Lee Alan Mosier v. State

• Court: Court of Appeals of Texas
• Decided: July 9, 2018
• Docket: 07-17-00357-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-17-00357-CR

LEE ALAN MOSIER, APPELLANT

V.

STATE OF TEXAS, APPELLEE

On Appeal from the 181st District Court Potter County, Texas Trial Court No. 27799B, Honorable John Board, Presiding

July 9, 2018

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PARKER, JJ.

Lee Alan Mosier appeals from a final judgment memorializing his conviction for

being a felon in possession of a firearm. The purported firearm was a flare gun discovered

on the floorboard of a vehicle wherein he slept. Two issues pend for our review. Both

involve the legal sufficiency of the evidence to support his conviction. Appellant contends

that the evidence was legally insufficient to establish beyond reasonable doubt that he

possessed the flare gun and that a flare gun is a firearm. We affirm. 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

2 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.

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

Brian Quinn Chief Justice

Do not publish.