Court of Appeals Sixth Appellate District of Texas at Texarkana

Case Number: 07-17-00357-CR

Judge: Brian Quinn

Court: Court of Appeals Seventh District of Texas at Amarillo

Plaintiff's Attorney: Kristy Wright

Defendant's Attorney: Jim Johnston

Description: In assessing the legal sufficiency of the evidence to support a conviction, we view
all the evidence in a light most favorable to the verdict to decide whether any rational fact
finder could find the essential elements of the crime beyond reasonable doubt. Reynolds
v. State, 543 S.W.3d 235, 241 (Tex. Crim. App. 2018). This standard controls our review
here.

First, we address whether the State proved a flare gun is a firearm. A “firearm” is
defined as “any device designed, made, or adapted to expel a projectile through a barrel
by using the energy generated by an explosion or burning substance or any device readily
convertible to that use.” TEX. PENAL CODE ANN. § 46.01(3) (West Supp. 2017). We initially
note that a sister court of appeals has recognized a flare gun to be a firearm. Bradley v.
State, No. 08-12-00055-CR, 2013 Tex. App. LEXIS 13386, at *4-5 (Tex. App.—El Paso
Oct. 30, 2013, no pet.) (mem. op., not designated for publication) (stating that the “State
concedes that a flare gun is a device that is made to expel a projectile (the flare) through
a barrel using the energy generated by an explosion or burning substance, and therefore,
a flare gun is a firearm under Texas law”). Furthermore, an officer who testified at
appellant’s trial not only stated that he was familiar with the definition of a firearm but also
that a flare gun comes within that definition. So too did he describe how the hammer of
the gun strikes a primer within the shell when the trigger is pulled resulting in the ignition
within and expulsion from the barrel of burning magnesium. The fact-finder was also told
by this witness that 12-gauge shotgun shells could be fired from the device, as well as
other bullets upon slight modification of the gun. This evidence is more than sufficient to
enable a rational fact-finder to conclude beyond reasonable doubt that the flare gun was
“designed, made, or adapted to expel a projectile through a barrel by using the energy
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generated by an explosion or burning substance or any device readily convertible to that
use,” i.e., that it was a firearm.
Regarding the matter of possession, it “means actual care, custody, control, or
management.” TEX. PENAL CODE ANN. § 1.07(39). Thus, to prove possession, the State
must prove that the accused exercised control, management, or care over the item in
question. See Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (involving the
possession of a controlled substance and stating that “the State had to show that Tate
(1) exercised control, management, or care over the substance in question and (2) that
he knew that the substance was contraband”). The evidence at bar discloses that
appellant was sleeping in a vehicle, and when awakened by the police, the flare gun fell
from an area adjacent to appellant onto the floor. Furthermore, appellant told an officer
that it had been given to him by a friend. Evidence of very close proximity coupled with
appellant’s admission that it was his device is ample to support a rational fact-finder’s
inference that appellant exercised actual care, custody, control or management of the
flare gun, i.e., that he possessed it.

Outcome: We overrule appellant’s two issues and affirm the trial court’s judgment.

Plaintiff's Experts:

Defendant's Experts:

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