COLLINS, NATHAN GENE v. the State of Texas
CourtCourt of Criminal Appeals of Texas
Date FiledNovember 12, 2026
DocketPD-0452-25
StatusPublished
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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