Plummer, Marquis Andre

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1269-12

MARQUIS ANDRE PLUMMER, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

HARRIS COUNTY

Cochran, J., delivered the opinion of the Court in which Meyers, Price,

Womack, Johnson, Keasler, Hervey, and Alcala, JJ., joined. Keller, P.J.,

concurred.

O P I N I O N

Appellant was convicted of unlawful possession by a felon of a firearm and

possession of body armor. The trial judge entered a deadly-weapon finding in the body-armor case, and the question before us is whether, for purposes of Article 42.12, § 3g, the

evidence shows that appellant "exhibited" the firearm in the commission of the offense of

possession of body armor. (1) The court of appeals upheld the deadly-weapon finding, (2) and we

granted review because this case raises an important issue of first impression: To support a

deadly-weapon finding, must the "exhibition" of a deadly weapon facilitate, in some manner,

the associated felony offense? Or is it sufficient that the exhibition of the deadly weapon

occurs simultaneously with the felony but is unrelated to its commission?

We conclude that there must be some facilitation purpose between the weapon and

the associated offense to support a deadly-weapon finding. Because there was no evidence

that appellant's possession of a mini-Glock pistol facilitated his commission of the offense

of possession of body armor, we delete the deadly weapon finding from the judgment.I.

Appellant was charged with unlawful possession of a firearm (3) and unlawful

possession of body armor by a felon. (4) He wore both a holstered firearm and a bullet-proof

vest as part of his security-guard uniform. Because of a prior felony conviction, he was

prohibited from possessing both the firearm and the bullet-proof vest.

The evidence at appellant's bench trial showed that, on March 30, 2010, Houston

Police Officer Dannell Sanchez was dispatched to a wellness clinic on Cullen Blvd. to assist

two Brazoria County deputies in serving a felony arrest warrant on one of the clinic's

employees. When Officer Sanchez arrived at the clinic, he met appellant, who was sitting in

the lobby, wearing a bullet-proof vest under a black T-shirt with "POLICE" written on it.

Appellant seemed very nervous as he asked the officers what was happening. "One of the

things that was a red flag for me, he had a Sam Brown or gun belt on and the gun in the

holster was a lot smaller than what we would carry as a duty weapon. . . .We call it a mini

Glock and that's not a duty weapon."

The officers were unable to find the person for whom they had the arrest warrant, but

they began questioning appellant because they thought it odd for the wellness clinic to have

a security guard. At first, appellant said he was with Brazoria County, but, when asked for

his identification, he gave the officers a Fire Marshal identification card from Prairie View

in Waller County. When Officer Sanchez ran appellant's identification, he found that

appellant had been convicted of a felony in 2003 and his concealed-handgun license had been

revoked. Officer Sanchez's supervisor verified that appellant was, in fact, employed by the

Prairie View Fire Department, but he was not a licensed peace officer. The officers also

verified that appellant was working as a substitute security guard.

The trial judge found appellant guilty of unlawful possession of a firearm by a felon

and unlawful possession of body armor (the bullet-proof vest) by a felon. Referring to our

precedent, (5) the trial judge declined to enter a deadly-weapon finding in the possession-of-a-

firearm-by-a-felon case. He did, however, enter a deadly-weapon finding in the body-armor

case.

The court of appeals upheld the deadly-weapon finding, concluding that the

simultaneous "display" of a weapon while committing another felony offense (possession

of body armor) supported the finding even though the gun did not facilitate the felony

offense. (6) We granted review to decide whether the term "exhibit" in the deadly weapon

statute carries with it the connotation that the deadly weapon must somehow facilitate or

increase the risk of potential harm while committing the felony.

II.

Article 42.12 § 3g(a)(2) states that offenders who have "used or exhibited [a deadly

weapon] during the commission of a felony offense or during immediate flight therefrom"

are not eligible for judge-ordered community supervision. (7) A deadly-weapon finding also

requires an inmate to serve at least one-half of his prison sentence before he is eligible for

parole. (8) Thus, a deadly-weapon finding carries with it serious legal consequences.

