Tafel v. State
| Decision Date | 31 August 2016 |
| Docket Number | Nos. 10-14-00384-CV, 10-14-00385-CV.,s. 10-14-00384-CV, 10-14-00385-CV. |
| Parties | Mark Ken TAFEL, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
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Discretionary Review Dismissed March 8, 2017
E. Alan Bennett, Sheehy Lovelace & Mayfield, Waco, TX, for Appellant/Relator.
B.J. Shepherd, Hamilton County District Attorney, Meridian, TX, for Appellees/Respondents.
Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Mark Ken Tafel was convicted in two cause numbers of the offense of unlawful carrying of a handgun by a license holder. On December 20, 2013, the trial court imposed sentence for each offense. On December 26, 2013, the State filed motions for forfeiture of the handguns in Tafel's possession at the time of the offenses, and on December 30, 2013, the trial court entered a forfeiture order for each handgun possessed by Tafel. In Cause No. 10–14–00384–CV, the trial court ordered a .22 caliber North American Arms revolver seized from Tafel to be forfeited to the State of Texas. In Cause No. 10–14–00385–CV, the trial court ordered a .45 caliber Kimber Ultra CDP II seized from Tafel to be forfeited to the State of Texas. Tafel appeals from those orders. We affirm.
Mark Ken Tafel was a County Commissioner for Hamilton County. Sheriff Gregg Bewley received complaints that Tafel was carrying a concealed handgun to meetings of the Commissioners Court. Sheriff Bewley met with Tafel and discussed those concerns. On April 14, 2011, County Judge Randy Mills issued a letter to Tafel purportedly authorizing Tafel to carry concealed handguns to the meetings. Judge Mills gave a copy of the letter to Tafel; however, Judge Mills did not file the letter in any court in Hamilton County.
On November 14, 2011, Sheriff Bewley attended the meeting of the Commissioners Court and observed a bulge that he believed was a weapon under Tafel's jacket. Sheriff Bewley recovered a .45 caliber handgun and a .22 caliber revolver from Tafel, and he placed Tafel under arrest. After Tafel's convictions for the offense of unlawful carrying of a handgun by a license holder, the trial court entered orders forfeiting the seized .45 caliber handgun and .22 caliber revolver to the State of Texas.
In his sole issue on appeal, Tafel argues that there is no evidence that he "used" either handgun as required for forfeiture under Article 18.19 (e) of the Texas Code of Criminal Procedure. Forfeiture proceedings under chapter 18 of the Code of Criminal Procedure are in remproceedings which are civil in nature. Hardy v. State, 50 S.W.3d 689, 692 (Tex.App.—Waco, 2001), aff'd 102 S.W.3d 123 (Tex.2003). As such, they are governed by the rules applicable to civil trials and appeals generally. Id. A "no evidence" point must be sustained "when the record discloses one of the following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; (d) the evidence establishes conclusively the opposite of the vital fact." City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005).
Article 18.19 (e) of the Texas Code of Criminal Procedure provides:
(e) If the person found in possession of a weapon is convicted of an offense involving the use of the weapon, before the 61st day after the date of conviction the court entering judgment of conviction shall order destruction of the weapon, sale at public sale by the law enforcement agency holding the weapon or by an auctioneer licensed under Chapter 1802, Occupations Code, or forfeiture to the state for use by the law enforcement agency holding the weapon or by a county forensic laboratory designated by the court. If the court entering judgment of conviction does not order the destruction, sale, or forfeiture of the weapon within the period prescribed by this subsection, the law enforcement agency holding the weapon may request an order of destruction, sale, or forfeiture of the weapon from a magistrate.
TEX. CODE CRIM. PRO. ANN. ART. 18.19 (e) (West Supp. 2014).
The Court of Criminal Appeals has considered the definition of "use" as it relates to an affirmative finding that a defendant used or exhibited a deadly weapon in the commission of an offense. See Patterson v. State, 769 S.W.2d 938 (Tex.Cr.App.1989). In Patterson, the Court interpreted "use" to include simple possession of the weapon if such possession facilitates the associated felony. Patterson v. State, 769 S.W.2d at 941.
