                     PD-1508-15                                                 PD-1508-15
                                                               COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                             Transmitted 11/20/2015 4:04:15 PM
                                                               Accepted 11/20/2015 4:51:09 PM
                                                                                ABEL ACOSTA
                       No. _________________ 
                                          CLERK

                                IN THE 


                COURT OF CRIMINAL APPEALS

                             OF TEXAS 

                           AUSTIN, TEXAS



             REY BARRERA v. THE STATE OF TEXAS


  APPELLANT’S PETITION FOR DISCRETIONARY REVIEW



               On Petition for Discretionary Review from 

                     Appeal Nos. 09-14-00410-CR 

                          And 09-14-00411-CR

          in the Court of Appeals, Ninth District, at Beaumont 


  Trial Court Cause Nos. 13-15829 (Counts 1 and 2) from the Criminal 

               District Court in Jefferson County, Texas 


_____________________________________________________________

                                    State Counsel for Offenders
                                    Attorney for Petitioner
                                    Sarah Cathryn Brandon
                                    State Bar of Texas No. 24087203
                                    P. O. Box 4005
 November 20, 2015                  Huntsville, Texas 77342-4005
                                    (512) 406-5972 Office
                                    (512) 406-5960 FAX
                                    Sarah.Brandon@tdcj.texas.gov



         PETITIONER REQUESTS ORAL ARGUMENT
                IDENTITY OF PARTIES AND COUNSEL 


PETITIONER:
Rey Barrera

RESPONDENT:
The State Of Texas

TRIAL COUNSEL FOR PETITIONER:
Spencer J. Cahoon
State Bar of Texas No. 24085801
Rachell Hunt1
State Bar of Texas No. 24053784
State Counsel for Offenders
P.O. Box 4005; Huntsville, Texas 77342
(936) 521-6702/(936) 521-6721 Fax

APPELLATE COUNSEL FOR PETITIONER:

In the 9th Court of Appeals and the Court of Criminal Appeals:
Kenneth Nash
Appellate Section Chief
State Bar of Texas No. 14811030
Sarah Cathryn Brandon
State Bar of Texas No. 24087203
P. O. Box 4005
Huntsville, Texas 77342-4005
(512) 406-5972 Office
(512) 406-5960 Fax




1
  Ms. Hunt is no longer employed by State Counsel for Offenders. She now is employed
at the Polk County District Attorney’s Office, 101 W Church St # 106, Livingston, TX
77351; Phone: (936) 327-6868.


                                          ii
TRIAL COUNSEL FOR RESPONDENT
Mark Mullin
State Bar of Texas No. 00788093
Special Prosecution Unit
340 State Hwy 75N, Ste A; Huntsville, Texas 77340
(936) 291-0431

APPELLATE COUNSEL FOR RESPONDENT:
Melinda Mayo Fletcher
State Bar of Texas No. 18403630
Special Prosecution Unit
P.O. Box 1744; Amarillo, Texas 79105
(806) 367-9407 Office
(866) 923-9253 Fax

TRIAL JUDGE:
Hon. John B. Stevens




                                   iii
                                 TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL ............................................................ ii 


TABLE OF CONTENTS.......................................................................................... iv 


INDEX OF AUTHORITIES ................................................................................... vii 


STATEMENT REGARDING ORAL ARGUMENT ............................................... 1 


STATEMENT OF THE CASE ................................................................................. 2 


STATEMENT OF PROCEDURAL HISTORY ....................................................... 3 


GROUNDS FOR REVIEW ...................................................................................... 3


        For Cause Nos. 09-14-00410-CR and 09-14-00411-CR 

        (Counts 1 and 2): 


        Question 1: Did the Ninth Court err when it held that Petitioner 

        was properly punished under TEXAS PENAL CODE §12.42(a) and 

        (c), even though Petitioner proved up and pleaded true to his 

        prior convictions and requested he be punished under §12.42(d) 

        instead? 


        Reason for Granting Review 1: The Legislature has created 

        classes of offenders that correspond with a severity of 

        punishment, and has specified that once a defendant is proven 

        to be habitual, his punishment shall be either 25-99 years in

        prison or life. This is an important issue of statutory 

        construction and legislative intent that should be, but has not

        been, decided by this Court. 


        Question 2: Did the Ninth Court err by not reforming 

        Petitioner’s judgment that reflects his two fines are running 

        consecutively to each other, when they should run concurrently 

        pursuant to TEXAS PENAL CODE 3.03(a), even though there is no 

        explicit cumulation order stacking his fines? 





                                                 iv
       Reason for Granting Review 1: An issue has arisen 

       concerning the procedural application of Crook v. State, 248 

       S.W.3d 172 (Tex. Crim. app. 2008) that has not been decided, 

       but should be, by this Court. 


       Reason for Granting Review 2: The Ninth Court’s holding 

       creates a split between the other two appellate courts that have 

       decided a substantially similar issue. 



       For Cause No. 09-14-00411-CR (Count 2 only):

       Question 3: Did the Ninth Court err by holding that the facts 

       used to prove that an object becomes a deadly weapon can also 

       be used to infer that the use then facilitated the possession? 

       Also, did the Ninth Court err by upholding the deadly weapon 

       finding for a mere possession charge by cross-applying the facts 

       from Petitioner’s second conviction that did legitimately 

       support a deadly weapon finding? 


       Reason for Granting Review 1: The Ninth Court’s decision to 

       uphold the deadly weapon finding by using the facts that 

       proved the object was deadly possibly misinterprets this Court’s 

       holdings in Ex Parte Petty, 833 S.W.2d 145 (Tex. Crim. App. 

       1992) and its progeny, and also presents a question that should 

       be, but has not been, decided by this Court.


       Reason for Granting Review 2: The Ninth Court’s decision to 

       cross-apply the facts supporting the deadly weapon finding 

       from the aggravated assault conviction to support the finding 

       for the DWPI conviction is a similar issue that has been

       presented in other appeals courts that have reached split results, 

       and presents a question that should be, but has not been, 

       decided by this Court.



ARGUMENT AND AUTHORITIES........................................................................ 7


       For Cause Nos. 09-14-00410-CR and 09-14-00411-CR 

       (Counts 1 and 2): 


                                            v
        Question 1: Did the Ninth Court err when it held that Petitioner
        was properly punished under TEXAS PENAL CODE §12.42(a) and
        (c), even though Petitioner proved up and pleaded true to his
        prior convictions and requested he be punished under §12.42(d)
        instead? ............................................................................................................ 7


        Question 2: Did the Ninth Court err by not reforming
        Petitioner’s judgment that reflects his two fines are running
        consecutively to each other, when they should run concurrently
        pursuant to TEXAS PENAL CODE 3.03(a), even though there is no
        explicit cumulation order stacking his fines? ................................................ 11


        For Cause No. 09-14-00411-CR (Count 2 only):

        Question 3: Did the Ninth Court err by holding that the facts
        used to prove that an object becomes a deadly weapon can also
        be used to infer that the use then facilitated the possession?
        Also, did the Ninth Court err by upholding the deadly weapon
        finding for a mere possession charge by cross-applying the facts
        from Petitioner’s second conviction that did legitimately
        support a deadly weapon finding? ................................................................. 13