According to our seminal decision in Patterson v. State , the term "'exhibited a deadly

weapon' means that the weapon was consciously shown or displayed during the commission

of the offense." (9) The actor must be specifically aware of the fact that he was using a deadly

weapon during the felony. The term "used a deadly weapon" means that "the deadly weapon

was employed or utilized in order to achieve its purpose." (10) Therefore, the actor must use the

item or object as a deadly weapon, not for some other purpose. (11) We then explained that

"one can 'use' a deadly weapon without exhibiting it, but it is doubtful one can exhibit a

deadly weapon during the commission of a felony without using it." (12) Since Patterson , we

have sometimes considered "exhibit" as a part of, or subset of, "use." (13)

A. The Expansion of Deadly-Weapon Findings

The Patterson decision opened the door for expanded interpretations of "use and

exhibit a deadly weapon during the commission of a felony."

One expansion is that the term now includes any instrument that threatens or causes

serious bodily injury, even when the instrument is not inherently or intentionally deadly. In

Tyra v. State , (14) we held that a car was a deadly weapon during the commission of an

involuntary manslaughter. (15) Even though a car is not intended to be a deadly weapon, it can

be "used with deadly effect" in the commission of manslaughter. (16) That reasoning was then

applied to felony DWIs when no one was actually injured. (17) Based on Tyra and the DWI

cases, Texas courts have upheld deadly-weapon findings when the object caused the injury

or increased the risk of injury during the commission of the felony; these findings include

an uncovered septic tank into which a child fell, the sexual organ of an HIV-positive man

who raped a child, and the sedatives that accidentally caused the death of a dental patient. (18)

In each of these cases, as in Tyra , the object was found to be a deadly weapon because it

caused or facilitated the injury (or risk of injury) posed by the associated felony.

A second expansion of Patterson permits deadly-weapon findings when a jury could

infer, in the absence of actual harm or threat, that the weapon "facilitated" the associated

felony. For example, when a defendant possesses both guns and drugs, a jury may make a

deadly-weapon finding even though he did not overtly use or brandish a gun because the

weapon reasonably could have "protected and facilitated appellant's care, custody, and

management of the contraband." (19)

A third expansion of Patterson 's reach permits a deadly-weapon finding even when

the weapon is not found on or near the defendant. In Coleman v. State , (20) the defendant was

handcuffed in a patrol car while police officers searched his house and found a large quantity

of drugs in a safe, along with two guns and a large amount of cash. (21) These facts generated

a "cumulative effect" sufficient to show that the weapons had facilitated the possession of

drugs by protecting them and the profits from their sale. (22) The nature of the illegal drug trade

invites the possibility of violence and encourages drug dealers to carry deadly weapons to

protect themselves and their inventory. (23) The "drug fortress theory" supposes that firearms

stored at a drug-manufacturing or distribution location might be used to defend against police

or thieves. (24) A second theory, the "more than strategic proximity theory," requires an

evidentiary connection between the guns and drugs to establish that the guns "facilitated or

could have facilitated the drug trafficking offense." (25) Both theories recognize that drug

dealers frequently use guns to protect themselves and their merchandise.

B. Limitations on Deadly-Weapon Findings

Since Patterson , deadly-weapon findings have been upheld when the evidence showed

some relationship between the weapon and the associated felony. However, we have

declined to uphold deadly-weapon findings when the weapon was present but did not

facilitate a separate felony. For example, in Ex parte Petty , (26) we held that the offense of

possession of a firearm by a felon could not support a deadly-weapon finding because the

weapon was not used "to achieve an intended result, namely, the commission of a felony

offense separate and distinct from 'mere' possession." (27) Similarly, in Narron v. State , (28) we

deleted the deadly weapon finding because the short-barreled shotgun was both the subject

of the conviction and the basis of the deadly-weapon finding. The shotgun had not been

used to facilitate any other felony. (29)

Conversely, as a part of the Patterson expansionary interpretation, we have upheld

deadly-weapon findings when the evidence showed that the weapon facilitated the associated

felony even though it was not overtly used. In McCain v. State , (30) the evidence showed that

the "home invasion" defendant had a long, dark object sticking from his back pocket, which

the homeowner-victim thought was a knife. She was afraid that the defendant would use the

knife against her during the aggravated robbery even though he never brandished it in a

threatening manner. (31) We upheld the deadly-weapon finding because "the knife was

exhibited during the criminal transaction, or at least, that its presence was used by appellant

to instill in the complainant apprehension, reducing the likelihood of resistance during the

encounter." (32) But the defendant's act of having the knife in his pocket while he committed

the felony was not sufficient; "the determining factor is that the deadly weapon was 'used'

in facilitating the underlying crime." (33)

We have reiterated this "facilitation" requirement in other decisions. In Whatley v.

