Opinion issued November 27, 2018




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-17-00603-CV
                            ———————————
          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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