### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00050- CR

Timot hy Ray Aylesworth, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2011 -28 8, H ONO RAB LE JACK H . RO B ISO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant Timothy Ray Ayleswort h o f the offe nses of cre dit-car d abuse (five counts ), p o s s es s i on of a prohibited wea pon, and unlawful possession of a firea rm. Punishm ent was assessed at five y ear s’ im p r is o nme n t f

o r e a c h count of the cre dit-car d-abuse offe nse, t h i rt y -three y ear s’ imprisonment for the offe nse of possession of a prohibited wea pon , an d twenty y ear s’ imprisonment for the offe nse of unlawful possession of a firea rm, with the sentenc es to run concurre ntly

. I n a si ng le poi nt of error, Ay lesworth asserts that the evidence is insufficient to prove that the wea

pon he possessed was a firea rm. We will aff

irm the judgme nts of conviction.

BACK GR OUND Be cause Ay lesworth does not challeng e the sufficie ncy o f the evidenc e related to his convictions for the offe nse of cre dit-car d abuse, we will summarize only the evidenc e related to the wea pons char g es. The wea

pon that Aylesworth was alleg ed to have possessed was a short-bar rel firea rm, specific ally a 12-g aug e Remington shotgun, serial number D818180A, with a barr el leng thof less than 18 inches. The jury hear d evidenc e that on Aug ust 13, 2010, during the course of a theft

invest i gat i o n , office rs with the New Br aunfe ls Police Depa rtment executed a sear ch war rant at a residenc e in which Ay lesworth and his g irlfriend, Natale Guzik, lived. Detec tive J acob Pullen, the lead investigator in the case , testified that one of the items he found durin g t h e s ea rc h o f the residenc e wa s a sawe d-off shotgun, w hich he de scribed a s follows:

I f ever y body knows a regular shotgun with the stalk [si c] and the long barr el, if y ou imag ine the part that comes down a littl e bit a nd then y ou have the stalk [si c] at the end cut of f rig ht about there (indicating ) fr om the stalk [si c] a nd then the barr el cut off just in front of the fore -end, wher e y ou do the pump action of the shotgun, and it was blac k in color.

When asked if he had noticed any modifications to the wea pon, Pullen testified, “I t was obvious to

me seeing a lot of shotgun s . An d t h e model of shotgun was the same model that we car ry . And y ou could tell that the stalk [si c] ha d been cut and y ou could also tell that the barr el wasn’t as long

as it is leg ally require d to be.” Pullen later testified that the leng th of the barr el was approximately 13 inches. Pullen also specific ally identified the wea pon as a 12-g aug e Remington Ex press Mag num shotgun, with a serial number of D818180A. Pullen further testified that the police had rec overe d four shells from inside the shotgun, including one shell that was “jammed in the chambe r.” Pullen

was a lso asked whe ther the shotg un was ope rable . Pullen testified t hat in order for the shotg un to fire, it would need, at a minimum , “a firing pin, a way to make the firing pin eng ag e and somewher e for the bullet to trave l throug h so it can g o to its course .” Howeve r, Pullen admitted that he had not completely

disassembled the we apon to deter mine if it contained a

firing pin. 1

Pullen attempted to testify that, while later operating the wea pon at the district attorney ’s 1 office , he had “ hear d” a f iring pin drop. Howeve r, Aylesworth objec ted to this testim ony , and the district court sustained the obje ction and instructed the jury to disreg ard it. 2Detec tive Trey Wahrmund o f th e N e w B r a nufels Police Depa

rtment also investiga

ted the case and provided testimony conce rning whether the wea pon was opera

ble. Outside the prese nce of the jury , defe nse counsel had Wahrmund attempt to operate the shotgun. When the jury returne d, the following testimony

was e licited: Q. Detec tive Wahrmund, did y ou have a chanc e duringthe bre ak to attempt t o chambe r a r ound into the shotgun in question in this case? A. Idid. Q. And y es or no, we re you able to load a round into the—into the shotgun? A. I n its curre nt phy sical state, if done ma nually as it was desig ned to, I

would not be able to put a r ound into the chamber manually

. Q. Be st y ou know, that wea pon has not been altere d or adjusted in any way from the time that it was possessed by law enf orce ment. Correc t? A. Correc t.

On re -direc t examination, t he State elicited the following additional testimony on the matter: Q. An d wh en y ou went out and did the demonstration wi t h t h e— wi t h t h e shotgun, did the f

iring pin drop the first time? A. I t did. Q. After

that y ou wer en’t a

ble to g et it to, were y ou? A. That’s c orre ct. Q. But the f

irst time it di d? A. That’s c orre ct.