State , (34) a solicitation-of-capital-murder prosecution, the defendant had solicited hitmen and

provided them with a pistol with which they were to commit the murder. (35) We upheld the

deadly-weapon finding because "[a]ny employment of a deadly weapon qualified if it

'facilitates the associated felony.'" (36) Mere exhibition of the pistol supported a deadly-weapon

finding only because the pistol facilitated the associated felony by its "persuasive impact .

. . [as] a part of the request or the attempt to induce conduct," enhancing the defendant's

solicitation request. (37)

C. Legislative History

Because the "plain language" of Article 42.12, § 3g(a) is ambiguous and does not

answer the question of whether the exhibition of a deadly weapon must, in some respect,

facilitate the commission of the associated felony, we may consult the legislative history of

the statute. (38) Although the legislative record discussing the specific terms in the deadly-weapon statute is skimpy, (39) the general purpose of the statute is well documented. One

witness testifying before the 1977 Senate subcommittee on the deadly-weapon provision

stated that it was "intended to send a message to criminals to leave their firearms at home." (40)

All of the discussion during the hearing centered on the commission of dangerous, violent

felonies, and the use of obvious weaponry, such as guns, grenades, and knives. The House

sponsor for the bill explained that

[I]t is a bill . . . that deals with the situation of those people who have been

involved with serious criminal acts. Those acts in almost every instance are

those that deal with violent crime, the crime that deals with a weapon . . . has

intimidated and perhaps injured or killed or maimed some victim. It provides

that there will be no probation in certain circumstances in a case dealing with

a violent act. (41)

The statute's structure also suggests that the law is intended to deter and punish those

involved in serious violent felonies. The section immediately preceding the deadly-weapon

provision in Section 3g(a)(2) is the section listing the specific offenses labeled as the "'3g'

offenses." (42) Almost all of these listed offenses are violent acts involving physical threat or

harm. Thus, the two "3g" sections enhance punishments for those who commit serious

felony offenses that cause or threaten physical harm or whose use or exhibition of a deadly

weapon during the commission of a felony causes harm or the threat of harm.

In the context of violent offenses, the term "exhibit" contains an implicit element of

facilitation. If one exhibits a deadly weapon-or, in the words of Patterson , "consciously

displays" it (43) -without overtly using it to harm or threaten while committing a felony, the

deadly weapon still provides intimidation value that assists the commission of the felony.

Conversely, if one commits a nonviolent offense that does not involve harm or the threat of

harm, the presence of a deadly weapon does not necessarily further or facilitate the offense. Other states addressing the scope of deadly-weapon findings have frequently adopted

a facilitation requirement to avoid absurd results. (44) The Wisconsin Supreme Court, in a case

involving drug possession, adopted an "adequate nexus" (45) requirement that requires the state

"to prove the defendant possessed the weapon to facilitate commission of the predicate

offense." (46) Similarly, the Oklahoma Court of Criminal Appeals required more than "mere

possession" of a deadly weapon and looked for a "nexus between the crime charged and

possession of a gun." (47) Recently, the South Carolina Supreme Court agreed that its

legislature, in drafting its weapon enhancement statute, "intended to penalize possession of

a firearm only when possession furthers or is intended to further a violent crime." (48) The

United States Supreme Court has interpreted the federal statute increasing penalties for using

or carrying a firearm during a drug offense as requiring, at a minimum, that "the firearm must

have some purpose or effect with respect to the drug trafficking crime . . . . [T]he gun at least

must " facilitat[e], or ha[ve] the potential of facilitating," the drug trafficking offense." (49)

With this general background, we turn to the present case.

III.

Appellant contends that "exhibited a firearm" means that the firearm must facilitate

or in some way further the associated felony. The State responds that the word "exhibit"

should be construed broadly, according to its plain meaning, and without any requirement

of facilitation or relationship with the associated offense.