RELEVANT FACTS ................................................................................................. 5 


PRAYER FOR RELIEF .......................................................................................... 20 


CERTIFICATE OF SERVICE ................................................................................ 21 


CERTIFICATE OF COMPLIANCE ....................................................................... 22 


APPENDIX




                                                        vi
                                   INDEX OF AUTHORITIES


                                                     Cases

Aldana v. State, 2015 Tex. App. LEXIS 4985 (Tex. App. 8th Dist. – El Paso, 

  2015) .................................................................................................... 12, 13 


Barrera v. State of Texas, No. 09-14-00410-CR, 09-14-00411-CR, 2015 

 Tex. App. LEXIS 10521 (Tex. App.-- Beaumont Oct. 14, 2015, pet. filed)
  ........................................................................................... 3, 7, 9, 13, 14, 15 


Coleman v State, 145 S.W.3d 649 (Tex. Crim. App. 2004) ......................... 16 


Dolph v. State, 440 S.W.3d 898 (Tex. App. – Texarkana [6th Dist.] 2013) .. 6 


Ex Parte Petty, 833 S.W.2d 145(Tex. Crim. App. 1992) ..... 15, 16, 17, 18, 19 


Ex Parte Preston, 833 S.W.2d 515 (Tex. Crim. App. 1992).......................... 9


Garland v. State, 170 S.W.3d 107 (Tex. Crim. App. 2005) ........................... 9 


Garner v. State, 864 S.W.2d 92 (Tex. App. – Houston [1st Dist.] 1993, pet. 

 ref’d) .................................................................................................... 18, 19 


Habib v. State, 431 S.W.3d 737, Tex. App. LEXIS 4672 (Tex. App. 7th 

 Dist. – Amarillo, 2014).............................................................................. 13 


Harris v. State, 1997 Tex. App. LEXIS 3299 (Tex. App. – Austin [3rd Dist.]

 1997) .................................................................................................... 17, 18 


Harvey v. State, 611 S.W.2d 108 (Tex. Crim. App. 1981)....................... 8, 10 


Jurado v. State, 2008 Tex. App. LEXIS 6245 (Tex. App. – Austin [3rd Dist.]

  2008) .......................................................................................................... 19 


Marshall v. State, 185 S.W.3d 899 (Tex. Crim. App. 2006) .......................... 7 


Narron v. State, 835 S.W.2d 642 (Tex. Crim. App. 1992)............... 16, 17, 19 




                                                         vii

Patterson v. State, 769 S.W.2d 938 (Tex. Crim. App. 1989) ....................... 15 


Plummer v. State, 410 S.W.3d 855 (Tex. Crim. App. 2013) .................. 15, 19 


State v. Allen, 865 S.W.2d 472 (Tex. Crim. App. 1993) .......................... 8, 10 


State v. Crook, 248 S.W.3d 172 (Tex. Crim. App. 2008) .................. 1, 11, 12 


State v. Garza, 824 S.W.2d 324 (Tex. App. – San Antonio [4th Dist.] 1992, 

  pet. ref’d, June 3, 1992) ........................................................................... 8, 9 


Tyra v. State, 897 S.W.2d 796 (Tex. Crim. App. 1995) ............................... 19 



                                               Statutes

TEX. PEN. CODE §3.03(a) .............................................................................. 11 


TEX. PEN. CODE, Chapter 12 ..................................................................... 9, 10 


TEX. PEN. CODE §12.42(a) ...................................................................... 5, 6, 7 


TEX. PEN. CODE §12.42(c) ...................................................................... 5, 6, 7 


TEX. PEN. CODE §12.42(d) ................................................................ 6, 8, 9, 10 


TEX. PEN. CODE §12.44(a) ............................................................................. 8 


TEX. PEN. CODE. §46.10(a) ........................................................................... 14 




                                                 Rules

TEX. R. APP. PRO. 66....................................................................................... 2 





                                                    viii

                          No. _________________ 


                                  IN THE 


                    COURT OF CRIMINAL APPEALS

                               OF TEXAS 

                             AUSTIN, TEXAS



                        REY BARRERA, Appellant 


                                     V. 


                    THE STATE OF TEXAS, Appellee 




           STATEMENT REGARDING ORAL ARGUMENT

      Petitioner requests oral argument in this case. This first issue presents

an issue of first impression, in which Petitioner believes discussion would

aid this Court in deciding. Oral argument will also be beneficial in

discussing the procedural snags State v. Crook, 248 S.W.3d 172 (Tex. Crim.

App. 2008) presented in Petitioner’s case, and how the Ninth Court of

Appeals erred in addressing it. The third issue raises several questions which

would be more easily addressed through conversation.




                                      1

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL

APPEALS:

       NOW COMES, REY BARRERA, Petitioner in this cause by and

through his attorneys of record, Sarah Cathryn Brandon and State Counsel

for Offenders, and pursuant to the provisions of TEX. R. APP. PRO. 66, et

seq., moves this Court to grant discretionary review, and in support shows

the following:



                        STATEMENT OF THE CASE

       Petitioner was convicted by a jury of Aggravated Assault on a Public

Servant and Possession of a Deadly Weapon in a Penal Institution (DWPI),

in which he received a life sentence and 20 years, respectively, to run

concurrently. (CR 145)(Count 1);(CR 148)(Count 2).2 He also received two

$10,000 fines on each count, which Petitioner contends were intended to run

consecutively, and likely are being treated as such by the Texas Department

of Criminal Justice. (5 RR 121). There was also a deadly weapon finding on

both counts. (CR 145)(Count 1);(CR 148)(Count 2). In three issues, the

Ninth Court of Appeals in Beaumont affirmed the judgments, holding that

2
 Questions One and Two pertain to both cause numbers from the appellate court: 09-14-
00410-CR (Count 1) and 09-14-009411-CR (Count 2). However, Question Three only
pertains to cause number 09-14-00410-CR (Count 2). Petitioner has noted which issues
pertain to which cause number, and presents both in one Petition for Discretionary
Review.


                                         2

the fines were properly imposed, properly assessed, and that the deadly

weapon finding was also proper for the second count. Petitioner challenges

the holdings from each issue.


             STATEMENT OF PROCEDURAL HISTORY

      The Honorable John B. Stevens presided over Petitioner’s trial in the

Criminal District Court of Jefferson County, Texas. On October 14, 2015,

the Court of Appeals for the Ninth Supreme Judicial District of Texas

affirmed Petitioner’s convictions in an opinion by Justice Kreger, joined by

Chief Justice McKeithen and Justice Horton in Barrera v. State of Texas,

No. 09-14-00410-CR, 09-14-00411-CR, 2015 Tex. App. LEXIS 10521 (Tex.

App.--   Beaumont    Oct.   14,   2015,   pet.   filed)(not   designated   for

publication)(Opinion attached, Exhibit A). A Motion for Rehearing was filed

on October 27, 2015, and was overruled October 29, 2015.



                       GROUNDS FOR REVIEW

           Questions Presented and Reasons for Granting Review

For Cause Nos. 09-14-00410-CR and 09-14-00411-CR (Counts 1 and 2):

Question 1: Did the Ninth Court err when it held that Petitioner was
properly punished under TEXAS PENAL CODE §12.42(a) and (c), even though
Petitioner proved up and pleaded true to his prior convictions and requested
he be punished under §12.42(d) instead?



