Deadly Weapon

Should a defendant charged with possession of drugs be punished for a "dangerous weapon" found at the scene of the drug trafficking and owned by a co-conspirator, when he did not know about the gun in the first place?

On September 5, 2012, police were investigating a ranch in McAllen, Texas as a possible stash house for drug-trafficking. Officers observed Adrian Rodriguez-Guerrero coming and going from the ranch along with three other men in a caravan. When the officers stopped the caravan, “because the vehicles appeared weighed down,” a dog alerted to the presence of drugs. The police found “boxes of limes with bundles of marijuana concealed among the limes.” The defendants subsequently consented to a search of the McAllen ranch. (I'm always left wondering why people, especially those in possession of drugs, consent to a search.) “There the [police] found…clothing…a loaded shotgun and 125 shotgun shells…plastic cellophane, limes, packing tape…lime boxes, latex gloves, a large scale, and several bundles of marijuana.” In a written statement accepting responsibility, Rodriguez-Guerrero said he was hired to do landscaping at the residence, but was asked to “load the marijuana into a truck at the [ranch]…acknowledg[ing] the [ranch] as a stash house [for drugs].”

Conspiracy to Possess and Distribute Marijuana Enhanced for Possession of a Dangerous Weapon

At trial, he pled guilty to conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, receiving a “guidelines-range sentence of 104 months” imprisonment and four years of supervised release. His sentence included a two-level enhancement for possession of a dangerous weapon—the shotgun found at the McAllen ranch. The district court noted, “[the Court] is not finding Rodriguez-Guerrero possessed the shotgun; rather, it was reasonably foreseeable…that there would be a weapon involved in…the… drug trafficking crime.” The district court added, “the shotgun was a tool of the trade and it [is] reasonably foreseeable to [Rodriguez-Guerrero] that there would have been a weapon, especially [to] a person with the experience that he has in drug trafficking.” Rodriguez-Guerrero appeals to the Fifth Circuit Court of Appeals, stating that there was no evidence to support a finding that either he or a co-conspirator possessed the shotgun—possession which lengthened his prison sentence.

U.S. Federal Sentencing Guidelines Application When a Dangerous Weapon is a "Tool of the Trade"

The United States Sentencing Guidelines Manual provides a two-level sentencing enhancement if “a dangerous weapon was present, unless it is clearly improbable that the weapon is connected with the offense.” U.S.S.G. § 2D1.1(b)(1), cmt. n.11(A). “The government must prove weapon possession by a preponderance of the evidence…[and can do so] by showing a temporal and spatial relationship of the weapon, the drug trafficking activity, and the defendant.” United States v. Zapata-Lara, 615 F.3d 388-90.

Here, the Fifth Circuit Court reasons, the McAllen ranch was a stash house for drug-trafficking, used to “package and transport marijuana.” The ranch was a warehouse to store and move drugs, not a residence “in which drugs were also stored.” Next, several bundles of marijuana were found in the ranch’s master bathroom, making it “plausible [the Court reasons] to find that either Rodriguez-Guerrero or another co-defendant accessed the master bedroom, where the shotgun was found.” Further, the rounds of ammunition suggest that the gun was connected with the drug trade. Lastly, the gun and rounds of ammunition were found on the same day that police observed Rodriguez-Guerrero and the co-defendants at the ranch.

The Court concludes that the “facts identified by the [district] court plausibly establish a temporal and spatial relationship between the weapon, the drug-trafficking activity, and Rodriguez-Guerrero.” The purpose of the sentencing enhancement is to punish because of increased danger and violence when drug traffickers possess weapons. U.S.S.G. § 2D1.1(b)(1), cmt. n.11(A). “The mere fact that a weapon cannot be attributable to any specific drug trafficker does not decrease the danger of violence.” Even though Rodgriguez-Guerrero may not have possessed shotgun, or that he may not have known about the shotgun is irrelevant. The Court states, “there was [sufficient] evidence to support that the weapon must have been possessed by one of the conspirators in furtherance of the conspiracy.”

In short, the Court says that establishing the “temporal and spatial” relationship is enough for possession in these types of drug trafficking cases; and, possession of a weapon could lead to enhanced, or increased prison sentences in federal courts.

Second Court of Appeals (Fort Worth) holds that Aggravated Assault by Threat does not require personal presence of the victim

In Hernandez v. State (Tex. App.--Fort Worth August 6, 2015), the Second Court of Appeals in Fort Worth, Texas looked that the issue of whether the evidence was sufficient to prove Assault by Threat when appellant brandished a gun to a crowd while looking for the victim.

FACTS: The appellant, Daniel Hernandez, got into an argument with the victim and exchanged hostile words in the parking lot outside a food stand owned by the victim. Appellant told the victim "you're going down" before he drove left the area in his vehicle. The appellant ultimately returned to the parking lot armed with a gun.

The victim, who had learned that appellant was back and was armed, hid inside of a building behind the food stand. The victim watched from the window as the defendant waved the gun to the crowd that had gathered in the parking lot. The defendant specifically encountered one individual in the crowd, a friend of the victim, and pointed the gun at him. The defendant then left. Approximately ten minutes later, someone shot up the victim's pickup truck, which was parked outside a nearby home.

Hernandez was convicted by a jury in the 367th District Court in Denton County and was sentenced to 63 years confinement. He appealed his conviction, arguing that the evidence was legally insufficient to sustain a guilty verdict when the alleged victim was not present during the aggravated assault.

