                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NOS. 2-09-00348-CR
                                  2-09-00349-CR
                                  2-09-00350-CR


ADRIAN ESCOBEDO                                                     APPELLANT

                                         V.

THE STATE OF TEXAS                                                        STATE


                                     ------------

          FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

                                     ------------

                        MEMORANDUM OPINION1
                                      ----------
                                   I. Introduction

      Appellant Adrian Escobedo pleaded guilty to charges of possession of

marihuana and possession with intent to deliver cocaine and methamphetamine,

all arising out of the same criminal episode.2 Appellant pleaded ―not true‖ to the

      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Health & Safety Code Ann. §§ 481.112, 481.121 (Vernon 2010).
State‘s allegations that he used or exhibited a deadly weapon in the commission

of the offenses; however, the jury answered the deadly-weapon special issues in

the affirmative. Appellant raises two points on appeal, challenging the legal and

factual sufficiency of the evidence to support the jury‘s deadly weapon findings.

We affirm.

                      II. Factual and Procedural Background

      Based on an anonymous tip, narcotics officers Travis Putnam and Paul

Fritz conducted surveillance outside Appellant‘s apartment on August 27, 2008.

That afternoon, a taxicab pulled up to Appellant‘s apartment building. Carrying a

black bag, Appellant entered the backseat of the taxi.3 The officers converged

and positioned their vehicle in front of the taxi to keep it from moving, but

Appellant fled, leaving the black bag in the taxicab. The officers immediately

apprehended Appellant, who was unarmed. Officer Putnam then returned to the

taxi and recovered the black bag.        The bag contained methamphetamine,

cocaine, marihuana, two digital scales, a grinder, empty plastic baggies, a

computer, multiple cell phones, a pipe, and paperwork containing what appeared

to be drug notes or ledgers. The bag also contained an unloaded .38 caliber

revolver; an unloaded Springfield .45 caliber pistol; and, next to the weapons, two




      3
        According to the taxicab driver, Appellant placed the bag on the floor near
his feet when he entered. The driver could not remember if the bag was ―zipped
up and closed.‖


                                        2
magazines, each loaded with six .45 caliber bullets. In addition, Appellant had a

bag of methamphetamine and $697 in his pants pocket.

      Appellant pleaded guilty before a jury to charges of possession of more

than four ounces but less than five pounds of marihuana, possession with intent

to deliver more than four grams but less than 200 grams of methamphetamine,

and possession with intent to deliver more than four grams but less than 200

grams of cocaine. Appellant pleaded ―not true‖ to allegations that he ―used or

exhibited a deadly weapon‖ in the commission of the charged offenses and

requested that the jury assess punishment. The jury found Appellant guilty in

accordance with his pleas and the trial court‘s instructions. As to each offense,

the jury found that Appellant ―used or exhibited a deadly weapon, to-wit: [a]

firearm‖   and   assessed   punishment       at   40   years‘   confinement   in   the

methamphetamine and cocaine cases and 10 years‘ confinement in the

marihuana case.     The trial court sentenced Appellant accordingly, with the

sentences to run concurrently, and included an affirmative deadly weapon finding

in each written judgment.

                        III. Sufficiency of the Evidence

      Appellant asserts that the evidence is legally and factually insufficient to

support the jury‘s affirmative findings that he ―used or exhibited a deadly weapon‖

to further any drug related crimes in violation of article 42.12 section 3(g)(2) of

the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2)




                                         3
(Vernon Supp. 2010). He specifically contends that he ―merely possess[ed],‖ but

did not ―use or exhibit,‖ the weapons in his bag.4

A. Standard of Review

       The court of criminal appeals recently held that there is ―no meaningful

distinction‖ between a legal-sufficiency standard under Jackson v. Virginia5 and a

factual-sufficiency standard under Clewis v. State.6 Brooks v. State, No. PD-

0210-09, 2010 WL 3894613, at *8 (Tex. Crim. App. Oct. 6, 2010).              ―[T]he