                                     3

      Reason for Granting Review 1: The Legislature has created classes
      of offenders that correspond with a severity of punishment, and has
      specified that once a defendant is proven to be habitual, his
      punishment shall be either 25-99 years in prison or life. This is an
      important issue of statutory construction and legislative intent that
      should be, but has not been, decided by this Court.

Question 2: Did the Ninth Court err by not reforming Petitioner’s judgment
that reflects his two fines are running consecutively to each other, when they
should run concurrently pursuant to TEXAS PENAL CODE 3.03(a), even
though there is no explicit cumulation order stacking his fines?

      Reason for Granting Review 1: An issue has arisen concerning the
      procedural application of Crook v. State, 248 S.W.3d 172 (Tex. Crim.
      app. 2008) that has not been decided, but should be, by this Court.

      Reason for Granting Review 2: The Ninth Court’s holding creates a
      split between the other two appellate courts that have decided a
      substantially similar issue.


For Cause No. 09-14-00411-CR (Count 2 only):

Question 3: Did the Ninth Court err by holding that the facts used to prove
that an object becomes a deadly weapon can also be used to infer that the use
then facilitated the possession? Also, did the Ninth Court err by upholding
the deadly weapon finding for a mere possession charge by cross-applying
the facts from Petitioner’s second conviction that did legitimately support a
deadly weapon finding?

      Reason for Granting Review 1: The Ninth Court’s decision to
      uphold the deadly weapon finding by using the facts that proved the
      object was deadly possibly misinterprets this Court’s holdings in Ex
      Parte Petty, 833 S.W.2d 145 (Tex. Crim. App. 1992) and its progeny,
      and also presents a question that should be, but has not been, decided
      by this Court.

      Reason for Granting Review 2: The Ninth Court’s decision to cross-
      apply the facts supporting the deadly weapon finding from the
      aggravated assault conviction to support the finding for the DWPI

                                      4

      conviction is a similar issue that has been presented in other appeals
      courts that have reached split results, and presents a question that
      should be, but has not been, decided by this Court.


                            RELEVANT FACTS

      Petitioner was incarcerated in the Texas Department of Corrections

when he was charged with Aggravated Assault with a Deadly Weapon on a

Public Servant and Possession of a Deadly Weapon in a Penal Institution.

(CR 5)(Count 1);(CR 5)(Count 2). It was alleged that on or about September

4, 2012, Petitioner freed one of his hands from his handcuffs, and when the

victim, a correctional officer at the Stiles Unit, opened the door to

Petitioner’s cell, Petitioner stabbed the victim in the eye with a pencil. (4 RR

81-86). Petitioner was found guilty on both counts. (5 RR 114).

      The State originally pled that Petitioner had several prior convictions

in order to enhance his sentence. (2 RR 5-6). However, because Petitioner

was already serving what would essentially amount to a life sentence in

prison, the State realized that the only true way to punish Petitioner was

monetarily. (2 RR 6). The State then abandoned all of the enhancements

except for one so Petitioner’s DWPI offense would be enhanced from a third

degree to a second degree felony under Texas Penal Code §12.42(a), and his

aggravated assault offense would be punishable as a repeat offender under

§12.42(c), since both sections authorize fines. (2 RR 6). Fines are not

                                       5

authorized as part of punishment under Texas Penal Code §12.42(d), the

habitual offender provision. Dolph v. State, 440 S.W.3d 898, 908 (Tex. App.

– Texarkana [6th Dist.] 2013).

      Petitioner himself proffered the convictions the State had abandoned,

which the State ultimately joined in offering. (5 RR 79). The State’s

intention was to reintroduce the prior convictions anyway so the jury could

consider them in assessing punishment in the range provided for in

§12.42(a) and (c). (2 RR 6). Petitioner then asked that he be sentenced under

§12.42(d) because not only had the State proved his prior convictions up by

introducing them for sentencing purposes, but because the defense also

proved them up. (5 RR 81).

      The trial court noted that the issue was “novel, unique, and a first

impression,” but decided that because the State has prosecutorial discretion

when it decides which offenses to charge, it also could choose not to pursue

a habitual offender finding. (4 RR 84-85). The trial court also determined

that the State could prove up prior convictions for different purposes. (4 RR

85). The trial court then ordered the two prison terms to run concurrently

and, it appears, the two fines to run consecutively. (5 RR 121).

      Petitioner then appealed to the Ninth Court of Appeals in Beaumont.

The case was submitted the same day oral argument was heard on February



                                      6

4, 2015, and the decision was handed down in an unpublished opinion on

October 14, 2015. Barrera, 2015 Tex. App. LEXIS 10521. The Ninth Court

held that Petitioner was properly punished under Texas Penal Code

§12.42(a) and (c) because there was a “…a pleading, a plea, and proof of a

single prior felony conviction” and noted that “‘[a]mong the available

strategies for the state is an election not to pursue enhancements.’” Id. at *6

(citing Marshall v. State, 185 S.W.3d 899, 903 (Tex. Crim. App. 2006)). The

Ninth Court also held that because there was no cumulation order expressly

stacking the fines on the face of Petitioner’s judgments, there was no error

that could be reformed. Id. at *8. In the third issue, the Ninth Court held that

because the “evidence did not show mere possession of a deadly weapon,”

the deadly weapon finding was proper. Id. at *12.



                                ARGUMENT

For Cause Nos. 09-14-00410-CR and 09-14-00411-CR (Counts 1 and 2):

Question 1: Did the Ninth Court err when it held that Petitioner was
properly punished under TEXAS PENAL CODE §12.42(a) and (c), even though
Petitioner proved up and pleaded true to his prior convictions and requested
he be punished under §12.42(d) instead?

      Reason for Granting Review 1: The Legislature has created classes
      of offenders that correspond with a severity of punishment, and has
      specified that once a defendant is proven to be habitual, his
      punishment shall be either 25-99 years in prison or life. This is an



                                       7

      important issue of statutory construction and legislative intent that 

      should be, but has not been, decided by this Court. 


      Texas Penal Code §12.42(d) states: 


                    If it is shown on the trial of a felony offense
             other than a state jail felony punishable under
             Section 12.35(a) that the defendant has previously
             been finally convicted of two felony offenses, and
             the second previous felony conviction is for an
             offense that occurred subsequent to the first
             previous conviction having become final, on
             conviction he shall be punished by imprisonment
             in the institutional division of the Texas
             Department of Criminal Justice for life, or for any
             term of not more than 99 years or less than 25
             years. (emphasis added).

      This Court has already determined that the language of Texas Penal

Code §12.42(d) is “clear, instructive, and mandatory.” State v. Allen, 865

S.W.2d 472, 474 (Tex. Crim. App. 1993)(holding that the trial court could

not override the mandatory provision of §12.42(d) in favor of a discretionary

sentencing provision available in §12.44(a)). Back when §12.42(d) only

authorized a life sentence, rather than the current punishment range, this

Court noted that once prior convictions are proven in accordance with

§12.42(d), a trial court could dismiss the jury right then and there and assess

the life punishment. Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App.

