Marquis Andre Plummer v. State
426 S.W.3d 122
Tex. App.2012Background
- Appellant Marquis Plummer was convicted by bench trial of unlawful possession of a firearm by a felon and unlawful possession of body armor by a felon; trial court imposed seven years’ confinement on each count, to run concurrently, with a deadly-weapon finding in the armor case.
- Appellant, previously convicted in 2003 of unlawfully carrying a weapon in a prohibited place, was encountered by police at a wellness clinic wearing a bulletproof vest and a holstered mini-Glock; officers found his driver’s license and other IDs inconsistent with his prior statements about his employment.
- Police learned appellant was a felon with a revoked concealed-handgun license; they confiscated his weapon and body armor and later searched his car, discovering police equipment allegedly for sale.
- Juanel Sippio, Prairie View fire marshal, had hired appellant as a deputy despite appellant not being licensed as a peace officer due to his felony; this fact fed into questions about the defendant’s status as a non-peace-officer.
- Appellant challenged the sufficiency of the evidence on four grounds: (1) he was not proved to be non-peace-officer; (2) mental culpability; (3) mistake-of-fact defense; (4) deadly-weapon finding for the armor offense; the court rejected all challenges and affirmed the judgments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the peace-officer exception applies to the felon-in-possession statutes | Plummer contends he was a peace officer, so 46.15 exempts him | 46.15 only exempts 46.02 and 46.03, not ones involving felons | 46.15 does not apply to 46.04/46.041; evidence insufficient to negate offense |
| Whether the evidence shows the requisite mental culpability or supports a mistake-of-fact defense | If believed, he reasonably believed he was a peace officer | Mistake is of law, not fact; does not negate intent | Mistake-of-fact defense rejected; cannot negate intentional/knowing possession; error overruled |
| Whether the deadly-weapon finding is supported by the record | The firearm was merely possessed; not used or exhibited in furtherance of the armor offense | Gun was displayed in holster during commission of the offense | Evidence supports it as either exhibited or consciously displayed; deadly-weapon finding affirmed |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for legal sufficiency review)
- Moreno v. State, 755 S.W.2d 866 (Tex. Crim. App. 1988) (due-process safeguard for rational trier of fact)
- Willis v. State, 790 S.W.2d 307 (Tex. Crim. App. 1990) (necessity of proof of culpable mental state)
- Legere v. State, 82 S.W.3d 105 (Tex. App.—San Antonio 2002) (mistake of fact defense not applicable where only mistake of law shown)
- Patterson v. State, 769 S.W.2d 938 (Tex. Crim. App. 1989) (definition of deadly weapon and its use/exhibition)