          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                          NO. 03-01-00663-CR



                                      Ramiro Hinojosa, Appellant

                                                     v.

                                     The State of Texas, Appellee




     FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
            NO. 01-184-K368, HONORABLE BURT CARNES, JUDGE PRESIDING




                Appellant Ramiro Hinojosa pleaded guilty before a jury to a two-count indictment accusing

him of possessing more than four grams of cocaine and more than four grams of methamphetamine, in both

cases with intent to deliver. See Tex. Health & Safety Code Ann. ' 481.112(a), (d) (West Supp. 2002).

Appellant pleaded not true to the allegation that he used or exhibited a firearm in the commission of the

offenses. After hearing evidence, the jury assessed punishment at imprisonment for forty-five years and

affirmatively found that a firearm was used in the commission of the offenses.

                Appellant contends the district court erred by refusing to place the witnesses under the

witness exclusion rule until after opening statements and by refusing to separately try the deadly weapon and

punishment issues. He also contends the evidence is legally insufficient to support the deadly weapon

finding. We will overrule these contentions and affirm the conviction.
                Appellant invoked the witness exclusion rule after the jury was selected and sworn, but the

court denied appellant=s request that the witnesses be excluded before the parties= opening statements.

Instead, the court placed the rule into effect at the conclusion of the statements, immediately before

testimony began.

                Evidence rule 614 provides that at the request of a party, Athe court shall order witnesses

excluded so that they cannot hear the testimony of other witnesses.@ Tex. R. Evid. 614. By its terms, the

rule applies only to witness testimony. See Creel v. State, 493 S.W.2d 814, 820 (Tex. Crim. App. 1973)

(rule does not require exclusion of witnesses during jury voir dire and before trial testimony begins). No

violation of rule 614 is shown. Even if the court erred by permitting the witnesses to hear the opening

statements, appellant=s substantial rights were not affected. See Tex. R. App. P. 44.2(b); see also Moore

v. State, 882 S.W.2d 844 (Tex. Crim. App. 1994) (applying harmless error rule to witness rule violation).

During her opening statement, the prosecutor discussed the facts of the case in very general terms. None of

the facts she mentioned were disputed. The statement could not have influenced the testimony of any

witness in a manner prejudicial to appellant. Point of error one is overruled.

                The court also denied appellant=s request that the trial be bifurcated into a Aguilt-innocence@

phase, at which the deadly weapon issue would be tried, followed by a punishment phase. Instead, all

testimony was heard during a single proceeding, after which the court submitted the deadly weapon special

issue to the jury together with the question of punishment.

                The statute providing for bifurcated trials does not apply to pleas of guilty. Basaldua, 481

S.W.2d 851, 853 (Tex. Crim. App. 1972). Thus, the trial before a jury on a defendant=s guilty plea is a


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unitary trial, not a bifurcated one. Wilkerson v. State, 736 S.W.2d 656, 659 (Tex. Crim. App. 1987);

Basaldua, 481 S.W.2d at 852-53. Appellant relies on a statement by the court of criminal appeals that it is

the Abetter practice@ to submit the deadly weapon issue at the guilt-innocence phase. Hill v. State, 913

S.W.2d 581, 586 (Tex. Crim. App. 1996). Hill, however, was a trial on a plea of not guilty and has no

application here. And see Fann v. State, 702 S.W.2d 602, 604-05 (Tex. Crim. App. 1986) (op. on

reh=g) (better practice is to submit deadly weapon issue at punishment phase). No error is shown and point

of error two is overruled.

                Finally, appellant contends the evidence does not support the deadly weapon finding. See

Tex. Code Crim. Proc. Ann. art. 42.12, ' 3g(a)(2) (West Supp. 2002).1 We must determine if, viewing all

the evidence in the light most favorable to the verdict, any rational trier of fact could have found beyond a

reasonable doubt that appellant used or exhibited a firearm during the commission of these offenses. See

Gale v. State, 998 S.W.2d 221, 224 (Tex. Crim. App. 1999).



