LAW SPECIFIC TO THIS CASE

The state accuses the defendant of having committed the offense of possession of or going with a firearm on liquor-licensed premises.

Relevant Statutes

A person commits the offense of possession of a firearm on liquor-licensed premises if he intentionally, knowingly, or recklessly possesses or goes with a firearm on the premises of a business that has a [permit/license] issued under chapter [25/28/32/69/74] of the Texas Alcoholic Beverage Code, if the business derives 51 percent or more of its income from the sale or service of alcoholic beverages for on-premises consumption, as determined by the Texas Alcoholic Beverage Commission under section 104.06 of the Texas Alcoholic Beverage Code.

Definitions

Firearm

A “firearm” means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use.

[Include the following if applicable.]

“Firearm” does not include a firearm that may have, as an integral part, a folding knife blade and that is:

1. an antique or curio firearm manufactured before 1899; or
2. a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.

[Continue with the following.]

Handgun

A “handgun” means any firearm that is designed, made, or adapted to be fired with one hand.

Possession

“Possession” means actual care, custody, control, or management.

Premises

“Premises” means a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk, or walkway, parking lot, parking garage, or other parking area.

Intentionally Possessing or Going with a Firearm

A person intentionally possesses or goes with a firearm if the person has the conscious objective or desire to possess or go with a firearm.

Knowingly Possessing or Going with a Firearm

A person knowingly possesses or goes with a firearm if the person is aware that he is possessing or going with a firearm.

Recklessly Possessing or Going with a Firearm

A person recklessly possesses or goes with a firearm if the person is aware of the substantial and unjustifiable risk that he is possessing or going with a firearm but consciously disregards that risk, and the risk is of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all of the circumstances, as viewed from the person’s standpoint.

Knowingly on the Premises of a Business Licensed for the Sale or Service of Alcoholic Beverages for On-Premises Consumption

A person is knowingly on the premises of a business licensed for the sale or service of alcoholic beverages for on-premises consumption if he is aware that he is on the premises of a business that is licensed for or has a permit for the sale or service of alcoholic beverages for on-premises consumption and that derives 51 percent or more of its income from the sale or service of alcoholic beverages.

Recklessly on the Premises of a Business Licensed for the Sale or Service of Alcoholic Beverages for On-Premises Consumption

A person is recklessly on the premises of a business licensed for the sale or service of alcoholic beverages if the person is aware of the substantial and unjustifiable risk that he is on the premises of a business that is licensed for or has a permit for the sale or service of alcoholic beverages and that derives 51 percent or more of its income from the sale or service of alcoholic beverages but consciously disregards that risk, and the risk is of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all of the circumstances, as viewed from the person’s standpoint.

Application of Law to Facts

You must determine whether the state has proved, beyond a reasonable doubt, five elements. The elements are that—

1. the defendant, in [county] County, Texas, on or about [date], possessed or went with a firearm on the premises of [name of business];
2. the defendant did this either intentionally, knowingly, or recklessly;
3. [name of business] was a business that had a [permit/license] under chapter [25/28/32/69/74] of the Texas Alcoholic Beverage Code;
4. [name of business] derived 51 percent or more of its income from the sale or service of alcoholic beverages for on-premises consumption, as determined by the Texas Alcoholic Beverage Commission under section 104.06 of the Texas Alcoholic Beverage Code; and
5. the defendant knew that, or was reckless about whether, he was on the premises of a business licensed for the sale or service of alcoholic beverages for on-premises consumption and that derives 51 percent or more of its income from the sale or service of alcoholic beverages.

You must all agree on the elements 1 through 5 listed above.

If you all agree that the state has failed to prove, beyond a reasonable doubt, any one of elements 1 through 5 listed above, you must find the defendant “not guilty.”

If you all agree that the state has proved, beyond a reasonable doubt, all five of the elements listed above, you must find the defendant “guilty.”

[Include the following if the evidence raises the defense.]

If you all agree that the state has proved, beyond a reasonable doubt, each of the five elements listed above, you must next consider whether the defendant is not guilty because he carried a handgun license.

Handgun-License Defense

The offense of possessing a firearm on liquor-licensed premises does not apply to a person who (1) was carrying a handgun on the premises; (2) holds a license to carry a handgun issued under chapter 411, subchapter H, of the Texas Government Code; and (3) was not given effective notice under [include all that are applicable: section 30.06 of the Texas Penal Code/section 30.07 of the Texas Penal Code/section 411.204 of the Texas Government Code].

Burden of Proof

The defendant is not required to prove the handgun-license defense. Rather, the state must prove, beyond a reasonable doubt, that the handgun-license defense does not apply to the defendant’s conduct.

Application of Law to Facts

To decide whether the handgun-license defense applies, you must determine whether the state has proved, beyond a reasonable doubt, that either—

1. the defendant was carrying a firearm other than a handgun;
2. the defendant was not carrying a license to carry a handgun that was issued under chapter 411, subchapter H, of the Texas Government Code;
3. the defendant was given effective notice under [include all that are applicable: section 30.06 of the Texas Penal Code/section 30.07 of the Texas Penal Code/section 411.204 of the Texas Government Code].

You must all agree that the state has proved, beyond a reasonable doubt, either element 1, 2, or 3 listed above. You need not agree on which of these elements the state has proved.

If you find that the state has failed to prove, beyond a reasonable doubt, element 1, 2, and 3 listed above, you must find the defendant “not guilty.”

If you all agree the state has proved, beyond a reasonable doubt, each of the elements of the offense of possession of a weapon on liquor-licensed premises, and you all agree the state has proved, beyond a reasonable doubt, either element 1, 2, or 3 listed above, you must find the defendant “guilty.”

[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]