                                   NO. 12-13-00343-CR

                           IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

RICHARD EARL HARTSFIELD,                          §     APPEAL FROM THE 241ST
APPELLANT

V.                                                §     JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                          §     SMITH COUNTY, TEXAS

                                   MEMORANDUM OPINION
          Richard Earl Hartsfield appeals his conviction for possession of between four and two
hundred grams of cocaine in a drug free zone with intent to deliver, for which he was sentenced
to imprisonment for life. In one issue, Appellant argues that the evidence is insufficient to
support the jury‟s affirmative deadly weapon finding. We affirm.


                                           BACKGROUND
          On April 11, 2013, Tyler Police Department officers executed a search warrant at a house
where Appellant resided. Appellant was in the front yard when the officers arrived and was
detained while they conducted their search of the premises. As a result of the search, the officers
recovered cocaine and marijuana as well as numerous firearms. Appellant was placed under
arrest.
          Appellant was charged by indictment with possession of between four and two hundred
grams of cocaine in a drug free zone with intent to deliver. The indictment further alleged that
Appellant had been previously convicted of murder. The State later successfully moved to
amend the indictment to add the allegation that Appellant “used or exhibited a deadly weapon, to
wit: a firearm, for the purpose of protecting his narcotics and profits while conducting illegal
narcotics sales.”
       Appellant pleaded “not guilty,” and the matter proceeded to a jury trial, following which
the jury found Appellant “guilty” as charged. The jury further found that Appellant used or
exhibited a deadly weapon during his commission of the offense. Ultimately, the jury assessed
Appellant‟s punishment at imprisonment for life.                   The trial court sentenced Appellant
accordingly, and this appeal followed.


                      EVIDENTIARY SUFFICIENCY OF DEADLY WEAPON FINDING
       In his sole issue, Appellant argues that the evidence is insufficient to support the jury‟s
affirmative deadly weapon finding.
Standard of Review
       The Jackson v. Virginia1 legal sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional
minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a
criminal conviction. See Jackson, 443 U.S. at 315–16, 99 S. Ct. at 2786–87; see also Escobedo
v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref‟d). The standard for reviewing a
legal sufficiency challenge is whether any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at
2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is
examined in the light most favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at
2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in
rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102
S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).
       The sufficiency of the evidence is measured against the offense as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include one that “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State‟s burden of proof or unnecessarily restrict
the State‟s theories of liability, and adequately describes the particular offense for which the
defendant is tried.” Id.

       1
           443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979).


                                                        2
Governing Law
       The Texas Penal Code defines a “deadly weapon” as “anything that in the manner of its
use or intended use is capable of causing death or serious bodily injury.” TEX. PENAL CODE
ANN. § 1.07(a)(17)(B) (West Supp. 2012). A firearm is per se a deadly weapon. See TEX.
PENAL CODE ANN. § 1.07(a)(17)(A) (West Supp. 2014).
       The Texas Court of Criminal Appeals has stated that “use” of a deadly weapon during the
commission of the offense means that the deadly weapon “was employed or utilized in order to
achieve its purpose.” Rollerson v. State, 196 S.W.3d 803, 808 (Tex. App.–Texarkana 2006),
aff'd, 227 S.W.3d 718 (Tex. Crim. App. 2007). On the other hand, to “exhibit” a deadly weapon
means that the weapon was “consciously shown or displayed during the commission of the
offense.” Id. (citing Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989)). But even
simple possession of a firearm may be sufficient to support a deadly weapon finding if the
possession facilitates the associated felony. See Rollerson, 196 S.W.3d at 941.
       In Patterson, the appellant was convicted of possession of a controlled substance. See
Patterson, 769 S.W.2d at 939. A team executing a search warrant at a private residence found
the appellant sitting on a couch in the living room. See id. A loaded .45 caliber revolver was
found by the arresting officer concealed between the appellant‟s leg and the end of the sofa. See
id.; see also Rollerson 196 S.W.3d at 808–09. The officer also found the appellant‟s wallet and
a pistol “boot” holding ammunition for a .45 caliber weapon on a table next to the couch. See
Patterson, 769 S.W.2d at 939; see also Rollerson 196 S.W.3d at 809. The court approved the
intermediate court‟s determination that a rational trier of fact could find that the appellant “used”
the firearm during the commission of the felony offense of possessing the contraband, in the
sense that the firearm protected and facilitated the appellant's care, custody, and management of
the contraband. See Patterson, 769 S.W.2d at 942. Therefore, the court held that there was
sufficient evidence to uphold the jury's finding that he used or exhibited a deadly weapon in the
course of possessing the contraband. See id.
       The court of criminal appeals recently discussed its holding in Patterson in Plummer v.
State, 410 S.W.3d 855 (Tex. Crim. App. 2013). Specifically, the court noted the expansion of its
holding in Patterson as follows:

                 A second expansion of Patterson permits deadly weapon findings when a jury could
       infer, in the absence of actual harm or threat, that the weapon “facilitated” the associated felony.




                                                        3
       For example, when a defendant possesses both guns and drugs, a jury may make a deadly weapon
       finding even though he did not overtly use or brandish a gun because the weapon reasonably could
       have “protected and facilitated [the] appellant‟s care, custody, and management of the
       contraband.”

