Ex Parte: Joseph Walton Strickland v. the State of Texas

NO. 12-24-00031-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

EX PARTE: § APPEAL FROM THE 349TH

JOSEPH WALTON STRICKLAND, § JUDICIAL DISTRICT COURT

APPELLANT § ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Joseph Walton Strickland filed a motion for rehearing, which is overruled. We withdraw
this court’s opinion dated August 29, 2024, and substitute the following opinion in its place.
Appellant was charged with unlawful possession of a firearm by a felon. This is an appeal
from the trial court’s denial of Appellant’s pretrial application for writ of habeas corpus, in which
he alleged that Texas Penal Code, Section 46.04 is facially unconstitutional because it violates his
rights pursuant to the Second Amendment to the United States Constitution. In a single issue on
appeal of the trial court’s order denying his application, Appellant argues that Section 46.04
violates his Second Amendment rights based on recent decisions by the United States Supreme
Court and the Fifth Circuit Court of Appeals. We affirm.

BACKGROUND
Because this appeal presents a facial challenge to a statute, a detailed rendition of the facts
is unnecessary for its disposition. We therefore provide only a brief procedural history.
Appellant was charged by indictment with unlawful possession of a firearm by a felon. 1
Thereafter, Appellant filed an application for writ of habeas corpus, in which he argued that Texas
Penal Code, Section 46.04 is facially unconstitutional because it violates his rights pursuant to the
Second Amendment to the United States Constitution. The trial court denied Appellant’s
application, and this appeal followed.

CONSTITUTIONALITY OF TEXAS PENAL CODE, SECTION 46.04
In his sole issue, Appellant argues that Section 46.04 violates his Second Amendment rights
based on recent decisions by the United States Supreme Court and the Fifth Circuit Court of
Appeals.
Standard of Review
A claim that a statute is unconstitutional on its face may be raised by a pretrial writ of
habeas corpus. Ex Parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001). Habeas corpus pre-
conviction proceedings are separate criminal actions, and the applicant has the right to an
immediate appeal before trial begins. Greenwell v. Court of Appeals for the Thirteenth Judicial
Dist., 159 S.W.3d 645, 650 (Tex. Crim. App. 2005).
We review a trial court’s decision to grant or deny an application for writ of habeas corpus
under an abuse of discretion standard. See Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim.
App. 2006); Ex parte Thompson, 414 S.W.3d 872, 875 (Tex. App.–San Antonio 2013), aff’d, 442
S.W.3d 325 (Tex. Crim. App. 2014). However, when the trial court’s ruling and determination of
the ultimate issue turns on the application of the law, such as the constitutionality of a statute, we
review the trial court’s ruling de novo. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App.
2003), overruled in part on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim.
App. 2007); see Thompson, 414 S.W.3d at 875–76.
Governing Law
A person who has been convicted of a felony commits an offense if he possesses a firearm
after conviction and before the fifth anniversary of the person’s release from confinement
following conviction of the felony or the person’s release from supervision under community
supervision, parole, or mandatory supervision, whichever date is later. TEX. PENAL CODE ANN.

1
The indictment identified Appellant’s prior felony conviction as driving while intoxicated (third or more).

2
§ 46.04(a)(1) (West Supp. 2023). After the expiration of this five-year period, the person may
possess a firearm but only at that person’s residence. See id. §46.04(a)(2).
In 2022, the United State Supreme Court issued its opinion in New York State Rifle &
Pistol Association v. Bruen, 597 U.S.1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022). There, the court
held that in making a determination that a challenged law does not infringe on a person’s Second
Amendment protections, the following standard is applicable:

When the Second Amendment’s plain text covers an individual’s conduct, the Constitution
presumptively protects that conduct. The government must then justify its regulation by
demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only
then may a court conclude that the individual’s conduct falls outside the Second Amendment’s
“unqualified command.”

