

Opinion issued June 7, 2012.

In The
Court of
Appeals
For The
First District
of Texas
————————————
NOS. 01-11-00279-CR
      
01-11-00280-CR
———————————
Marquis Plummer, Appellant
V.
The State of
Texas, Appellee

 

 
On Appeal from the 180th District Court 
Harris County, Texas

Trial Court Case Nos. 1257432 & 1257218
 

 
O P I N I O N
 
          After a bench trial,
appellant, Marquis Plummer, was convicted of unlawful possession of a firearm
by a felon[1] and
unlawful possession of body armor by a felon.[2]  The trial court made an affirmative finding
of a deadly weapon on the unlawful possession of body armor case, and assessed
appellant’s punishment at seven years’ confinement on each case, to run
concurrently.  In four points of error,
appellant challenges the sufficiency of the evidence to support his
convictions.  We affirm.
BACKGROUND
          On August 29, 2003, appellant was
convicted of unlawfully carrying a weapon in a prohibited place,[3] a
third-degree felony, and sentenced to two years’ confinement. 
          Seven
years later, Houston Police Department Officers Sanchez and Rios, along with
two Brazoria County deputies, went to a wellness clinic on Cullen Boulevard in
Houston to execute a felony arrest warrant on an employee of the clinic.  The police officers were unable to find the
subject of the arrest warrant, but they encountered appellant, who appeared to
be working as a security guard. 
Appellant was wearing a bullet-proof vest covered by a black t-shirt
labeled “POLICE.”  He was also wearing a
gun belt with a holstered “mini-glock” handgun. 
Officer Sanchez thought appellant appeared nervous and noted that the
gun in appellant’s holster was much smaller than those typically issued to
police officers.
          Officer
Rios thought it was unusual that a wellness clinic would need the services of a
person who appeared to be an off-duty police officer, so he asked appellant
where he worked.  Appellant responded
that he was employed by Brazoria County. 
When asked to produce some identification, appellant gave the officers a
Texas Driver’s License and a fire marshal ID from Prairie View in Waller
County, not Brazoria County as appellant had mentioned earlier.
          Using
appellant’s driver’s license, Officer Sanchez ran appellant’s information
through the police department’s computer and found that appellant had a revoked
concealed handgun license and a felony conviction from 2003.  After finding that appellant was a convicted
felon, the officers confiscated his weapon and body armor.  The police then obtained consent to search
appellant’s car, where they found a large quantity of police equipment, which
appellant appeared to be selling through a company called “Underground Safety
Equipment and Communications.”
          R.
Lewis, the HPD officer assigned to investigate the case, contacted Juanel
Sippio, the head fire marshal of the City of Prairie View.  Sippio, despite being aware that appellant
was a convicted felon, had hired appellant as his deputy.  Appellant, however, was not licensed by the
Texas Commission on Law Enforcement Standards, nor could he be because of his
felony conviction.
SUFFICIENCY
OF THE EVIDENCE
          In four points of error,
appellant contends that the evidence was insufficient because (1) the State
failed to prove that he was not a peace officer; (2) the State failed to prove
appellant’s mental culpability, (3) appellant proved his mistake of fact defense,
and (4) no evidence supported the deadly weapon finding.  
Standard of Review
We review the legal sufficiency of the evidence
by considering all of “the evidence in the light
most favorable to the prosecution” to determine whether any “rational trier of
fact could have found the essential elements of the offense beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781,
2788–89 (1979). Our role is that of a due process safeguard, ensuring only the
rationality of the trier of fact’s finding of the essential elements of the crime
beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867
(Tex. Crim. App. 1988). We give deference to the responsibility of the fact
finder to fairly resolve conflicts in testimony, to weigh evidence, and to draw
reasonable inferences from the facts. Williams v. State, 235 S.W.3d 742,
750 (Tex. Crim. App. 2007). However, our duty requires us to “ensure that the
evidence presented actually supports a conclusion that the defendant committed”
the criminal offense of which he is accused. Id.
We review the factual
sufficiency of the evidence under
the same appellate standard of review as that for legal sufficiency.
Ervin v. State, 331 S.W.3d 49, 52–56 (Tex. App.—Houston [1st Dist.]
2010, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 894–913 (Tex.
Crim. App. 2010)).
Peace Officer Defense
          Appellant was convicted under Tex. Penal Code Ann. § 46.04(a)(2)
(Vernon 2011), which provides in part, “A person who has been convicted of a
felony commits an offense if he possesses a firearm . . . at any location other
than the premises at which the person lives.” 
He was also convicted under Tex.
Penal Code Ann. § 46.041(b) (Vernon 2011), which provides, “A person who
has been convicted of a felony commits an offense if after the conviction the
person possesses metal or body armor.”
          It
is undisputed that appellant had previously been convicted of a felony in 2003.  However, he contends that the evidence is
insufficient to support his convictions because the State did not prove that he
was not a peace officer.  His argues that
he has not violated the above-referenced penal statutes because he was a peace
officer and therefore subject to the peace-officer exception found in section
46.15 of the Penal Code, which provides as follows:
(a) Sections 46.02 and 46.03
do not apply to:
(1) peace officers or special
investigators under Article 2.122, Code of Criminal Procedure, and neither
section prohibits a peace officer or special investigator from carrying a
weapon in this state, including in an establishment in this state serving the
public, regardless of whether the peace officer or special investigator is
engaged in the actual discharge of the officer’s or investigator’s duties while
carrying the weapon[.]
 
