HOUSTON – A Texas man convicted of misdemeanor assault by contact is still entitled to a license to carry a handgun, the Court of Appeals for the 1st District of Texas determined Nov. 27.
"Because this record does not show by a preponderance of the evidence that (John Bryan) Marshall was ineligible for his requested license, we affirm," the court's opinion states.
Chief Justice Sherry Radack and Justices Harvey Brown and Jennifer Caughey authored the opinion.
The ruling pointed out that while state law says a person has to be “fully qualified under applicable federal and state law to purchase a handgun,” in order to get a license, the federal law prevents “any person convicted of a misdemeanor crime of domestic violence from possessing a firearm.”
The Texas Department of Public Safety first denied Marshall's application for a license and a justice court affirmed that denial.
The County Court at Law No. 5 in Fort Bend County gave Marshall the OK for the license because there was no record that he was convicted of a misdemeanor crime of domestic violence or that there was any other reason why he should be ineligible for the handgun license.
While the record didn’t show Marshall was convicted of a misdemeanor crime of domestic violence, he was convicted of misdemeanor assault by contact in April 2015.
When Marshall brought the case to a trial de novo in the County Court at Law, the Texas Department of Public Safety argued Marshall was ineligible because of his assault by contact conviction being a domestic violence crime.
The department presented Marshall’s assault by contact guilty plea that does not specify a victim, divorce papers that proved Marshall was married to his now ex-wife when he committed the crime on the unidentified victim, as well as details of an earlier misdemeanor on which he was never convicted, but the Court at Law still sided with Marshall.
The Appeals Court pointed out that the U.S. Supreme Court has yet to oblige a person convicted of a domestic violence crime to identify the connection between the offender and the victim.
"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," the opinion states.
Justice Brown also concurred with the ruling, but also made mention of the dangers of doing so. He pointed out that prosecutors who go for a reduced assault charge could subconsciously make it easier for someone to qualify for things like handgun licenses because a conviction of misdemeanor domestic assault isn’t on their record.
“This case is an object lesson that prosecutors must consider gun-license statutes at the time of plea and that the department must make record to show that the individual is ineligible,” Brown continued.