Jackson v. Virginia 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. All other cases to the contrary, including Clewis, are overruled.‖ Brooks,

No. PD-0210-09, 2010 WL 3894613, at *14.             Accordingly, we will conduct a

single review of Appellant‘s sufficiency complaints under the Jackson standard,

which asks whether, in considering all the evidence in the light most favorable to

the verdict, the jury was rationally justified in finding guilt beyond a reasonable



       4
       Appellant does not challenge the jury‘s finding that the pistol and revolver
in his bag were deadly weapons. Officer Putnam testified that both weapons
were firearms. A firearm is a deadly weapon per se. Tex. Penal Code Ann. §
1.07(a)(17)(A) (Vernon Supp. 2010); Ex parte Huskins, 176 S.W.3d 818, 820
(Tex. Crim. App. 2005).
       5
       443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).
       6
       922 S.W.2d 126, 129 (1996), overruled by Brooks, 2010 WL 3894613, at
*14.


                                         4
doubt. Jackson, 443 U.S. at 391, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

B. Applicable Law

      The trier of fact is permitted to make an affirmative deadly weapon finding

when, as applicable in this instance, the State establishes that the defendant

―used or exhibited‖ a deadly weapon during the commission of a felony offense.

Tex. Code Crim. Proc. Ann. art. 42.12, § 3(g)(a)(2). Patterson v. State is the

seminal Texas case discussing the meanings of ―use‖ and ―exhibit‖ in this

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

(discussing Patterson, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989)).            The

Patterson court explained that the term ―exhibit‖ requires a weapon to be

―consciously shown, displayed, or presented to be viewed.‖ 769 S.W.2d at 941.

Furthermore, the Patterson court explained that the term ―use‖ extends to ―any

employment of a deadly weapon, even simple possession, if that possession

facilitates the associated felony.‖ Id. at 941 (emphasis in original); see Coleman,

145 S.W.3d at 652 (applying Patterson’s definition of ―use‖). The parties do not

dispute that the weapons were not ―exhibited‖ within the meaning of article 42.12,

and therefore, we will discuss only whether a rational jury could have found that

Appellant ―used‖ the weapons at issue to facilitate his drug offenses.

C. Bailey v. United States

      Appellant argues that Patterson is no longer controlling precedent in light

of the United States Supreme Court‘s 1995 decision in Bailey v. United States,


                                         5
516 U.S. 137, 150, 116 S. Ct. 501, 509 (1995). In Bailey, the Supreme Court

interpreted the term ―use‖ in a federal statute that requires additional penalties if

the defendant ―during and in relation to any crime of violence or drug trafficking . .

. uses or carries a firearm.‖ Id. at 138–39,116 S. Ct. at 506, 509 (analyzing the

pre-1998 amendment version of 18 U.S.C. § 924(c)(1)).7 The Bailey Court held

that the term ―use‖ requires that the defendant ―actively employed‖ the firearm

and that the defendant did not merely possess it. Id. at 143, 150, 116 S. Ct. at

506, 509. Appellant contends that, under Bailey’s narrower ―active employment‖

interpretation of ―use,‖ the evidence is insufficient to establish that he ―used‖ a

deadly weapon.8

      The court of criminal appeals has previously considered and rejected

similar arguments. See Gale v. State, 998 S.W.2d 221, 224–25 (Tex. Crim. App.

