AFFIRMED as MODIFIED; and Opinion Filed May 3, 2013.




                                                           S     In The
                                           Court of Appeals
                                    Fifth District of Texas at Dallas
                                                       No. 05-11-01573-CR

                                    ANDREW SAENZ REYNA, Appellant
                                                                     V.
                                       THE STATE OF TEXAS, Appellee

                                 On Appeal from the 195th Judicial District Court
                                              Dallas County, Texas
                                      Trial Court Cause No. F07-47936-N

                                                  OPINION
                         Before Chief Justice Wright and Justices Bridges and Campbell
                                         Opinion by Justice Campbell 1
           A jury found Andrew Saenz Reyna guilty of possession with intent to deliver heroin in an

amount of 200 grams or more but less than 400 grams. The jury also found appellant used or

exhibited a deadly weapon during the commission of the offense. See TEX. CODE CRIM. PROC.

ANN. art. 42.12, § 3g(a)(2) (West Supp. 2012). After finding the enhancement paragraph true,

the trial court sentenced appellant to thirty years in prison. In his sole issue on appeal, appellant

contends the jury’s deadly weapon finding was not supported by sufficient evidence. We agree

with appellant’s contention. We modify the trial court’s judgment to delete the deadly weapon

finding and affirm as modified.

   1
       The Honorable Charles F. Campbell, Senior Appellate Judge, Texas Court of Criminal Appeals, sitting by assignment.




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                                            THE FACTS

         In January 2007, six Dallas police officers executed an arrest warrant for Benito Solis at

730 Quinella Street. Four officers went to the front of the house and two officers went to the

back. When one of the officers knocked on the front door, appellant attempted to flee through a

bathroom window on the side of the house with what appeared to be two bags of controlled

substances, but then crawled back into the house.

         Two officers entered the house through an open front window and the others entered

through the front door. The officers performed a protective sweep through the house and found

several people inside. They found 203 grams of heroin in a baggie in a bathroom. They also

found three handguns concealed in an air conditioner duct in a hallway, a shotgun in the dining

room, and two other guns near a front window. The officers found appellant in the back part of

the house and arrested him. Benito Solis was not found in the house, although mail addressed to

him was found there. At trial, there was no evidence that appellant had any real property interest

in the house.

         The jury charge applied the law of parties to the primary charge of drug possession as

well as to the special issue regarding use or exhibition of a deadly weapon. See TEX. PENAL

CODE ANN. §§ 7.01, 7.02 (West 2011). The jury made an affirmative finding on the special

issue.

                                  ARGUMENTS OF THE PARTIES

         In his sole issue on appeal, appellant contends there was no evidence at trial showing he

was aware a deadly weapon would be used during the commission of the offense. He contends

that at the time of the offense, he never mentioned any weapons, he was never in proximity to the

weapons that were found, and he was in the back of the house when the weapons were found in



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the air conditioner duct and in the front of the house. Appellant also argues he was not an owner

or lessee of the house. Finally, appellant argues that, except for the shotgun, the weapons in

question were not visible to people entering the house. In support of his evidentiary sufficiency

argument, appellant relies chiefly on Torres v. State, 233 S.W.3d 26 (Tex. App.—Houston [1st

Dist.] 2007, no pet.).

       The State, in its response, relies chiefly on Patterson v. State, 769 S.W.2d 938 (Tex.

Crim. App. 1989), and Gale v. State, 998 S.W.2d 221 (Tex. Crim. App. 1999). The State

appears to argue that because the evidence adduced at trial was sufficient to show beyond a

reasonable doubt that appellant was guilty of drug possession and that weapons were present at

the scene during the commission of the offense, then appellant was ipso facto guilty of using or

exhibiting a deadly weapon during the commission of the offense.

                                       APPLICABLE LAW

       As an appellate court, our task is to view the evidence in the light most favorable to the

verdict, and to determine whether any rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. See Gale, 998 S.W.2d at 223; see also

Coleman v. State, 145 S.W.3d 649, 652 (Tex. Crim. App. 2004).

       The essential element at issue is whether appellant either used or exhibited a deadly

weapon during the commission of the offense or was a party to the offense and knew that a

deadly weapon would be used or exhibited. See TEX. CODE CRIM. PROC. ANN. art. 42.12, §

3g(a)(2).

                                           ANALYSIS

       In Torres, the defendant was convicted, as a party, of possession with intent to deliver

cocaine found in a co-defendant’s apartment. See Torres, 233 S.W.3d at 27–29. Although it was



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clear from the evidence at his trial that Torres never personally used or exhibited a deadly

weapon during the commission of his offense, the trial court nonetheless made an affirmative

finding on a deadly weapon allegation. See id. On appeal, Torres argued the evidence was

insufficient to support the deadly weapon finding.        The First Court of Appeals agreed,

explaining:

       There is nothing in the record to show that [Torres] was aware that a deadly
       weapon would be used in the commission of the offense. [Torres] never
       mentioned weapons [during the commission of the offense]; he did not own the
       apartment in which the weapons were discovered; and [he] was never in the
       proximity of the weapons. He sat near the door [of the apartment], and the guns
       were discovered in a bag on the kitchen counter and in the cushions of a chair that
       was not near [him]. The ammunition was seen on the bed in the [bedroom] with
       the cocaine. However, [Torres] was never in that room. The guns were not
       visible to anyone entering the apartment, including [Torres]. Although [a police
       officer] testified that guns are commonly used to protect drug dealers and their
       merchandise, there is nothing in the record to show that [Torres] knew that guns
       were present in the apartment in this case.

