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defining "preponderance of the evidence" as "[t]he greater weight of evidence, not necessarily established . . . by evidence that has the most convincing force"
Summary of this case from Texas Department of Public Safety v. ManwellOpinion
No. 09-06-231 CV.
Submitted January 25, 2007.
Decided April 19, 2007.
Appeal from the County Court at Law No. 1, Jefferson County, Alfred S. Gerson, J.
Daniel D. Clayton, Daniel D. Clayton, P.C., Beaumont, for appellant.
Steve F. Moninger, Austin, for appellee.
Before McKEITHEN, C.J., GAULTNEY and KREGER, J.J.
OPINION
The Texas Department of Public Safety denied William Chris Satterfield's 2005 application for renewal of his concealed handgun license because of a 1962 misdemeanor conviction for aggravated assault. The Department contends the offense, though a misdemeanor at the time of conviction, is a felony for purposes of Satterfield's eligibility for the concealed handgun license. At Satterfield's request, a hearing was conducted before a justice of the peace. See TEX. GOV'T CODE ANN. § 411.180(a)-(c) (Vernon 2005). The court overturned the denial. The Department appealed to the county court-at-law. See TEX. GOV'T CODE ANN. § 411.180(e) (Vernon 2005). That court considered the case de novo and affirmed the Department's decision. Satterfield appeals the ruling of the county court-at-law. We reverse the court's order and remand the cause for a new evidentiary hearing.
Satterfield obtained a license but then was denied renewal of the license after the statute was amended. The concealed handgun license statute as amended in 2003 provides in part as follows:
For the purposes of this section, an offense under the laws of this state, another state, or the United States is:
(1) a felony if the offense, at the time of a person's application for a license to carry a concealed handgun:
(A) is designated by a law of this state as a felony;
(B) contains all the elements of an offense designated by a law of this state as a felony: or
(C) is punishable by confinement for one year or more in a penitentiary[.]
TEX. GOV'T CODE ANN. § 411.172(b) (Vernon Supp. 2006) (emphasis added).
The Department contends Satterfield's request for findings of fact and conclusions of law did not extend the appellate deadline, and this Court lacks jurisdiction. We disagree. There are fact issues concerning Satterfield's 1962 conviction that bear upon the classification of that conviction for purposes of the concealed handgun statute. The appellate deadlines were extended, the appeal was timely filed, and this Court has jurisdiction to consider the appeal. See TEX.R.APP. P. 26.1(a)(4).
THE CONCEALED HANDGUN LICENSING STATUTE DEFINES "FELONY"
Chapter 411 of the Texas Government Code governs concealed handgun licensing. See TEX. GOV'T CODE ANN. §§ 411.171-.208 (Vernon 2005 Supp. 2006). The statute provides that a person convicted of a felony is not eligible for a license to carry a concealed handgun. See TEX. GOV'T CODE ANN. § 411.172(a)(3) (Vernon Supp. 2006). In 2003, the statute was amended to define "felony" for the purpose of the statute as, among other things, an offense designated by a law of this state as a felony "at the time of a person's application for a license to carry a concealed handgun[.]" See Act of May 24, 2003, 78th Leg., R.S., ch. 255, § 1, 2003 Tex. Gen. Laws 1162.
In a case decided under the prior licensing statute, the applicant's offense was a felony at the time of his conviction. See Tex. Dep't of Pub. Safety v. Kreipe, 29 S.W.3d 334, 335-38 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). By the time he applied for a license over twenty years later, the Legislature had reduced the type of offense to a misdemeanor. Id. Under the prior licensing statute, the applicant was disqualified nevertheless. The Fourteenth Court of Appeals stated, "Had the Legislature intended to bar licenses only to individuals convicted of felonies as defined by the criminal law as it existed at the time of enactment of the licensing law, the Legislature could have done so." Id. at 338. "If the Legislature wishes to allow individuals in Kreipe's position to obtain concealed-handgun licenses, it is free to do so." Id. In 2003, the Legislature amended the licensing statute.
This case involves the effect of that 2003 amendment on an applicant convicted for assaultive conduct in 1962. Prior to the 2003 amendment, an offense was considered a felony under the statute if the offense was a felony at the time of conviction. See Kreipe, 29 S.W.3d at 338; see also Tex. Dep't of Pub. Safety v. Randle, 31 S.W.3d 786, 788 (Tex.App.-Houston [1st Dist.] 2000, no pet.). In effect, the 2003 amendment to the concealed handgun licensing statute requires reconsideration of the offense "conduct" as viewed at the time of the application — with possible re-characterization of the offense for the purpose of the licensing statute — rather than at the time of commission of the offense.
The Penal Code states that the "general purposes of this code are to establish a system of prohibitions, penalties, and correctional measures to deal with conduct that unjustifiably causes or threatens harm to those individual or public interests for which state protection is appropriate." TEX. PEN. CODE ANN. § 1.03 (Vernon 2003) (emphasis added).
