Opinion
05-21-00806-CR
03-01-2023
DAMIEN LEWIS BENTON, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 15th Judicial District Court Grayson County, Texas Trial Court Cause No. 072413
Before Justices Molberg, Partida-Kipness, and Carlyle
MEMORANDUM OPINION
CORY L. CARLYLE, JUSTICE
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 . a r t . 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 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.
We affirm the trial court's judgment.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 1, 2023