                 A third expansion of Patterson’s reach permits a deadly weapon finding even when the
       weapon is not found on or near the defendant. In Coleman v. State, [145 S.W.3d 659 (Tex. Crim.
       App. 2004)], the defendant was handcuffed in a patrol car while police officers searched his house
       and found a large quantity of drugs in a safe, along with two guns and a large amount of cash. [Id.
       at 650]. These facts generated a “cumulative effect sufficient to show that the weapons had
       facilitated the possession of drugs by protecting them and the profits from their sale.” [Id. at 655].
       The nature of the illegal drug trade invites the possibility of violence and encourages drug dealers
       to carry deadly weapons to protect themselves and their inventory. The “drug fortress theory”
       supposes that firearms stored at a drug manufacturing or distribution location might be used to
       defend against police or thieves. A second theory, the “more than strategic proximity theory,”
       requires an evidentiary connection between the guns and drugs to establish that the guns
       “facilitated or could have facilitated the drug trafficking offense.” Both theories recognize that
       drug dealers frequently use guns to protect themselves and their merchandise.


Plummer, 410 S.W.3d at 859 [citations omitted]. The court noted that since its holding in
Patterson, it had upheld deadly weapon findings when the evidence showed that the weapon
facilitated the associated felony even though it was not overtly used. See id. at 860.
Firearms and Contraband Recovered from the Residence
       In the case at hand, when conducting their search of the living room area adjacent to the
entryway, officers discovered a .40 caliber Smith & Wesson semiautomatic pistol with a loaded
magazine underneath a sectional couch. Detective Hillary Erbaugh testified that this pistol was
easily accessible to Appellant, even when he was standing outside the house. Erbaugh further
testified that Appellant could reach the pistol, aim, and fire it in about fifteen seconds. Officers
also discovered marijuana on a nearby shelf.
       In the kitchen that adjoined the living room, officers found razor blades in a drawer above
a cabinet, in which they discovered a loaded Glock 23 pistol and a .22 caliber Baretta pistol
concealed in a plastic grocery bag. Erbaugh and Detective Jamie Tarrant testified that, in their
respective experiences with the narcotics world, razor blades were used for cutting up narcotics
such as crack cocaine into smaller amounts.
       Behind a bar in a secondary living area adjacent to the primary living area, officers found
twenty-four grams of marijuana.
       In the bedroom2 near the kitchen, officers discovered on top of a dresser a plastic baggie
containing thirteen grams of cocaine and a digital scale. Sergeant Brian Bulman testified that

       2
           Officers determined that this bedroom was used by Appellant.


                                                         4
digital scales are often used to weigh narcotics for resale and distribution. Moreover, Erbaugh
testified that the cocaine in the baggie had been part of a “cookie” of crack cocaine and that the
amount was consistent with an amount offered for sale rather than one kept for personal use.
       Finally, in the water heater closet between the kitchen and Appellant‟s bedroom, officers
found a loaded 9mm Beretta pistol, an unloaded TEC-9 handgun, an unloaded AK-47 rifle, and a
loaded .22 caliber rifle. In the same closet, they found several loaded magazines for the TEC-9
and a large amount of ammunition of various calibers including ammunition for the Glock 23
pistol and the Smith & Wesson pistol.
       Erbaugh, Tarrant, and Bulman each testified that drug dealers commonly possess
firearms to protect their product and the proceeds from its sale. Bulman further testified that
drug dealers often possess firearms as a means of intimidation in dealing with their clients. Each
of these officers also testified that firearms used by drug dealers in this way facilitated their
delivery of controlled substances. Moreover, the officers stated that in their opinions and based
on their respective training and experiences, Appellant used a firearm to facilitate the offense of
possession of cocaine with intent to deliver.
       The record indicates that none of the firearms located within the home were found in the
precise location as the recovered contraband. Nonetheless, based on our review of the record, we
conclude that the plethora of firearms discovered in the residence far exceed the realm of mere
coincidence. See Coleman, 145 S.W.3d at 659 n.14 (automatic weapons or large-bore pistols are
more likely connected to a drug transaction than a hunting rifle or shotgun) (citing United States
v. Moses, 289 F.3d 847, 851 (6th Cir. 2002) (stating that possession of a .22 pistol is not “an
uncommon weapon among those who commit drug offenses”)); United States v. Drozdowski,
313 F.3d 819, 823 (3d Cir. 2002) (noting that handguns “are more likely to be used in connection
with a drug offense than long, hunting guns”); United States v. Cantero, 995 F.2d 1407, 1411
(7th Cir. 1993) (noting that the handgun “is a „tool of the [drug] trade‟ because it is easy to
conceal yet deadly”); United States v. Green, 889 F.2d 187, 189 (8th Cir. 1989) (“[u]nlike the
rifle in the hypothetical, however, guns like Green's are used only for personal protection”)); see
also, e.g., Gale v. State, 998 S.W.2d 221, 222–23 (Tex. Crim. App. 1999) (guns found in closet
with drugs included “one Ruger–Mini–14 rifle . . . an Uzi semi-automatic assault-type rifle, one
nine-millimeter rifle, one nine millimeter handgun”).




                                                5
         Considering the (1) the large number and type of firearms discovered, (2) their close,
albeit not immediate, proximity to the contraband discovered, and (3) the aforementioned
testimonies of the officers, we conclude that these facts generate a cumulative effect sufficient to
show that the weapons facilitated the possession of drugs by protecting them and the profits from
their sale. See Plummer, 410 S.W.3d at 859; Coleman v. State, 145 S.W.3d 655. Therefore, we
hold that the evidence is sufficient to support the jury‟s deadly weapon finding. Appellant‟s sole
issue is overruled.


                                                    DISPOSITION
         Having overruled Appellant‟s sole issue, we affirm the trial court‟s judgment.



                                                                  JAMES T. WORTHEN
                                                                     Chief Justice



Opinion delivered December 3, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




                                                           6
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                          DECEMBER 3, 2014


                                          NO. 12-13-00343-CR


                                 RICHARD EARL HARTSFIELD,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                 Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 241-1150-13)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
