Full Opinion

In the Court of Criminal Appeals of Texas ════════════ No. PD-0452-25 ════════════ NATHAN GENE COLLINS, Appellant v. THE STATE OF TEXAS ═══════════════════════════════════════ On State’s Petition for Discretionary Review from the Seventh Court of Appeals Potter County ═══════════════════════════════════════ YEARY, J., filed a dissenting opinion in which KEEL, FINLEY, and PARKER, JJ., joined. Today, a plurality of this Court decides that Appellant did not “use or exhibit” a deadly weapon “during the commission of a felony offense” when he pulled the trigger on a firearm twenty times while unlawfully possessing the firearm. To justify this eyebrow-raising Collins Dissent – 2 result, the plurality points to our past decisions that introduced our own requirement into the deadly-weapon statute—that one cannot be found to have “used or exhibited” a deadly weapon “during the commission of a felony” unless it has been shown that the weapon “facilitate[d]” that felony. Because the plurality ignores the text of the statute, preferring instead its own formulation, I respectfully dissent. Article 42A.054(b) of the Texas Code of Criminal Procedure permits a deadly-weapon finding to attach to a conviction when the defendant “used or exhibited” the deadly weapon “during the commission of a felony offense[.]” TEX. CODE CRIM. PROC. art. 42A.054(b). “During” is defined as “throughout the duration of[,]” or “at a point in the course of[.]” During, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/during (last visited Nov. 6, 2026). In other words, Article 42A.054(b) simply requires that a defendant’s “use” or “exhibition” of the deadly weapon occur contemporaneously with the commission of the felony offense. In this case, while committing the felony offense of unlawfully possessing a firearm, 1 Appellant “used” a deadly weapon. He discharged the firearm twenty times across a public highway and towards an amusement park and public park. 1 See TEX. PENAL CODE § 46.04(a) (“A person who has been convicted of a felony commits an offense if he possesses a firearm . . .”). Collins Dissent – 3 The plurality decides that this is not the type of deadly weapon “use” or “exhibition” contemplated in Article 42A.054. To attach a deadly weapon finding, it concludes, a defendant must not only “use or exhibit” the deadly weapon “during the commission of a felony offense,” but such use or exhibition must also “facilitate” the felony. Plurality Opinion at 8. It does so, not because the statute includes the word “facilitate” (it does not), but because of what it gleans the “purpose” of the statute to be: discouraging felons from utilizing deadly weapons when they commit a felony. Id. at 6. And the deterrent effect succeeds, the plurality claims, only when a felon “makes a conscious decision to ‘use’ or ‘exhibit’ the weapon to assist in committing a felony.” Id. at 7. Perhaps inserting this extratextual “facilitation” requirement makes for good policy. 2 Perhaps not. But whether it is a good idea to 2 The decision the plurality reaches today rests primarily on its own construction of Article 42A.054(b) with respect to whether a defendant “exhibits” a deadly weapon during the commission of unlawful possession of body armer, a felony offense. Plurality Opinion at 8 (citing Plummer v. State, 410 S.W.3d 855, 864 (Tex. Crim. App. 2013)). The Court in Plummer determined—without elaborating—that the statute’s “plain language” was ambiguous. 410 S.W.3d at 861. To determine the statute’s meaning, it looked to legislative history, surrounding statutory provisions, and decisions of other state and federal courts. It observed that the legislative hearing considering the statute “centered on the commission of dangerous, violent felonies, and the use of obvious weaponry.” Id. Additionally, this Court found that the statute’s structure suggests the law was intended to “punish those involved in serious violent felonies” because the preceding section listed violent offenses involving physical threat or harm. Id.; TEX. CODE CRIM. PROC. art. 42A.054(a). This Court then looked to other state courts Collins Dissent – 4 require a showing that a defendant “facilitate[d]” a felony with his use or exhibition of a deadly weapon is not a decision we are authorized to make. 3 It is the text of the statute that binds us. While Appellant was unlawfully possessing a firearm, a felony offense, he pulled the trigger on that firearm twenty times. Because that is all the statute’s text requires, I conclude that the Legislature permitted a deadly-weapon finding to attach to Appellant’s conviction. 4 And because the plurality today concludes otherwise, I and the United States Supreme Court, and it found that those courts adopted a “nexus” requirement linking the weapon to furthering the charged offense. Id. at 862–63. But our Legislature created its own requirement: A defendant must use or exhibit a deadly weapon “during the commission of a felony offense.” I believe that that phrase refers to a simple requirement: that the use or exhibition be contemporaneous with the commission of a felony offense. Nothing more, nothing less. 3 Two decisions of this Court determined that a deadly-weapon finding was improperly attached to the unlawful-possession-of-a-firearm offense. In Ex parte Petty, the deadly weapon was not used “to achieve an intended result” “separate and distinct from ‘mere’ possession.” 833 S.W.2d 145, 145 (Tex. Crim. App. 1992). And in Narron v. State, the weapon “was both the subject of the conviction and the basis of the deadly-weapon finding.” 835 S.W.2d 642, 644 (Tex. Crim. App. 1992). Both cases are easily distinguishable from the present case. Here, Appellant possessed and used the firearm when he fired it twenty times. 4 In this case, the trial court submitted the deadly weapon finding as a special issue to be answered by the jury during the guilt/innocence phase of the trial. See George E. Dix & John M. Schmolesky, 43A TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 46:71, at 126 (3d ed. 2011) (“If the defendant elected trial by jury at guilt/innocence and the jury set punishment, the affirmative finding must be made by the jury, since it is the exclusive trier of fact.”). Collins Dissent – 5 respectfully dissent. FILED: November 12, 2026 PUBLISH