THE OFFENSE OF "AGGRAVATED ASSAULT"
"Aggravated assault" was a misdemeanor in 1962. Under then article 47, "[a]n offense which may — not must — be punishable by death or by confinement in the penitentiary is a felony; every other offense is a misdemeanor." TEX. PEN. CODE art. 47 (Vernon 1948). An "assault and battery," under the law in effect in 1962, was defined as follows:
See Act of May 10, 1955, 54th Leg., R.S., chap. 430, § 1, 1955 Tex. Gen. Laws 1143; TEX. PEN CODE art. 47 (Vernon 1948).
The use of any unlawful violence upon the person of another with intent to injure him, whatever be the means or the degree of violence used. . . . Any attempt to commit a battery, or any threatening gesture showing in itself or by words accompanying it, an immediate intention, coupled with an ability to commit a battery, is an assault.
TEX. PEN. CODE art. 1138 (1948). An assault or battery became "aggravated," but was still a misdemeanor, under any of the following circumstances:
(1) When committed upon an officer in the lawful discharge of the duties of his office, if it was known or declared to the offender that the person assaulted was an officer discharging an official duty.
(2) When committed in a Court of Justice, or in any place of religious worship, or in any place where persons are assembled for the purpose of innocent amusement.
(3) When the person committing the offense goes into the house of a private family and is there guilty of an assault and battery.
(4) When committed by a person of robust health or strength upon one who is aged or decrepit.
(5) When the instrument or means used is such as inflicts disgrace upon the person assaulted, as an assault or battery with a whip or cowhide.
(6) When a serious bodily injury is inflicted upon the person assaulted.
(7) When committed with deadly weapons under circumstances not amounting to an intent to murder or maim.
(8) When committed with premeditated design, and by the use of means calculated to inflict great bodily injury.
(9) When committed by an adult male upon the person of a female or child or by an adult female upon the person of a child.
This subsection (9) of section 1 shall not apply to the act of a person who fondles the sexual parts or places, or attempts to place his or her hand or hands upon or against the sexual parts of a male or female under the age of fourteen (14) years, or who fondles or attempts to fondle, or places or attempts to place his or her hand or hands, or any part of his or her hands upon the breast of a female under the age of fourteen (14) years, which acts are elsewhere made unlawful.
(10) When committed with a knife under circumstances not amounting to an intent to murder or maim.
Act of May 10, 1955, 54th Leg., R.S., ch. 430, § 1, 1955 Tex. Gen. Laws 1143. The potential punishment for misdemeanor aggravated assault in 1962 was a fine of at least $25 but not more than $1,000; or imprisonment in a jail [not a penitentiary] for at least one month but not more than two years; or both fine and imprisonment. See TEX. PEN. CODE art. 1148 (1948). Satterfield's punishment was a $25 fine. He claims the aggravating factor for his offense was the place the assault occurred: a bar, which, he argues, was "any place where persons are assembled for the purpose of innocent amusement[.]"
Satterfield offered no evidence at the evidentiary hearing in the county court-at-law. He refers in his brief to an affidavit attached to his answer stating (to the best of his knowledge) that the offense involved a fight in a bar.
The Legislature raised aggravated assault to a felony offense in 1973. See Act of May 24, 1973, 63rd Leg., R.S. ch. 399, § 1, sec. 22.02(c), 1973 Tex. Gen. Laws 883, 919. At that time, various aggravating factors were removed from the offense of aggravated assault: assault by an "adult male upon the person of a female"; assault committed "in any place of religious worship, or in any place where persons are assembled for the purpose of innocent amusement;" and assault "when the instrument or means used is such as inflicts disgrace upon the person assaulted, as an assault or battery with a whip or cowhide." Id., compare Act of May 10, 1955, 54th Leg. R.S., ch. 430, § 1, 1955 TEX. GEN. LAWS 1143; TEX. PEN. CODE ANN. § 22.02 (Vernon Supp. 2006). The aggravating factors in the statute at the time of Satterfield's 2005 application included the following: causing serious bodily injury to another; using or exhibiting a deadly weapon during the commission of an assault; an assault committed by a public servant acting under color of the servant's office or employment; an assault against a public servant while on duty, or in retaliation for the exercise of his duty; an assault committed in retaliation against a witness, prospective witness, or one who reports a crime; and an assault against one the actor knows is a security officer performing the officer's duty. See TEX. PEN. CODE ANN. § 22.02 (Vernon Supp. 2006).
In 1973 the Legislature repealed the Penal Code in effect at that time and replaced it with new and distinct legislation. See Act of May 24, 1973, 63rd Leg., R.S. ch. 399, §§ 3, 5, 1973 Tex. Gen. Laws 883, 993, 995. See also generally Day v. State, 534 S.W.2d 681, 683 (Tex.Crim.App. 1976) ("This Court must do its duty to insure that changes in the law effected by enactment of the new [Texas Penal] Code are not rendered meaningless by judicial construction that merely reinstates the old Code.").
