Ex parte Lee

617 S.W.3d 154

EX PARTE Christian Charles LEE

NO. 01-18-00969-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued December 29, 2020

Discretionary Review Refused May 12, 2021

Mark W. Bennett, Bennett & Bennett, 917 Franklin St., 4^th Floor, Houston, Texas 77002, Joseph W. Varela, P.O. Box 924136, Houston, Texas 77002, Carl R. Pruett, 202 Travis St., Ste. 209, Houston, Texas 77002, for Appellant.

Kim Ogg, District Attorney, Harris County, Texas, Joh David Crump, 1201 Franklin St., Ste. 600, Houston, Texas 77002, for Appellee.

Panel consists of Justices Lloyd, Goodman, and Hightower.

Gordon Goodman, Justice

Appellant, Christian Charles Lee, was charged with the offense of unlawfully carrying a firearm in his vehicle while a member of a criminal street gang, in violation of section 46.02(a-1)(2)(C) of the Texas Penal Code. See TEX. PENAL CODE § 46.02(a-1)(2)(C). Appellant filed a pre-trial application for writ of habeas corpus challenging the statute as void under the First and Second Amendments to the United States Constitution. After a hearing, the trial court issued a judgment denying the habeas application. Appellant filed a notice of appeal challenging the trial court's denial.

Asserting five points of error, Appellant argues that section 46.021(a-1)(2)(C) violates the First and Second Amendments because it (1) "is overbroad, and therefore fails strict scrutiny, under the Free Speech Clause;" (2) "violates the right to free association;" (3) "violates the peaceable assembly clause;" (4) "violates the right to keep and bear arms clause;" and (5) "conditions the exercise of one right on the surrender of others." We affirm the trial court's denial of habeas relief.

The Statute

Section 46.02(a-1)(2)(C) of the Texas Penal Code makes it a crime for a person who is a member of a criminal street gang to carry a handgun in a motor vehicle under the person's control:

(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person's control at any time in which:

...

(2) the person is:

...

(C) a member of a criminal street gang, as defined by Section 71.01.

TEX. PENAL CODE § 46.02(a-1)(2)(C). Under section 71.01(d), a "criminal street gang" is defined as "three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities." TEX. PENAL CODE § 71.01(d).

Availability of Pretrial Habeas

Pretrial habeas corpus 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). A claim is cognizable in a pretrial writ of habeas corpus if, resolved in the defendant's favor, it would deprive the trial court of the power to proceed and result in the appellant's immediate release. Ex parte Smith , 185 S.W.3d 887, 892 (Tex. Crim. App. 2006) (citing Ex Parte Weise , 55 S.W.3d 617, 619 (Tex. Crim. App. 2001) ). A claim that a statute is unconstitutional on its face may be raised by pretrial writ of habeas corpus because the invalidity of the statute would render the charging instrument void. Ex parte Weise , 55 S.W.3d at 620. Although a pretrial habeas application can be used to bring a facial challenge to the constitutionality of the statute, it may not be used to advance an "as applied" challenge. Ex parte Ellis , 309 S.W.3d 71, 79 (Tex. Crim. App. 2010). Here, because Appellant asserts a facial challenge to the constitutionality of section 46.021(a-1)(2)(C), his challenges were properly raised in a pretrial habeas application and we consider whether the trial court erred in denying the application.

Standard of Review

In general, we review a trial court's ruling on an application for writ of habeas corpus using an abuse-of-discretion standard, and we view any evidence in the light most favorable to that ruling and defer to implied factual findings supported by the record. Ex parte Flores , 483 S.W.3d 632, 638 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd). However, whether a statute is facially unconstitutional is a question of law that we review de novo. Ex parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013) ; Ex parte Flores , 483 S.W.3d at 638.

Facial challenges to the constitutionality of a statute must illustrate that the statute operates unconstitutionally in all of its applications. See Estes v. State , 546 S.W.3d 691, 697–98 (Tex. Crim. App. 2018) ; State ex rel. Lykos v. Fine , 330 S.W.3d 904, 908–09 (Tex. Crim. App. 2011). To resolve such challenges, we consider the statute only as written without reference to evidence or facts peculiar to the complainant. See Lykos , 330 S.W.3d at 908–09.