Def ense c ounsel then re turned to the subjec t on re-c ross examination:

3Q. Now, this—when y ou did this demonstration, the State mentioned something about y ou hear d a firingpin drop the first time. Corre ct? A. Correc t. Q. You ar e assuming that’s what y ou hear d. Correc t? A. Yes. Q. There are other movingparts in that wea ponry , isn’t there? A. That’s c orre ct, there are other moving parts. Q. And the fac t of the matt er i s ev en if may be y ou had hear d what would be considere d a fi ring pin, it was nowher e in the location of the chambe r had that chambe r bee n loaded with a live r ound. Correc t? A. The sound that I hear d was consistent with a sound of a hammer hitting a fire pin coming f

rom— Q. I understand. But that’s not the questi on. The question is if y ou did hear a firing pin, in its c urre nt state, it would not have fired a live round. Correc t? A. I f it hit a fi ri n g p i n an d t h er e was a round ag ainst that bolt, it could have detonated the primer. Q. T h at ’s n o t wh at I as k ed

. You are saying if this and if that. And t h at demonstration t hat y ou did, when y ou had tried to c hamber or t ried to slide the littl e cock deal and y ou—y ou hear d the—what y ou think was a firing pin, that firing pin was three inches a way from the location where a shell would have be en cha

mbere d. I sn’t that corr ect? A. That is corr ect. Q. An d y o u we re never able to g et that firing pin any closer than may be three inches, a big ope ning. Corr ect? A. Correc t. Q. So in the curr ent state that wea pon would not have fired a round, live round? A. Not as it is designe d, no. Q. J ust as what has be en elicited by the def ense in this case . Correc t? 4A. Correc t.

. . . . Q. How much time did y ou spend trying to g et that wea pon to function? A. About five minutes. Q. And y ou sat there diligently trying to slide that and maneuve r it and g et it to function. Corre ct? A. Idid. Q. To the best of y our knowledg e, that wea pon had not been altere d or adjusted since the time it was in law e nforc ement’s possession. Corre ct? A. Correc t. During the course of the investigation, Detec tive Pullen had a p hone conver sation with Ay lesworth, an audio rec ording of which was admitted into evidenc e. During the conver sation, Ay les wo rt h ad m i tted that the wea pon belong ed to him and that he had cut off the barr el of the wea pon and painted the g un black to make it look more intimi dating

. He also claimed that the

wea pon was loaded with ammunition just for “looks.” I n a subsequent interview with Pullen at the police s t ati on, a video rec ording of which was admitted into evidenc e, Aylesworth stated that he owned the shotgun for “prote ction” but claimed repe atedly that it was not capa ble of firing

. When

2 Pullen confr onted Ay lesworth with t h e fa ct that the g un was loaded at the time it was found, Ay lesworth re sponded, “I ’m an e x -con that was used to a lot of e x citement.” 3

Kathlee n Martin, the mother of Aylesworth’s g irlfriend, who testified for the defe nse, made 2 a similar claim in her

testimony

that the “gun didn’t fire.” The jury hear d evidenc e that Ay

lesworth had a prior c onviction for the f elony offe nse of 3 ag g rava ted robbe ry . 5The jury found Aylesworth g uilty of both possession char g es, and punishment was assessed a s noted above . This appea l followed.

STANDARD OF REVIEW Due proce ss require s that the State prove, beyond a rea sonable doubt, ever y element of the offe nse char g ed. See Jack son v. Virginia , 443 U.S. 307, 313 (1979). The sufficie ncy of the evidenc e is measure d by re fe re n ce to the elements of the offe nse as define d by a hy pothetically

corr ect jury char g e for the case . Villarreal v

. State , 286 S.W .3d 321, 327 (Tex. Crim. App. 2009). When revie wing the sufficie ncy of the evidenc e to sup p o rt a conviction, we consider all of the evidenc e in the light most favor able to the verdic t to deter mine whether any rational jury could have found t he essential elements of the offense bey ond a re asonable doubt. Jack son , 443 U.S. at 319. We must consider all th e ev i d en ce in the rec ord, whether direc t or circ umstantial or proper ly or improperly admitted. Clayton v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007). We assume that the ju ry resolved conflicts in the testimony , weig hed the evidenc e, and drew rea sonable infere nces in a manner that supports the verdic t, and we defe r to the jury ’s deter minations of the witnesses’ cre dibilit y and the weig ht to be g iven their testimony