1981); see also State v. Garza, 824 S.W.2d 324 (Tex. App. – San Antonio

[4th Dist.] 1992, pet. ref’d, June 3, 1992). The plain language of §12.42(d)



                                       8

indicates that any authority of the prosecution, judge, and jury are all

confined to its mandatory language.

      In the case at hand, the issue is whether §12.42(d) is still mandatory

when the defense asks for the instruction, rather than the State. That is, can a

defendant be sentenced under §12.42(d) by either asking for the instruction

after the State proves up the prior convictions, or by proving them up

himself? In its decision, the Ninth Court of Appeals noted that “‘[T]the State

may, with the permission of the trial court, ‘dismiss, waive or abandon a

portion of the indictment.’” Barrera, 2015 Tex. App. LEXIS 10521, at *6

(citing Garland v. State, 170 S.W.3d 107, 111 (Tex. Crim. App.

2005)(quoting Ex Parte Preston, 833 S.W.2d 515, 517 (Tex. Crim. App.

1992)). The Ninth Court also pointed out that the State can choose not to

pursue enhancements as part of its strategy in trying the case. Id.

      The State has always had the right to plead or abandon enhancements

and exercise discretion in choosing which charges to bring and what

evidence to introduce. However §12.42(d) is the legislator’s attempt to

create classes of offenders that it has determined should be punished in

specific ways, and therefore curbs discretion to the sentencing authority

throughout Chapter 12 of the Texas Penal Code. See Garza, 824 S.W.2d at

327 (“We note that this section refers to particular and specific offenses



                                       9

which the legislature has deemed inappropriate for probation.”). This issue

therefore begs the question: how far does prosecutorial discretion extend

into sentencing when the legislature has mandated a range of punishment for

certain offenders?

      Section 12.42(d)’s language only requires that once “it is shown” the

defendant has the requisite prior convictions, he shall be punished under

§12.42(d). See Allen, 865 S.W.2d at 473 (“…this court determined that the

language of Section 12.42(d) expresses the legislative intent that upon proof

of certain criteria, the habitual offender statute dictates its mandatory

operation”)(referencing Harvey v. State, 611 S.W.2d 108 (Tex. Crim. App.

1981). Therefore, the plain language of §12.42(d) appears to open it up to

either the State or the defendant to prove prior enhancements to obtain the

appropriate sentencing range in which to instruct the jury, and would better

effectuate the legislator’s intent. See Allen, 865 S.W.2d 474 (holding that

“[o]nce the two prior felony convictions are found to be true, the mandatory

operation of §12.42(d) restricts the discretion of the sentencing authority.”).

Because Chapter 12 of the Texas Penal Code is such a significant

component of the criminal trial, Petitioner asks this Court to grant review of

this issue of first impression because it regards an important question of




                                      10

statutory construction, legislative intent, and the role of prosecutorial

discretion in sentencing.


Question 2: Did the Ninth Court err by not reforming Petitioner’s judgment
that reflects his two fines are running consecutively to each other, when they
should run concurrently pursuant to TEXAS PENAL CODE 3.03(a), even
though there is no explicit cumulation order stacking his fines?

      In his appeal, Petitioner contended that no fine at all was authorized

by law because he was proven to be a habitual offender. However, if the fine

was authorized by law, Petitioner contends that the fine in Count 1 should

run concurrently to the fine in Count 2, rather than consecutively, since

Petitioner’s two convictions arose out of the same criminal episode. TEX.

PEN. CODE §3.03(a).

      Reason for Granting Review 1: An issue has arisen concerning the
      procedural application of Crook v. State, 248 S.W.3d 172 (Tex. Crim.
      App. 2008) that has not been decided, but should be, by this Court.

      Reason for Granting Review 2: The Ninth Court’s holding creates a
      split between the other two appellate courts that have decided a
      substantially similar issue.

      In a plurality decision by this Court, it was held that “…the concurrent

fines provision of Section 3.03(a) applies to the entire sentence, including

fines.” State v. Crook, 248 S.W.3d 172, 177 (Tex. Crim. App. 2008).

Pursuant to Crook, when a defendant is assessed two fines to run

concurrently, a dollar paid on one will therefore be payment in satisfaction



                                     11

of both. Petitioner’s case at hand presents a twist on the Crook scenario

because there was no express cumulation order included in the judgments

outright stating that the two $10,000 fines would run consecutively, yet there

were two separate orders to withdraw funds incorporated into each

judgment. (CR 145)(Count 1);(CR 148-49(Count 2) This is a problem

because very often a jury will have the authority to impose fines on multiple

counts, yet the Texas Department of Criminal Justice (TDCJ) is still likely to

treat them as running consecutively because there are two separate orders.

      In Petitioner’s case, the record reflects that the trial court intended for

the two fines to run concurrently. (5 RR 121). That the two judgments each

expressly incorporate separate orders to withdraw funds (and only one has

court costs) reflects this intention, as well. (CR 145)(Count 1);(CR 148-

49)(Count 2). However, whether the trial court intended for the fines to run

consecutively or whether the judgment will cause TDCJ to treat them as

consecutively may not matter, as the solution is the same.

      Similar situations have been recently addressed by at least two other

courts of appeals, an indicator that there is misunderstanding in the trial

courts as to how the principle from Crook can be properly applied on two

separate judgments. See Aldana v. State, 2015 Tex. App. LEXIS 4985 (Tex.

App. 8th Dist. – El Paso, 2015)(not designated for publication) and Habib v.



                                      12

State, 431 S.W.3d 737, Tex. App. LEXIS 4672 (Tex. App. 7th Dist. –

Amarillo, 2014).

      Similar to Petitioner, in both the Aldana and Habib cases, there

appeared to be no express order cumulating the two fines. The appellate

courts in the other two cases exercised their authority to delete the fine from

one of the judgments to ensure the appellant would only have to pay one fine

in satisfaction of both. The Ninth Court declined to do so, however. Barrera,

2015 Tex. App. LEXIS 10521, at *8.

      Petitioner presented the Aldana and Habib cases to the Ninth Court of

Appeals in his Motion for Rehearing, which was overruled on October 29,

2015. The Ninth Court’s decision has now created a split in how this

scenario should be treated. This issue is important to review because it is

highly likely a trial court might not think about the implications of including

two separate orders to withdraw funds when the fines should run

concurrently, and the appellate courts are now split on how to address this

issue, resulting in an uneven application of the law.


For 09-14-00411-CR (Count 2 only):

Question 3: Did the Ninth Court err by holding that the facts used to prove
that an object becomes a deadly weapon can also be used to infer that the use
then facilitated the possession? Also, did the Ninth Court err by upholding
the deadly weapon finding for a mere possession charge by cross-applying



                                      13

the facts from Petitioner’s second conviction that did legitimately support a
deadly weapon finding?

Petitioner was charged with DWPI, which is committed if:

            …while confined in a penal institution, [one]
            intentionally, knowingly, or recklessly:

                   (1) carries on or about his person a deadly
                      weapon; or
                   (2) possesses or conceals a deadly weapon
                      in the penal institution.

TEX. PEN. CODE. 46.10(a). Petitioner was charged with subsection (2) of this

offense, in that he “possesse[d]….a deadly weapon in the penal institution.”

