LAW SPECIFIC TO THIS CASE

The state accuses the defendant of having committed the offense of possession and carrying of a handgun while having a prior conviction for domestic assault.

Relevant Statutes

A person commits the offense of carrying a handgun while having a prior conviction for domestic assault if he intentionally, knowingly, or recklessly carries a handgun on or about his person, and the defendant was not [choose only what was pleaded by the state: on his own premises/on premises under his control/inside of or directly en route to a motor vehicle [or watercraft] that was owned by the defendant or under his control], and at the time of the offense, the defendant had been convicted of the misdemeanor offense of assault that involved a member of the defendant’s family or household, and the defendant possessed the handgun before the fifth anniversary of [the later of] [choose only what was pleaded by the state: the date of the defendant’s release from confinement following conviction for the assault/[or] the date of the defendant’s release from community supervision following conviction for the assault].

Definitions

Affinity

Two individuals are related to each other by affinity if they are married to each other or the spouse of one of the individuals is related by consanguinity to the other individual, and the ending of a marriage by divorce or the death of a spouse ends relationships by affinity created by that marriage unless a child of that marriage is living, in which case the marriage is considered to continue as long as a child of that marriage lives.

Consanguinity

Two individuals are related to each other by consanguinity if one is a descendant of the other or they share a common ancestor, and an adopted child is considered to be a child of the adoptive parent for this purpose.

Family

“Family” includes (1) individuals related by consanguinity or affinity, (2) individuals who are former spouses of each other, (3) individuals who are the parents of the same child, without regard to marriage, and (4) a foster child and foster parent, without regard to whether those individuals reside together.

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.

Household

“Household” means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.

Member of a Household

“Member of a household” includes a person who previously lived in a household.

Possession

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

Premises

“Premises” includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent.

Intentionally Carrying a Handgun on or about His Person

A person intentionally carries a handgun on or about his person if the person has the conscious objective or desire to carry a handgun on or about his person.

Knowingly Carrying a Handgun on or about His Person

A person knowingly carries a handgun on or about his person if the person is aware that he is carrying a handgun on or about his person.

Recklessly Carrying a Handgun on or about His Person

A person recklessly carries a handgun on or about his person if the person is aware of the substantial and unjustifiable risk that he is carrying a handgun on or about his person, 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.

Knowing that the Person Has Been Convicted of the Class A Misdemeanor Offense of Assault Involving a Member of the Person’s Family or Household

A person knows that he has been convicted of the class A misdemeanor offense of assault involving a member of the person’s family or household if the person is aware that he has a prior conviction for the offense of class A misdemeanor assault involving a member of the person’s family or household.

Reckless about whether the Person Has Been Convicted of the Class A Misdemeanor Offense of Assault Involving a Member of the Person’s Family or Household

A person is reckless about whether he has been convicted of the class A misdemeanor offense of assault involving a member of the person’s family or household if the person is aware of the substantial and unjustifiable risk that he has a prior conviction for the class A misdemeanor offense of assault involving a member of the person’s family or household 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, seven elements. The elements are that—

1. the defendant, in [county] County, Texas, on or about [date], possessed and carried a handgun on or about his person;
2. the defendant did this either intentionally, knowingly, or recklessly;
3. at the time of the carrying of the handgun, the defendant had been convicted of the class A misdemeanor offense of assault causing bodily injury on [date], in [cause number], in [court], in [county] County, Texas;
4. the assault involved a member of the defendant’s family or household;
5. at the time of the carrying of the handgun, the defendant knew that, or was reckless about whether, he had a prior conviction for the class A misdemeanor offense of assault involving a member of the defendant’s family or household;
6. the defendant carried the handgun before the fifth anniversary of [the later of] [choose only that which the state has pleaded: the date of the defendant’s release from confinement following the conviction for the assault/[or] the date of the defendant’s release from community supervision following conviction for the assault]; and
7. at the time that the defendant carried the handgun, the defendant was not [choose only that which the state has pleaded: on his own premises/on premises under his control/inside of or directly en route to a motor vehicle or watercraft that was owned by the defendant or under his control].

You must all agree on the elements 1 through 7 listed above.

If you all agree that the state has failed to prove, beyond a reasonable doubt, any one of elements 1 through 7 listed above, you must find the defendant “not guilty.”

If you all agree that the state has proved, beyond a reasonable doubt, all seven 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 seven 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 illegally carrying a handgun does not apply to a person who is carrying (1) a license to carry a handgun that was issued under chapter 411, subchapter H, of the Texas Government Code; and (2) a handgun that is concealed or in a holster.

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 not carrying a license to carry a handgun that was issued under chapter 411, subchapter H, of the Texas Government Code; or
2. the defendant was carrying a license to carry a handgun that was issued under chapter 411, subchapter H, of the Texas Government Code, but the handgun that the defendant was carrying was not concealed and was not in a holster.

You must all agree that the state has proved, beyond a reasonable doubt, either element 1 or 2 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, elements 1 and 2 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 carrying a handgun while having a prior conviction for domestic assault, and you all agree the state has proved, beyond a reasonable doubt, either element 1 or 2 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.]