A majority of the 2nd Court of Appeals found the evidence legally sufficient to support the conviction for aggravated assault (by threat) with a deadly weapon. The Court concluded that the evidence showed that "Appellant was hunting [the victim] with a gun and was verbally threatening to take him down" near the food stand, "that is, in the location Appellant expected to find him." The Court reasoned that "it did not matter that the defendant could not find the victim at the location; his actions still rendered him liable for an assault by threat with a firearm. Appellant's inability to find [the victim] in the crowd did not change Appellant's conduct."

Justice Dauphinot dissented. She reasoned that there was no evidence that the defendant "knew that Complainant was watching him" from the building. In her view, the evidence must have established that the defendant specifically knew the victim was present in order to find he intentionally or knowingly placed the victim in fear of imminent bodily injury.

Contact our Fort Worth Aggravated Assault Defense Attorneys at (817) 993-9249

The criminal defense lawyers at Barnett Howard & Williams handle aggravated assault cases including cases involving deadly weapons in Fort Worth, Tarrant County, and Denton County. Contact us today for a free consultation of your criminal case.

The Frustrating "Deadly Weapon" Issue

The "deadly weapon finding" under Texas criminal law is an issue that leads most criminal defense lawyers to bang their collective heads against the courthouse wall. It seems that just about anything and everything is, has been, or will soon be, designated as a "deadly weapon" when the prosecution deems it helpful to securing a conviction and lengthier sentence. Here are some deadly weapons that we've seen recently: car, fist, baseball bat, walking stick, STDs, fire, fake gun, etc.

In the case below, the Texas Court of Criminal Appeals finally ratcheted back the power of the State to enhance a case with a deadly weapon finding.  Kudos to the 1st Court of Appeals (Houston) for stepping out on this issue.

Question Presented:  To support a deadly-weapon finding, must the "exhibition" of the deadly weapon facilitate, in some manner, the felony offense? Or is it sufficient that the exhibition of the deadly weapon occurs simultaneously with the felony but is unrelated to its commission?

In Plummer v. State, the Houston Court of Appeals, First Judicial District, held that there "must be some facilitation purpose between the weapon and the associated offense to support a deadly-weapon finding."

Below is a case update from the 5th Circuit (Federal)

U.S. v. Cooke, 5th Circuit, March 13, 2012

While appellant was in jail, federal agents approached him and asked for consent to search his house.  He refused.  A week later, while he was still in jail, federal agents went to his house to conduct a knock-and-talk interview.  Appellant’s house was a windowless structure that had two large sliding exterior barn doors.  Behind the barn doors was a large area with a dirt floor and a paved sidewalk path that led to a stoop and another set of doors.  Behind these interior doors were the living quarters where appellant, his wife and his mother lived.  When the agents approached the house, they noticed that one of the exterior barn doors was damaged, allowing them access to walk directly up to the interior doors.  Believing that knocking on the barn door would be futile, the agents walked through the open barn door and knocked on the interior set of doors.  Appellant’s mother answered the door and granted the agents consent to enter the house.  Once inside the house, the agents saw a shotgun shell and gun safe in plain view.  Based on these observations, the agents obtained a search warrant and found illegal firearms, ammunition and a bulletproof vest in appellant’s house.

Appellant argued that the agents unlawfully entered the curtilage of his house when they crossed the threshold of the barn door without a warrant or consent.  The court held that the area inside the barn doors, but outside the interior doors was not part of the curtilage, so the agents did not violate appellant’s Fourth Amendment rights by entering the area without consent or a warrant in order to knock on the interior doors.  First, the area had a dirt floor and a paved sidewalk that led to the interior doors.  Second, the contents of the area included non-operating washing machines and dryers, ladders, a grill and other items indicating that the space was used for storage.  Finally, the barn door was open wide enough such that the items stored there were exposed to the elements, the public could see into the area from the street, and anyone would reasonably think that they would have to enter and knock on the interior doors when visiting.

Appellant also argued that under Georgia v. Randolph the warrantless search was invalid because his mother’s consent to the agents’ entry into the house was trumped by his previous refusal to consent.  The court disagreed, stating that Randolph only applied to co-tenants who were physically present and immediately objected to the other co-tenant’s consent.  Here, appellant was not a present and objecting co tenant, but rather was miles away from his home and in jail when he objected to the search.

The Seventh and Eighth Circuits agree and allow searches under similar circumstances; however, the Ninth Circuit does not.

The Many Ways to Commit Assault with a Motor Vehicle in Texas

Faced with the question of whether Reckless Driving is a lesser-included offense of Aggravated Assault With a Motor Vehicle (alleged as a Deadly Weapon), the Texas Court of Criminal Appeals explained that there are, indeed, many ways in which a vehicle can be used as a deadly weapon apart from the vehicle being driven, to wit:

• Locking the victim in a hot car, • Slamming the victim’s head again the car frame, • Rigging the car’s gas tank to explode, • Placing the car in neutral and allowing it to run into the victim or a building, • Suffocating the victim in the trunk, or • Running the car in an enclosed area to cause carbon monoxide poisoning.

The CCA used this creative list to reverse the 5th Court of Appeals (Dallas), which had previously held that the trial court erred by not instructing the jury that it could find appellant guilty of the LIO of Reckless Driving if it believed the State did not prove Aggravated Assault w/a Deadly Weapon. The appellant argued at trial and on appeal that the LIO should apply, thereby giving the jury another option.

You can read the full opinion of the Texas Court of Criminal Appeals in Rice v. State here.