## IN THE COURT OF CRIMINA L A PPEA LS OF TEXA S

N O. AP-77,094

DAMEON JAMARC MOSLEY, Appellant

v.
THE STATE OF TEXAS

ON DIRECT APPEAL FROM CAUSE NO. 114-0510-17

I N THE 114TH DISTRICT COURT SMITH COUNTY

W A L K E R 

### , J., filed a concurring opinion, in w hich RI C H A R D S O N 

### , J., joined.

CONCURRING OPINION

I join the Cou rt’s o pinion and judg ment upholding Appellant D ameon J amarc Mosley ’s

conviction and sentence. I wish to address Appellant’s argument at trial that, althoug h he fully

intended to commit a robbery o f the Conoco, he did not intend to kill the attendant and that his g un accidentally went off during the brief strug g le. The evidence showed that Appellant used a revolver.

As the p rosecutor recogniz ed y et d efense counsel failed to a ppreciate, the u se of a revolver is an important fact that is enough to shut down almost any accident defense.2

As I have previously e mphasiz ed: “it is almost impossible to accidentally or involuntari l y f ire

a fu l l y -f unctioning double-action revolver unless the hammer is in the cocked position .” Piper v.
State , No. PD-0712-18, 2019 W L 4315756, at *7 (Tex

. Crim. App. Sept. 11, 2 0 1 9 ) ( W a l k e r , J ., concurring ) (not d esig nated for publication). In stead, “the phy sical reality of the gun itself strong ly

militates ag ainst a

ny claim that it was accidentally or involuntarily fired.” Id. Attorney s on both sides of the aisle—prosecutors and defense counsel—must be aware that accident claims are incredibly

weak where a revolver is involved.

In Appellant’s case, the evidence showed that Appellant entered the Conoco station armed

with a revolver, jumped over the counter, p h y s i c a lly confronted the attendant, and then shot the

attendant twice after the attendant kicked at Appellant and they strug g led. His defensive strategy at
trial was to seek a conviction for the lesser included offense of felony murder, based on the theory
that, althoug h h e fully intended to commit a robbery of the Conoco, he did not intend to kill the

attendant and the gun just went off during the strug g le. 1 The prosecution’s handling of Appellant’s “gun just went off” theory presents a case study of how to address that arg ument.
The State presented evidence showing n ot o nly that the murder w eapon was a revolver, but

also ex plaining how revolvers work. F irearm and tool mark ex aminer Stacey Phetteplace ex amined

the b ullets recovered during the autopsy and determined that b oth were fired from the same firearm.

1 Defense counsel’s opening statement laid it out:

O n J anuary 2 8th, 2017, Dameon Mosley , along with the assistan c e o f Kedarius Oliver and L amarcus Hannah, went into the Conoco station to rob the station. Do Ineed to repeat it? He went in there with the intent to rob. B ut, ladies a

nd g entlemen, he did not have the intent to kill Mr. Stacks. In that strug g le, that gun g o es off. And when y o u commit a felony in the State of Tex as a nd in the course of committing that fel o n y , y ou do a n act clearly dang erous to human life, you are g

uilty of felony murder, not capital murder.3

Additionally , Phetteplace testified:
Q.

. . . Did y ou have any o t h e r o p i n i o n s a bout what ty

pe of firearm that these bullets were fired from? A. I— Q. Not brand, but — A. Ty

pe of firearm. They

were fired from a revolver. Q. And how do you know that? A. The — as I d e s cr i b e d earlier, with a revolver, there’s a g ap between the cylinder and the bore, and there’s a forcing cone that f o r ce s t hat bullet into the bore. T he — b oth the bullets had forcing c one marks that were in front of the riflingmarks. Ty pically , we’ll see that o n — the curvature of the bullet will be curved, as y ou can see in this picture, towards the n ose. I t curves towards the center. The forcing cone marks were up on that curve of the b ullet, a nd they
were found on both o f the bullets, which is an indication t h a t i t w a s fired from a revolver. In addition, most .38-caliber bulle t s t hat — that have this ty pe of shape are commonly loaded into .38 Special c artridg es, which is commonly used in r evolvers, althoug h — Smith & W esson d oes make a pistol that also shoots a .38 Special cartridg e. B ut most of the guns are on the list are listed as revolvers. Phetteplace later confirmed that it was unknown whether the g un was a sing le-action or a doubleaction revolver, but explained how both ty p es worked to the jury :
A. W ith a sing le-action revolver, the — the hammer h a s to be manually pulled back and then the trig g er pulled in order to fire the revolver. The trig g er o nly has one function, and that is to cause the firearm

— cause the hammer to fall. In a double-action firearm, the trig g er can pull the hammer back a nd release it. So it does two steps so it’s called a double-action. Q. So a sing le-action is kind of like what you see — it may not look the same, but kind of like what y ou see in westerns. You know, the cowboy p ulls it out — pulls the hammer back and — A. Yes, that’s correct. Q. And then a double-action, y ou pull the trig g e r, and the hammer g oes back a nd falls? A. Yes.