Id. The trial court entered an affirmative finding of a deadly weapon on both

of Petitioner’s judgments. (CR 145)(Count 1);(CR 148)(Count 2). Petitioner

concedes that the finding was appropriate for the aggravated assault count;

however, because the Deadly Weapon in Penal Institution (DWPI)

conviction is a mere possession offense, Petitioner argued on appeal that the

deadly weapon finding should not stand. Barrera, 2015 Tex. App. LEXIS

10521, at *9.

      The Ninth Court of Appeals held that Petitioner’s “use of the pencil to

stab D.L. facilitated his possession of a deadly weapon in a penal institution

because that use made the object a deadly weapon[,]” and that the “use of

the pencil…furthered the commission of the aggravated assault…a felony




                                     14

offense facilitated by the possession, and distinct from the offense of

possession itself.” Barrera, Tex. App. LEXIS 10521, at *11-12.

      Reason for Granting Review 1: The Ninth Court’s decision to
      uphold the deadly weapon finding by using the facts that proved the
      object was deadly possibly misinterprets this Court’s holdings in Ex
      Parte Petty, 833 S.W.2d 145 (Tex. Crim. App. 1992) and its progeny,
      and also presents a question that should be, but has not been, decided
      by this Court.

      The seminal case on deadly weapon findings issues is Patterson v.

State, 769 S.W.2d 938 (Tex. Crim. App. 1989), and since that decision, the

interpretation of a deadly weapon finding has generally expanded. Plummer

v. State, 410 S.W.3d 855, 859 (Tex. Crim. App. 2013) (discussing

Patterson). However, this Court has consistently “generally declined to

uphold deadly-weapon findings when the weapon was present but did not

facilitate a separate felony.” Id. This principle originated in Ex Parte Petty,

where the defendant was charged with unlawful possession of a handgun,

and the trial court entered an affirmative finding that the defendant used or

exhibited a deadly weapon during the commission of the offense. Petty, 833

S.W.2d 145. This Court correctly held that the trial court erred in entering

the affirmative finding, holding that “the weapon was not ‘used’ in

furtherance of any collateral felony.” Id. This Court reasoned that the

interpretation of “use” can only include “simple possession if such

possession facilitates the associated felony.” Id. (emphasis added). For

                                      15

example, this Court has held that simple possession constituted “use” when a

gun was possessed in order to protect a drug operation. Coleman v State, 145

S.W.3d 649, 352 (Tex. Crim. App. 2004) (upholding the deadly weapon

finding on a possession with intent to deliver cocaine offense).

      Similarly, in Narron v. State, the defendant was charged with

possession of a prohibited weapon (short barrel firearm), and the trial court

entered an affirmative weapon finding. Narron v. State, 835 S.W.2d 642,

643 (Tex. Crim. App. 1992). This Court deleted the finding, holding that the

trial court erred because “there was no associated felony facilitated by

appellant’s possession of the short barrel firearm…” Id. at 644. In short, the

underlying offense has to have elements requiring more than “mere

possession” itself. Petty, 833 S.W.2d 145.

      In Petty and its progeny, the cases dealt with an inherently deadly

weapon, usually a gun. In Petitioner’s case, however, the State had to prove

up that the pencil was in fact a deadly weapon, because a pencil is an object

not normally used as a weapon. The Ninth Court reasoned that because a

pencil is normally a “harmless writing implement,” it was Petitioner’s

specific “use” of the pencil that satisfied the requirement that it also

“facilitated” the DWPI offense.     Therefore, the question is whether the

analysis is different once the State has to prove that an object was a deadly



                                      16

weapon. It is very likely more scenarios will arise that involve what is

otherwise a harmless object being utilized as a deadly weapon. This Court

should settle whether the principal from Petty survives in this context.


      Reason for Granting Review 2: The Ninth Court’s decision to cross-
      apply the facts supporting the deadly weapon finding from the
      aggravated assault conviction to support the finding for the DWPI
      conviction is a similar issue that has been presented in other appeals
      courts that have reached split results, and presents a question that
      should be, but has not been, decided by this Court.

      The Ninth Court’s holding presents another question: whether the

facts that support one deadly weapon finding that is legitimately attached to

one conviction can cross-over to a second offense to support the finding,

when that second offense could not support the finding on its own. Petitioner

contends that the affirmative finding is intended to be coupled with an

accompanying felony, i.e., the specific felony that the State alleges a deadly

weapon was used or exhibited to facilitate, since that seems to best interpret

the precedent of this Court. See Narron, 835 S.W.2d 644 (“...‘use’ of a

deadly weapon …include[s] simple possession if such possession facilitates

the associated felony”) (original emphasis included). This theory is

supported by an unpublished opinion out of the Third Court of Appeals. See

Harris v. State, 1997 Tex. App. LEXIS 3299 (Tex. App. – Austin [3rd Dist.]

1997).



                                      17

      In Harris, the defendant was convicted for possession of a prohibited

weapon and unlawful possession of a firearm by a felon, with affirmative

findings of deadly weapon on each count. Id. at *1. The State argued that

because the defendant “displayed and cocked a firearm in view of a victim,

thus committing an aggravated assault by threat[,]” the deadly weapon

findings were justified. Id. at *2. The Third Court reasoned, however, that

because the State did not actually charge the defendant with “aggravated

assault or any other felony offense in which he “used” the weapon,” the

judgments could not support a deadly weapon finding. Id. Even though

Petitioner in the case at hand was actually charged with aggravated assault,

by extension of the Third Court of Appeals’ reasoning, only this conviction

should support the deadly weapon finding. Petitioner contends that the

words “associated felony” found in Petty and its progeny are interpreted to

only refer to the actual underlying felony that the deadly weapon finding is

attached to, rather than cross-applying the facts from one, separate offense to

a mere possession offense to support the finding.

      However, there is possible support for the Ninth Court of Appeals’

theory from a case out of the First Court of Appeals in Houston in Garner v.

State, 864 S.W.2d 92 (Tex. App. – Houston [1st Dist.] 1993, pet. ref’d). In

Garner, the defendant was only charged with possession of a firearm by an



                                      18

ex-felon, and an affirmative finding of a deadly weapon was included on the

judgment. Id. at 95. The First Court of Appeals affirmed, holding that

because the victim testified “that appellant fired the handgun toward [the

victim] and others was sufficient evidence that appellant committed an

associated collateral felony facilitated by his possession of the handgun,” the

deadly weapon finding was not error. Id. at 103; see also Jurado v. State,

2008 Tex. App. LEXIS 6245, at *6-7 (Tex. App. – Austin [3rd Dist.]

2008)(relying on Garner to hold there was more than mere evidence of

possession when the gun was used to shoot the victim, even though

defendant was found not guilty on that offense).

      This theory is also potentially supported by the concurring opinion

from Tyra v. State from this Court, where the Garner case was cited as a

possible distinction from the Petty and Narron cases where the “offense was

complete with the possession.” Tyra v. State, 897 S.W.2d 796, 801 (Tex.

Crim. App. 1995). These cases indicate that the Ninth Court’s theory is

gaining traction, but Petitioner contends that they depart from this Court’s

precedent in Petty, Narron, Plummer, etc. Further, because there is a split

about how the issue may be treated in the different appellate courts, and a

concurring opinion from this Court has spoken on this, Petitioner urges this




                                      19

Court to consider these new yet repeatable circumstances of this deadly

weapon finding issue.