Tex. Penal Code Ann. §
46.15(a)(1) (Vernon 2011) (emphasis added).
          However,
as seen from the plain language of section 46.15, it provides a peace officer
exception to sections 46.02[4] and
46.03[5]—not
to the sections under which appellant was convicted.  When interpreting statutes, courts must “seek to effectuate
the ‘collective’ intent or purpose of the legislators who enacted the
legislation.” Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
Toward that end, “we necessarily focus our attention on the literal text of the
statute in question and attempt to discern the fair, objective meaning of that
text at the time of its enactment.” Id. However, where application of a
statute’s plain language would lead
to absurd consequences, or where “the language is not plain but rather ambiguous,” a court may consider “such extratextual factors
as executive or administrative interpretations of the statute or legislative
history.” Id. at 785–86. In this context, ambiguity exists when a
statute may be understood by reasonably well-informed persons in two or more
different senses; conversely, a statute is unambiguous where it reasonably
permits no more than one understanding. State v. Neesley, 239 S.W.3d
780, 783 (Tex. Crim. App. 2007).
          There is no need to consider any
extratextual factors in this case because the language of the peace officer
exception in section 46.15 is clear and does not lead to an absurd result.  It is understandable that the legislature
would choose to create a peace officer exception to sections 46.02 and 46.03
because both of those statutes are written very broadly to prohibit almost
anyone from illegally carrying weapons and carrying weapons in prohibited
places. The peace officer exception is necessary in such instances so that the
peace officer’s conduct in carrying a weapon is not thereby criminalized.  Section 46.15 also serves to exempt others
such as parole officers, correction and probations department officers, judges,
retired peace officers, and district attorneys from the broad prohibitions
found in sections 46.02 and 46.03.  See Tex. Penal Code Ann. § 46.15(a).  The statute also provides
that section 46.02 does not apply to a person who is performing duties as a
member of the armed services, is traveling, or has a concealed handgun license,
among other exemptions.  See Tex. Penal Code Ann. § 46.15(b).
          However,
sections 46.04(a)(2) and  46.041(b), the
statutes under which appellant was convicted, are very narrow in scope and
apply only to felons.  Thus, there was no
need to carve out large exceptions to their applications.  It appears from the plain language of those
statutes that their purpose was to criminalize all possession of firearms and
body armor by felons, without exception. 
Because section 46.15 limits the application of its exceptions to
sections 46.02 and 46.03, we conclude that it necessarily excluded its
application to sections 46.04(a)(2) and 
46.041(b).  See Adger v. State,
7 S.W.3d 899, 903 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (“When a statute
includes a specific limitation, it excludes all other limitations of that
type.”). 
          We overrule appellant’s first point
of error.
Mental Culpability and Mistake of Fact
          In points of error two and three,
appellant argues that there is insufficient evidence to show that he possessed
the culpable mental state required to commit the charged offenses.[6]  Specifically, appellant claims that he had a
mistaken belief that he was a peace officer with the authority to carry a
firearm and wear body armor.  
Mistake of fact is a defense to prosecution if appellant
“through mistake formed a reasonable belief about a matter of fact if his
mistaken belief negated the kind of culpability required for the commission of
the offense.” Tex. Penal Code Ann.
§ 8.02(a) (Vernon 2011). To raise the defensive issue of mistake of fact, there
must be evidence which negates the culpable mental state, i.e., intentionally
and knowingly, required for the offense. Willis
v. State, 790 S.W.2d 307, 314 (Tex. Crim. App. 1990).
Even if we were to accept that appellant reasonably believed
he was a peace officer, he would not be entitled to a mistake-of-fact defense
because it would not negate evidence that he intentionally and knowingly
possessed the firearm and body armor. 
His mistake is not in believing that he was a peace officer, but in
believing that the peace officer exception in section 46.15 applied to the
charged offenses.  We have already held
that it does not.  As such, appellant’s
defensive theory involves a mistake of law, not a mistake of fact.  See
Legere v. State, 82 S.W.3d 105, 109 (Tex. App.—San Antonio 2002, pet.
ref’d) (“Legere’s testimony, however, does not raise a mistake of fact
defense.  The testimony only shows that
Legere did not believe that his conduct was illegal.  None of the offenses with which Legere was
charged required him to believe that his conduct was illegal.”); Vitiello v. State, 848 S.W.2d 885, 887
(Tex. App.—Houston [14th Dist.] 1993, pet. ref’d) (holding defendant was not
entitled to mistake-of-fact instruction because, assuming defendant’s version
was true, his only mistake was believing his actions were not unlawful). 
We overrule points of error two and three.
Deadly Weapon Finding
          In
point of error four, appellant challenges the sufficiency of the evidence to
support the trial court’s deadly weapon finding in the body armor case.  Specifically, appellant contends that
“Appellant did not use a deadly weapon in furtherance of any collateral
felony,” and that “Appellant’s mere possession of a firearm did not facilitate
his possession of body armor.”
          Section
3g of Article 42.12 of the Texas Code of Criminal Procedure authorizes a trial
court to enter a deadly weapon finding in the judgment if a defendant has “used
or exhibited a deadly weapon during the commission of a felony offense or
during immediate flight therefrom.”  Tex. Code Crim. Proc. Ann. art.  42.12, § 3g(a)(2) (Vernon 2011). The term “used . . . a deadly weapon”
during the commission of the offense means that the deadly weapon was employed
or utilized in order to achieve its purpose.   Patterson
v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989).  The term “exhibited a deadly weapon” means
that the weapon was consciously shown or displayed during the commission of the
offense.  Id.
Here, Officer Sanchez testified that appellant was carrying
a gun when the police approached him. 
The gun was not hidden, but was displayed in a holster on a gun
belt.  It was identified as a “mini-glock”
handgun.  At the time he possessed the
gun, appellant was committing the felony of unlawful possession of body armor
by a felon—he had a bulletproof vest on under his shirt.  From this evidence, the trial court could
have rationally concluded that appellant consciously displayed, or “exhibited,”
a deadly weapon while committing the offense of unlawful possession of body
armor by a felon.
We overrule point of error four.
CONCLUSION
          We affirm the trial court’s judgments.
 



