                                           NO. 12-19-00028-CR

                                 IN THE COURT OF APPEALS

                   TWELFTH COURT OF APPEALS DISTRICT

                                               TYLER, TEXAS

                                                               §         APPEAL FROM THE 114TH
 EX PARTE:
                                                               §         JUDICIAL DISTRICT COURT
 MARTIN REYNOLDS, JR.
                                                               §         SMITH COUNTY, TEXAS

                                           MEMORANDUM OPINION
        Martin Reynolds, Jr. appeals the trial court’s denial of his pretrial application for writ of
habeas corpus. In two issues, Appellant challenges the constitutionality of Texas Penal Code
Sections 9.31(b)(5)(A) and 9.32(a)(1). We affirm.


                                                     BACKGROUND
        Appellant was charged by indictment with the murder of Andrew Carpenter by shooting
him with a firearm. He filed a pretrial application for writ of habeas corpus in the trial court
claiming that penal code Sections 9.31(b)(5)(A) 1 and 9.32(a)(1) 2 will unconstitutionally deprive

        1
            Penal code Section 9.31(b) states, in pertinent part, that

        [t]he use of force against another is not justified . . . (5) if the actor sought an explanation from or
        discussion with the other person concerning the actor’s differences with the other person while the
        actor was: (A) carrying a weapon in violation of Section 46.02[.]

TEX. PENAL CODE ANN. § 9.31(b)(5)(A) (West 2019).

        2
            Penal code Section 9.32(a) states, in pertinent part, that
        [a] person is justified in using deadly force against another: (1) if the actor would be justified in
        using force against the other under Section 9.31; and (2) when and to the degree the actor reasonably
        believes the deadly force is immediately necessary: . . . (B) to prevent the other’s imminent
        commission of . . . murder[.]

TEX. PENAL CODE ANN. § 9.32(a)(1), (a)(2)(B) (West 2019).
him of his ability to claim self-defense at trial. Under those statutes combined, a person is not
justified in using deadly force if he sought an explanation from or discussion with the other person
concerning their differences while carrying a weapon in violation of Texas Penal Code Section
46.02. Section 46.02 prohibits carrying a handgun on premises not owned by the person or under
his control and not inside or directly en route to a motor vehicle owned by him or under his control. 3
       In his writ application, Appellant claimed that he shot and killed Carpenter in self-defense
but was in violation of Section 46.02 at the time. He attached to the application the affidavits of
three witnesses who purportedly resided and were present at the house where the homicide
occurred. In the affidavits, all the witnesses stated that Carpenter was sitting on the front porch
with three firearms when Appellant calmly approached the porch. Carpenter arose, aimed a
shotgun at Appellant, and fired, hitting him in the legs. Carpenter reloaded the shotgun and aimed
again, but Appellant produced a pistol and shot Carpenter twice in the chest.
       At a hearing on the application, Appellant called one of the witnesses, Haleigh Vaughn, to
the stand. She testified to the facts contained in her affidavit, and the affidavit was admitted into
evidence. While Vaughn was on the stand, the State objected to Appellant’s further examination
of her or any other witness, citing its understanding that Appellant was making only a facial
challenge to the statutes’ constitutionality. Appellant responded that he wished to make an as-
applied argument as well and needed to present evidence to do so. After a brief recess, the trial
court ruled that it would allow no more testimony because Appellant’s as-applied challenges were
not cognizable on pretrial habeas and the trial court was not authorized to receive evidence for the
purpose of a facial challenge. Subsequently, the trial court denied the application in a written order,
finding that Appellant’s as-applied challenges were not cognizable and Section 9.31(b)(5)(A) is
not facially unconstitutional. This appeal followed.


                            APPLICATION FOR WRIT OF HABEAS CORPUS
       In his first and second issues, Appellant argues that the trial court erred by denying his
pretrial application for writ of habeas corpus because Texas Penal Code Sections 9.31(b)(5)(a) and
9.32(a)(1) violate the Texas and United States Constitutions both facially and as applied to his
case. Specifically, he contends that the statutes violate his rights to self-defense, free speech, and
equal protection.

