IN THE
TENTH COURT OF APPEALS
No. 10-14-00384-CV
No. 10-14-00385-CV
MARK KEN TAFEL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court
Hamilton County, Texas
Trial Court Nos. 15291 and 15292
OPINION
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.
Background Facts
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.
Sufficiency of the Evidence
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 rem proceedings which are civil in nature. Hardy v. State, 50 S.W.3d 689,
Tafel v. State Page 2
692 (Tex.App. – Waco, 20001, 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.
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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
Tafel v. State Page 4
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.
Conclusion
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.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Chief Justice Gray dissenting)
Affirmed
Opinion delivered and filed August 31, 2016
[CV06]
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