      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00050-CR



                              Timothy Ray Aylesworth, Appellant

                                                 v.

                                  The State of Texas, Appellee


    FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
        NO. CR2011-288, HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted appellant Timothy Ray Aylesworth of the offenses of credit-card

abuse (five counts), possession of a prohibited weapon, and unlawful possession of a firearm.

Punishment was assessed at five years’ imprisonment for each count of the credit-card-abuse offense,

thirty-three years’ imprisonment for the offense of possession of a prohibited weapon, and

twenty years’ imprisonment for the offense of unlawful possession of a firearm, with the sentences

to run concurrently. In a single point of error, Aylesworth asserts that the evidence is insufficient

to prove that the weapon he possessed was a firearm. We will affirm the judgments of conviction.


                                         BACKGROUND

               Because Aylesworth does not challenge the sufficiency of the evidence related to

his convictions for the offense of credit-card abuse, we will summarize only the evidence related to

the weapons charges. The weapon that Aylesworth was alleged to have possessed was a short-barrel

firearm, specifically a 12-gauge Remington shotgun, serial number D818180A, with a barrel length
of less than 18 inches. The jury heard evidence that on August 13, 2010, during the course of a theft

investigation, officers with the New Braunfels Police Department executed a search warrant at a

residence in which Aylesworth and his girlfriend, Natale Guzik, lived. Detective Jacob Pullen, the

lead investigator in the case, testified that one of the items he found during the search of the

residence was a sawed-off shotgun, which he described as follows:


       If everybody knows a regular shotgun with the stalk [sic] and the long barrel, if you
       imagine the part that comes down a little bit and then you have the stalk [sic] at the
       end cut off right about there (indicating) from the stalk [sic] and then the barrel cut
       off just in front of the fore-end, where you do the pump action of the shotgun, and it
       was black in color.


When asked if he had noticed any modifications to the weapon, Pullen testified, “It was obvious to

me seeing a lot of shotguns. And the model of shotgun was the same model that we carry. And

you could tell that the stalk [sic] had been cut and you could also tell that the barrel wasn’t as long

as it is legally required to be.” Pullen later testified that the length of the barrel was approximately

13 inches. Pullen also specifically identified the weapon as a 12-gauge Remington Express Magnum

shotgun, with a serial number of D818180A. Pullen further testified that the police had recovered

four shells from inside the shotgun, including one shell that was “jammed in the chamber.” Pullen

was also asked whether the shotgun was operable. Pullen testified that in order for the shotgun to

fire, it would need, at a minimum, “a firing pin, a way to make the firing pin engage and somewhere

for the bullet to travel through so it can go to its course.” However, Pullen admitted that he had not

completely disassembled the weapon to determine if it contained a firing pin.1


       1
           Pullen attempted to testify that, while later operating the weapon at the district attorney’s
office, he had “heard” a firing pin drop. However, Aylesworth objected to this testimony, and the
district court sustained the objection and instructed the jury to disregard it.

                                                   2
               Detective Trey Wahrmund of the New Branufels Police Department also investigated

the case and provided testimony concerning whether the weapon was operable. Outside the presence

of the jury, defense counsel had Wahrmund attempt to operate the shotgun. When the jury returned,

the following testimony was elicited:


       Q.      Detective Wahrmund, did you have a chance during the break to attempt to
               chamber a round into the shotgun in question in this case?

       A.      I did.

       Q.      And yes or no, were you able to load a round into the—into the shotgun?

       A.      In its current physical state, if done manually as it was designed to, I would
               not be able to put a round into the chamber manually.

       Q.      Best you know, that weapon has not been altered or adjusted in any way from
               the time that it was possessed by law enforcement. Correct?

       A.      Correct.


On re-direct examination, the State elicited the following additional testimony on the matter:


       Q.      And when you went out and did the demonstration with the—with the
               shotgun, did the firing pin drop the first time?