                                  PRAYER

      WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully

prays that this Court grant discretionary review and, and after full briefing

and argument on the merits, issue an opinion reversing the Court of Appeals’

judgment.



                                        Respectfully submitted,

                                        /s/ Sarah Cathryn Brandon
                                        STATE COUNSEL FOR
                                        OFFENDERS
                                        Sarah Cathryn Brandon
                                        SBN: 24087203
                                        P. O. Box 4005
                                        Huntsville, TX 77342-4005
                                        (936) 437-5291 Office
                                        (936) 437-5293 Fax
                                        Sarah.Brandon@tdcj.texas.gov




                                      20

                     CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of this Appellant’s

Petition for Discretionary Review was served upon opposing counsel noted

below, by one or more of the following:       certified mail (return receipt

requested), facsimile transfer, or electronic mail (e-mail), this 23rd day of

November, 2015.

Melinda Fletcher
Special Prosecution Unit
P. O. Box 1744
Amarillo, TX 79501
Facsimile no. 866-923-9253
E-mail address: mfletcher@sputexas.org

Lisa C. McMinn
State Prosecuting Attorney
PO Box 13046
Austin, TX 78711-3046
Facsimile no. 512-463-5724




                                      /s/ Sarah Cathryn Brandon
                                      Sarah Cathryn Brandon
                                      Attorney for Petitioner




                                     21

                     CERTIFICATE OF COMPLIANCE


     This document complies with the type-volume limitation of Texas

Rule of Appellate Procedure 9.4(i) because this brief contains 3,517 words.



                                     /s/ Sarah Cathryn Brandon
                                     Sarah Cathryn Brandon
                                     Attorney for Petitioner




                                     22

                                        NO. _______________ 





                 IN THE COURT OF CRIMINAL APPEALS OF TEXAS 




                                          REY BARRERA 

                                               v. 

                                       THE STATE OF TEXAS



                         On Petition for Discretionary Review from 

                      Appeal No. 09-14-00410-CR and 09-14-00411-CR 

                       in the Ninth Supreme Judicial District of Texas 

                                        at Beaumont



                                                APPENDIX 




Ninth Court of Appeals Opinion and Judgment .......................................... Exhibit A 


Affidavit of Indigency.................................................................................. Exhibit B

Ninth Court of Appeals Opinion and Judgment .......................................... Exhibit A 

                                     In The

                               Court of Appeals

                   Ninth District of Texas at Beaumont

                          ____________________
                              NO. 09-14-00410-CR

                              NO. 09-14-00411-CR

                          ____________________

                          REY BARRERA, Appellant


                                       V.


                      THE STATE OF TEXAS, Appellee

_______________________________________________________          ______________

                 On Appeal from the Criminal District Court

                          Jefferson County, Texas

                  Trial Cause No. 13-15829 (Counts 1 and 2)

________________________________________________________          _____________

                         MEMORANDUM OPINION

      A jury found Rey Barrera guilty of aggravated assault with a deadly weapon

on a public servant (Count 1) and possession of a deadly weapon in a penal

institution (Count 2). See Tex. Penal Code Ann. §§ 22.02(b)(2)(B), 46.10 (West

2011). The jury found Barrera to be a repeat offender and assessed punishment at

life in prison and a $10,000 fine for Count 1 and twenty years in prison and a

$10,000 fine for Count 2. The trial court ordered both sentences to commence after


                                        1

the sentences imposed for his previous convictions have ceased to operate. See

Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2014). On appeal, Barrera

contends the fines were unauthorized by law. In the alternative, he contends the

fines must run concurrently. Finally, Barrera challenges the affirmative finding of

the use of a deadly weapon on the judgment for the possession offense. Finding no

reversible error in this appeal, we affirm the trial court’s judgment.

                               Enhanced Punishment

      Issue one contends the trial court erred in allowing the jury to assess a fine

as part of Barrera’s punishment because the evidence established his status as a

habitual offender. Section 12.42 of the Texas Penal Code describes the punishment

range for habitual and repeat felony offenders on trial for a first, second, or third

degree felony. Tex. Penal Code Ann. § 12.42 (West Supp. 2014). “[I]f it is shown

on the trial of a felony of the third degree that the defendant has previously been

finally convicted of a felony other than a state jail felony punishable under Section

12.35(a), on conviction the defendant shall be punished for a felony of the second

degree.” Id. § 12.42(a). A second degree felony is punished by “imprisonment in

the Texas Department of Criminal Justice for any term of not more than 20 years

or less than 2 years.” Tex. Penal Code Ann. § 12.33(a) (West 2011). “In addition to

imprisonment, an individual adjudged guilty of a felony of the second degree may

                                           2

be punished by a fine not to exceed $10,000.” Id. § 12.33(b). “If it is shown on the

trial” of a first degree felony that a person has a felony conviction that became

final before the date of the charged offense, provisions similar to those found in

section 12.42(a) establish a punishment range of “life, or for any term not more

than 99 years or less than 15 years.” Id. § 12.42(c)(1). “In addition to

imprisonment, an individual may be punished by a fine not to exceed $10,000.” Id.

      A different subsection of Section 12.42 applies when a person is found to be

a habitual offender.

      [I]f it is shown on the trial of a felony offense other than a state jail
      felony punishable under Section 12.35(a) that the defendant has
      previously been finally convicted of two felony offenses, and the
      second previous felony conviction is for an offense that occurred
      subsequent to the first previous conviction having become final, on
      conviction the defendant shall be punished by imprisonment in the
      Texas Department of Criminal Justice for life, or for any term of not
      more than 99 years or less than 25 years.

Tex. Penal Code Ann. § 12.42(d). The subsection that applies to habitual offenders

does not authorize a fine. See Ex parte Johnson, 697 S.W.2d 605, 607-08 (Tex.

Crim. App. 1985).

      In this case, four enhancement paragraphs contained in the indictment

alleged Barrera had previously been convicted in 2008 for committing aggravated

assault with a deadly weapon, in 1997 for murder as well as attempted murder, and

in 1986 for robbery. The State alleged the 1986 conviction became final before the
                                         3

commission of the 1997 offenses, the 1997 convictions became final before the

commission of the 2008 offense, and the 2008 conviction became final before the

commission of the charged offenses. The State abandoned the first and fourth

enhancement paragraphs, without an objection from the defense, in a pre-trial

hearing. Before the punishment phase of the trial started, the State and the defense

agreed to the State’s abandonment of the paragraph alleging a 1997 conviction for

attempted murder. Barrera made a plea of “true” to the single remaining

enhancement paragraph.