1999). The court held that the federal statute construed in Bailey and the state

statute construed in Patterson are ―semantically distinguishable‖9 and that ―the


      7
        The 1998 revisions to § 924(c) do not affect our analysis of the word ―use‖
in this appeal. See United States v. O’Brien, 130 S. Ct. 2169 (describing 1998
revisions, including the addition of the word ―possesses‖ to the statute‘s principal
paragraph).
      8
       Appellant specifically asserts that ―[t]here is not a scintilla of evidence in
the record that [he] actively or physically used any weapons‖ and that ―the
testimony clearly illustrates the handguns were neither seen nor discovered until
the black bag was inspected at the police station.‖
      9
        The Gale court noted that the Texas statute involves ―use or exhibit‖ while
the federal statute encompasses ―use or carry‖ and that since ―the second word
necessarily influences how the word ‗use‘ will be defined . . . it is valid for the
definitions of ‗use‘ in the two statutes to differ.‖ 998 S.W.2d at 225. Notably,

                                          6
Bailey decision does not substantially affect the continued application of

Patterson as precedent for the definition of ‗use‘ in Texas jurisprudence.‖ Id. at

225. We have also previously held that Bailey did not overrule Patterson. See

Dimas v. State, 987 S.W.2d 152, 153–55 (Tex. App.—Fort Worth 1999, pet.

ref‘d) (distinguishing Bailey); Moreno v. State, 978 S.W.2d 285, 288 (Tex. App.—

Fort Worth 1998, no pet.) (same); see also Pina v. State, No. 05-97-01106-CR,

1999 WL 308634, at *3–4 (Tex. App.—Dallas May 18, 1999, pet. ref‘d) (not

designated for publication). Thus, we apply Patterson’s interpretation of the term

―use‖ and look to Patterson’s progeny for guidance in determining whether a

rational trier of fact could find beyond a reasonable doubt that Appellant‘s

possession of the firearms facilitated the associated felonies. See Gale, 998

S.W.2d at 226 (citing Patterson, 769 S.W.2d at 941); see also Coleman, 145

S.W.3d at 655 (holding that ―[t]he real question‖ in reviewing the sufficiency of the

evidence to support a deadly weapon finding is ―whether the weapons are found

to have facilitated Appellant‘s possession and intended distribution of the

drugs‖).10


Patterson narrowly defined ―exhibited‖ to mean that ―the weapon was consciously
shown or displayed during the commission of the offense,‖ 769 S.W.2d at 941,
while the Supreme Court has interpreted the federal statute‘s ―carry‖ prong
broadly to include the carrying of a firearm in the locked trunk or glove
compartment of a vehicle. See Muscarello v. United States, 524 U.S. 125, 118
S. Ct. 1911 (1998).
      10
        In Coleman, the court of criminal appeals upheld the deadly weapon
findings in two cases of narcotics possession with intent to deliver. In assessing
whether the weapons facilitated Coleman‘s possession and intended distribution

                                         7
D. Analysis

      In Gale, the court of criminal appeals relied on Patterson in upholding an

affirmative deadly weapon finding in the context of a marihuana possession

prosecution. See 998 S.W.2d at 226. Officers obtained consent from Gale and

his wife to search their home, and the couple led the officers to a closet that

contained a trash bag containing an unloaded mini-rifle and 20 pounds of

marihuana divided up into small baggies. Id. at 223. The closet also contained

two additional unloaded rifles, an unloaded handgun, ammunition for the firearms

(including a loaded magazine for the mini-rifle), and $4500 in cash.         Id.   In

determining that there was sufficient evidence that Gale had used the weapons

to facilitate marihuana possession, the court noted the officers‘ testimony that, in

their opinion, weapons such as those confiscated from Gale are used by drug

traffickers to protect their contraband merchandise and the cash from its sale. Id.

The court additionally stated that, although the weapons were unloaded, they

were in the same closet as the ammunition and that, according to uncontroverted

testimony, these weapons could be fully loaded and ready to fire within

―seconds.‖ Id. at 225–26. The court noted that this was not a case in which ―a

person‘s weapons are found in a gun cabinet or closet completely separate from

the criminal enterprise; here, all the weapons were virtually inches away from the

of the drugs, the court held that the ―cumulative effect‖ of certain factors was
sufficient to allow ―a rational jury to determine he used the weapons to protect the
narcotics and the proceeds therefrom.‖ Id. at 650, 655 (discussing Sanchez v.
State, 906 S.W.2d 176 (Tex. App.—Fort Worth 1995, pet. ref‘d)).


