe a trier of fact could rationally conclude beyond a reasonable doubt that the purpose of the pistol was to protect the contraband, and thus facilitated Nelms's possession of the latter, as in Patterson.

Nelms contends the decision in Bailey v. United States, 116 S. Ct. 501 (1995), should qualify the holding and the statutory interpretation in Patterson. We disagree. The federal statute construed in Bailey differs from article 42.12, 3g(a)(2)--the state statute construed in Patterson. The federal statute refers to one who "uses or carries a firearm," while the Texas statute refers to one who "uses or exhibits" a firearm. The federal statute and the state statute both employ the verb use, but the legislative intention behind that verb is influenced in each instance by the verb that follows the disjunctive "or." The influencing verb is different in the federal statute ("carries") and the state statute ("exhibited"). This is an important and sufficient distinction in our view and we are bound to follow Patterson in all events. We overrule Nelms's first point of error.

In his second point of error, Nelms contends the trial judge erred in rendering a judgment nunc pro tunc after notice of appeal was filed. We agree.

The trial judge originally ordered suspension of the forty-eight year sentence and placed Nelms on community supervision. After Nelms filed notice of appeal, the judge attempted to correct the judgment nunc pro tunc to show that probation and community supervision were not ordered. The attempted correction was void. Tex. R. App. P. 40(b)(2). We may, however, modify the trial-court judgment and correct it as the law may require. Tex. R. App. P. 80(b)(2). This includes a power to reform an error the trial judge could have corrected by a judgment nunc pro tunc if the information necessary to correct the judgment appears in the record. See Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.--Dallas 1991, pet. ref'd).

We therefore sustain Nelms's second point of error and modify the judgment to sentence appellant to confinement for a term of forty-eight years, with no suspension of the sentence. As modified, we affirm the trial-court judgment.

 

John Powers, Justice

Before Justices Powers, Jones and Kidd

Modified and, as Modified, Affirmed

Filed: July 24, 1997

Do Not Publish

gree.

The "simple possession" of a deadly weapon may amount to a use of it within the meaning of the statute, "if such possession facilitates the associated felony." Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989) (affirming and quoting, Patterson v. State, 723 S.W.2d 308, 315 (Tex. App.--Austin 1987)). The issue reduces to whether a rational trier of fact could find, beyond a reasonable doubt, that Nelms's possession of the pistol facilitated his possession of the contraband. We believe the finding justified by the evidence.

In Patterson, the appellant was found to have used a deadly weapon in the statutory sense when the evidence showed the following: a .45 caliber pistol was loaded and concealed between appellant's leg and the end of the couch upon which he sat; he was seated next to an end table upon which rested the contraband and related items, a holster for a .45 caliber pistol, and certain of appellant's personal effects; and appellant did not appear to be under the influence of drugs, made no furtive gesture or attempt to flee, raised his hands at an officer's approach, and stated he had a "gun" but was not going to use it. Id., 723 S.W.2d at 315, 769 S.W.2d at 939.

In the present case, the evidence shows Nelms's simultaneous c