      A penitentiary packet admitted into evidence in the trial’s punishment phase

included: (1) a judgment on a conviction for murder, committed October 10, 1996,

with a sentence of 65 years in prison and a $10,000 fine, commencing December 5,

1997; (2) a judgment on a conviction for attempted murder, committed October 10,

1996, with a sentence of 20 years in prison and a $10,000 fine, commencing

December 5, 1997; (3) a judgment on a conviction for possession of a deadly

weapon in a penal institution, committed on April 21, 2004, with a sentence of 3

years in prison imposed on April 1, 2005, and commencing when a 1997 sentence

has ceased to operate; (4) a judgment on a conviction for aggravated assault with a

deadly weapon, committed December 2, 2006, with a sentence of 50 years in

prison imposed on October 22, 2008, and commencing when the 1997 sentence for

                                         4

murder has ceased to operate; and (5) a judgment on a conviction for robbery,

committed November 30, 1985, with a sentence of 10 years in prison imposed on

May 12, 1986, and commencing November 30, 1985. Records from an El Paso

County district court include a judgment of conviction for aggravated assault with

a deadly weapon, committed October 10, 1996, with a sentence of 20 years in

prison and a $10,000 fine, commencing December 5, 1997.

      In the charge conference, Barrera argued that section 12.42(d) of the Texas

Penal Code supplied the proper punishment range because the State and the

defense proved two or more sequential prior final felony convictions during the

punishment phase of the trial. See generally Tex. Penal Code Ann. § 12.42(d). The

trial court denied the defense’s request to submit a habitual offender charge to the

jury. The jury charge required the jury to punish Barrera as a repeat offender based

upon Barrera’s plea of true to a single enhancement paragraph in the indictment.

      Barrera argues application of habitual offender punishment under section

12.42(d) was mandatory in his cases because two sequential final felony

convictions were “shown” on his trial. See generally id. The cases Barrera cites in

his brief demonstrate that the mandatory application of section 12.42(d) occurs if

there has been a plea of true by the defendant or a finding of true by the finder of

fact. See State v. Allen, 865 S.W.2d 472, 473-74 (Tex. Crim. App. 1993) (section

                                         5

12.42(d) applies when the State has proven the enhancement paragraphs and the

factfinder has found the enhancement allegation to be true); Harvey v. State, 611

S.W.2d 108, 110-11 (Tex. Crim. App. 1981) (when the defendant pleads “true” to

the State’s enhancement allegation, the defendant cannot complain that the

evidence is insufficient to support the finding and the trial court may charge the

jury on the enhanced punishment range).

      Due process requires reasonable notice and an opportunity to be heard

relative to a recidivist charge. Oyler v. Boles, 368 U.S. 448, 452 (1962). Prior

convictions used as enhancements must be pleaded in some form, and they may be

pleaded in an indictment. Brooks v. State, 957 S.W.2d 30, 33-34 (Tex. Crim. App.

1997). “[T]he State may, with the permission of the trial court, ‘dismiss, waive or

abandon a portion of the indictment.’” Garland v. State, 170 S.W.3d 107, 111

(Tex. Crim. App. 2005) (quoting Ex parte Preston, 833 S.W.2d 515, 517 (Tex.

Crim. App. 1992)). “Among the available strategies for the state is an election not

to pursue enhancements.” Marshall v. State, 185 S.W.3d 899, 903 (Tex. Crim.

App. 2006). In this case, the record contains a pleading, a plea, and proof of a

single prior final felony conviction. Accordingly, Barrera was properly punished as

a repeat felony offender. See Tex. Penal Code Ann. § 12.42(c)(1). We overrule

issue one.

                                          6

                                Concurrent Fines

      Issue two contends the trial court erred in allowing consecutive fines where

the sentences were ordered to be served concurrently. Barrera was tried in a single

criminal action for offenses arising out of the same criminal episode. See Tex.

Penal Code Ann. § 3.03(a) (West Supp. 2014). Fines which are part of concurrent

sentences “run” concurrently. State v. Crook, 248 S.W.3d 172, 174, 177 (Tex.

Crim. App. 2008) (plurality opinion). “An individual sentence assessed . . . within

the applicable range of punishment is not rendered illegal by the entry of an

unlawful cumulation order.” Beedy v. State, 250 S.W.3d 107, 114 (Tex. Crim. App.

2008). An unlawful cumulation order is remedied by reforming the judgment to set

aside the order. Id. at 113.

      Barrera argues that the fine recited in the judgment for Count 2 must be

deleted from the judgment because the sentences for aggravated assault on a public

servant and possession of a deadly weapon in a penal institution are to be served

concurrently. The remedy Barrera seeks is not that his fines “run concurrently,” but

that one of the fines not be imposed at all, contrary to the jury’s verdict. Deciding

what punishment to assess within the statutorily prescribed range for a given

offense and deciding whether to cumulate sentences are two distinct functions. See

Barrow v. State, 207 S.W.3d 377, 379-80 (Tex. Crim. App. 2006). The jury’s

                                         7

decision whether to assess a particular punishment in a particular case has no

bearing on the judge’s decision whether to cumulate the sentence. Id. To determine

whether the judgment properly states that the sentence for Barrera’s conviction for

aggravated assault on a public servant will be served concurrently with his

sentence for possession of a deadly weapon in a penal institution, we look not to

the part of the judgment that recites the sentence, but to the part of the judgment

memorializing the cumulation order. See Tex. Code Crim. Proc. Ann. art. 42.01, §

1(9), (15), (19) (West Supp. 2014).

      The cumulation orders contained in the judgments at issue here state that the

sentence shall commence when the judgments and sentences have ceased to

operate in Barrera’s 2008 convictions for aggravated assault with a deadly weapon

and assault of a public servant. See Tex. Code Crim. Proc. Ann. art. 42.08(a). A

statement that a sentence has been cumulated under article 42.08 is properly

included on a judgment. See id. art. 42.01, § 1(19). Because no other cumulation

order appears on either judgment, and Barrera does not contend that the sentences

in this case cannot be cumulated on the sentences identified in the judgments, we

find no error on the face of the judgment requiring reformation of the judgment on

appeal. We overrule issue two.




                                        8

                             Deadly Weapon Finding

      Issue three contends the trial court erred in allowing the jury to make an

affirmative finding of the use or exhibition of a deadly weapon in the charge for

possession of a deadly weapon in a penal institution. He argues the weapon was

present but did not facilitate a separate felony. See Plummer v. State, 410 S.W.3d

855, 859-60 (Tex. Crim. App. 2013) (“However, we have declined to uphold

deadly-weapon findings when the weapon was present but did not facilitate a

separate felony.”).

      The indictment in this case alleged, in part:

      REY BARRERA, hereinafter styled Defendant, on or about the 4th
      day of September, 2012, and before the presentment of this
      indictment, in the County and said State aforesaid, did:
                                  COUNT ONE
      then and there intentionally, knowingly, or recklessly cause bodily
      injury to [D.L.], by stabbing [D.L.] with a pencil, and the Defendant
      did then and there know that the said [D.L.] was a public servant in
      the lawful discharge of an official duty, to-wit:
      Correctional Officer, and the defendant did then and there use or
      exhibit a deadly weapon, to-wit: a pencil, during the commission of
      said assault;
                                  COUNT TWO:
      then and there, while confined in a penal institution, intentionally or
      knowingly possess or conceal in said penal institution a deadly
      weapon, to-wit: a pencil, and the defendant did then and there use or
      exhibit a deadly weapon, to-wit: a pencil, during the commission of
      said possession or concealment of a deadly weapon in a penal
      institution[.]