   1
      A defendant is ineligible for judge-ordered community supervision Awhen it is shown that a
deadly weapon . . . was used or exhibited during the commission of a felony offense.@ Tex. Code
Crim. Proc. Ann. art. 42.12, ' 3g(a)(2) (West Supp. 2002). An affirmative finding that the
defendant used a firearm or other deadly weapon must be Aenter[ed] . . . in the judgment of the
court.@ Id. The affirmative finding also delays the defendant=s eligibility for parole and prevents his
release to mandatory supervision. Tex. Gov=t Code Ann. '' 508.145(d), .149(a)(1) (West Supp.
2002).




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                On the morning of November 2, 2000, several law enforcement officers executed a warrant

to search a house in rural Williamson County. Appellant, the only occupant of the house, was in the

bedroom. In that room, the officers found a small plastic bag containing what proved to be cocaine and a

wallet containing $4900 in cash. Other containers of what proved to be either cocaine or methamphetamine

were found in the hall closet of the house, on a shelf in the detached garage, under the hood of a car parked

by the house, and in a nearby pile of trash. In total, the officers found 196.32 grams of cocaine and 29.36

grams of methamphetamine, much of it in small packages as if for sale.

                An unloaded .22 rifle and a digital scale were found on a pool table in the living room house.

Two more scales were found in the kitchen. Inside the locked trunk of a second car parked inside the

garage, the officers found a triple-beam scale, an unloaded .30-.30 rifle, an unloaded .45 pistol, and two

boxes of .45 bullets. $5000 in cash was found on the floor of the garage. Although other bullets were found

during the search, none fit the two rifles. An experienced narcotics officer testified that it is common for

drug dealers to have a firearm available to protect the drugs and cash received from sales.

                The car in which controlled substances were found was registered to appellant. The car in

the garage was unregistered and appeared to be inoperable. Appellant rented the house and had occupied

it for about six months.

                There is no evidence that appellant exhibited a firearm, so the question is whether he used

one or more of the weapons during the commission of the offenses for which he was convicted. The

purpose of denying probation and delaying parole eligibility for those who use a deadly weapon is to

Adiminish the danger to human life that could be expected to arise in the circumstances that attend a felony


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offense when its commission is accompanied by a deadly weapon.@ Patterson v. State, 723 S.W.2d 308,

315 (Tex. App.CAustin 1987), aff=d, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989).2 The phrase Aused .

. . during the commission of a felony offense@ must be Asufficiently flexible to accommodate any felony

offense falling within the purpose of the statute.@ Id. at 314 (italics omitted). This Court concluded in

Patterson that Athe statutory expression >used . . . during the commission of a felony offense= refers certainly

to the wielding of a firearm with effect, but it extends as well to any employment of a deadly weapon, even

its simple possession, if such possession facilitates the associated felony.@ 723 S.W.2d at 315. In affirming

this Court=s opinion, the court of criminal appeals quoted this passage with approval. Patterson, 769

S.W.2d at 941.3

                 In Patterson, the defendant was one of several persons in a room containing drugs and

drug paraphernalia. Id. at 311. He was sitting on a couch with a loaded .45 revolver concealed beside his


   2
     The court of criminal appeals has said the same thing more succinctly: AThe objective . . . is to
keep guns and criminals separate.@ Gale v. State, 998 S.W.2d 221, 225 n.7 (Tex. Crim. App. 1999).
   3
     The United States Supreme Court has given the term Ause,@ as it appears in an analogous federal
statute, a narrower construction than that endorsed in Patterson. See Bailey v. United States, 516 U.S.
137, 148-50 (1995). The court of criminal appeals has explained, however, that due to differences in
the wording of the two statutes, Athe Bailey decision does not substantially affect the continued
application of Patterson as precedent for the definition of >use= in Texas jurisprudence.@ Gale, 998
S.W.2d at 225.




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leg. Id. Because the defendant had the revolver ready at hand and in close proximity to the drugs, and

because there was no evidence of a lawful purpose behind the drawn revolver, this Court concluded that a

rational trier of fact could find that he used the weapon Ain a sense that the firearm protected and facilitated

[his] care, custody, and management of the contraband.@ Id. at 315.

