 AFFI RNI; Opinion issued October 30, 2012.




                                                                      In The
                                                       uf
                                                       (Lmtrt                 \iprahi
                                      FiftI! Ji!3triCt UI                     (!,CXZ1L3     at Da[1a
                                                           No. 05—I 2—00121—CR


                                           JEStJS MANUEL GASPAR, Appellant

                                                                         V.

                                              TIlE STATE OF TEXAS. Appeilce


                                  On Appeal from the 195th Judicial District Court
                                               Dallas County, Texas
                                       Trial Court Cause No. F09-30667-N


                                             MEMORANDUM OPINION
                                  Before Justices O’Neill, FitzGerald, and Lang-Miers
                                               Opinion By Justice O’Neill

             Jesus Manuel Gaspar was indicted for possession with intent to deliver methamphetamine

in an amount ol tour grams or more but less than 200 grams. See Ttx. FIEALTH & S\FvrY CODE

ANN.     S   481. 112(a), (d) (West 2010). The indictment also alleged appellant used or exhibited a

deadly weapon, a Orearm, during commission of the offense, and included one enhancement

paragraph alleging a prior felony conviction. Appellant waived ajury, pleaded guilty to committing

the offense, pleaded not guilty to using or exhibiting a deadly weapon, and pleaded true to the

enhancement paragraph. The trial court assessed punishment at thirty-five years’ imprisonment and


      Althonch app       nt judicial confession tracks the language in the indictment, including the use and exhibition ofa deadly weapon, a Preang.
the plea agreenemmt st,ilc open plea as to deadly weapon, and the record si ott S the tnal court accepted appellant’s not pui lt plea as to the deadly
weapon
made an affirmative deadly weapon finding. In a single point of error, appellant contends the

evidence is insufficient to support the deadly weapon finding. We aITinn the trial court’s judgment.

The background of the case and the evidence admitted at triaL arc well known to the parties, and we

therefore limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule

of Appellate Procedure 47A because the law to be applied in the case is well settled.

         During the sentencing hearing, Detective Demoie Clark testified that on June 27, 2009,

officers executed a search warrant on a Grand Prairie apartment The apartment was leased to

appellant’s girlfriend and appellant’s stepmother. Prior to entering, the officers saw appellant and

his girlfriend leave in separate vehicles. Two other men were inside the apartment when the officers

entered. During the search, officers found several illegal drugs in the kitchen and the closet in the

master bedroom. Clark testified a small suitcase inside the closet contained a large quantity of

methamphetamine. Later analysis showed the officers seized 145 grams ofmethamphetamine from

the suitcase and kitchen. Officers found a nine millimeter pistol on the top shelf of the closet in

close proximity to the suitcase. The gun had one bullet in the magazine but no bullet in the chamber.

Clark testified one of the men found inside the apartment stated they “couldn’t freely go” into the

master bedroom. Clark testified the officers also seized cocaine, marijuana, scales, and baggies.

         Marlin Quiles testified she and appellant dated and lived together “off and on” for eight

years. Although she leased the apartment with appellant’s stepmother, appellant paid the rent and

only she, her young daughter, and appellant lived there. Appellant would “come and go and stay if

he wanted or leave ifhe wanted.” Quiles testified she knew appellant sold drugs from the apartment,

but he was also an auto mechanic. Even though she told appellant not to sell drugs from the

apartment because her child lived there, appellant “did it anyway.” Quiles testified appellant

bsnJ5.mfly
             had a gun.” At the time ofthe offense, she was a fall-time beauty school student. She did



                                                   —2—
not know there were drugs in the apartment on (lie day police executed the search warrant.

        Stephen Junker, an Irving narcotics detective, testified as an expert on narcotics and those

  ho sell them   Itinker testified th   it   guns intl di ugs olten go togcthei     ()ttcn the gun is in close

proximity to the drugs so it can he easily retrieved. Junker testified drug dealers typically possess

more than one tYpe of illegal drug, and they usually possess large quantities of the drugs. Junker

testified that dealers use guns to prevent robberies and to try to ward oft law enibreement.

       Appellant contends the evidence is insufficient to support the deadly weapon finding because

(1) the State did not show the gun was used to further the offense; (2) the apartment where the gun

was found was not leased to him; (3) he was not inside the apartment when the gun was found; and

(4) there is no evidence of who owned the gun or to whom          it   was registered. The State responds the

evidence presented is sufficient to support the trial courts deadly weapon finding.

       Article 42. 1 2, section 3g(a)(2) of the Texas Code of Criminal Procedure permits the entry

of a deadly weapon finding when it is shown that a defendant used or exhibited a deadly weapon,

or he was a party to the offense and knew that a deadly weapon would he used or exhibited. See

TEx. CoDE. CR1M. PRoc. ANN. art, 42.12,            3g(a)(2) (West Supp. 2011). In the context of a deadly

weapon finding, the term “use” means any employment of a deadly weapon, even simple possession,

if that possession facilitates the associated felony. Coleman v. State, 145 S.W.3d 649, 652 (Tex.

Crim. App. 2004); Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989).

       When reviewing the sufficiency of the evidence to support a deadly weapon finding, the real

question for review is whether the weapon was found to have facilitated the defendant’s possession

and intended distribution of the drugs. See Coleman, 145 S.W.3d at 655. The defendant’s proximity

to the gun at the time of the search is not dispositive. Id. at 654. The focus is on the proximity of

the guns to the drugs, not the proximity of the guns to the defendant. See id. at 654—35 (discussing
(ia/c v. State, 998 S,W,2d 221 • 226 (Tex. Crim. App. 1999)). Also, ownership is not necessary to

a finding that a defendant used a deadly weapon in violation of article 42.12, section 3g of the Texas

Code of Criminal Procedure, Smith v. State, 176 S.W.3d 907, 919 (Tex. App.—Dallas 2005, pet.

ref’d). Courts must determine whether the cumulative effect of the factors could have allowed a

rational jury to determine that the defendant used the weapons to protect the drugs and the proceeds

therefrom. coleman, 145 S.W.3d at 655. If we determine the State thiled to show a defendant used

a deadly weapon in the commission of an offense, we may delete the deadly weapon finding. See

Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2006).

       The record reflects the appellant paid rent for the apartment where the gun was found, and

he exercised control over the apartment. Appellant sold drugs from the apartment, and the gun was

found in the same closet from which drugs were seized. A rational trier of fact could have found,

beyond a reasonable doubt, that appellant had knowledge of the gun in the apartment and used that

weapon to facilitate the “control, management, or care” of the drugs. Viewing the evidence in the

light most favorable to the verdict, we conclude there is sufficient evidence to support the affirmative

deadly weapon finding. We overrule appellant’s sole point of error.
.1   I I
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                                      JUDGMENT
JESUS MANUEL (ASPAR, Appellant                    Appeal from the I 95th Judicial District
                                                  Court of Dallas County, Texas. (TrCt,No.
No, 05l200l2UCR                                   F0930667N).
                                                  Opinion delivered by Justice O’Neill,
THE STATE OF TEXAS, Appellee                      Justices FitzGerald and LangMiers
                                                  participating.


       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.



Judgment entered October 30, 2012.

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