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Click here for the full text of this decision FACTS:The appellant, Tamara Heins, brings this appeal from her conviction for the murder of her husband, John Heins, for which the jury sentenced her to eight years in prison. HOLDING:Reversed and remanded. In the guilt/innocence phase, the jury was instructed on the laws regarding murder and self-defense. The court also instructed the jury that the use of force in self-defense would not be justified “if the defendant sought an explanation from or discussion with the victim concerning the defendant’s difference with the victim while the defendant was unlawfully carrying a weapon.” As to the law regarding unlawfully carrying a weapon, the jury was instructed as follows: “Our law provides that it is unlawful for a person to intentionally or knowingly carry a handgun on or about her person. It is not an offense for a person to carry a handgun;. . . 3. is on the person’s own premises under the person’s control.” This is an incorrect statement of the law, the court decides. Under Texas Penal Code 46.15(b)(2), the third exemption to unlawfully carrying a handgun as stated in the charge should have read “is on the person’s own premises or premises under the person’s control.” By omitting the italicized words, the court committed error. The appellant was entitled to be convicted on a correct statement of the law; since the trial court failed to correctly charge the jury on the applicable law, the integrity of the verdict is thus called into doubt. The appellant’s counsel did not object to the erroneous jury charge. Using the factors listed in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985), the court determines whether the error committed by the trial court is an egregious one � that is, whether appellant had a fair and impartial trial. Considering the charge itself, the evidence, the arguments of counsel, and other relevant information, the court believes egregious error was committed. The appellant claimed that she shot the decedent in self-defense when he told her he would “break her in half,” threw off his glasses, and lunged at her. Under Texas law, the use of force is justified when the actor reasonably believes that force is immediately necessary to protect herself against an aggressor’s use (or attempted use) of unlawful force. Texas Penal Code 9.31. The use of force is not justified, however, if the actor, while unlawfully carrying a handgun, “sought an explanation from or discussion with the other person concerning the actor’s differences with the other person.” One of the exemptions to the handgun rule, however, is that the law is not violated if the person is on her own premises or premises under her control. 46.15(b)(2). The state based its case largely on the fact that, since appellant had not lived in her house for a month and had not paid that month’s mortgage payment, the premises were not “under her control.” The state argued that because the premises were not under appellant’s control, she was not eligible for the handgun exemption or, by extension, the self-defense affirmative defense. The problem arises with the omission of the two words”or premises.’ By omitting the two words and thus giving the jury an incorrect statement of the law, the charge as issued required that appellant both own the premises and have them under her control. Whether the premises were under her control is arguable; whether she owned them is not. She bought the house in 1999, making the down payment and all but one of the mortgage payments. Had a proper charge been given, a jury could have determined that appellant qualified for the third exemption to the law against unlawfully carrying a handgun. The court believes that the omission of these words constituted egregious error by both going to the basis of the case and vitally affecting appellant’s defensive theory. During deliberations, the jury asked several questions, including one which requested the definition of “‘control of residence’ as it applies.” The court responded that “control” was an issue for the jury to decide. Another question requested the Texas statute on carrying a handgun, in response to which the judge referred the jury to the charge. It is evident from these requests, the court finds, that the jury was struggling over the issue of whether the premises were under appellant’s control and whether she would therefore be eligible to claim self-defense. Thus, both the basis of the case and the main defensive theory, that is, whether appellant murdered her husband or shot him in self-defense, were affected by this error. OPINION:Hedges, C.J.; Hedges, C.J., Hudson and Seymore, JJ.

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