       A.      It did.

       Q.      After that you weren’t able to get it to, were you?

       A.      That’s correct.

       Q.      But the first time it did?

       A.      That’s correct.


Defense counsel then returned to the subject on re-cross examination:


                                                 3
Q.   Now, this—when you did this demonstration, the State mentioned something
     about you heard a firing pin drop the first time. Correct?

A.   Correct.

Q.   You are assuming that’s what you heard. Correct?

A.   Yes.

Q.   There are other moving parts in that weaponry, isn’t there?

A.   That’s correct, there are other moving parts.

Q.   And the fact of the matter is even if maybe you had heard what would be
     considered a firing pin, it was nowhere in the location of the chamber had
     that chamber been loaded with a live round. Correct?

A.   The sound that I heard was consistent with a sound of a hammer hitting a fire
     pin coming from—

Q.   I understand. But that’s not the question. The question is if you did hear a
     firing pin, in its current state, it would not have fired a live round. Correct?

A.   If it hit a firing pin and there was a round against that bolt, it could have
     detonated the primer.

Q.   That’s not what I asked. You are saying if this and if that. And that
     demonstration that you did, when you had tried to chamber or tried to slide
     the little cock deal and you—you heard the—what you think was a firing pin,
     that firing pin was three inches away from the location where a shell would
     have been chambered. Isn’t that correct?

A.   That is correct.

Q.   And you were never able to get that firing pin any closer than maybe three
     inches, a big opening. Correct?

A.   Correct.

Q.   So in the current state that weapon would not have fired a round, live round?

A.   Not as it is designed, no.

Q.   Just as what has been elicited by the defense in this case. Correct?

                                        4
       A.      Correct.

       ....

       Q.      How much time did you spend trying to get that weapon to function?

       A.      About five minutes.

       Q.      And you sat there diligently trying to slide that and maneuver it and get it to
               function. Correct?

       A.      I did.

       Q.      To the best of your knowledge, that weapon had not been altered or adjusted
               since the time it was in law enforcement’s possession. Correct?

       A.      Correct.


               During the course of the investigation, Detective Pullen had a phone conversation

with Aylesworth, an audio recording of which was admitted into evidence. During the conversation,

Aylesworth admitted that the weapon belonged to him and that he had cut off the barrel of

the weapon and painted the gun black to make it look more intimidating. He also claimed that the

weapon was loaded with ammunition just for “looks.” In a subsequent interview with Pullen at the

police station, a video recording of which was admitted into evidence, Aylesworth stated that he

owned the shotgun for “protection” but claimed repeatedly that it was not capable of firing.2 When

Pullen confronted Aylesworth with the fact that the gun was loaded at the time it was found,

Aylesworth responded, “I’m an ex-con that was used to a lot of excitement.”3



       2
         Kathleen Martin, the mother of Aylesworth’s girlfriend, who testified for the defense, made
a similar claim in her testimony that the “gun didn’t fire.”
       3
         The jury heard evidence that Aylesworth had a prior conviction for the felony offense of
aggravated robbery.

                                                 5
               The jury found Aylesworth guilty of both possession charges, and punishment was

assessed as noted above. This appeal followed.


                                   STANDARD OF REVIEW

               Due process requires that the State prove, beyond a reasonable doubt, every element

of the offense charged. See Jackson v. Virginia, 443 U.S. 307, 313 (1979). The sufficiency of the

evidence is measured by reference to the elements of the offense as defined by a hypothetically

correct jury charge for the case. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009).

When reviewing the sufficiency of the evidence to support a conviction, we consider all of the

evidence in the light most favorable to the verdict to determine whether any rational jury could have

found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319.

We must consider all the evidence in the record, whether direct or circumstantial or properly or

improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We assume

that the jury resolved conflicts in the testimony, weighed the evidence, and drew reasonable

inferences in a manner that supports the verdict, and we defer to the jury’s determinations of the

witnesses’ credibility and the weight to be given their testimony. Jackson, 443 U.S. at 318; Brooks

v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010); Clayton, 235 S.W.3d at 778; see Tex. Code

Crim. Proc. art. 38.04.