We agree with appellant and those states that have held that an overly expansive

interpretation of "exhibit" can lead to absurd results. (50) To consider the absurd results which

might occur without a facilitation requirement, let us put Patterson 's "doubtful scenario" of

displaying a deadly weapon without using it (51) in specific terms. Imagine the typical bank-robbery scenario: Dangerous Dan races into the bank and hands a note to the teller-"Your

money or your life. I have a gun in my pocket." Dan's hand is tucked into his sagging jacket

pocket. The teller hands over the money, and Dan runs out the door into the waiting arms of

Officer Obie who removes a Beretta pistol from Dan's jacket pocket. Dan has "used" a

deadly weapon during the commission of the offense even though he did not "exhibit" it.

But now suppose the reverse scenario: Chef Charlie is carrying his 18-inch butcher

knife in one hand as he carries a large pan of dirty cooking oil in his other hand out the

restaurant's back door, and he then carefully pours the oil into the nearby lake. The knowing

unauthorized discharge of a pollutant into a lake is a felony offense, (52) and Charlie

consciously displayed his butcher knife as he committed that offense. But the display of the

butcher knife had no relationship to the felony. Or imagine the bank president who has a

fancy loaded derringer displayed prominently on his desk while he cheerfully embezzles

money from a widow's account by forging her signature on checks; he is consciously

displaying his prized derringer at the same time that he commits a felony, but the two actions,

though simultaneous, are unrelated. Or suppose that Dangerous Dan has a rifle rack in the

cab of his truck. He always keeps his Ruger SR-22 autoloading deer-hunting rifle in that

rack. One night he is driving home from a busy day of shooting and drinking when he is

stopped for speeding and then arrested for DWI. Because he has two prior DWI convictions,

Dan is charged with felony DWI. He has exhibited his rifle, a deadly weapon, during the

commission of the felony offense of DWI, but that exhibition was wholly unrelated to the

commission of the offense and did not help facilitate its commission.

Or, closer to home, take this scenario: Mr. Plummer is a felon who is working as a

security guard, and he is wearing a holster with a small handgun in it at the same time he is

wearing a bullet-proof vest under his black T-shirt. He is committing the felony offense of

possession of body armor by a felon and he is also consciously wearing his holster with a

handgun in it, but does the display of the handgun have any relationship to the commission

of the possession of body-armor offense? That deadly weapon may be "exhibited" in some

sense, but it is not being "used" during the commission of the offense.

The purpose of the deadly weapon provision is to discourage and deter felons from

taking and using deadly weapons with them as they commit their crimes. (53) Better an unarmed

bank robber than an armed one, as the probability of actual violence during the robbery is

increased when deadly weapons are involved. (54) But the deterrence rationale works only if the

actor makes a conscious decision to "use" or "exhibit" the weapon to assist in committing

the felony. (55) Thus, the mere possession of a deadly weapon during a felony offense is not

covered by the statute. (56) Had the Legislature intended that mere possession could trigger a

deadly-weapon finding, it could easily have said so. Because the Legislature did not do so,

it is only when the possession of the deadly weapon "facilitates the associated felony" that

the factfinder may make an affirmative finding. (57)

Appellant's possession of body armor and the handgun is distinguishable from cases

where deadly-weapon findings have been upheld. Although the mini-Glock in this case is

a deadly weapon by nature, it did nothing to increase the risk of harm or otherwise contribute

to the result of wearing body armor. Here, the handgun did not play any role in enabling,

continuing, or enhancing the offense of possession of body armor. Both the body armor and

the pistol were used for a common purpose-looking like a security guard-but neither offense,

possession of body armor or possession of a deadly weapon, facilitated or furthered the

commission of the other offense. There is no facilitation connection between the two. The

facts in this case are like those in Narron and Petty. Appellant's mini-Glock was simply

being possessed at the same time he possessed the body armor.

In sum, we hold that a deadly-weapon finding for a felony offense must contain some

facilitation connection between the weapon and the felony. The deadly weapon must, in

some manner, help facilitate the commission of the felony. Because there is no such

evidence of any facilitation in this case, we conclude that the court of appeals erred in

upholding the deadly-weapon finding. Therefore, we delete the deadly-weapon finding from

the judgment, and we affirm the court of appeals's judgment as reformed.

Delivered: October 9, 2013

Publish

1. Appellant's sole question asks: "Whether a felon working as a security guard exhibited a

firearm that remained in its holster while he wore a bullet-proof vest under his T-shirt?"