. . . Q. Okay . Now, we talked about sing le-action versus double-action revolver. A. Yes.4

Q. Okay

. So if Ihad a sing le-action — I want to be clear about this. I f I have a sing le-action revolver, how do I g o about firingthat revolver? A. In a sing le-action revolver, the first step after loading the chamber would be to pull the hammer back. When the hammer is pulled back, the cylinder will rotate to alig n the cartridg e with the — with the barrel or the bore. And then when y o u are re a d y t o s h o ot the revolver, y ou pull the trig g er, the hammer f

a lls, it causes the firearm — depending on the firearm, it e ither has a f

iring pin in the hammer, or it hits a firing pin, and it causes the firing pin to hit the primer which causes the discharg e. Q. So in order to fire it, t o be clear, I have to have pulled the trig g er back manually with my

thumb or hand or something— A. The hammer, not the trig g er. Q. Yeah. Sorry

. You have to pull the hammer back, and at that point, yo u have to pull the trig g er? A. Yes. Q. Okay . Now, a double-action, how do y ou fire that ag ain? A. In a double-action, the hammer could be set in the position that y ou see on the screen. Y ou pull the trig g e r, the hammer will c ock. A nd a s the hammer is being cocked, the cylinder will rotate to alig n the ne x t c h a m b e r with the bore. And in the same motion, the — when the trig g er reaches the rear of the trig g er guard, the hammer will fall and cause a discharge. A. Okay

. Y ou actually h ave to pull the trig g e r w ith a d ouble-action, which causes the hammer to g o back, and then it eventually falls forward and — A. Yes. Q. — which causes the bullet to shoot? A. Yes. The prosecutor then asked Phetteplace about shooting twice:
Q. . . . How would you shoot a sing le-action revolver twice? A. F or e v ery time you — o n a s i n gl e-action revolver, every time y ou shoot it, y ou have to pull the hammer back and pull the trig g er, pull the hammer back and pull the trig g er. Q. And how about a double-action? A. The double-action, y o u just keep pulling the trig g er. Q. Okay . So if I have a sing le-action, y ou said Ihave to pull the hammer back, pull the trig g er, pull the hammer back, pull the trig g er? A. Yes. Q. And double-action, every time y ou pull the trig g er, the cy linder rotates — A. Yes. Q. — and it will fire?

The State then had Phetteplace view the surveillance footag e o f the robbery

. P h e t t eplace a g ain5

opined, this time based on the footag e, that the weapon w as a revolver. B ecause the a ctual weapon

was never recovered, Phetteplace could only g ive g eneral testimony about revolvers, which the State was sure to reemphasiz e: Q. And so without having analy z ed this revolver, y

o u can’t really g ive us very many characteristics about it, rig ht? A. That’s righ t. Q. B ut, in g e neral, a sing le-action revolver, to be clear, if you’re g oing to shoot it twice , y ou have to pull the hammer back and pull the trig g er, pull the hammer back and pull the trig g er. A. That’s correct. Q. And for a double-action, y ou have to pull the trig g er twice? A. Yes. Q. In g eneral — well, I guess y o u have a naly z ed quite a few f

irearms over the course of y

our career, haven’t y

ou? A. Yes, I

have. Q. In particular, y ou’ve analy z ed several — I mean, q

u ite a few revolvers; is that rig ht? A. Yes. Q. I guess, g enerally speaking , what ty pe of resistance or pounds o f pressure do y ou usually see on a double-action revolver on the trigg er? A. On a d ouble-action, I ’ve seen them a s low as 8 poun d s

. I ’ ve seen them as hig has 15 pounds. Q. W hat does that mean? A. Pounds of force. This is different than pounds o f weig ht. L ike a g a l l o n of milk weig hs 10 pounds, we’re not talking about weig ht. W e’re talking about force. So to open, like, a soda can, the pull tab o n a soda c an takes about 8 pounds of force. So that’s a r elative term. Some are lig hter; some are heavier, take more force or less force. Q. So y ou said y ou’ve seen as low as 8 and as hig h as how much? A. 15. Q. 15? A. F or a double-action. Q. So in order to pull a trig g er on a double-action, y ou have to h ave any where between 8 to 15 pounds of force pulling that back? A. In g eneral, yes. Q. In g eneral. A. Yes.

On c ross-ex amination, defense counsel asked Phetteplace about the possibility that a gun could just6

g o off:
Q. You alway s have to pull a trig g er to fire a g un, rig ht? A. Yes, sir. Q. All rig ht. Imean, it doesn’t just ex plode.

. . . Q. I t doesn’t just fire by itself, does it? A. Not unless there’s somethingwrong with it.

