                              NUMBER 13-17-00207-CV

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


TEXAS DEPARTMENT OF
PUBLIC SAFETY,                                                                           Appellant,

                                                v.

VERNON ANTHONY LUCICH,                                                                    Appellee.


                  On appeal from the County Court at Law No. 5
                           of Nueces County, Texas.


                             MEMORANDUM OPINION
  Before Chief Justice Contreras and Justices Benavides and Valdez 1
               Memorandum Opinion by Justice Valdez



        1 Retired Thirteenth Court of Appeals Chief Justice Rogelio Valdez, assigned to this Court by the

Chief Justice of the Supreme Court of Texas pursuant to the government code. See TEX. GOV’T CODE ANN.
§ 74.003 (West, Westlaw through 2017 1st C.S.).
       By one issue, appellant the Texas Department of Public Safety (the Department)

contends that the trial court improperly overruled the Department’s denial of an

application for a license to carry a handgun filed by appellee, Vernon Anthony Lucich.

We reverse and render.

                    I.     STANDARD OF REVIEW AND APPLICABLE LAW

       On appeal, we determine as a question of law whether the Department’s decision

to deny an application for a handgun license is supported by a preponderance of the

evidence. Tex. Dep’t of Pub. Safety v. Manwell, 236 S.W.3d 905, 907 (Tex. App.—

Corpus Christi 2007, no pet.). We perform a de novo review of a trial court’s judgment

overruling the Department’s decision to deny an application. Id.

       An applicant seeking a license to carry a handgun in Texas may submit a

completed application to the Department. TEX. GOV’T CODE ANN. § 411.174 (West,

Westlaw through 2017 1st C.S.). If the Department denies the application, the applicant

may request a hearing that shall be scheduled in the appropriate justice court in the

applicant’s county of residence. Id. § 411.180 (West, Westlaw through 2017 1st C.S.).

The justice court will then determine if the denial is supported by a preponderance of the

evidence at a hearing where the Department and the applicant can present evidence. Id.

“If the court determines that the denial . . . is not supported by a preponderance of the

evidence, the court shall order the [D]epartment to immediately issue . . . the license to

the applicant or license holder.” Id. The Department may then appeal that ruling by filing

a petition in the county court at law in the county where the applicant resides for a trial de

novo without a jury. Id.




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       To be eligible for a license to carry a handgun, an applicant “must be fully qualified

under applicable federal and state law to purchase a handgun.” Id. § 411.172(9) (West,

Westlaw through 2017 1st C.S.). Federal law prohibits any person “who has been

convicted in any court of a misdemeanor crime of domestic violence” to possess a firearm.

18 U.S.C.A. § 922(g)(9) (West, Westlaw through P.L. 115–281); see Voisine v. United

States, 136 S. Ct. 2272, 2274 (2016) (“Congress extended the federal prohibition on

firearms possession by convicted felons to persons convicted of a ‘misdemeanor crime

of domestic violence . . . .’”). 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.

18 U.S.C.A. § 921(a)(33)(A) (West, Westlaw through P.L. 115–281).             However, the

applicant need not have been convicted of an offense which specified the relationship

between the applicant and the victim as a discrete element of the crime. United States v.

Hayes, 555 U.S. 415, 418 (2009) (construing the phrase “misdemeanor crime of domestic

violence” and explaining that “to exclude the domestic abuser convicted under a generic

use-of-force statute would frustrate Congress’ manifest purpose” and would render the

statute “a dead letter in some two-thirds of the States because in 1996, only about one-

third of them had criminal statutes specifically proscribing domestic violence”). So long

as the record shows that the applicant was convicted of a prior offense against a spouse




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or former spouse, under section 922(g)(9), the applicant is prohibited from possessing a

firearm. Id.

                                         II.      THE EVIDENCE

       The trial court admitted evidence that in 1992, in trial cause number 91-13989,

Lucich was convicted of the first-degree misdemeanor offense of battery in violation of

Florida Statute section 784.03. 2 See FLA. STAT. ANN. § 784.03 (West, Westlaw through

2018 R.S.). Pursuant to section 784.03, a person commits battery when the person

“actually and intentionally touches or strikes another person against the will of the other”

or “[i]ntentionally causes bodily harm to another person.” Id. Originally, Lucich was

charged with sexual battery, and the indictment identified the victim of the sexual assault

as Lucich’s wife in the criminal report affidavit in court cause number 91-13989, which

was admitted into evidence by the trial court. The trial court admitted the Florida trial

court’s order correcting judgment and sentence ordering that Lucich’s conviction of sexual

battery be set aside and that the judgment be amended to show that Lucich was convicted

of battery pursuant to section 784.03. See id. The criminal report states that “the victim

identified her husband as the individual who sexually assaulted her.” During the hearing

concerning his application to carry a handgun license, Lucich admitted that he was

convicted of battery and that the victim was his spouse or former spouse. 3

                                           III.    DISCUSSION

       In the trial court, Lucich argued that the Florida battery statute did not include

domestic violence as an element and that there is no evidence that the statute has been


       2 The trial court admitted the Department’s evidence over Lucich’s objection that the documents
were hearsay.
       3   Lucich could not recall whether the couple had already divorced when the incident occurred.


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“interpreted by Florida as being a domestic violence issue.” Specifically, Lucich stated,

the order “doesn’t allege any family violence” or that “the victim was related.”

       As previously set out, the United States Congress defined a “misdemeanor crime

of domestic violence” to include an offense committed by a person who had a specified

domestic relationship with the victim, and the United States Supreme Court has ruled that

it does not matter whether the pertinent misdemeanor statute specifically set out that

domestic violence is an element of the crime. Hayes, 555 U.S. at 418. Thus, even though

the Florida battery statute does not specify that it involves domestic abuse, it was not

required to do so for purposes of section 922(g)(9). Id.; see 18 U.S.C.A. § 922(g)(9).

Therefore, the trial court erred if it made its ruling on this basis.

       Moreover, based upon our de novo review, we conclude that the Department

proved by a preponderance of the evidence that: (1) Lucich was a current or former

spouse of the victim; (2) Lucich was convicted of a first-degree misdemeanor offense;

and (3) one element of the offense Lucich committed is the use or attempted use of

physical force. See 18 U.S.C.A. § 921(a)(33)(A) (setting out disqualification elements);

FLA. STAT. ANN. § 784.03; see also United States v. Castleman, 572 U.S. 157, 161 (2014)

(construing the meaning of the phrase “the use of physical force” to include “the degree

of force that supports a common-law battery conviction” and holding “that Congress

incorporated the common-law meaning of ‘force’—namely, offensive touching—in §

921(a)(33)(A)’s definition of a ‘misdemeanor crime of domestic violence’”). Therefore, the

trial court erred in determining that the Department’s denial of Lucich’s firearm license

was not supported by a preponderance of the evidence. See TEX. GOV’T CODE ANN. §




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411.172(9) (requiring that the applicant be qualified to possess a firearm under federal

law). Accordingly, we sustain the Department’s sole issue.

                                   IV.    CONCLUSION

      We reverse the trial court’s judgment and render a judgment denying Lucich’s

application for a license to carry a handgun.



                                                       ROGELIO VALDEZ,
                                                       Justice



Delivered and filed the
14th day of February, 2019.




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