                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS

                                              §
 MICHAEL SHAVON BRADLEY,                                     No. 08-12-00056-CR
                                              §
                       Appellant,                                Appeal from
                                              §
 v.                                                           396th District Court
                                              §
 THE STATE OF TEXAS,                                       of Tarrant County, Texas
                                              §
                       Appellee.                               (TC # 1230023D)
                                              §

                                        OPINION

       Michael Shavon Bradley appeals his conviction of possession of a prohibited weapon. A

jury found Appellant guilty, made an affirmative deadly weapon finding, and assessed his

punishment at imprisonment for four years. We reverse the judgment of the trial court and

render a judgment of acquittal.

                                    FACTUAL SUMMARY

       Jack Mann, an asset protection officer employed by Walmart, observed Appellant

conceal a box of ammunition and leave the store without paying for it. Mann confronted

Appellant and a struggle ensued. During the struggle, Appellant reached for his waistband and

pocket. The police arrived and took Appellant into custody. A search of Appellant’s person

revealed he was carrying several items, including the .410 shotgun shells taken from Walmart, a

flare gun modified to fire .410 shotgun rounds, a smokeless-gunpowder-filled piece of bamboo
with an improvised fuse attached, and matches. The police executed a search warrant for

Appellant’s apartment and found additional pieces of bamboo, shotgun shells, a flare gun

modified to shoot .410 shotgun shells, smokeless gun powder, and matches connected in the

same manner as the fuse on the device found on Appellant’s person.

       A grand jury indicted Appellant for possession of a prohibited weapon, to-wit: a zip gun

in cause numbers 1230022D and 1230023D. In a third case, cause number 1230024D, the grand

jury returned a two-paragraph indictment against Appellant alleging that he knowingly possessed

components of an explosive weapon, to-wit: gun powder and ignition source with the intent to

combine the components into an explosive weapon for use in a criminal endeavor (Paragraph

One), and he knowingly possessed components of an explosive weapon, to-wit: improvised

explosive device with the intent to combine the components into an explosive weapon for use in

a criminal endeavor (Count II). A jury found Appellant guilty and made an affirmative deadly

weapon finding in all three cases, and assessed his punishment at imprisonment for four years in

each case.

                            SUFFICIENCY OF THE EVIDENCE

       In his sole issue on appeal, Appellant challenges the sufficiency of the evidence

supporting his conviction. The State responds that the evidence is legally insufficient because

the modified flare gun possessed by Appellant cannot be a zip gun. A confession of error by the

prosecutor is significant but not conclusive when reviewing an appeal. Saldano v. State, 70

S.W.3d 873, 884 (Tex.Crim.App. 2002). The appellate court must make an independent

examination of the merits of the claim of error.

                             Standard of Review and Applicable Law

       The legal sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99



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S.Ct. 2781, 61 L.Ed.2d 560 (1979), is the only standard a reviewing court applies in determining

whether the evidence is sufficient to support a conviction. Brooks v. State, 323 S.W.3d 893, 894-

95 (Tex.Crim.App. 2010). Under the Jackson standard, a reviewing court must consider all

evidence in the light most favorable to the verdict and in doing so determine whether a rational

justification exists for the trier of fact's finding of guilt beyond a reasonable doubt. Brooks, 323

S.W.3d at 894-95, citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. The trier of fact is the sole

judge as to the weight and credibility of witness testimony, and therefore, on appeal we must

give deference to those determinations. See Brooks, 323 S.W.3d at 894-95. If the record

contains conflicting inferences, we must presume the trier of fact resolved such facts in favor of

the verdict and defer to that resolution. Id. On appeal, we serve only to ensure the trier of fact

reached a rational verdict. Id. We may not reevaluate the weight and credibility of the evidence

produced at trial and in so doing, substitute our judgment for that of the fact finder. King v.

State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000).

       A person commits an offense if he intentionally or knowingly possesses, manufactures,

transports, repairs, or sells a zip gun. TEX.PENAL CODE ANN. § 46.05(a)(9)(West Supp. 2012).

The Penal Code defines a zip gun as a device or combination of devices that was not originally a

firearm and is adapted to expel a projectile through a smooth-bore or rifled-bore barrel by

using the energy generated by an explosion or burning substances. TEX.PENAL CODE ANN.

§ 46.01(16). A firearm is 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).

       The evidence at trial prove that Appellant possessed a modified flare gun. The State

concedes that a flare gun is a device that is made to expel a projectile (the flare) through a barrel



                                                -3-
using the energy generated by an explosion or burning substance, and therefore, a flare gun is a

firearm under Texas law. A zip gun is a device that was not originally a firearm. TEX.PENAL

CODE ANN. § 46.01(16). Because a flare gun is a firearm under Section 46.01(3), a modified

flare gun cannot be a zip gun. Accordingly, the evidence is legally insufficient to support

Appellant’s conviction of possession of a zip gun. We sustain the sole issue on appeal, reverse

the judgment of the trial court, and render a judgment of acquittal.


October 30, 2013
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




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