Opinion issued November 27, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-17-00603-CV
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TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant
V.
JOHN BRYAN MARSHALL, Appellee
On Appeal from the County Court at Law No. 5
Fort Bend County, Texas
Trial Court Case No. 17-CCV-059408
OPINION
Texas law requires an applicant for a license to carry a handgun to meet certain
criteria, including being “fully qualified under applicable federal and state law to
purchase a handgun.” See TEX. GOV’T CODE § 411.172(a)(9). Federal law, in turn,
bars any person convicted of a misdemeanor crime of domestic violence from
possessing a firearm. 18 U.S.C. § 922(g)(9).
In this case, the county court at law concluded that appellee John Marshall
was entitled to a handgun license because the record did not show that Marshall had
been convicted of a misdemeanor crime of domestic violence or that he was
otherwise ineligible for the license he sought. Applying section 922(g)(9)’s plain
terms to the record before us, we agree. We therefore affirm.
Background
In April 2015, John Bryan Marshall was convicted of misdemeanor assault by
contact. See TEX. PENAL CODE § 22.01(a)(3). The charge to which he pleaded guilty
did not specify the victim.
Marshall later applied for a license to carry a handgun. The Department of
Public Safety (“the Department”) denied Marshall’s application, concluding that he
was ineligible under 18 U.S.C. § 922(g)(9). A justice court affirmed the denial. See
TEX. GOV’T CODE § 411.180(a),(c).
Marshall then sought a trial de novo in a county court at law. See id.
§ 411.180(e). At trial, the Department argued that Marshall was ineligible under 18
U.S.C. § 922(g)(9) for a license because his assault by contact conviction was a
misdemeanor crime of domestic violence. In support, the Department relied on
(1) Marshall’s assault by contact guilty plea—which does not specify a victim;
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(2) divorce papers showing that Marshall was married to his now ex-wife at the time
that he committed the assault on an unnamed victim; and (3) an earlier misdemeanor
information, with an accompanying complaint, charging Marshall with assault of his
wife—a charge of which he was never convicted. Neither the Department nor
Marshall called any witnesses.
The county court at law found in Marshall’s favor. It concluded that the record
did not show that Marshall had been convicted of a crime of domestic violence. The
Department appeals. The only issue on appeal is whether the record shows that
Marshall was ineligible for a handgun license under the Texas and federal statutes.
Analysis
Texas law requires the denial of an application for a handgun license to be
supported by a preponderance of the evidence. See TEX. GOV’T CODE
§ 411.180(c),(e); see also Satterfield v. Tex. Dep’t of Pub. Safety, 221 S.W.3d 909,
913 (Tex. App.—Beaumont 2007, no pet.). If a court determines that a denial is not
supported by a preponderance of the evidence, the Texas Government Code directs
the court to “order the department to immediately issue. . . the license to the
applicant.” See TEX. GOV’T CODE § 411.180(c). Whether the Department’s decision
is supported by a preponderance of the evidence is a question of law. See Tex. Dep’t
of Pub. Safety v. Manwell, 236 S.W.3d 905, 907 (Tex. App.—Corpus Christi 2007,
no pet.).
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An applicant for a license to carry a handgun in Texas must meet the criteria
outlined in the License to Carry a Handgun Act. See e.g. TEX. GOV’T CODE
§ 411.172 (a)(1–14). Relevant here, an applicant “must be fully qualified under
applicable federal and state law to purchase a handgun.” Id. § 411.172(a)(9).
Federal law prohibits any person “who has been convicted in any court of a
misdemeanor crime of domestic violence, to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm or ammunition.” 18
U.S.C. § 922(g)(9) (emphasis added). A misdemeanor crime of domestic violence is
an offense that “(i) is a misdemeanor under Federal, State or Tribal law; and (ii) has,
as an element, the use or attempted use of physical force, or the threatened use of a
deadly weapon, committed by a current or former spouse, parent, or guardian of the
victim, by a person with whom the victim shares a child in common, by a person
who is cohabiting with or has cohabited with the victim as a spouse, parent, or
guardian, or by a person similarly situated to a spouse, parent or guardian of the
victim.” Id. § 921(a)(33)(A).
We apply statutes as they are written. So the question under 18 U.S.C.
§ 922(g)(9) is whether Marshall was “convicted” of a crime of “domestic violence.”
The United States Supreme Court has held that, to constitute a crime of
domestic violence, the offense for which one was convicted need not list the
relationship between the offender and victim as a discrete element of the crime.
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United States v. Hayes, 555 U.S. 415, 418, 129 S. Ct. 1079, 1082–84, (2009). But
the record must show “a prior conviction that was in fact, for ‘an offense . . .
committed by’ the defendant against a spouse or other domestic victim.” Id. at 421,
129 S. Ct. at 1084. Because this record makes no such showing, we affirm.
Assuming all the evidence submitted was properly before the trial court, the
record does not establish that Marshall was convicted of assaulting his wife, or that
he was otherwise convicted of a crime of domestic violence. As explained, the
Department’s evidence on this point consisted of Marshall’s guilty plea to assault by
contact, without a specified victim; papers suggesting he was married at the time;
and an earlier information and related complaint charging him with conduct he was
never convicted of committing.
