                                  NO. 07-07-0328-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL C

                                   AUGUST 10, 2009

                         ______________________________


                              GEORGE WILLIAM BAHR,

                                                             Appellant

                                           v.

                               THE STATE OF TEXAS,

                                                     Appellee
                        ________________________________

              FROM THE 47th DISTRICT COURT OF RANDALL COUNTY;

                NO. 18125-A; HON. RICHARD DAMBOLD, PRESIDING
                       _______________________________

                               Concurring Opinion
                        _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

       I concur in the opinion and judgment rendered by the majority but write separately

to address a concern of mine. That concern relates to the potential for abuse related to

accusing one of using or exhibiting a deadly weapon to enhance the nature or punishment

of a crime.
       As noted in the court’s opinion, appellant was charged with using, as opposed to

exhibiting, a deadly weapon during the commission of the crime. Furthermore, to prove

that allegation, the State must establish, at a minimum, that the weapon’s presence

facilitated the associated crime. Gale v. State, 998 S.W.2d 221, 224-25 (Tex. Crim. App.

1999). In other words, presence or possession of a weapon alone is not enough. There

must be a link between the weapon and crime.

       The difficulty in proving the aforementioned link may well vary upon the nature of

the crime and weapon involved, however. For instance, courts have long recognized that

firearms and the peddling of drugs tend to go hand in hand; indeed, that realization is often

cited as an indicia justifying an officer’s decision to conduct a pat-down when investigating

a crime involving drugs. See Wilson v. State, 132 S.W.3d 695, 699 (Tex. App.–Amarillo

2004, pet. ref’d) (recognizing the link between drugs and the presence of firearms when

determining the legitimacy of a pat-down for officer safety). So, it is not an unreasonable

leap to infer from the presence of a firearm within the close vicinity of drugs that the

weapon somehow facilitated the possession and/or sale of such contraband. See Gale v.

State, 998 S.W.2d at 225 (finding the requisite link given the proximity of the firearms to

the drugs and the testimony that drug dealers often use guns to protect their illicit goods).

Yet, if the supposed deadly weapon was a butcher knife found lying in a kitchen drawer

while the drugs lie in a bedroom or when the crime involves child pornography on a

computer located next to a gun cabinet the link may be somewhat harder to establish.

       Simply put, caution must be taken to insure the presence of the requisite link

discussed above. Without more, an accused’s legitimate possession of a firearm in his

house does not entitle the State to a deadly weapon finding because the underlying crime

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occurred in the house. And, I fear that some of what I have read may be ignoring this.

Finally, that the majority took the requisite caution here is something I cannot dispute.



                                                 Brian Quinn
                                                 Chief Justice

Publish.




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