See id. 597 U.S. at 24, 142 S. Ct. at 2129–30. In his concurring opinion, Justice Kavanaugh, joined
by Chief Justice Roberts, recognized that, like most rights, the Second Amendment is not
unlimited, and emphasized, “[N]othing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons[.]” Id. 597 U.S. at 81, 142 S.
Ct. at 2162 (Kavanaugh, J., concurring) (citing D.C. v. Heller, 554 U.S. 570, 636, 128 S. Ct. 2783,
2822, 171 L. Ed. 2d 637 (2008) (when properly interpreted, Second Amendment allows for variety
of firearm regulations)).
Discussion
In Bruen, the Supreme Court noted that the Second Amendment applies to “law-abiding,
responsible citizens.” Bruen, 597 U.S. at 26, 142 S. Ct. at 2131. In the indictment in this case,
the State alleged that Appellant previously was convicted of driving while intoxicated (third or
more). Thus, if the State proves that Appellant is a convicted felon, then it is reasonable to
conclude that because he is not a law-abiding citizen, he is not entitled to Second Amendment
rights under Bruen. See id.; U.S. v. Rozier, 598 F.3d 768, 771 (11th Cir. 2010) (recognizing
constitutionality of Second Amendment restrictions for felons); see also U.S. v. Dubois, 94 F.4th
1284, 1293 (11th Cir. 2024) (clarifying that Bruen does not overrule Rozier). But even assuming
arguendo that the holding in Bruen applies to Appellant’s case, the outcome would not differ.
In his brief, Appellant relies heavily on the Fifth Circuit Court of Appeals’ decision in U.S.
v. Rahimi, 61 F.4th 443, 448 (5th Cir. 2023), cert. granted, 143 S. Ct. 2688, 216 L. Ed. 2d 1255
(2023), rev’d and remanded, 144 S. Ct. 1889 (2024). In Rahimi, the appellant made a facial
challenge to 18 U.S.C. §922(g)(8), which prohibited his possessing a firearm while subject to a

3
domestic violence restraining order. See id. at 448. The court of appeals held that, pursuant to the
Supreme Court’s holding in Bruen and based on the evidence the government identified, Section
922(g)(8) did not fit within the Nation’s tradition of firearm regulation. Id. at 460–61. The
Supreme Court granted certiorari and reversed the court of appeals’ judgment, holding that when
a restraining order contains a finding that an individual poses a credible threat to the physical safety
of an intimate partner, that individual may, consistent with the Second Amendment, be banned
from possessing firearms while the order is in effect. U.S. v. Rahimi, 602 U.S. _, 144 S. Ct. 1889,
1902 (2024). The court explained that, since its founding, our Nation’s firearms laws have
included provisions preventing individuals who threaten physical harm to others from misusing
firearms and, as applied to the facts of the case, Section 922(g)(8) fits comfortably within this
tradition. Id. 144 S. Ct. at 1897. Also noteworthy, as it pertains to the facts of the case at hand, in
reaching this holding, Chief Justice Roberts reiterated the axiom set forth in Heller that such
prohibitions like those restricting the possession of firearms by felons presumptively are lawful.
Id. 144 S. Ct. at 1902.
In reliance on the court of appeals’ opinion in Rahimi, Appellant argues that the State
cannot identify historical analogues to Section 46.04 because there are none. We recognize that
when Appellant filed his brief, the Supreme Court had not yet issued its opinion reversing the
opinion on which he relies, and we disagree with his argument that no historical analogues to
Section 46.04 exist.
In Rahimi, the court sought to ascertain whether the statute at issue is “relevantly similar”
to laws that our tradition is understood to permit, applying faithfully the balance struck by the
founding generation to modern circumstances. Id. at 1898. But the court stressed that while the
law must comport with the principles underlying the Second Amendment, it need not be a “dead
ringer” or a “historical twin.” Id. In conducting its analysis, the court revisited its extensive review
of the history of American gun laws conducted in Heller and Bruen. See id. at 1899. In so doing,
it identified two historical analogues––surety laws and “going armed” laws. 2 See id. at 1900–01.

2
As described by the Court, a surety law enabled a magistrate to require individuals suspected of future
misbehavior to post a bond, and if the individual failed to post a bond, he would be jailed. See U.S. v. Rahimi, 602
U.S. _, 144 S. Ct. 1889, 1900 (2024). If the individual posted a bond and, then, broke the peace, the bond would be
forfeited. See id. The court noted that surety laws also targeted the misuse of firearms by authorizing imposition of
bonds from individuals who went armed with a pistol or other offensive and dangerous weapon. See id. “Going
armed” laws were enacted to punish those who had menaced others with firearms. See id. at 1900–01. “Going armed”
laws prohibited “riding or going armed with dangerous or unusual weapons” to terrify the good people of the land
since such conduct disrupted the “public order” and led almost necessarily to actual violence. Id. at 1901.