To begin, Marshall’s assault conviction, coupled with divorce papers, do not
show, by a preponderance of the evidence or otherwise, that he was convicted of a
crime of domestic violence. Marshall pleaded guilty to assault by contact, and the
information (i.e., charge) to which he pleaded guilty specifies no victim. See TEX.
PENAL CODE § 22.01(a)(3). The Department offered divorce papers to show that
Marshall was married at the time of this assault. And the court admitted the divorce
papers for the limited purpose of establishing that Marshall was married to Krysten
Marshall at the relevant time. But that does not establish the identity of the
(unnamed) assault victim. We cannot conclude, by the preponderance of the
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evidence, that Marshall’s victim was his wife merely because he was married at the
time that he assaulted someone. See Satterfield, 221 S.W.3d at 914.
The Department’s other evidence—an earlier, and in relevant part superseded,
charge—does not bridge the gap. That is because 18 U.S.C. § 922(g)(9)’s terms
require a “conviction”—not a mere charge. The two are distinct.
A charge is an accusation. The State charges a defendant and initiates a
misdemeanor prosecution by presenting an information accompanied by a
complaint. See State v. Drummond, 501 S.W.3d 78, 81 (Tex. Crim. App. 2016); see
also TEX. CODE CRIM. PROC. art. 21.22. An information is a charging document: it
is “a written statement filed and presented [o]n behalf of the State by the district or
county attorney, charging the defendant with an offense which may by law be so
prosecuted.” TEX. CODE CRIM. PROC. art. 21.20.1 Charging documents inform the
accused of the alleged facts surrounding the offense with which he is charged so he
may prepare a defense. See, e.g., Kindley v. State, 879 S.W.2d 261, 262–63 (Tex.
App.—Houston [14th Dist.] 1994, no pet.).
A conviction, by contrast, requires the State to prove its allegations beyond a
reasonable doubt. TEX. CODE CRIM. PROC. art. 38.03; Crenshaw v. State, 378 S.W.3d
1
A complaint to support an information is a sworn affidavit, duly attested to by the
district or county attorney, that is made “by some credible person charging the
defendant with an offense.” TEX. CODE CRIM. PROC. arts. 2.04 & 21.22; State v.
Drummond, 501 S.W.3d 78, 81 (Tex. Crim. App. 2016).
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460, 465 (Tex. Crim. App. 2012). It is a fundamental tenet that “[a]ll persons are
presumed to be innocent and no person may be convicted of an offense unless each
element of the offense is proved beyond a reasonable doubt.” TEX. CODE CRIM.
PROC. art. 38.03.
Likewise, the fact that one “has been arrested, confined, or indicted for, or
otherwise charged with, the offense gives rise to no inference of guilt at his trial.”
Id. An indictment or information “is not [itself] evidence” that the named defendant
committed the charged conduct. See Med. Disc. Pharmacy, L.P. v. State, No. 01-13-
00963-CV, 2015 WL 4100483, at *5 (Tex. App.—Houston [1st Dist.] July 7, 2015,
pet. denied) (mem. op.).
Thus, an unproven, stricken accusation does not show by a preponderance of
the evidence that Marshall was convicted of any crime of domestic violence. Yet
that is what we face here. The Department relied on an earlier (in relevant part
superseded) information and complaint—mere charges—to try to prove that
Marshall was convicted of assaulting his wife. It is true that Marshall was once
charged with assaulting his wife. But Marshall was never convicted of this charge.
Instead, the charge against Marshall was amended to strike any allegation that
his wife was the victim. When part of an information (charging document) is
properly stricken, that portion is eliminated, and the defendant is charged with—and
relatedly, can be convicted only of—the information’s terms, as amended. See TEX.
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CODE CRIM. PROC. arts. 28.10 and 28.11; Thomas v. State, 825 S.W.2d 758, 761
(Tex. App.—Houston [14th Dist.] 1992, no pet.) (when State amends a portion of an
indictment, the amendment supersedes the original as to the portion amended).
Therefore, any allegation that Marshall assaulted his wife was superseded and
eliminated. Marshall was no longer even charged with assaulting his wife. His only
conviction in this record was for assault of an unidentified victim.
The record thus does not show “a prior conviction that was in fact, for ‘an
offense . . . committed by’ the defendant against a spouse or other domestic victim.”
Hayes, 555 U.S. at 421, 129 S. Ct. at 1084 (interpreting 18 U.S.C. § 922(g)(9)). The
fact that Marshall was once charged with assaulting his wife, without more, cannot
support the conclusion that he was “convicted” of assaulting her. Nor can the fact
that Marshall was married at the time that he assaulted an unspecified victim.
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Conclusion
Because this record does not show by a preponderance of the evidence that
Marshall was ineligible for his requested license, we affirm.2
Jennifer Caughey
Justice
Panel consists of Chief Justice Radack and Justices Brown and Caughey.
Justice Brown, concurring.
2
In light of our holding, we need not address whether Marshall’s conviction fulfills
18 U.S.C. § 921(a)(33)(A)’s physical force requirement.
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