Damien Lewis Benton v. the State of Texas ( 2023 )

AFFIRMED and Opinion Filed March 1, 2023
S In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00806-CR
DAMIEN LEWIS BENTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 15th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 072413
MEMORANDUM OPINION
Before Justices Molberg, Partida-Kipness, and Carlyle
Opinion by Justice Carlyle
On June 3, 2020, an eyewitness called 911 after she saw appellant Damien
Lewis Benton pointing a long gun at houses in the area. Another witness, a former
military ammunition specialist, testified she heard a gunshot that sounded like it
came from a .22. Police arrived soon after and arrested Mr. Benton, who had gunshot
residue on his hands. They found a loaded .22 rifle nearby, along with spent cartridge
casings matching ammunition found both inside the rifle and inside Mr. Benton’s
car. When interviewed by police, Mr. Benton admitted firing the rifle multiple times
at someone he claimed was shooting at him.
The State charged Mr. Benton with unlawfully possessing a firearm as a felon,
see TEX. PENAL CODE § 46.04, and requested a special issue as to whether he used
or exhibited a deadly weapon during the offense, see TEX. CODE CRIM. P. art.
42A.054(b). The jury convicted Mr. Benton, affirmatively found that he used or
exhibited a deadly weapon, and assessed punishment at fifteen years’ imprisonment.
On appeal, Mr. Benton contends the evidence is insufficient to support the
deadly weapon finding, arguing that such a finding is impermissible in cases like
this where the “gravamen of the primary offense” is the deadly weapon’s possession.
We disagree.
The deadly weapon statute’s purpose “is to discourage and deter felons from
taking and using deadly weapons with them as they commit their crimes.” Plummer
v. State, 410 S.W.3d 855, 864 (Tex. Crim. App. 2020). The felon-in-possession
statute likewise aims “to keep violent offenders from arming themselves and moving
about the community.” Boyd v. State, 899 S.W.2d 371, 374 (Tex. App.—Houston
[14th Dist.] 1995, no pet.) (cleaned up); see Shepperd v. State, 586 S.W.2d 500, 503
(Tex. Crim. App. Panel No. 2 1979).
The court of criminal appeals has explained that “in order to ‘use’ a deadly
weapon for affirmative finding purposes, the weapon must be utilized to achieve an
intended result, namely, the commission of a felony offense separate and distinct
from ‘mere’ possession.” Narron v. State, 835 S.W.2d 642, 644 (Tex. Crim. App.
1992); In Ex Parte Petty, 833 S.W.2d 145, 145 (Tex. Crim. App. 1992). More
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recently, however, the court has clarified that a deadly weapon finding requires only
“some facilitation connection between the weapon and” the associated felony. See
Plummer, 410 S.W.3d at 865. To that end, the court suggests the weapon must
“increase the risk of harm,” “otherwise contribute to the result,” or play a role in
“enabling, continuing, or enhancing” the associated felony. Id.
Here, although the State did not charge Mr. Benton with a separate felony
based on his conduct, there is ample support for finding that he used or exhibited the
gun while unlawfully possessing it. See TEX. CODE CRIM. P. art. 42A.054(b). The
evidence establishes that Mr. Benton fired the gun in a residential neighborhood. In
fact, he admitted firing it multiple times and at another person. Thus, this case is
distinguishable from Narron and Petty, where the trial courts entered deadly weapon
findings based on “mere possession.” See Narron, 835 S.W.2d at 644; Petty, 833
S.W.2d at 145–46. Indeed, by firing the gun in this manner, Mr. Benton increased
the risk of harm associated with unlawfully possessing the gun, and thus there is
“some facilitation connection” between the deadly weapon and the associated
felony. See Plummer, 410 S.W.3d at 865.
Moreover, the deadly weapon finding here amplifies the purposes underlying
these statutes, where a violent offender armed himself and moved about the
community, visiting this increased danger on an entire neighborhood. See Plummer,
410 S.W.3d at 865; Boyd, 899 S.W.2d at 374.
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We affirm the trial court’s judgment.
/Cory L. Carlyle/
CORY L. CARLYLE
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
210806F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DAMIEN LEWIS BENTON, On Appeal from the 15th Judicial
Appellant District Court, Grayson County,
Texas
No. 05-21-00806-CR V. Trial Court Cause No. 072413.
Opinion delivered by Justice Carlyle.
THE STATE OF TEXAS, Appellee Justices Molberg and Partida-Kipness
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered March 1, 2023
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