Id. at 30–31. The First Court concluded that, given the record evidence, no rational trier of fact

could have concluded beyond a reasonable doubt that Torres knew a deadly weapon would be

used or exhibited during the commission of the offense. Id. at 31. Accordingly, the First Court

modified the trial court’s judgment to delete the deadly weapon finding. Id. at 32.

       We conclude this case before us is similar to Torres. Here, appellant, at the time of the

offense, never mentioned weapons. He was found in the back of the house, whereas the weapons

were either hidden from view or in the front of the house. Appellant was not in proximity to any

of the weapons to such a degree that one could reasonably surmise he knew of their existence.

There was no evidence appellant owned, leased, or resided in the house. There was no evidence

appellant initially entered the house through its front door. In short, given the record evidence,

the jury could speculate that appellant knew a deadly weapon would be used or exhibited during

the commission of the offense, but no rational jury could conclude beyond a reasonable doubt

                                               –4–
either that appellant himself used or exhibited a deadly weapon or that he knew a deadly weapon

would be used or exhibited by someone else. Indeed, no rational jury could conclude beyond a

reasonable doubt that appellant even knew there were weapons in the house.

          Neither Patterson nor Gale supports the State’s position because those cases are

distinguishable on their facts. Patterson was convicted of possession of methamphetamine and

of using or exhibiting a deadly weapon during the commission of the offense. See Patterson,

769 S.W.2d at 939. At the time of the offense, the police kicked in the door to a house and found

Patterson inside sitting at the end of a sofa. See id. Lying next to Patterson on an end table was

a bag with methamphetamine inside, a wallet containing over nine hundred dollars, and a “gun

boot.” See id. Upon the police entering, Patterson raised his hands and told the officers he had a

gun between his legs, and that there was another gun at the end of the sofa. See id.

          On appeal, Patterson argued the evidence was insufficient to support the deadly weapon

finding because he possessed the gun to protect the money, not the narcotics. See id. at 940. The

court of criminal appeals held, however, that a rational trier of fact could have determined that

Patterson had used a gun during the commission of the offense because the jury could have

determined that Patterson’s gun protected and facilitated the defendant's care, custody, and

management of the contraband. See id. at 942. In short, Patterson had a gun between his legs

and told the police that he had a gun, whereas in the instant case appellant never mentioned

weapons to anyone, was not in proximity to any weapons, and there was no evidence he even

knew that weapons were at the scene. 2


2
   In the deadly-weapon-finding context, the word “used” means any employment of a deadly weapon, even simple possession, if such possession
facilitated the associated felony, and the word “exhibited” means that a weapon was consciously shown, displayed, or presented to be viewed.
See Patterson, 769 S.W.2d at 941.




                                                                   –5–
       In Gale, undercover narcotics officers arrived at Gale’s residence and conducted a

"knock-and-talk." Gale, 998 S.W.2d at 222–23. One of the officers spoke with Gale and his

wife, and both Gale and his wife were cooperative and led the officer directly to their bedroom

closet, wherein the officer discovered a trash bag containing over twenty pounds of marijuana, a

Ruger Mini-14 rifle, an Uzi semi-automatic assault rifle, a nine-millimeter rifle, a nine-

millimeter handgun, and ammunition for the firearms. Id. at 223. At trial, Gale pled guilty to the

charge of possession but pled “not true” to the special issue concerning the use or exhibition of a

deadly weapon. Id. The State offered evidence in the form of testimony that any of these

weapons could have been fully loaded and ready to fire within seconds, and such weapons were

commonly used by drug traffickers to protect their contraband. Id. The jury affirmatively

answered the deadly weapon special issue. Id. On appeal, Gale argued the evidence was

insufficient to support the deadly weapon finding. The court of criminal appeals disagreed,

holding a rational jury could have concluded beyond a reasonable doubt that the weapons in

question facilitated Gale’s criminal offense. Id. at 225. Gale is distinguishable from the instant

case because the weapons in Gale were found next to the controlled substance in the defendant’s

residence. In the instant case, in contrast, there was no evidence appellant owned, leased, or

resided in the house in which he was arrested and no evidence from which a rational jury could

conclude beyond a reasonable doubt that appellant was aware the weapons were present at the

scene. We sustain appellant’s sole issue.

                                            CONCLUSION

       Having found the evidence legally insufficient to prove that appellant used or exhibited a

deadly weapon or that he knew that a deadly weapon would be used or exhibited, we modify the




                                               –6–
judgment of the trial court to delete the finding of use or exhibition of a deadly weapon. We

affirm the judgment as modified.


                                                  _/Charles F. Campbell/____________
                                                  CHARLES F. CAMPBELL
                                                  JUSTICE, ASSIGNED

Do Not Publish
TEX. R. APP. P. 47

111573F.U05




                                            –7–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                        JUDGMENT

ANDREW SAENZ REYNA, Appellant                       On Appeal from the 195th Judicial District
                                                    Court, Dallas County, Texas
No. 05-11-01573-CR         V.                       Trial Court Cause No. F07-47936-N.
                                                    Opinion delivered by Justice Campbell,
THE STATE OF TEXAS, Appellee                        Chief Justice Wright and Justice Bridges
                                                    participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       We modify the judgment to delete the deadly weapon finding.

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 3rd day of May, 2013.




                                                    /Charles F. Campbell/
                                                    CHARLES F. CAMPBELL
                                                    JUSTICE, ASSIGNED




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