2. Plummer v. State , __ S.W.3d __, No. 01-11-00279-CR & No. 01-11-00280-CR, 2012 WL

2106546, *4 (Tex. App.-Houston [1st Dist.] June 7, 2012).

3. Tex. Penal Code § 46.04(a).

4. Tex. Penal Code § 46.041.

5. See Narron v. State , 835 S.W.2d 642, 644 (Tex. Crim. App. 1992) (deadly-weapon finding

impermissible in possession-of-an-illegal-firearm case when evidence showed "mere" possession

of that weapon); Ex parte Petty , 833 S.W.2d 145, 145-46 (Tex. Crim. App. 1992) (in prosecution

for felon in possession of a firearm, a deadly-weapon finding could not be based solely on

defendant's possession of that weapon because "the weapon was not 'used' in furtherance of any

collateral felony")

6. Plummer , __ S.W.3d at __, 2012 WL 2106546, at *4 . The court explained:

Officer Sanchez testified that appellant was carrying a gun when the police

approached him. The gun was not hidden, but was displayed in a holster on a gun

belt. It was identified as a "mini-glock" handgun. At the time he possessed the gun,

appellant was committing the felony of unlawful possession of body armor by a

felon-he had a bulletproof vest under his shirt. From this evidence, the trial court

could have rationally concluded that appellant consciously displayed, or "exhibited,"

a deadly weapon while committing the offense of unlawful possession of body armor

by a felon.

Id.

7. Tex. Code Crim. Proc. art. 42.12 § 3g(a)(2).

8. Tex. Gov't Code § 508.145(d)(1) ("An inmate serving a sentence for an offense . . . for

which the judgment contains an affirmative finding under Section 3g(a)(2) of that article . . . is not

eligible for release on parole until the inmate's actual calendar time served, without consideration

of good conduct time, equals one-half of the sentence or 30 calendar years, whichever is less, but in

no event is the inmate eligible for release on parole in less than two calendar years.").

9. 769 S.W.2d 938, 941 (Tex. Crim. App. 1989).

10. Id .

11. For example, a bookshelf collection of antique guns may contain deadly blunderbusses,

but if the weapons are used solely for display purposes, they are not eligible for a deadly-weapon

finding under the statute.

12. Patterson , 769 S.W.2d at 941 .

13. In Coleman v. State , 145 S.W.3d 649, 652 (Tex. Crim. App. 2004), we stated that "one can

'use' a weapon without exhibiting it, but not vice-versa." Id . However, that case involved the "use"

of a deadly weapon to protect a drug operation, not the mere exhibition of a deadly weapon. We

explained, "Neither side disputes that the weapons at issue in this case were not 'exhibited' within

the meaning of the article, and we will therefore discuss only whether a rational jury could have

found that the weapons were 'used' during the commission of each felony." Id .

14. 897 S.W.2d 796 (Tex. Crim. App. 1995).

15. Id . at 798.

16. Id . at 798-99 ("anything, including a motor vehicle, which is actually used to cause the

death of a human being is a deadly weapon").

17. Mann v. State , 58 S.W.3d 132, 132 (Tex. Crim. App. 2001) (DWI defendant nearly

swerved into oncoming traffic; although car was not "used with deadly effect," it was a deadly

weapon because it nearly caused serious bodily injury.).

18. See Rankin v. State 46 S.W.3d 899 (Tex. Crim. App. 2001); Najera v. State 955 S.W.2d

698 (Tex. App.-Austin 1997, no pet.); Davis v. State , 955 S.W.2d 340 (Tex. App.-Fort Worth 1997,

pet. ref'd).

19. Patterson , 769 S.W.2d at 941-42 .

20. 145 S.W.3d 649 (Tex. Crim. App. 2004).

21. Id . at 650.

22. Id . at 655.

23.

See Thomas A. Clare, Note, Smith v. United States and the Modern Interpretation of 18

U.S.C. § 924 (c): A Proposal to Amend the Armed Offender Statute , 69 Notre Dame L. Rev 815,

839 (1994); Amy L. Eckert, Note, Narrow Interpretation of "Use" of a Firearm , 64 Tenn. L. Rev.

515 , 523-24 (1997).