The Appellate Issues
In issue one, Satterfield argues the evidence is legally insufficient to support the trial court's denial of his application. In issue two, he argues broadly the trial court erred in finding him disqualified from obtaining a concealed handgun license. Satterfield relies on the fact that his conviction was a misdemeanor in 1962, and the elements of the 1962 aggravated assault differ from the elements of an aggravated assault at the time of his license application. He contends the current classification system would make the offense for which he was convicted a misdemeanor under section 22.01 of the Penal Code; that is, an "assault," not an "aggravated assault." See TEX. PEN. CODE ANN. § 22.01 (Vernon Supp. 2006); TEX. PEN. CODE ANN. § 12.23 (Vernon 2003) ("An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500."); see also TEX. PEN. CODE ANN. § 12.41 (Vernon 2003).
Arguing the irrelevancy of the actual elements of the 1962 offense, the Department maintains section 411.172(b)(1)(B) requires a comparison with the contemporary aggravated assault statute, not the statute in effect in 1962. The Department asserts that at the time of Satterfield's renewal application, the offense of aggravated assault was designated by Texas law as a felony. Furthermore, the Department notes aggravated assault now has all the elements of a felony offense and is punishable by confinement for one year or more in a penitentiary.
A NEW EVIDENTIAEY HEARING
Under section 411.180(c) and (e), the denial of the application must be supported at the court hearing by a preponderance of the evidence. See TEX. GOV'T CODE ANN. § 411.180(c),(e) (Vernon 2005); see also McLendon v. Tex. Dep't of Pub. Safety, 985 S.W.2d 571, 574 (Tex.App.-Waco 1998), rev'd on other grounds, Tex. Dep't of Pub. Safety v. McLendon, 35 S.W.3d 632 (Tex. 2000). The statute provides that if the court determines the denial is not supported by a preponderance of the evidence, the court shall order the Department to issue the license to the applicant. See TEX. GOV'T CODE § 411.180(c), (e). The statute, in effect, places the burden of proof at the hearing on the Department to support the denial of the license. The Department may "use and introduce into evidence certified copies of governmental records to establish the existence of certain events that could result in the denial . . . of a license, under this subchapter, including records regarding convictions. . . ." Id., § 411.180(h) (Vernon 2005).
When section 411.172(b) speaks of "offense," the term encompasses the offense elements and the conduct for which the person was charged and convicted. The question here is whether the offense, as informed by the conduct in 1962, would have constituted a felony at the time Satterfield applied for the license. The only evidence submitted by the Department was proof of Satterfield's 1962 misdemeanor conviction. While some offenses that were classified as aggravated assault misdemeanors in 1962 would be designated as felonies at the time of the application, not all would be. For example, if the aggravating factor in 1962 was the causing of "serious bodily injury," the offense would be "designated by the law of this state as a felony" at the time of Satterfield's 2005 application. But if the aggravating factor in 1962 was that the assault occurred in a place "of innocent amusement," which is what Satterfield argues, that would not be an aggravating factor describing an offense "designated by the law of this state as a felony" in 2005. The Department did not submit as evidence any charging instrument or other record which set out the elements and conduct of the offense for which Satterfield was convicted. The Department provided no proof of the applicable "aggravating" factor. Without information on the applicable aggravating factor for the 1962 misdemeanor conviction, it is not possible to determine whether, at the time of Satterfield's 2005 renewal application, the offense under which he was charged and convicted would be "designated by the law of this state as a felony."
Satterfield asks this Court to reverse and reform the judgment to permit him to obtain the concealed handgun license, or order the trial court to renew the license. He asks for all further relief to which he may be entitled. The Department proved a 1962 conviction for aggravated assault. Some of the aggravating factors under the statute in effect in 1962 would constitute felonies at the time of the renewal application. The aggravated assault conviction is some evidence supporting the denial. Issue one is overruled.
The misdemeanor conviction by itself, however, is not sufficient evidence. On this record, the court could not determine the aggravating factor applicable in 1962, and could not determine if that aggravating factor was included in the aggravated assault felony statute at the time of the application. The Department had the burden to support its denial of the application by a preponderance of the evidence. See Tex. Gov't Code § 411.180(c),(e). Without proof of the aggravating factor that would give the 1962 misdemeanor conviction felony status under the licensing statute and so disqualify Satterfield, the preponderance of the evidence in the record does not support the denial. Issue two is sustained.
The evidence in the record is factually insufficient to support the court's finding of a disqualifying conviction. We reverse the trial court's denial of the license, and remand the cause for a new evidentiary hearing.
REVERSED AND REMANDED.