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.
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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 factfinder 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.

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

Brian Quinn

Chief Justice

Do not publish.