In considering a facial challenge, we usually presume "that the statute is valid and that the legislature has not acted unreasonably or arbitrarily," and the party challenging the statute bears the burden of establishing that it is unconstitutional. Ex parte Lo , 424 S.W.3d at 15. This presumption does not apply, however, if the government regulates speech based on its content. Id. (citing United States v. Playboy Entm't Grp., Inc. , 529 U.S. 803, 817, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) ). Content-based regulations—those regulations that distinguish favored from disfavored speech based on the idea or message expressed—are presumptively invalid, and the government bears the burden to rebut that presumption. Id.

Discussion

First Point of Error: First Amendment Right of Free Speech

In Appellant's first point of error, he claims that section 46.02(a-1)(2)(C) unconstitutionally abridges the First Amendment right of free speech. Specifically, Appellant asserts that "The Statute is overbroad, and therefore fails strict scrutiny, under the Free Speech Clause." In other words, Appellant contends that section 46.02(a-1)(2)(C) fails strict scrutiny because it is overbroad. Appellant, however, applies the wrong level of scrutiny and erroneously conflates First Amendment overbreadth analysis with strict scrutiny analysis. As discussed below, the statute survives the appropriate level of scrutiny—in this case, intermediate scrutiny—and is not unconstitutionally overbroad.

Level of Scrutiny

Whether the regulation is content-neutral or content-based dictates the level of scrutiny that we will apply. Martinez v. State , 323 S.W.3d 493, 504–05 (Tex. Crim. App. 2010). Content-based regulations are "those laws that distinguish favored from disfavored speech based on the ideas expressed." Ex parte Lo , 424 S.W.3d at 15 (citing Turner Broad. Sys., Inc. v. F.C.C. , 512 U.S. 622, 643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) ). Such a regulation may be upheld only if it is necessary to serve a compelling state interest and employs the least speech-restrictive means to achieve its goal. Id. Although content-based regulations trigger strict scrutiny, content-neutral regulations and regulations that are justified without reference to the speech's content must only satisfy intermediate scrutiny. Turner Broad. Sys. , 512 U.S. at 642, 114 S.Ct. 2445 ; Ward v. Rock Against Racism , 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Additionally, regulations that do not "fit neatly into either the ‘content-based’ or the ‘content-neutral’ categories," but are aimed at addressing the "secondary effects" of speech are subject to intermediate scrutiny. City of Renton v. Playtime Theatres, Inc. , 475 U.S. 41, 47-50, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). A regulation satisfies intermediate scrutiny if it promotes a significant governmental interest and does not burden substantially more speech than necessary to further that interest. See McCullen v. Coakley , 573 U.S. 464, 486, 134 S.Ct. 2518, 189 L.Ed.2d 502 (2014) ; Ex parte Thompson , 442 S.W.3d 325, 344 (Tex. Crim. App. 2014).

Appellant asserts that strict scrutiny applies because "a restriction on gang signs and symbols is a content-based restriction."¹ Appellant's claim that the statute penalizes an expressive element—in this case, the "common sign, symbol, or color"—is misplaced. Instead, the statute criminalizes weapon possession under certain circumstances—namely, while a person is simultaneously (1) located in a vehicle owned by, or under control of, the person, and, (2) a member of a criminal street gang. See TEX. PENAL CODE § 46.02(a-1)(2)(C).

The same First Amendment challenges to section 46.02(a-1)(2)(C) as a content-based restriction were addressed and rejected by the Fourteenth Court of Appeals in Ex parte Flores. 483 S.W.3d 632. As our sister court in Flores correctly stated, "it is far from clear that this statute regulates handgun possession in a vehicle based on the message expressed by this sign or symbol, particularly given that the sign or symbol need not be used in connection with the gun possession (and may not be used at all if the group has an identifiable leadership)." Id. at 640. Even assuming enforcement would require reference to such signs or symbols, such reference is content neutral because the statute actually regulates handgun possession in vehicles. Id. ; see also Ward , 491 U.S. at 791, 109 S.Ct. 2746 ("A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others").

Appellant asserts that "[t]he Fourteenth Court in Flores got free speech wrong" because (1) "regulations on handgun possession in vehicles may abridge liberties that appear totally unrelated to handguns" and (2) although the statute does not prevent use of gang signs and symbols, it discourages them "by depriving [gang members] of their right to bear arms in their vehicles for self-defense." We disagree and find Appellant's arguments regarding potential incidental effects on speech...