       3
           TEX. PENAL CODE ANN. § 46.02 (West Supp. 2018).


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Standard of Review and Applicable Law
       The writ of habeas corpus is the remedy to be used when a person is restrained in his liberty.
TEX. CODE CRIM. PROC. ANN. art. 11.01 (West 2005). It is an order from a judge commanding a
party who is restraining a person to appear before the court with the person and show why he is
under restraint. Id.; Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991). Pretrial
habeas followed by an interlocutory appeal is an extraordinary remedy reserved for situations in
which the protection of the applicant’s substantive rights or the conservation of judicial resources
would be better served by interlocutory review. Ex parte Ingram, 533 S.W.3d 887, 891-92 (Tex.
Crim. App. 2017). Except when double jeopardy is involved, pretrial habeas is not available when
the question presented, even if resolved in the defendant’s favor, would not result in immediate
release. Id. at 892. In general, developing the record at a pretrial habeas proceeding is prohibited
except when the constitutional right at issue includes a right to avoid trial. Id.
       A defendant has standing to challenge a statute only if it is being invoked against him. Id.
Ordinarily, a facial challenge to the statute defining the offense can be brought on pretrial habeas.
Id. However, a challenge to a freestanding anti-defensive issue—whether facial or as-applied—is
not cognizable on pretrial habeas. Id. An anti-defensive issue is one that benefits the state’s
position but is not something the indictment requires the state to prove from the outset. Id. Such
an issue is not law applicable to the case at the pretrial habeas stage. Id.
       In reviewing a trial court’s ruling on a habeas corpus application, we review the facts in
the light most favorable to the ruling and uphold it absent an abuse of discretion. Ex parte Wheeler,
203 S.W.3d 317, 324 (Tex. Crim. App. 2006). An abuse of discretion does not occur unless the
trial court acts arbitrarily or unreasonably or without reference to any guiding rules and principles.
State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016).
Analysis
       On appeal, Appellant first argues that Sections 9.31(b)(5)(a) and 9.32(a)(1) violate his right
to self-defense under the Second Amendment and Texas Constitution Article I, section 23. Next,
he argues that the statutes violate his right to free speech under the First Amendment by restricting
content-based speech and punishing the exercise of such speech by the loss of his right to self-




                                                   3
defense. Finally, Appellant argues that the statutes deny him equal protection of the laws because
they infringe upon his right to self-defense solely because he does not have a license to carry. 4
         We do not reach the merits of Appellant’s issues because they are not cognizable on pretrial
habeas. A defendant has standing to challenge a statute only if it is being invoked against him.
Ingram, 533 S.W.3d at 892. Here, Sections 9.31(b)(5)(a) and 9.32(a)(1) have not yet been invoked
against Appellant. Although proof at trial that the statutes apply in this case might ultimately
benefit the State’s position, the indictment does not require that the State prove such facts from
the outset. Therefore, Appellant’s issues are anti-defensive and not law applicable to the case at
this pretrial habeas stage. See id. Consequently, Appellant cannot meet the basic standing
requirement necessary to obtain relief. See id. at 893.
         Nonetheless, Appellant contends that penal code Sections 9.31(b)(5)(a) and 9.32(a)(1)
apply at this stage of his case because they were raised by evidence adduced at the writ hearing.
Specifically, he cites Vaughn’s testimony and affidavit, the State’s stipulation that Carpenter shot
Appellant first, and Appellant’s concession through his attorney that he was in violation of Section
46.02 when he shot Carpenter. We decline to consider this evidence because the constitutional
rights at issue here do not include a right to avoid trial, and consequently, developing the record at
the writ hearing was prohibited. See id. Even if we held Sections 9.31(b)(5)(a) and 9.32(a)(1)
unconstitutional, the result would not be Appellant’s immediate release. See id. at 894. Rather,
because the anti-defensive issue is not alleged in the indictment, the result would be the severance
of the provisions from the statutes, which would not terminate the prosecution. See id.
Furthermore, even if we considered the evidence, it does not invoke Section 9.31(b)(5)(a) because
it does not show that Appellant sought an explanation from or discussion with Carpenter. See TEX.
PENAL CODE ANN. § 9.31(b)(5)(A). We conclude that the evidence adduced at the writ hearing
fails to render Appellant’s issues cognizable on pretrial habeas.
         Because Appellant’s issues are anti-defensive, are not law applicable to the case, and would
not result in his immediate release even if resolved in his favor, we conclude that they are not
cognizable on pretrial habeas. See Ingram, 533 S.W.3d at 892, 894. Accordingly, we overrule his
first and second issues.


         4
           Penal code Section 46.15(b) provides that “Section 46.02 does not apply to a person who: . . . (6) is carrying:
(A) a license issued under Subchapter H, Chapter 411, Government Code, to carry a handgun; and (B) a handgun: (i)
in a concealed manner; or (ii) in a shoulder or belt holster[.]” TEX. PENAL CODE ANN. § 46.15(b) (West Supp. 2018).


                                                            4
                                                  DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s order
denying the application for writ of habeas corpus.



                                                                GREG NEELEY
                                                                   Justice

Opinion delivered September 27, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




                                                          5
                                     COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                         SEPTEMBER 27, 2019


                                           NO. 12-19-00028-CR


                             EX PARTE: MARTIN REYNOLDS, JR.


                                    Appeal from the 114th District Court
                          of Smith County, Texas (Tr.Ct.No. 114-0005-18)

                        THIS CAUSE came to be heard on the oral arguments, 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 trial court’s order.
                        It is therefore ORDERED, ADJUDGED and DECREED that the order
denying the 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.
                     Greg Neeley, Justice.
                     Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