In closingarguments, the prosecutor reminded the jury of Phetteplace’s testimony : Additionally , there were two shots. And this is hug e. Okay ? The Defense said in their opening statements that the gun went off. W e h eard from Stacey Phetteplace about how revolvers work, abo u t y o u have a sing le-action revolver and a doubleaction revolver.

. . . Stacey Phetteplace said in order to shoot a s i n g le-action revolver, y ou would take the gun, pull the hammer back, and then pull the trig g er. So if Dameon Mosley ’s gun was a sing le-action firearm, during the altercation, he would have h ad to have pulled the hammer back, either with his thumb or h is o ther hand, and pull the trig g er for that g

un to g o off. A n d t h en t o do the second shot, h e would have h a d to have pulled t h e hammer back and pulled the t r i gge r for the second shot. That’s intent. T o pull the hammer back and then pull the trig g er, that shows you that Dameon Mosley intended to kill B illy

Stacks. Bu t we don’t know if it was a sing le o r double-action revolver. Okay ? I f i t
was a double-action revolver, he has to pull the trig g er e ach time the gun f ires. A nd each time he pulls the trig g er, that’s intent to kill, every sing le time every

day

.
In rebuttal arg

ument, the State ag a in focused on the nature of revolvers: Two shots, two pulls of the trig g er. Now , certainly , if it w as a sing le-action revolver that Mr. Mosley is h aving to pull the trig g er or pull the hammer back and then pull the trig g er twice, that would be better for the State. I t tak e s a lot more effort to do that. W e’ve all seen the Old W e st movies. I t doesn’t appear from the video that’s what this is. This is a double-action revolver. B ut that m eans y o u heard f rom Stacey Phetteplace, y ou’re g oing to need at least 8 pounds — s o m e wh e r e from 8 and 15 pounds is standard for double-action revolvers, to pull that trig g er back and have it fire.

Defense counsel failed to app re ciate the sig nificance of the r evolver. Instead, during closing

argument counsel sidestepped the issue:7 Sing le-action, double-action revolver, we don’t h ave the gun. W e don’t know what the capabilities o f the gun were. We don’t know what the firing pattern had to be. W e don’t know whether it had to be cocked or not cocked. W e don’t know any of that information. So y ou can’t make assumptions on evidence y ou don’t have, but yo u can use y our c ommon sense a

bout what happens when there is a strug g le and a gun is in the middle of that strug g le.

Defense counsel w as correct that they did not have the actual gun, and the specif i c characteristics

of the actual gun were un k nown. B ut the evidence the jury did have showed that the gun was a revolver, and the jury ’s common sense must be informed by that fact.

Of course, t h e b e st approach would be to have the gun itself e x amined and tested to
determine whether the gun is defective. I f n o t , t h e gun should be ex amined to determine the pull

w ei g h t o f the trig g e r, e specially if it is a double-action revolver. B ut in cases such as Appellant’s

where the gun is n ever recovered y et it is at least clear that the weapon was a revolver, attorney s on
both sides of the aisle must be aware that this is a sig nificant fact o r i n the case. E ven without the

actual revolver, being cog niz ant o f the mechanics of how revolvers work in g eneral will allow
prosecutors and defense counsel to not only know how to rebut a “gun just w ent off” argument, but

to assess whether such an argument is e ven viable. W hile attorney s could m a k e t hat a ssessment throug h their own judg ment if they are familiar with revolver s , t h e y would all be well-served by consulting with an ex pert w h o c o u l d , like Phetteplace in the case before us, present important testimony at trial.

W h en a revolver is involved, how those particular f irearms w ork go e s t o t h e v e ry heart of

intent. Sing le-action revolvers require the very deliberate action of cocking th e h a m mer. Doubleaction r e volvers, althoug h not requiring the hammer to be manually cocked, require forceful trig g er8

pulls. 2 In my

view, the prosecutor correctly handled the fact that Appellant used a revolver.

W e need to put an e nd to meritless “the gun just went off” arguments. Almost all revolvers

do not accidentally “just g o off.” As I said before, it is v irtually impossible for a r evolver to g o o ff

without deliberate action. See Piper , 2019 W L 4315756, at * 7

. N o t o n l y d o revolvers require an
intentional pull of the trig g er, sing le-action revolvers require the hammer to b e manually cocked, and

double-action revolvers require much more force to pull the trig g er when the hammer is not already

cocked. I f a double-action r evolver’s hammer is cocked, then the same deliberateness is present as
it would be with a sing le-action. W hen a revolver is fired, it is almost never a n accident. T h a t Appellant fired it twice seals the deal.

F iled: April 12, 2023 Publish

2 There are, of course, ex ceptions t o t h e ge n e ral rule, and revolvers ex ist outside of the
s i ng le-action and double-action, such as the W ebley

- F osbery Automatic Revolver or the M at eb a Model 6 Unica. I f the evidence shows the gun is, in fact, a n automatic revolver, counsel on both sides ag ain must be aware how this could chang e their trial strateg ies.