In Narron v. State, 835 S.W.2d 642, 644 (Tex.Crim.App.1992), the defendant was convicted of the offense of possession of a prohibited weapon, and the trial court entered an affirmative finding on the use of a deadly weapon for punishment enhancement purposes. The Court considered whether the defendant "used" the weapon in the context of an affirmative deadly weapon finding. The Court stated 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 at 644. The Court concluded that because there was no associated felony facilitated by the defendant's possession of the short barrel firearm, the affirmative finding for use of a deadly weapon was in error. Id. Tafel argues that in order to "use" a weapon a "defendant must employ that weapon in some manner that facilitates the commission of a different offense than one prohibiting the mere possession of the weapon."
Article 18.19 of the Texas Code of Criminal Procedure sets out the procedure for disposing of seized weapons. Article 18.19 is applicable to the disposition of "[w]eapons seized in connection with the offense involving the use of a weapon or an offense under Penal Code Chapter 46." TEX. CODE CRIM. PRO. ANN. ART. 18.19 (a) (West Supp. 2014). Chapter 46 of the Texas Penal Code sets out various offenses involving the possession of weapons. Tafel was convicted of the offense of unlawful carrying of a handgun by a license holder under Section 46.035 (c) which states that:
A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, at any meeting of a governmental entity.
TEX. PENAL CODE ANN.§ 46.035 (c) (West Supp. 2014).
We find that "use" of a weapon under Article 18.19 includes simple possession of the weapon as defined in Patterson. Because Article 18.19 sets out the procedure to dispose of weapons seized in relation to offenses involving the unlawful possession of those weapons, it does not follow that a separate and distinct offense would be required for forfeiture. Article 18.19 does not require the commission of an offense separate and distinct from those offenses set out in Chapter 46 of the Texas Penal Code. We overrule the sole issue on appeal.
We affirm the trial court's orders forfeiting a .22 caliber North American Arms revolver and a .45 caliber Kimber Ultra CDP II to the State of Texas.
The issues we decide today relate to how a concealed handgun license holder can be confident in the determination of where it is lawful to carry. The underlying right at issue was confirmed by the adoption of the second amendment to the United States Constitution. The scope of that right was discussed at length in the United States Supreme Court's opinion in Heller. District of Columbia v. Heller, 554 U.S. 570, 635, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). And the right was confirmed as applicable to the States in the United States Supreme Court's opinion in McDonald. McDonald v. City of Chicago, 561 U.S. 742, 791, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010).
As presented to this Court, the issue is narrower than the issue in Hellerand McDonald; but due to the need to interpret various statutes and case law holdings, the issue is somewhat more complex. This is where the theory of the right to "keep and bear arms" runs into a maze of statutes and definitions that limit that right.
As a very simple factual overview, Ken Tafel was convicted of two counts of illegally carrying a handgun at a meeting of the commissioners court of Hamilton County, Texas. Tafel was, at the time of the events, a commissioner in Hamilton County and also a concealed handgun license holder. He was charged and convicted of "Unlawful Carrying of Handgun by License Holder" ( Texas Penal Code § 46.035(c), (i) ). After his conviction and without a hearing, his handguns were ordered forfeited to the State.
Because of the complexity of the issues, a thorough understanding of the statutes is essential. In addition to this, and because of the complexity of the interrelationship of several statutes, the language of the indictment will also be critical. Beyond the statutes and the indictment, it is necessary to have a firm grasp on various aspects of criminal law, including the concepts of the burden of proof and the placement thereof as applicable to the elements of an offense, as well as the exceptions, defenses, and affirmative defenses to the offense. And the overlay to all of this will be the appellate standards and common law for the standard of review on appeal and how we are to construe the relevant statutory provisions.
In addition to the legal complexities, there are some factual and procedural events that occurred in this case that further heighten the complexity of the statute and the difficulty for the prosecution and defense.
Mark Tafel was a duly elected and serving Hamilton County...
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Tafel v. State
...a weapon under article 18.19(e) includes simply possessing the weapon, and a separate and distinct offense is not required. 524 S.W.3d 642, 644 (Tex. App.—Waco 2016).Tafel's appeal to this Court presents two arguments. First, he maintains that article 18.19(e) forfeiture proceedings are cri......