4
After discussing the history of these two types of laws, the court explained their relevant
similarities to Section 922(g)(8) as follows:

Taken together, the surety and going armed laws confirm what common sense suggests:
When an individual poses a clear threat of physical violence to another, the threatening individual
may be disarmed. Section 922(g)(8) is by no means identical to these founding era regimes, but it
does not need to be. [citation omitted]. Its prohibition on the possession of firearms by those found
by a court to present a threat to others fits neatly within the tradition the surety and going armed
laws represent.

Like the surety and going armed laws, Section 922(g)(8)(C)(i) applies to individuals found
to threaten the physical safety of another. This provision is “relevantly similar” to those founding
era regimes in both why and how it burdens the Second Amendment right. [citation omitted].
Section 922(g)(8) restricts gun use to mitigate demonstrated threats of physical violence, just as the
surety and going armed laws do. Unlike the regulation struck down in Bruen, Section 922(g)(8)
does not broadly restrict arms use by the public generally.

Id. at 1901.
Similarly, Section 46.04 involves a prior finding that a person poses a threat to others, i.e.,
his alleged prior conviction of a felony offense, and, thus, “fits neatly within the tradition the surety
and going-armed laws represent.” Id. Like the surety and going-armed laws, Section 46.04 applies
to individuals found to have threatened the physical safety of others or otherwise shown a
propensity for consequential lawlessness. 3 See id. And such a prior finding resulting in a felony
conviction has all the procedural and constitutional safeguards afforded by our judicial system.
Section 46.04 restricts gun use to mitigate either demonstrated threats of physical violence or prior
disregard of penal law similarly to the manner the surety and going-armed laws do and does not
broadly restrict arms use by the public generally. See id. Furthermore, like the surety bonds of
limited duration, Section 46.04’s prohibition on possession of a firearm expires after five years,
after which time, the person may possess a firearm at his residence. See TEX. PENAL CODE ANN.
§ 46.04(a)(1), (2); Rahimi, 144 S. Ct. at 1902. Lastly, the penalty also fits within the regulatory
tradition. See Rahimi, 144 S. Ct. at 1902. The going-armed laws provided for imprisonment, and
if imprisonment was permissible to respond to the use of guns to threaten the physical safety of
others, then the lesser restriction of temporary disarmament that Section 46.04 penalizes also is
permissible. See id.

3
We recognize that not all felonies involve violence toward others. Nonetheless, a conviction of a felony is
indicative of a person’s propensity for lawlessness on a level of greater consequence in its effect on society. See felony,
BLACK’S LAW DICTIONARY (10th ed. 2014).

5
In sum, if, as alleged in the indictment, the State proves that Appellant is a convicted felon,
then he is not a law-abiding citizen entitled to Second Amendment rights under Bruen. See Bruen,
597 U.S. at 26, 142 S. Ct. at 2131; Rozier, 598 F.3d at 771; see also Dubois, 94 F.4th at 1293. But
even if we assume that Bruen applies, our Nation’s tradition of firearm regulation distinguishes
citizens who have been found to pose a credible threat to the physical safety of others from those
who have not. See Rahimi, 144 S. Ct. at 1902. And our tradition of firearm regulation allows the
government to disarm individuals who present such a threat. See id. We reiterate the axiom
espoused by the Supreme Court that prohibitions restricting the possession of firearms by felons
presumptively are lawful. See id. Accordingly, since we conclude that, even if Bruen applies,
Section 46.04 is “relevantly similar” to laws that our tradition is understood to permit, we hold that
its restrictions are consistent with the Second Amendment. Id. at 1898, 1903.

DISPOSITION
Having overruled Appellant’s sole issue, we affirm the trial court’s order denying
Appellant’s application for writ of habeas corpus.

BRIAN HOYLE
Justice

Opinion delivered October 9, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

6
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

OCTOBER 9, 2024

NO. 12-24-00031-CR

EX PARTE: JOSEPH WALTON STRICKLAND,
Appellant

Appeal from the 349th District Court
of Anderson County, Texas (Tr.Ct.No. DCCV23-4265-349)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED, and DECREED that the order
denying Appellant’s application for writ of habeas corpus of the court below be in all things
affirmed, and that this decision be certified to the court below for observance.

Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.