                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00384-CV
                                 No. 10-14-00385-CV

MARK KEN TAFEL,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                             From the County Court
                            Hamilton County, Texas
                        Trial Court Nos. 15291 and 15292


                                     OPINION

      Mark Ken Tafel was convicted in two cause numbers of the offense of unlawful

carrying of a handgun by a license holder. On December 20, 2013, the trial court imposed

sentence for each offense. On December 26, 2013, the State filed motions for forfeiture of

the handguns in Tafel’s possession at the time of the offenses, and on December 30, 2013,

the trial court entered a forfeiture order for each handgun possessed by Tafel. In Cause

No. 10-14-00384-CV, the trial court ordered a .22 caliber North American Arms revolver
seized from Tafel to be forfeited to the State of Texas. In Cause No. 10-14-00385-CV, the

trial court ordered a .45 caliber Kimber Ultra CDP II seized from Tafel to be forfeited to

the State of Texas. Tafel appeals from those orders. We affirm.

                                    Background Facts

        Mark Ken Tafel was a County Commissioner for Hamilton County. Sheriff Gregg

Bewley received complaints that Tafel was carrying a concealed handgun to meetings of

the Commissioners Court. Sheriff Bewley met with Tafel and discussed those concerns.

On April 14, 2011, County Judge Randy Mills issued a letter to Tafel purportedly

authorizing Tafel to carry concealed handguns to the meetings. Judge Mills gave a copy

of the letter to Tafel; however, Judge Mills did not file the letter in any court in Hamilton

County.

        On November 14, 2011, Sheriff Bewley attended the meeting of the Commissioners

Court and observed a bulge that he believed was a weapon under Tafel’s jacket. Sheriff

Bewley recovered a .45 caliber handgun and a .22 caliber revolver from Tafel, and he

placed Tafel under arrest. After Tafel’s convictions for the offense of unlawful carrying

of a handgun by a license holder, the trial court entered orders forfeiting the seized .45

caliber handgun and .22 caliber revolver to the State of Texas.

                               Sufficiency of the Evidence

        In his sole issue on appeal, Tafel argues that there is no evidence that he “used”

either handgun as required for forfeiture under Article 18.19 (e) of the Texas Code of

Criminal Procedure. Forfeiture proceedings under chapter 18 of the Code of Criminal

Procedure are in rem proceedings which are civil in nature. Hardy v. State, 50 S.W.3d 689,

Tafel v. State                                                                         Page 2
692 (Tex.App. – Waco, 20001, aff’d 102 S.W.3d 123 (Tex. 2003). As such, they are governed

by the rules applicable to civil trials and appeals generally. Id. A “no evidence” point

must be sustained “when the record discloses one of the following situations: (a) a

complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of

evidence from giving weight to the only evidence offered to prove a vital fact; (c) the

evidence offered to prove a vital fact is no more than a mere scintilla; (d) the evidence

establishes conclusively the opposite of the vital fact.” City of Keller v. Wilson, 168 S.W.3d

802, 810 (Tex. 2005).

        Article 18.19 (e) of the Texas Code of Criminal Procedure provides:

               (e) If the person found in possession of a weapon is convicted of an
        offense involving the use of the weapon, before the 61st day after the date
        of conviction the court entering judgment of conviction shall order
        destruction of the weapon, sale at public sale by the law enforcement
        agency holding the weapon or by an auctioneer licensed under Chapter
        1802, Occupations Code, or forfeiture to the state for use by the law
        enforcement agency holding the weapon or by a county forensic laboratory
        designated by the court. If the court entering judgment of conviction does
        not order the destruction, sale, or forfeiture of the weapon within the period
        prescribed by this subsection, the law enforcement agency holding the
        weapon may request an order of destruction, sale, or forfeiture of the
        weapon from a magistrate.

TEX. CODE CRIM. PRO. ANN. ART. 18.19 (e) (West Supp. 2014).

        The Court of Criminal Appeals has considered the definition of “use” as it relates

to an affirmative finding that a defendant used or exhibited a deadly weapon in the

commission of an offense. See Patterson v. State, 769 S.W.2d 938 (Tex.Cr.App.1989). In

Patterson, the Court interpreted “use” to include simple possession of the weapon if such

possession facilitates the associated felony. Patterson v. State, 769 S.W.2d at 941.


Tafel v. State                                                                           Page 3
        In Narron v. State, 835 S.W.2d 642, 644 (Tex. Crim. App. 1992), the defendant was

convicted of the offense of possession of a prohibited weapon, and the trial court entered

an affirmative finding on the use of a deadly weapon for punishment enhancement

purposes. The Court considered whether the defendant “used” the weapon in the context

of an affirmative deadly weapon finding. The Court stated that in order to "use" a deadly

weapon for affirmative finding purposes, the weapon must be utilized to achieve an

intended result, namely, the commission of a felony offense separate and distinct from

"mere" possession. Narron v. State, 835 S.W.2d at 644. The Court concluded that because

there was no associated felony facilitated by the defendant’s possession of the short barrel

firearm, the affirmative finding for use of a deadly weapon was in error. Id. Tafel argues

that in order to “use” a weapon a “defendant must employ that weapon in some manner

that facilitates the commission of a different offense than one prohibiting the mere

possession of the weapon.”

        Article 18.19 of the Texas Code of Criminal Procedure sets out the procedure for

disposing of seized weapons. Article 18.19 is applicable to the disposition of “[w]eapons

seized in connection with the offense involving the use of a weapon or an offense under

Penal Code Chapter 46.” TEX. CODE CRIM. PRO. ANN. ART. 18.19 (a) (West Supp. 2014).

Chapter 46 of the Texas Penal Code sets out various offenses involving the possession of

weapons. Tafel was convicted of the offense of unlawful carrying of a handgun by a

license holder under Section 46.035 (c) which states that:

        A license holder commits an offense if the license holder intentionally,
        knowingly, or recklessly carries a handgun under the authority of


Tafel v. State                                                                        Page 4
        Subchapter H, Chapter 411, Government Code, regardless of whether the
        handgun is concealed, at any meeting of a governmental entity.

TEX. PENAL CODE ANN. § 46.035 (c) (West Supp. 2014).

        We find that “use” of a weapon under Article 18.19 includes simple possession of

the weapon as defined in Patterson. Because Article 18.19 sets out the procedure to

dispose of weapons seized in relation to offenses involving the unlawful possession of

those weapons, it does not follow that a separate and distinct offense would be required

for forfeiture. Article 18.19 does not require the commission of an offense separate and

distinct from those offenses set out in Chapter 46 of the Texas Penal Code. We overrule

the sole issue on appeal.

                                       Conclusion

        We affirm the trial court’s orders forfeiting a .22 caliber North American Arms

revolver and a .45 caliber Kimber Ultra CDP II to the State of Texas.



                                         AL SCOGGINS
                                         Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
(Chief Justice Gray dissenting)
Affirmed
Opinion delivered and filed August 31, 2016
[CV06]




Tafel v. State                                                                    Page 5
