Unlawful Possession of Firearms – COA Affirms Conviction Based on Pieces of Shotgun


On March 7, 2013, the Texas Court of Appeals affirmed the conviction of Emmitt Starling for the unlawful possession of a firearm. According to Marissa Martinez, an ex-lover of Emmitt, Emmitt broke his gun’s stock against her car on December 29, 2010 at around 11:30 PM.

On the same day evening, Marissa had rejected Emmitt’s advances. Emmitt appeared to be intoxicated and was drinking from a Hennessy bottle. At one time during the event, Emmitt pointed the gun toward Marissa’s face. Marissa called 911 and the police took Emmitt into custody.

Houston criminal defense attorney Mario Madrid.

The State introduced two pieces of evidence, one was the remaining majority of a .410 gauge shotgun with duct tape on its trigger and the other one was the butt of a shotgun. Marissa had identified the gun pieces as being the firearm that Emmitt brandished and beat against her car on December 29, 2010. She had also identified the duct tape on the gun’s trigger.

One Police Officer, Brent Mills has testified that he found the pieces of a firearm in some bushes at the base of the staircase of Marissa’s apartment where other officers apprehended Emmitt.

He also identified that the gun pieces introduced by the State are the same pieces that he found. The jury found Emmitt guilty and assessed punishment at thirty-five years’ confinement.

In the appeal, Emmitt challenged the evidence submitted by the State to get the conviction. He argued that the trial court erred by allowing the State to introduce the items as the State failed to lay a proper foundation by showing chain of custody of the items.

The COA found based on the testimony of Marissa and various other police officers that the items introduced by the State were easily identifiable by their unique and distinct characteristic and are substantially unchanged normally and hence they do not require the introduction of a chain of custody.

Emmitt’s second argument was that the evidence was legally insufficient to prove that he possessed the firearm. The Court rejected Emmitt’s argument based on the testimony of Marissa and other police officers. Marissa had clearly described the gun in detail and identified it at the trial.

She had also testified to having seen Emmitt brandish the gun and smash it on her car. The firearm need not be in Defendant’s exclusive care, custody, control or management for the conviction of unlawful possession of firearm. The conviction can also be based on additional, independent facts and circumstances that link the Defendant to the firearm.

In this case, circumstantial evidence also linked Emmitt to the shotgun. Multiple police officers testified to having found the shotgun matching Marissa’s description near the bottom of a stairwell where Emmitt was apprehended.

There was also testimony linking together the shotgun and a specific brand of alcohol found near the shotgun with Emmitt. Therefore, the Court of Appeals confirmed the judgment of the trial court. (Starling v. State (March 2013).

If you have been charged with a gun or weapon crime in Texas, contact Madrid Law today for a free case evaluation.

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