                                          9

      The jury charge informed the jury that “[a] person commits an offense if,

while confined in a penal institution, (s)he intentionally or knowingly possesses or

conceals a deadly weapon in the penal institution.” See generally Tex. Penal Code

Ann. § 46.10. One of the definitions included in the charge stated: “Deadly weapon

means[:] (1) a firearm or anything manifestly designed, made, or adapted for the

purpose of inflicting death or serious bodily injury; or (2) anything that in the

manner of its use or intended use is capable of causing death or serious bodily

injury.” See generally Tex. Penal Code Ann. § 1.07(17) (West Supp. 2014).

      The application paragraph for Count 1 stated, as follows:

            Now, as to Count 1 of the Indictment, if you believe from the
      evidence beyond a reasonable doubt that in Jefferson County, Texas,
      on or about September 4, 2012, the defendant Rey Barrera, did then
      and there intentionally, knowingly, or recklessly cause bodily injury
      to [D.L.], by stabbing [D.L.] with a pencil, and the Defendant did then
      and there know that the said [D.L.] was a public servant in the lawful
      discharge of an official duty, to-wit: Correctional Officer, and the
      defendant did then and there use or exhibit a deadly weapon, to-wit: a
      pencil, during the commission of said assault, you shall find the
      defendant GUILTY of the offense of Aggravated Assault with a
      Deadly Weapon on a Public Servant.

       The application paragraph for Count 2 stated, as follows:

            Now, as to Count 2 of the Indictment, if you believe from the
      evidence beyond a reasonable doubt that in Jefferson County, Texas,
      on or about September 4, 2012, the defendant Rey Barrera, did then
      and there, while confined in a penal institution, intentionally or
      knowingly possess or conceal in said penal institution a deadly
      weapon, to-wit: a pencil, and the defendant did then and there use or
                                        10

      exhibit a deadly weapon, to-wit: a pencil, during the commission of
      said possession or concealment of a deadly weapon in a penal
      institution, you shall find the defendant GUILTY of the offense of
      Deadly Weapon in a Penal Institution.

      “[I]n 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 642, 644 (Tex. Crim. App. 1992). We give “use” its broadest possible

understanding. Tyra v. State, 897 S.W.2d 796, 797 (Tex. Crim. App. 1995). In this

case, the jury considered evidence that Barrera stabbed D.L. in the lower outside

portion of his left eye with the pencil, penetrating to the brain and damaging three

of the cranial nerves, leaving D.L. completely and most likely permanently blind in

that eye. The charge authorized the jury to convict Barrera only if it found that he

used or exhibited a pencil, which in the manner of its use by Barrera was capable

of causing death or serious bodily injury. To support a deadly weapon finding,

there must be a facilitation purpose between the weapon and the associated felony

offense. Plummer, 410 S.W.3d at 856. Such a facilitation purpose is present in this

case because Barrera used what would otherwise have been a harmless writing

implement to stab D.L. in the eye, blinding him. Barrera’s use of the pencil to stab

D.L. facilitated his possession of a deadly weapon in a penal institution because

that use made the object a deadly weapon. Additionally, Barrera’s use of the pencil
                                        11

to stab D.L. furthered the commission of the aggravated assault on a public

servant, a felony offense facilitated by the possession, and distinct from the offense

of possession itself. See id. at 865. The evidence did not show mere possession of a

deadly weapon. We overrule issue three and affirm the trial court’s judgment.

      AFFIRMED.


                                            ________________________________
                                                    CHARLES KREGER
                                                         Justice


Submitted on February 5, 2015
Opinion Delivered October 14, 2015
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




                                         12

              IN THE NINTH COURT OF APPEALS

                        _____________________ _____

                               09-14-00411-CR

                        __________________________

                                  Rey Barrera

                                       v.

                               The State of Texas

_________________________________________________________________

                             On Appeal from the

              Criminal District Court of Jefferson County, Texas

                    Trial Cause No. 13-15829 (Count 2)

_________________________________________________________________

                                JUDGMENT

      THE NINTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be affirmed. IT
IS THEREFORE ORDERED, in accordance with the Court’s opinion, that
the judgment of the trial court is affirmed.
          Opinion of the Court delivered by Justice Charles Kreger

                               October 14, 2015

                                 AFFIRMED
                             **********
      Copies of this judgment and the Court’s opinion are certified for
observance.




                                               Carol Anne Harley
                                               Clerk of the Court
              IN THE NINTH COURT OF APPEALS

                        _____________________ _____

                               09-14-00410-CR

                        __________________________

                                  Rey Barrera

                                       v.

                               The State of Texas

_________________________________________________________________

                             On Appeal from the

              Criminal District Court of Jefferson County, Texas

                    Trial Cause No. 13-15829 (Count 1)

_________________________________________________________________

                                JUDGMENT

      THE NINTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be affirmed. IT
IS THEREFORE ORDERED, in accordance with the Court’s opinion, that
the judgment of the trial court is affirmed.
          Opinion of the Court delivered by Justice Charles Kreger

                               October 14, 2015

                                 AFFIRMED
                             **********
      Copies of this judgment and the Court’s opinion are certified for
observance.




                                               Carol Anne Harley
                                               Clerk of the Court
Affidavit of Indigency.................................................................................. Exhibit B

                                                       CAUSE NO. 13-15829 


THE STATE OF TEXAS 	                                            §         IN THE DISTRICT COURT OF

v	                                                              §         JEFFERSON COUNTY, TEXAS

REY BARRERA 	                                                   §         CRIMINAL JUDICIAL DISTRICT

                                DECLARATION OF INABILITY TO PAY COST

         Now respectfully comes Rey Barrera, TDCJ#00815516, pursuant to Texas Rule of Appellate Procedure

20.2 and declares that I am unable to pay the court costs in this action and requests leave of the Court to proceed in

forma pauperis in this accompanying criminal action and would show the Court the following:

         (1) 	 I am presently incarcerated in the Polunsky Unit of the Texas Department of Criminal Justice-
               Institutional Division where I am not permitted to handle money.
         (2) 	 I have no source of employment nor government-entitlement income.
         (3) 	 I am not married/1-tlHt   ifltlrr i ~   however, I have no spousal income available to me.
         (4) 	 I currently have $     1Jr          credited to me in the Inmate Trust Fund, or any other checking or
              savings account.
        (5) 	 I neither own nor have an interest in any realty, stocks, bonds, or bank account and I receive no
              interest or dividend income from any source.
        (6) 	 I have no other assets.
        (7) 	 I have    n 0              dependents.
        (8) 	 I have total debts of approximately $         ,_.:01 5>'r· i!   L1

        (9) 	 My monthly expenses are approximately $ -               0­
        (1 0) 	 I have no ability to obtain a loan for court costs.
        (11) My attorney is providing free legal services without a contingent fee . 

        (I2)My attorney has not agreed to pay or advance court costs. 



        I, Rey Barrera, TDCJ #00815516, being presently incarcerated in the Texas Department of Criminal

Justice-Institutional Division, verifY and declare under penalty of perjury that the foregoing statements are true and

correct. Executed on this the   j0   ~       day of      -~ 1f                        20   Ii    .
                                                                  	~~.{Qa,zzi/
                                                                )(ReyB&era,      rtiui/IIU11{
                                                                            TDCJ#00815516