24. Eckert, supra note 23, at 523-24.

25. Id . at 522.

26. 833 S.W.2d 145 (Tex. Crim. App. 1992).

27. Id. at 145 .

28. 835 S.W.2d 642 (Tex. Crim. App. 1992).

29. Id. at 644 . In Smith v. State , 944 S.W.2d 453 (Tex. App.-Houston [14th Dist.] 1997, pet.

ref'd), the defendant was charged with carrying a handgun in a liquor mart, a prohibited place. The

court of appeals deleted the deadly-weapon finding because being on a premises licensed to sell

alcohol was not an offense in itself, and the handgun was only carried, albeit openly, and never used

in a threatening display to protect the possession of a weapon in the liquor store. Id. at 456 .

30. 22 S.W.3d 497 (Tex. Crim. App. 2000).

31.

Id . at 499. The defendant, who kicked in the complainant's kitchen door and began beating

her with his fists, was charged with aggravated robbery based on the use or exhibition of a butcher

knife. See Tex. Penal Code § 29.03(a)(2). We noted the similarity between the language in that

provision and in Article 42.12 § 3g(a)(2) and applied the Patterson interpretation of "use and

exhibit." Id. at 502.

32. Id . at 503.

33. Id .

34. 946 S.W.2d 73 (Tex. Crim. App. 1997).

35. Id. at 76 .

36.

Id .

37. Id.

38. Boykin v. State , 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991) (noting that when

statutory "

language is not plain but rather ambiguous," a court may consider extra-textual factors

such as legislative history of the statute); see also Garcia v. State , 387 S.W.3d 20, 23 (Tex. Crim.

App. 2012).

39. In Patterson v. State , 769 S.W.2d 938, 940 (Tex. Crim. App. 1989), we stated, "Direct

reference to the evolution of Art. 42.12

§ 3g , . . . through both houses of the Legislature and

conference committee sheds no light on what the Legislature intended to be meant by 'used or

exhibited a deadly weapon' and tapes of the legislative debates and committee hearings are equally

as barren ." See also Polk v. State , 693 S.W.2d 391 , 393 n.1 (Tex. Crim. App. 1985) (noting that the

legislative history of SB 152, the bill that was to become section 3 of article 42.12, "is incomplete"

and that the intended meaning of specific terms within that legislation "is difficult to educe" ).

40. Tyra v. State , 897 S.W.2d 796, 802-03 (Tex. Crim. App. 1995) (Maloney, J., concurring).

Senator Meier, the 1977 sponsor of Senate Bill 152 which contained the 3g deadly-weapon

provision, told the committee,

[T]he purpose of the bill is to . . . attempt to deter the commission of those crimes by

insuring that other provisions of the criminal justice system, such as the calculation

of good time credit, and such as the obtaining of probation, and such as the time a

person is going to be eligible for parole, are denied the persons who commit those

serious offenses in those limited circumstances. That is the purpose of the bill.

Id.

41. Ex parte Jones , 957 S.W.2d 849, 851 (Tex. Crim. App. 1997) (citing debate on H.B. 571,

65th Leg. (1977)).

42. Tex. Code Crim. Proc. art. 42.12, § 3g(a)(1); see Tex. H. Research Org., Bill Analysis,

Tex. H.B. 1992, 83rd Leg., R.S. (2013) ("This section contains a list of certain serious and violent

crimes that are ineligible to receive judge-ordered community supervision and are often referred to

as '3g' offenses").

43. 769 S.W.2d at 941 .

44. See State v. Peete , 517 N.W.2d 149, 153 (Wis. 1994). The court explained,

[I]t would be absurd to apply the penalty enhancement statute to situations in which

there is no relationship between the offense and possession of a dangerous weapon,

regardless of whether that possession is actual or constructive. The state provides the

useful illustration of a person who fills out and files a fraudulent tax return while

carrying a pistol. The state gives other examples of crimes which could be committed

without a relationship between the crime and weapon possession, including forgery

while possessing a weapon and fraudulent tapping of utility lines while possessing

a weapon. In the absence of a nexus requirement, the state could prosecute a

defendant for committing a crime while possessing a dangerous weapon even when

the weapon has no connection to the predicate offense.

