NO. 317-99







Johnson, J., filed a dissenting opinion.

D I S S E N T I N G  O P I N I O N

I respectfully dissent.

The majority concedes that "[i]f, after the shooting, appellant had stepped out of the car, walked away and turned himself in, then the evidence would not support an affirmative finding because there is no evidence that he knew, up to that point, of the existence of a weapon in the possession of any of his co-conspirators." Ante, slip op. at __ (emphasis in original). I agree. The necessary implication of this conclusion is that no deadly weapon finding is supportable until after the shooting. However, the majority's ultimate holding that a trier of fact could conclude that appellant knew of Moore's intention to use the weapon to facilitate the commission of the offense after the shooting is not supported by the record. In fact, there is no evidence in the record indicating where the gun was located from the time that appellant first saw it until the time that it was secreted in the woods with the stolen property.(1)

It is uncontroverted that appellant became aware of Moore's gun at the time that Moore shot the officer and first saw the gun on the floorboard of his car just after the shooting. However, the location of the gun during the time from immediately after appellant saw it up to the time when it was hidden in the woods is not in evidence. Indeed, the gun could have been in any number of places. For example, after the shooting, appellant drove his car, in which Moore and Cameron were passengers, to Moore's apartment. All went inside. Where was the gun? After approximately 20 to 30 minutes, the three went to Albertson's, where they took "everything" out of appellant's car and put it in Cameron's car.(2) Where was the gun? Once the items were transferred from appellant's car to Cameron's car, appellant returned to Moore's apartment, where he dropped Moore off. Where was the gun? Appellant then went back to his own apartment.(3) He and Cameron stayed at appellant's apartment for about seven to ten minutes, during which time Moore and his girlfriend arrived. Where was the gun? Appellant then rode in Cameron's car, driven by Cameron, who followed Moore and his girlfriend in a Bronco, to a neighborhood where "all the stuff" was taken. Where was the gun? The answer to every question about the whereabouts of the gun is, we don't know.

The above demonstrates just a few of the innumerable possibilities of the whereabouts of Moore's gun; Moore's apartment, Moore's car, Cameron's car, appellant's car, Moore's person, Cameron's person, appellant's person, Moore's girlfriend's person. Its location simply cannot be established from the record. We know only that the gun was first seen at the time of the shooting and last seen abandoned with the stolen property. Any conclusion or assumption about its location at any other time is mere speculation. Without knowing its location, we cannot assess whether it was used to facilitate the offense.

Even assuming, arguendo, that evidence did establish one of the co-conspirators' possession of the gun after the shooting, there is no evidence in the record that the gun was used after the shooting or that it in some way facilitated the disposal of the stolen property. Mere possession of a weapon without utilizing it to achieve an intended result or purpose does not constitute the use of that weapon for the purposes of an affirmative finding. See Ex parte Petty, 833 S.W.2d 145 (Tex.Crim.App. 1992); Narron v. State, 835 S.W.2d 642, 644 (Tex.Crim.App. 1992); Patterson v. State, 769 S.W.2d 938, 941 (Tex.Crim.App. 1989). However, possession of a firearm may be sufficient to constitute use if such possession facilitates the associated felony. Patterson, 769 S.W.2d at 939-41 (emphasis added).

The majority correctly notes that in Gale we found that a defendant "used" firearms to facilitate the illegal possession of marijuana and cash, where the firearms were located in the same closet where the police discovered a substantial amount of marijuana and cash. Ante, slip op. at __, citing Gale v. State, 998 S.W.2d 221 (Tex.Crim.App. 1999). However, the majority failed to acknowledge significant distinctions.

In Gale, uncontroverted testimony evidenced that drug traffickers use firearms to protect their drugs and drug proceeds.(4) Gale, 998 S.W.2d at 225. No testimony was presented in the instant case that those convicted of organized criminal activity frequently use firearms or deadly weapons to facilitate their crimes.(5) Additionally, in Gale, evidence was introduced that the firearms could be "fully loaded and ready to fire within 'seconds.'" Id. In the instant case, however, not only is there no evidence as to whether the gun was loaded or could be fully loaded and ready to fire quickly, but the evidence does not even reveal if the gun could have been reached and fired by appellant or any co-conspirator. There is no evidence from which a rational trier of fact could have concluded beyond a reasonable doubt, or even reasonably infer, that Moore or any of the other participants exhibited or used a deadly weapon to facilitate the offense after the shooting.

Because I do not believe that, from the evidence in the record, a rational trier of fact could find beyond a reasonable doubt that appellant knew a deadly weapon would be used or exhibited by Moore or any other co-conspirator during the commission of the offense or during the immediate flight therefrom, I respectfully dissent.

Johnson, J.

Date Delivered: February 9, 2000

En Banc


1. The stolen property included the officer's gun.

2. It is unclear when and where Cameron got his car.

3. Although the record indicates Cameron followed appellant to his apartment, the record is unclear as to when Cameron began following appellant. He did, however, arrive at appellant's apartment in his car in which "everything" had been put.

4. The U.S. Supreme Court also notes that weapons are frequently associated with drug dealers. See Bailey v. United States, 116 S.Ct. 501, 504, 516 U.S. 137, 133 L.Ed.2d 472 (1995) ("A prosecution expert testified at trial that drug dealers frequently carry a firearm to protect their drugs and money as well as themselves.... The expert also testified that drug dealers generally use guns to protect themselves from other dealers, the police, and their own employees.")

5. Neither was there evidence presented that those convicted of burglary, the underlying offense, frequently use firearms or deadly weapons to facilitate their crimes.