Texas Department of Public Safety v. Vernon Anthony Lucich
This text of Texas Department of Public Safety v. Vernon Anthony Lucich (Texas Department of Public Safety v. Vernon Anthony Lucich) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
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.
2 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
3 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.
4 “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
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