                 In Gale, the court of criminal appeals upheld an affirmative finding in the context of a

prosecution for possession of marihuana. In that case, over twenty pounds of marihuana (in small

packages), three unloaded rifles, an unloaded handgun, ammunition for the weapons (including a loaded

clip), and $4500 cash were found in the defendant=s closet. 998 S.W.2d 221 at 223. The court held that a

jury could rationally find that the defendant used the weapons in the commission of the offense citing: the

large quantity of marihuana clearly possessed for sale; the presence of the weapons in the same closet and

only inches away from the marihuana; and police testimony that drug traffickers use firearms to protect their

drugs and money and that the weapons in question could be quickly loaded. Id. at 225-26.

                 Appellant argues that in order to find that a weapon was used to facilitate the commission of

unlawful drug possession, the weapon must be found either near the defendant (as in Patterson) or near the

controlled substance (as in Gale). He urges that because the firearms in this cause were neither found with

the controlled substances nor found on or near appellant, the evidence does not support the affirmative

finding. See Beal v. State, 35 S.W.3d 677, 686 (Tex. App.CHouston [1st Dist.] 2000, pet. granted)

(handgun in car with defendant and methamphetamine); Dimas v. State, 987 S.W.2d 152, 154-55 (Tex.

App.CFort Worth 1999, pet. ref=d) (loaded rifles inches from cocaine); Moreno v. State, 978 S.W.2d

285, 289 (Tex. App.CFort Worth 1998, no pet.) (handgun and rifle next to cocaine); Charles v. State,


                                                       6
915 S.W.2d 238, 241 (Tex. App.CBeaumont 1996, pet. ref=d) (loaded pistol in room where drugs found);

Sanchez v. State, 906 S.W.2d 176, 181 (Tex. App.CFort Worth 1995, pet. ref=d) (rifles in closet with

cocaine); Henton v. State, 893 S.W.2d 165, 167 (Tex. App.CHouston [1st Dist.] 1995, no pet.)

(defendant holding pistol as police entered to execute search); Ramirez v. State, 822 S.W.2d 240, 245

(Tex. App.CHouston [1st Dist.] 1991, pet. ref=d) (defendant carrying loaded pistol when making delivery).

                We agree that the factors cited by appellant support an affirmative finding, but we do not

agree that they are always necessary for such a finding.4 Ultimately, the sufficiency of the evidence must be

determined on a case-by-case basis. Appellant admitted possessing a large quantity of cocaine and

methamphetamine with the intent to deliver.         The evidence shows that appellant used the entire

premisesCthe house and the surrounding curtilageCin his criminal enterprise. The rifles, pistol, and

ammunition for the pistol were found with scales the jury could reasonably believe were used by appellant to

weigh the controlled substances. While not in the trunk of the car with the firearms and scales, drugs and

cash were found in the garage in which the car was parked. The main cache of drugs was found in a

second car parked outside the garage. In short, the firearms were not found in a place completely separate

from the criminal enterprise. Compare Gale, 998 S.W.2d at 226. Although appellant=s ownership of the



   4
      Consider, for example, if the police had found in the trunk of appellant=s car firearms,
ammunition, scales, small plastic bags of the sort used by drug dealers, a large quantity of cash, and a
notebook containing records of appellant=s purchases and sales of controlled substancesCin short,
everything associated with the sale of cocaine and methamphetamine except the drugs themselves.




                                                     7
weapons was not positively shown, the jury could reasonably conclude from the circumstances that they

belonged to him. In light of the testimony of the narcotics officer, the jury could rationally conclude that the

firearms were, like the scales, a tool of appellant=s trade.

                 Viewing all the evidence in the light most favorable to the jury=s finding and taking all the

relevant factors into consideration, we conclude that it would be rational for a fact-finder to determine that

appellant used the weapons, or at least the pistol for which he had ammunition, to protect his drugs and

cash, and hence to facilitate his possession and delivery of the controlled substances. Point of error three is

overruled.

                 The judgment of conviction is affirmed.




                                                   ___________________________________________

                                                   David Puryear, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: September 12, 2002

Do Not Publish




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