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Click here for the full text of this decision FACTS:The appellant was found guilty of possession with intent to deliver cocaine weighing more than 4 grams and less than 200 grams, and PCP weighing at least 400 grams. The jury found that the appellant had used a deadly weapon, a firearm, during the commission of each offense and sentenced the appellant to 50 years’ imprisonment for the cocaine offense and 60 years’ imprisonment for the PCP offense, and assessed a fine in the amount of $150,000. The appellant appealed, claiming that under the facts and circumstances presented at trial, the evidence was insufficient to support the jury’s finding that he used or exhibited a deadly weapon during the commission of each offense. The court of appeals affirmed the judgment of the trial court. This court granted review to determine whether the evidence was sufficient to support the jury’s affirmative deadly weapon finding. HOLDING:Affirmed. The evidence was sufficient to support an affirmative finding that the appellant used a deadly weapon during the commission of each offense. The jurors were free to believe or disbelieve portions of the testimony given by the state and by the defense, and the jury could have reasonably believed that the guns protected or facilitated appellant’s possession of the drugs with intent to deliver. In the appellant’s case, the drugs were found all over the house. Two guns were found in a room inside a safe containing two large bottles of PCP and large amounts of cash. Although the appellant was handcuffed rather than present in the house as the defendant was in Gale v. State, 998 S.W.2d 221, 223 (Tex. Crim. App. 1999), the court does not find the defendant’s presence to be necessary. In Gale, the court stressed the proximity of the weapons to the drugs, not the proximity of the guns to the defendant. The real question is whether the weapons are found to have facilitated appellant’s possession and intended distribution of the drugs. In this case, a rational jury could have found that the appellant “used” the weapons in order to facilitate his possession and distribution of the narcotics. In Sanchez v. State, 906 S.W.2d 176 (Tex. App. – Ft. Worth 1995, no writ), the defendant was convicted of aggravated possession with intent to deliver cocaine, and the jury made an affirmative deadly-weapon finding. The officers discovered weapons next to cocaine in the defendant’s bedroom closet, and there were other weapons and a drug ledger in the same bedroom. Additionally, the defendant admitted that he owned the guns, his mother and sisters testified that they knew nothing of the drugs or weapons, and police testified that guns are often used by drug dealers to protect themselves. Though the defendant was not present during the officers’ search of his house, the court of appeals stated that “the cumulative effect of factors enumerated above is sufficient to warrant a rational trier of fact to conclude that Sanchez”used’ the firearms to facilitate his care, custody, and management of the contraband.” Likewise, the “cumulative effect” of the factors discussed here in appellant’s case could have allowed a rational jury to determine that he used the weapons to protect the narcotics and the proceeds therefrom. As the trial judge in appellant’s case instructed the jury, “during the commission of the offense” in a drug possession case means just that: while in possession of drugs with intent to deliver them, the defendant is committing the offense. It is irrelevant that the appellant was not in the residence at the time the officers discovered the weapons. OPINION:Meyers, J., delivered the court’s opinion. CONCURRENCE:Cochran, J., filed a concurring opinion, in which Price, Johnson, and Holcomb, JJ., joined. “Although I join the Court’s opinion, I add the following remarks for two reasons. First, I am concerned that many deadly weapon findings now no longer bear any relationship to the original legislative purpose. Second, I think we could provide greater guidance on when it is rational to infer that one who possesses a deadly weapon has “used” it to facilitate the commission of a drug possession offense.”

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