Gun ownership == using it in crime, Texas court rules

[Declan McCullagh]

Toby Wade Beyer, Appellant Vs. State of Texas, Appellee

No. 11-02-00323-CR

COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

November 5, 2003, Filed

PRIOR HISTORY: Appeal from the 266th District of Erath County.

DISPOSITION: Affirmed.



COUNSEL: For Plaintiff or Petitioner: Andrew Ottaway, Attorney At Law, 
Granbury, TX.

For Defendant or Respondent: John Terrill, District Attorney, Stephenville, TX.

JUDGES: Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.

OPINIONBY: TERRY McCALL

OPINION: Appellant pleaded guilty to the first degree felony offense of the 
manufacture of methamphetamine. The jury assessed punishment at 20 years 
confinement and found that appellant used or exhibited a deadly weapon 
during the commission of the offense. The trial court entered a deadly 
weapon finding in its judgment. See TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 
3g(a)(2) (Vernon Supp. 2003). We affirm.

In his sole point of error, appellant complains that the evidence was 
insufficient to support the jury's finding that he used or exhibited a 
deadly weapon in the commission of the offense. HN1To determine if the 
evidence is legally sufficient, we must review all of the evidence in the 
light most favorable to the verdict [*2]  and determine whether any 
rational trier of fact could have found the essential elements of the crime 
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 
560, 99 S. Ct. 2781 (1979); Jackson v. State, 17 S.W.3d 664 
(Tex.Cr.App.2000). To determine if the evidence is factually sufficient, we 
must review all of the evidence in a neutral light and determine whether 
the evidence supporting guilt is so weak as to render the conviction 
clearly wrong and manifestly unjust or whether the evidence supporting 
guilt, although adequate when taken alone, is so greatly outweighed by the 
overwhelming weight of contrary evidence as to render the conviction 
clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 
(Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); 
Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 
S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App. 
1996).

HN2The Court of Criminal Appeals has defined the terms "use" and "exhibit" 
as they are used in Article 42.12, section 3g(a)(2).  [*3]  Gale v. State, 
998 S.W.2d 221, 225 (Tex.Cr.App. 1999); Patterson v. State, 769 S.W.2d 938, 
941 (Tex.Cr.App.1989). The "use" of a deadly weapon during the commission 
of a felony offense extends to any employment of a deadly weapon, even its 
simple possession, if such possession facilitated the associated felony. 
Patterson v. State, supra. A defendant's use of a deadly weapon in the 
sense of protecting and facilitating his possession of a controlled 
substance constitutes "use" of a deadly weapon under Article 42.12, section 
3g(a)(2). Gale v. State, supra; Patterson v. State, supra.

In this case, the evidence showed that law enforcement officers searched 
appellant's residence, pursuant to a search warrant, on December 12, 2001. 
Investigator Gerald Wayne Rogers of the S.T.O.P. Narcotics Task Force 
participated in the search. Investigator Rogers testified that, other than 
the officers, appellant was the only person present at the residence during 
the search. The officers discovered methamphetamine during the search. They 
also discovered a working methamphetamine laboratory in the residence and 
ingredients [*4]  necessary to manufacture methamphetamine.

Investigator Rogers said that appellant's residence was equipped with 
surveillance equipment. The officers saw their vehicles on the surveillance 
television in the living room to the left of the front door. The officers 
found a loaded sawed-off double-barreled shotgun on a couch that was near 
the television. Investigator Rogers said that a person sitting on the couch 
could watch the surveillance on the television and be ready to shoot the 
shotgun if anybody came in the front door. Investigator Rogers testified 
that, in his experience, individuals who are involved in manufacturing 
methamphetamine are generally well armed. Investigator Rogers said that the 
shotgun was a deadly weapon that was used in the commission of the offense 
of manufacturing the methamphetamine.

Appellant does not deny that the shotgun was a deadly weapon or that he was 
in possession of it. Rather; he argues that there was no evidence to 
support the jury's finding that his possession of the shotgun facilitated 
the associated felony of manufacturing methamphetamine. We disagree. Based 
on the evidence, a rational trier of fact could find that the shotgun 
facilitated appellant's [*5]  offense of manufacturing. The officers found 
the loaded shotgun on the couch near the surveillance television. The 
evidence was legally and factually sufficient to establish that appellant 
"used" the shotgun in the sense that it protected and facilitated his 
manufacturing of the methamphetamine. Gale v. State, supra; Patterson v. 
State, supra. Appellant's sole point of error is overruled.

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE