Gaitan v. State
2012 Tex. App. LEXIS 10426
| Tex. App. | 2012Background
- Appellant, Jesse Antonio Gaitan, was convicted of tampering with physical evidence and unlawful possession of a firearm by a felon.
- The weapon was a stolen 45-caliber handgun found by police near a carport around midnight after responding to a disturbance.
- Gaitan was seen discarding a metallic object near the doorway as officers approached; he did not stop and attempted to walk away.
- Witnesses, including his estranged wife, testified he previously possessed the handgun; he admitted handling a gun on an earlier date.
- The State argued the discarded object and its recovery near where the object was discarded, plus prior possession, supported possession and concealment.
- The trial court and reviewing court rejected arguments that the evidence failed to prove concealment beyond reasonable doubt; the judgment was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there legally sufficient evidence to prove concealment of the firearm? | Gaitan dispossessed himself of the firearm; no concealment occurred. | Disposing of the firearm does not constitute concealment under §37.09. | Yes; evidence supported concealment beyond reasonable doubt. |
| Was there legally sufficient evidence to prove unlawful possession of a firearm by a felon? | Prior possession plus control of the weapon established possession. | Evidence did not show current possession beyond reasonable doubt. | Yes; evidence supported possession by a felon. |
Key Cases Cited
- Rotenberry v. State, 245 S.W.3d 583 (Tex.App.-Fort Worth 2007) (concealment means to hide or remove from sight)
- Hollingsworth v. State, 15 S.W.3d 586 (Tex.App.-Austin 2000) (concealment defined as removal from discovery/observation)
- Laster v. State, 275 S.W.3d 512 (Tex.Crim.App.2009) (defer to reasonable inferences drawn by factfinder)
- Thornton v. State, 377 S.W.3d 814 (Tex.App.-Amarillo 2012) (dispossession of incriminating evidence can support concealment theory)
- Mayer v. State, 309 S.W.3d 552 (Tex.Crim.App.2010) (lack of evidence of ability to pay requires modification of judgment)
- Tovar v. State, 978 S.W.2d 584 (Tex.Crim.App.1998) (definition of actio malum prohibitum)