                                         8
contraband and its alleged proceeds.‖ Id. at 226; see also Dowdle v. State, 11

S.W.3d 233, 237 (Tex. Crim. App. 2000).11

        In Moreno, this court upheld a deadly weapon finding in the context of

narcotics possession with intent to deliver. See 978 S.W.2d at 289. The police

searched Moreno‘s bedroom and witnessed him throwing a box containing eight

pre-packaged ounces of cocaine and $1,300 in cash onto the bed. Id. In the

closet, the police found a laundry basket containing eight to nine ounces of

cocaine; an unloaded handgun and an unloaded semi-automatic machine gun in

a cushioned case beside the laundry basket; and loaded magazines next to the

guns.        Id.   In holding that there was sufficient evidence demonstrating that

Moreno ―used‖ the firearms to facilitate his drug offense, the court noted a police

officer‘s testimony that it is common for narcotics dealers to possess firearms for

the purpose of protecting themselves because they carry large amounts of drugs

and cash. Id.; see also Nelson v. State, No. 02-08-00133-CR, 2009 WL 806910,

at *2, 6–7 (Tex. App.—Fort Worth Mar. 26, 2009, pet. ref‘d) (mem. op., not


        11
         In Dowdle, the court of criminal appeals noted that in both Patterson and
Gale:

        [T]he guns were deliberately placed in a particular location for
        convenient access by the defendant, for the specific purpose of
        assisting the defendant in ensuring unimpeded commission of the
        offense. The guns‘ availability and ready access to the defendants
        was key. In this sense, the defendants were ―armed‖ or made sure
        they could be ―armed‖ quickly if necessary.

        11 S.W.3d at 237.


                                            9
designated for publication) (holding the evidence sufficient to support Nelson‘s

narcotics conviction and the jury‘s deadly weapon finding where the court

inferred that ―the police interrupted [Nelson] on his way to a drug deal at which he

intended to protect either himself or the drugs, or to facilitate their sale, by

possessing a firearm‖).12

      In this case, Appellant entered a taxicab carrying a black bag filled with

three types of drugs, drug paraphernalia, two firearms, and ammunition. By his

guilty pleas, Appellant admitted that he possessed, and possessed with the intent

to deliver, the drugs.13 By extension, Appellant‘s admissions establish that the

firearms, which he admits possessing, were next to the contraband. We note

Officer Putnam‘s testimony that drug dealers typically carry guns in order to

protect themselves and their drugs. Although neither the .38 revolver nor the .45

caliber pistol was loaded, they were placed next to two magazines, each loaded

with six .45 caliber bullets. When asked how long it would take him to put a


      12
         In Nelson, officers noticed a truck parked in an empty parking lot and
Nelson standing on the passenger side moving things around on the interior of
the bed. No. 02-08-00133-CR, 2009 WL 806910, at *2. When Nelson noticed
the officers, he made several hurried or furtive movements inside the truck bed
as if trying to conceal something. Id. After placing Nelson under arrest for
outstanding warrants, the police found a loaded magazine for a semi-automatic
pistol on the passenger side of the truck‘s interior. Id. In the truck bed, officers
found four plastic baggies containing narcotics and a Crown Royal bag
containing a nine-millimeter pistol that could hold the magazine. Id.
      13
       Specifically, Appellant‘s black bag contained 11.78 grams of cocaine,
28.12 grams of methamphetamine, and 7.25 ounces of marihuana (with a
combined street value of approximately $4,420).


                                        10
loaded magazine into his semi-automatic firearm to make it ready to shoot,

Officer Putnam stated that it would ―maybe take him three seconds‖ with

practice.14   Officer Putnam provided uncontroverted testimony that Appellant

―used‖ the .45 caliber pistol to facilitate his drug-dealing activities.15 Because the

facts in this case are quite similar to the facts in Gale and Moreno, we find the

analyses and holdings in those cases instructive and, ultimately, dispositive.