 
                                                                    Sherry Radack
                                                                   Chief
Justice 
 
Panel
consists of Chief Justice Radack and Justices Jennings and Keyes.
Publish.   Tex. R. App. P. 47.2(b).




[1]           See Tex.
Penal Code Ann. § 46.04(a), (e) (Vernon 2011) (third-degree felony)
(trial court case number 1257432, appellate case number 01-11-00280-CR).





[2]           See Tex.
Penal Code Ann. § 46.041 (Vernon 2011) (third-degree felony) (trial
court case number1257218, appellate case number 01-11-00279-CR).
 


[3]           See Tex. Penal Code Ann. § 46.03 (Vernon 2011).


[4]           Section 46.02 is a statute entitled
“Unlawful Carrying Weapons” and very broadly prohibits the carrying of
weapons.  It is not limited to a
prohibition against felons. See Tex. Penal
Code Ann. § 46.02
(Vernon 2011).        
 


[5]           Section 46.03 is a statute entitled
“Places Weapons Prohibited” and very broadly prohibits the possession of
weapons in certain places like schools, courts, airports, etc.  It is not limited to a prohibition against
felons.  See Tex. Penal Code Ann.
§ 46.03 (Vernon 2011).


[6]           The indictments in these cases
required the State to prove that appellant “intentionally and knowingly”
possessed the firearm and body armor.


