Toby Wade Beyer v. State ( 2003 )

11th Court of Appeals

11th Court of Appeals

Eastland, Texas

Opinion

  

Toby Wade Beyer

Appellant

Vs.                   No. 11-02-00323-CR B Appeal from Erath County

State of Texas 

Appellee

Appellant pleaded guilty to the first degree felony offense of the manufacture of methamphetamine.  The jury assessed punishment at 20 years confinement and found that appellant used or exhibited a deadly weapon during the commission of the offense.  The trial court entered a deadly weapon finding in its judgment.  See TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 3g(a)(2) (Vernon Supp. 2003).  We affirm.

In his sole point of error, appellant complains that the evidence was insufficient to support the jury=s finding that he used or exhibited a deadly weapon in the commission of the offense.  To determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). To determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).

The Court of Criminal Appeals has defined the terms Ause@ and Aexhibit@ as they are used in Article 42.12, section 3g(a)(2).  Gale v. State, 998 S.W.2d 221, 225 (Tex.Cr.App.1999); Patterson v. State, 769 S.W.2d 938, 941 (Tex.Cr.App.1989).  The Ause@ of a deadly weapon during the commission of a felony offense extends to any employment of a deadly weapon, even its simple possession, if such possession facilitated the associated felony.  Patterson v. State, supra.  A defendant=s use of a deadly weapon in the sense of protecting and facilitating his possession of a controlled substance constitutes Ause@ of a deadly weapon under Article 42.12, section 3g(a)(2).  Gale v. State, supra; Patterson v. State, supra.

In this case, the evidence showed that law enforcement officers searched appellant=s residence, pursuant to a search warrant, on December 12, 2001.  Investigator Gerald Wayne Rogers of the S.T.O.P. Narcotics Task Force participated in the search.   Investigator Rogers testified that, other than the officers, appellant was the only person present at the residence during the search.  The officers discovered methamphetamine during the search. They also discovered a working methamphetamine laboratory in the residence and ingredients necessary to manufacture methamphetamine.

Investigator Rogers said that appellant=s residence was equipped with surveillance equipment.  The officers saw their vehicles on the surveillance television in the living room to the left of the front door.  The officers found a loaded sawed-off double-barreled shotgun on a couch that was near the television.  Investigator Rogers said that a person sitting on the couch could watch the surveillance on the television and be ready to shoot the shotgun if anybody came in the front door.  Investigator Rogers testified that, in his experience, individuals who are involved in manufacturing methamphetamine are generally well armed. Investigator Rogers said that the shotgun was a deadly weapon that was used in the commission of the offense of manufacturing the methamphetamine.               Appellant does not deny that the shotgun was a deadly weapon or that he was in possession of it.  Rather, he argues that there was no evidence to support the jury=s finding that his possession of the shotgun facilitated the associated felony of manufacturing methamphetamine.  We disagree.  Based on the evidence, a rational trier of fact could find that the shotgun facilitated appellant=s offense of manufacturing.  The officers found the loaded shotgun on the couch near the surveillance television. The evidence was legally and factually sufficient to establish that appellant Aused@ the shotgun in the sense that it protected and facilitated his manufacturing of the methamphetamine. Gale v. State, supra; Patterson v. State, supra.  Appellant=s sole point of error is overruled.

The judgment of the trial court is affirmed.               

TERRY McCALL

JUSTICE

November 6, 2003

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.