Id. ; see also State v. Petrak , 8 P.3d 1174, 1178-80 (Ariz. Ct. App. 2000) (interpreting the statutory

phrase "knowingly . . . [u]sing or possessing a deadly weapon during the commission of any felony

offense" as requiring a nexus between the felony and the weapon; "We find it persuasive that other

courts facing similar language have required a nexus between the gun and the crime to avoid absurd

results or overbreadth.").

45. We perceive no distinction between a "facilitation" and a "nexus" requirement, but if

there is one, we adhere to our prior precedent discussing a "facilitation" requirement.

46. Peete , 517 N.W.2d. at 154 .

47. Ott v. State , 967 P.2d 472, 476 (Okla. Crim. App. 1998). In considering whether the

evidence supports a nexus between the weapon and the associated offense, the court considered

whether (1) the weapon was used to actually facilitate the commission of the offense; (2) the weapon

was possessed or strategically located to be quickly or easily located for use during the commission

of an offense

; (3) the weapon was intended to be used if a contingency arose or to make an escape;

and (4) the weapon was to be used either offensively or defensively in a manner which would

constitute a threat of harm. The Oklahoma court concluded, as we did in Patterson , that the presence

of the gun around the area of drug preparation and near the entrances reasonably demonstrated that

the gun was "strategically located for use during the sale of the drugs, and could have been used if

a contingency arose or to escape." Id. ; see also Petrak , 8 P.3d at 1180 ("Our weapons misconduct

statute requires more than a mere temporal nexus between the weapon and the crime alleged. The

thrust of the statute is to deter the use of weapons to facilitate crime. The state must prove that the

defendant intended to use or could have used the weapon to further the felony drug offense

underlying the weapons misconduct charge."); People v. Atencio , 878 P.2d 147, 150 (Colo. Ct. App.

1994) (noting that "the statutory language, 'use, display, possession, or availability for use' are nexus

terms. Thus, by the express language of the statute itself, the People are required to show some nexus

between the deadly weapon and the drug offense upon which the enhanced sentence is based.").

48. State v. Whitesides , 725 S.E.2d 487, 489 (S.C. 2012). The court explained,

The statute punishes the visible display of a knife or an object that appears to be a

firearm during the commission of a violent crime. Visibly displaying a knife or an

object that appears to be a firearm furthers the criminal's objectives by increasing the

cost of resistance or interference. Thus, a nexus is inherent in this prohibited conduct.

The statute also criminalizes the possession of a firearm during the

commission of a violent crime even if not visibly displayed. Because a firearm has

greater power to inflict harm, its mere presence at the scene of the crime is a greater

threat than that of a knife or an object that appears to be a firearm. Thus, the General

Assembly determined that merely possessing a firearm in furtherance of a violent

crime warrants a penalty.

Id.

49. Smith v. United States , 508 U.S. 223, 238 (1993) (analyzing 18 U.S.C. § 924 (c)(1)).

50. See notes 44, 47-48 supra.

51. 769 S.W.2d at 941 ("Thus, one can 'use' a deadly weapon without exhibiting it, but it is

doubtful one can exhibit a deadly weapon during the commission of a felony without using it").

52. Tex. Water Code §§ 7.145(a)(1), (b) & 7.187(a)(2)(F).

53. See Coleman v. State , 145 S.W.3d 649, 655-56 (Tex. Crim. App. 2004) (Cochran, J.,

concurring) (discussing history and rationale of the deadly weapon provision of Article 42.12, § 3g).

54. See Muscarello v. United States , 524 U.S. 125, 132 (1998) (federal "deadly weapon"

provision seeks "'to persuade the man who is tempted to commit a Federal felony to leave his gun

at home'") (quoting Busic v. United States , 446 U.S. 398, 405 (1980)).

55. See Tyra v. State , 897 S.W.2d 796, 804 (Tex. Crim. App. 1995) (Maloney, J., concurring)

(noting that the reasons for the enactment of the deadly-weapon finding "are rational only if the issue

of 'use' of the object found to be a deadly weapon involves some element of choice or decision on

the part of the actor. . . . Likewise, the issue of increased culpability is dependent upon an actor's

conscious assumption of the real and potential risks to others inherent in the use of an object as a

deadly weapon.").

56. See Coleman , 145 S.W.3d at 660 (Cochran, J., concurring).

57. Patterson , 769 S.W.2d at 941 (internal quotation marks omitted).