      Citing Coleman, 145 S.W.3d at 655–60 (Cochran, J., concurring), and

Bahr v. State, 295 S.W.3d 701, 709 (Tex. App.—Amarillo 2009, pet. ref‘d)

(reciting the Coleman factors),16 Appellant refers us to a number of different

factors that courts may consider in determining the sufficiency of the evidence to

support a deadly weapon finding. The factors include: the type of gun involved

and whether it was loaded; the gun‘s proximity to drugs or drug paraphernalia;


      14
        Appellant‘s counsel challenged certain aspects of the officer‘s testimony
in his closing argument. For instance, defense counsel argued that it would
―take an experienced police officer with a lot of training at least three seconds to
put a cartridge in the gun or a magazine in the gun – and how long is it going to
take somebody else? I don‘t know.‖
      15
         Officer Putnam did not provide similar testimony regarding the .38 caliber
revolver. Because we ultimately conclude that it would be rational for a fact-
finder to determine that Appellant ―used‖ the .45 caliber pistol (for which he had
ammunition) to protect his drugs, we do not specifically consider the revolver in
our analysis.
      16
         See also Musgrove v. State, No. 02-08-00029-CR, 2008 WL 5265200, at
*2–3 (Tex. App.—Fort Worth Dec. 18, 2008, pet. ref‘d) (mem. op., not designated
for publication) (applying the Coleman factors in reviewing the legal and factual
sufficiency of the jury‘s finding that a deadly weapon was used during the
commission of a narcotics offense).


                                         11
the gun‘s accessibility to whomever controls the premises; the quantity of drugs

involved; and any evidence that might show an alternative purpose for the gun‘s

presence. See Coleman, 145 S.W.3d at 655–60 (Cochran, J., concurring); Bahr,

295 S.W.3d at 709. Appellant asserts that, in light of these factors, the jury

should not have found that he used a deadly weapon because (1) the .38

revolver did not have ammunition; (2) the .45 caliber pistol was not loaded; and

(3) he would have had to ―search‖ for the pistol and the magazines before

loading and using the weapon.

      Rather than separately discussing each of the Coleman factors as they

relate to the facts in this case, we rely on our analysis above, which incorporates

the essence of the most relevant factors. In fact, the considerations set out in the

Coleman concurrence support our holding and do not alter our analysis. 17

Viewing the evidence in the light most favorable to the jury‘s findings, and

considering all the relevant factors, we conclude that a fact finder could rationally

determine that Appellant ―used‖ the .45 caliber pistol (for which he had

      17
         See, e.g., Madrid v. State, No. 07-09-00051-CR, 2009 WL 3518023, at *4
(Tex. App.—Amarillo Oct. 30, 2009, no pet.) (mem. op., not designated for
publication). In Madrid, the Amarillo court of appeals applied the Coleman
factors in assessing the legal sufficiency of a deadly weapon finding in the
context of narcotics possession with the intent to deliver. Id. The police
executed a search warrant on Madrid‘s home and found unloaded weapons,
ammunition, and packages of controlled substances. Id. at *1. In holding the
evidence legally sufficient to support a deadly weapon finding, the court noted
that an alternative explanation for the presence of the numerous unloaded
weapons was not presented, the type of weapons found in the house were
typically associated with the drug trade, and Madrid had easy access to at least
some of the weapons. Id. at *5.


                                         12
ammunition) to protect his drugs, and hence to facilitate his possession and

delivery of the controlled substances.       Thus, we hold that the evidence is

sufficient to support the jury‘s affirmative deadly weapon findings, and we

overrule Appellant‘s first and second points.

                                    IV. Conclusion

      Having overruled each of Appellant‘s two points, we affirm the trial court‘s

judgments.




                                                   ANNE GARDNER
                                                   JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 2, 2010




                                        13