                                           ANALYSIS

               In his sole point of error, Aylesworth asserts that the evidence is insufficient to

prove that the weapon he was charged with possessing was a firearm. Specifically, he asserts that




                                                 6
the weapon was not a firearm because the evidence tended to show that the firearm was inoperable

at the time it was found in Aylesworth’s possession.

               Aylesworth was charged with unlawful possession of a firearm and possession

of a prohibited weapon. A person commits the offense of unlawful possession of a firearm if

he possesses a firearm after being convicted of a felony and before the fifth anniversary of

the person’s release from confinement following his conviction. Tex. Penal Code § 46.04(a)(1). A

person commits the offense of possession of a prohibited weapon if he possesses a short-barrel

firearm. Id. § 46.05(a)(3). For purposes of these statutes, 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.” Id. § 46.01(3). A

“short-barrel firearm” is further defined as a shotgun with a barrel length of less than 18 inches. Id.

§ 46.01(10).

               Here, Detective Pullen testified that the shotgun was loaded with ammunition at the

time that it was found, that one of the shotgun shells was “jammed in the chamber,” that the shotgun

had a barrel that was “cut off just in front of the fore-end, where you do the pump action of the

shotgun,” and that the shotgun was similar to the type of weapon that police officers use. From this

and other evidence, the jury could have reasonably inferred that the weapon found in Aylesworth’s

possession was “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.”

Pullen also testified that the shotgun had a barrel that was approximately 13 inches in length, and

the jury could have reasonably inferred from this and other evidence that the weapon met the

statutory definition of a “short-barrel firearm.” As for Aylesworth’s contention that the firearm was


                                                  7
“inoperable,” there is no requirement in either of the above statutory definitions that the weapon

be operable or capable of being fired, and numerous cases have so held. See, e.g., Walker v. State,

543 S.W.2d 634, 637 (Tex. Crim. App. 1976) (finding automatic pistol to be “firearm” even though

clip and pin may have been missing at time of offense); Hutchings v. State, 333 S.W.3d 917, 922

(Tex. App.—Texarkana 2011, pet. ref’d) (“It is not necessary for the State to prove a firearm is

operable.”); Bollinger v. State, 224 S.W.3d 768, 775 (Tex. App.—Eastland 2007, pet. ref’d)

(observing that such requirement would “overstate the State’s burden”); Grantham v. State,

116 S.W.3d 136, 144 (Tex. App.—Tyler 2003, pet. ref’d) (“Contrary to Appellant’s argument,

the State need not prove the weapons were capable of being fired. The law does not incorporate such

a requirement.”); Thomas v. State, 36 S.W.3d 709, 711 (Tex. App.—Houston [1st Dist.] 2001,

pet. ref’d) (“Even if the clip and firing pin are missing at the time of the offense, a pistol is still a

firearm under Section 46.01(3).”); Lewis v. State, 852 S.W.2d 667, 669 (Tex. App.—Houston

[14th Dist.] 1993, no pet.) (holding that State was not required to prove that weapon was capable of

firing in prosecution for unlawful possession of short-barrel firearm). Although Aylesworth attempts

to distinguish some of the above cases from the facts of this case, his efforts are unavailing. This

case, like the others cited above, involved a weapon that, based on the evidence presented, might not

have been capable of firing. But that is not an element of the State’s burden of proof here.4 Viewing

the evidence and all reasonable inferences therefrom in the light most favorable to the verdict, we

conclude that the evidence is sufficient to prove that the weapon Aylesworth possessed was a

firearm. We overrule Aylesworth’s sole point of error.



        4
           In fact, the court’s charge specifically instructed the jury that “[t]he law does not require
that a firearm be operable.”

                                                   8
                                       CONCLUSION

              We affirm the judgments of the district court.




                                            __________________________________________

                                            Bob Pemberton, Justice

Before Justices Puryear, Pemberton, and Rose

Affirmed

Filed: July 24, 2013

Do Not Publish




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