      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-05-00734-CR



                                   Sammy Zapata, Appellant

                                                 v.

                                  The State of Texas, Appellee



 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
        NO. 05-053-K277, HONORABLE KEN ANDERSON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant Sammy Zapata guilty of burglary of a habitation and

assessed punishment, enhanced by two previous felony convictions, at life imprisonment. See

Tex. Penal Code Ann. § 30.02 (West 2003). The jury also found that a firearm was used or exhibited

during the commission of the offense. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2)

(West Supp. 2006); Tex. Gov’t Code Ann. § 508.145 (West Supp. 2006), § 508.149 (West 2004).

The only issue presented is whether the evidence supports this finding. We conclude that it does and

affirm the conviction.

               Appellant was arrested by police while still inside the burgled residence. He was

wearing boots, jeans, a black skull cap, and a camouflage shirt. He was carrying a loaded 9

millimeter semiautomatic pistol in the waistband of his pants. He also had a backpack, binoculars,

gloves, electrical tape, a cell phone, and a steak knife. There is no evidence that appellant ever

removed the pistol from his waistband or displayed the weapon to anyone. The arresting officers
discovered the pistol after appellant was seized. Appellant argues that this evidence is legally and

factually insufficient to support a finding that he used or exhibited the firearm during the commission

of the burglary within the meaning of article 42.12, section 3g(a)(2). See Griffin v. State,

614 S.W.2d 155, 158-59 (Tex. Crim. App. 1981) (standard of review for legal sufficiency);

Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (standard of review for

factual sufficiency).

               The “use” of a deadly weapon during the commission of a crime “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.”

Patterson v. State, 723 S.W.2d 308, 315 (Tex. App.—Austin 1987), aff’d, 769 S.W.2d 938, 942

(Tex. Crim. App. 1989). In Patterson, police officers entered an apartment to execute a search

warrant. 723 S.W.2d at 310. They found Patterson sitting on a couch next to a table containing

drugs, drug paraphernalia, .45 caliber ammunition, and $905 in cash. Id. A loaded .45 caliber pistol

was concealed between Patterson’s leg and the end of the couch. Id. at 311. Patterson did not

attempt to reach for the pistol. Id. This Court held that a rational trier of fact could find that

Patterson used the pistol during the offense of possessing the controlled substances in the sense that

the firearm protected and facilitated his care, custody, and management of the contraband. Id. at 315.

               Gregg v. State, like the cause before us, involved a burglary in which the defendant

was arrested while still inside the premises. 820 S.W.2d 191, 193 (Tex. App.—Fort Worth 1991,

no pet.). The evidence showed that during the burglary, the defendant found a shotgun in the

complainant’s bedroom closet, loaded it, and placed it on the bed. Id. The court of appeals affirmed

the finding that the defendant used the shotgun during the commission of the burglary:

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       Certainly he would not have gone to the trouble to load the gun and place it in such
       an accessible position had he simply intended to steal the gun; rather, the gun was
       “used” for the purpose of effectuating this burglary in that the appellant could have
       fired it upon being surprised or caught in the home by the complainant or a family
       member, the police, or anyone else. Although he was not in actual physical
       possession of the shotgun at the time of his arrest on the premises, appellant’s act of
       finding, loading, and moving the gun, constituted sufficient control and possession
       of the gun as to support a finding that he “used” the gun during the commission of
       the offense.

Id.

               Burglary of a residence during the nighttime is a dangerous enterprise. The loaded

pistol was not found in appellant’s vehicle or the backpack he was carrying; it was in the waistband

of his jeans and thus readily at hand. It is reasonable to infer that appellant had armed himself with

the pistol for the purpose of protecting himself if confronted by an angry homeowner or a police

officer during the course of the offense. Applying the appropriate standards of review, we hold that

the evidence is legally and factually sufficient to support the jury’s finding that appellant used a

firearm during the commission of the burglary.

               Narron v. State, 835 S.W.2d 642 (Tex. Crim. App. 1992), cited by appellant, is not

on point. In that case, the defendant was convicted of possessing a prohibited weapon, and the

judgment contained a finding that the weapon was used during the commission of the offense. Id.

at 643. The court of criminal appeals struck the finding, reasoning that under article 42.12, section

3g(a)(2), the weapon must facilitate the commission of an offense other than its own unlawful

possession. Id. at 644; see also Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995)

(construing Narron). In the cause now before us, appellant did not merely possess the pistol; he

possessed it while committing burglary.



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                Also distinguishable are four opinions by this Court cited by appellant: Johnston v.

State, 115 S.W.3d 761, 762-64 (Tex. App.—Austin 2003), aff’d, 145 S.W.3d 217, 225 (Tex. Crim.

App. 2004); Rodriguez v. State, 31 S.W.3d 772, 778-79 (Tex. App.—Austin 2000), aff’d, 104

S.W.3d 87, 92 (Tex. Crim. App. 2003); Holder v. State, 837 S.W.2d 802, 807-09

(Tex. App.—Austin 1992, pet. ref’d); Boes v. State, No. 03-03-00326-CR, 2004 Tex. App. LEXIS

6806, at *6-7 (Tex. App.—Austin July 29, 2004, no pet.) (not designated for publication). Appellant

refers us to the discussion in each of these opinions regarding whether an object had been shown to

be a deadly weapon in the manner of its use or intended use. See Tex. Penal Code Ann.

§ 1.07(a)(17)(B) (West Supp. 2006). That is not an issue here because a firearm is a deadly weapon

as a matter of law. Id. § 1.07(a)(17)(A). Whether appellant used the firearm in a manner capable

of causing death or serious bodily injury is irrelevant.

                The point of error is overruled and the judgment of conviction is affirmed.1




                                               __________________________________________

                                               W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Affirmed

Filed: February 6, 2007

Do Not Publish




   1
       All pending motions are overruled.

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