. Jack son , 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

I n his sole point of err or, Aylesworth asser ts that the evid en ce i s i nsufficie nt to prove that the wea

pon he wa s char g ed with possessing was a firea rm. Specifica lly , he asse rts that

6the wea

pon was not a firea

rm beca use the evidenc e tended to show that the firea rm was inopera

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

Ay lesworth was char g ed with unlawful possession of a firear m and possession of a prohibited wea

pon. A person commits the offe nse of unlawful pos s es s i on of a firea rm if he possesses a firea

rm afte r b ei ng convicted of a felony and befor e the fifth anniver sary of the person’ s rele ase from confine ment following his conviction. Tex. Penal Code § 46.04(a) (1). A person commits the offe nse of possession of a prohibited wea pon if he posses s es a short-bar rel firea rm. Id

. § 46.05(a) (3). Fo r p u rp o s es o f these statutes, a firea rm is define d as “any device desig ned, made , or ada

pted to expel a projec tile throug h a bar rel by using the ener g y

g ener ated by

an explos ion or burning substance or any device rea dily conver tible to that use.” Id

. § 46.01(3). A “short-ba rre l firea rm” is further define d as a shotgun with a barr el leng th of less than 18 inches. Id

. § 46.01(10). Her e, Detec tive 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 chambe r,” that the shotgun had a barr el that was “cut off just in front of the fore -end, wher e y ou do the pump action of the shotgun,” and that the shotgun was simil ar to the ty pe of wea pon that police office rs use. Fr om this and other evidenc e, the jury could have rea sonably inferr ed that the wea pon found in Aylesworth’s possession was “desig ned, made, or adapt ed t o ex p el a projec tile throug h a barr el by using the

ener g y g ener ated by an explos ion or burning substance or any device rea dily conver tible to that use.” Pullen also testified t hat t h e s h otgun had a barr el t hat was approximately 13 inches in leng th, and the jury could have rea sonably inferr ed from this and other evidenc e that the wea pon met the statutory definition of a “short-ba rre l firea rm.” As for Ay

lesworth’s contention that the firea rm was

7“inoper able,” t h er e is no require ment in either of the above statutory definitions that the wea pon be opera ble or capa

ble of being fired, and numerous case s have so held. See, e.g. , W alker v. State , 543 S.W .2d 634, 637 (Tex. Crim. App. 1976) (finding automatic pistol to be “fire arm” even though cli p an d p i n m ay have been mis sing at time of offense) ; Hutchings v. Stat e , 333 S.W .3d 917, 922 (Tex. App.—Texarkana 2011 , p et
. re f’ d) (“It is not nece ssary for the State to prove a firea rm is opera ble.”) ; Bollinger v. State , 224 S.W .3d 7 6 8 , 7 7 5 (Tex

. App.—Eastland 2007, pet. ref ’d) (obser ving t h at s uch require ment would “over state the State’s burden” ); Grantham v. State , 116 S.W .3d 136, 144 (Tex. App.—Ty ler 2003, pet. ref

’d) (“Contra

ry t o Ap p el lant’s argument, the State need not prove the wea pons wer e capa

ble of being fired. The law does not incorporate such

a require ment.”); Thomas v. State , 36 S.W .3d 709, 711 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (“Eve n if the clip and firing pin are missing at the t ime o f t h e o ff en s e, a pis tol is still a firea rm under Section 46.01(3).” ); Lewis v. State , 852 S.W .2d 667 , 6 6 9 (T ex . App.—Houston [14t h Dist.] 1993, no pet.) (holding that State was not require d to prove that wea pon was capa

ble of firing in p r o s e c uti o n f

o r u n la w f u l possession of short-bar

rel firea rm). Although Aylesworth attempts to distinguish some of t he above cases from the facts of t his case , his eff orts are unavailing

. This

case , like the others cited above, involved a wea pon that, based on the evidenc e prese nted, might not have been capa

ble of firing

. But that is not an element of the State’s burden of proof here

. Viewing 4 the evidence a

nd all rea sonable infe renc es there from in the lig ht most favorable to the verdict, we conclude that the evid en ce i s sufficie nt to prove that the wea pon Aylesworth possessed was a firea rm. We overr

ule Aylesworth’s sole point of e rror .

I n fac t, the court’s c harg e spec ifically instructed the jury

that “[t] he law doe s not require 4 that a fire arm be opera

ble.” 8CONCLUSION We affir m the judgme nts of the district court.

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Pury ear , Pemberton, and Rose Affir med Filed: Jul y

24, 2013 Do Not Publish

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