Opinion issued December 12, 2019




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-18-00859-CR
                           ———————————
                     JORDAN LEE ARNETT, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


               On Appeal from the County Court at Law No. 2
                         Galveston County, Texas
                    Trial Court Case No. MD-0376274


                         MEMORANDUM OPINION

      A jury convicted Jordan Lee Arnett for the misdemeanor offense of assault

involving family violence. See TEX. PENAL CODE § 22.01(a)(1). The jury sentenced

Arnett to confinement in jail for one year, suspended his sentence, placed him on

community supervision for two years, and assessed a $4,000 fine. See id. § 12.21.
On appeal, Arnett contends that the trial court erred by denying a mid-trial limiting

instruction on extraneous offenses. Arnett also contends that Section 46.04(b) of

the Texas Penal Code violates the Second Amendment to the United States

Constitution because the finding of family violence immediately invokes the

prohibition against possessing a firearm in Section 46.04(b). We affirm.

                                    Background

      In 2014, Arnett began dating L. Huston. They moved in together and had a

daughter. Eventually, Huston ended the relationship, moved out of their home, and

bought her own home. One morning while at her new home, Huston texted Arnett

and asked him to pick up their daughter from school. Arnett replied, “If we are

doing each other favors, then leave my spare garage door remote by the front

door.” Huston agreed to return the garage door remote to Arnett and placed it

outside her front door.

      Arnett arrived at Huston’s home and “pounded on the door.” Through the

window, Huston pointed at the bottom of the front door and told Arnett that he

could retrieve the remote from there. Huston slightly opened the door when Arnett

had trouble locating the remote. Arnett shoved open the door, which hit Huston in

the face and caused her to fall on the ground. An argument ensued. Arnett took

artwork from the wall and threw it into the wall, leaving a hole in the wall.




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      When Huston ran across the house to grab her cell phone to call 911, Arnett

asked her, “Who are you texting?” Arnett then grabbed Huston’s cell phone and

repeatedly “slammed” it on the ground. After damaging Huston’s cell phone,

Arnett asked, “Where are the rings?” According to Huston, Arnett had given her an

engagement ring when he proposed marriage and a heart-shaped ring on another

occasion. Huston told Arnett that she did not know where she placed the rings

because of the recent move into her home. Arnett screamed at her.

      Huston ran out of the front door. At that time, Huston saw a neighbor she

had never met before and asked him to call 911. The neighbor ran back into his

house to call 911, and Arnett violently dragged Huston back into her house. After

Arnett closed the door, he asked Huston where her gun was located. She told him

where he could find it. At that point, Arnett said, “ Go get your gun, and I’ll help

you kill yourself.” Arnett put his finger to his own head and stated, “I’ll help you

pull the trigger.” Arnett then hit Huston on the left side of her face. Huston pleaded

for Arnett to stop hitting her. Arnett hit her again and then left the house. Arnett’s

blows left Huston with several injuries.

      The police arrived shortly after Arnett left. Huston provided officers with a

written statement about the incident. Huston also went to the police station and

requested a protection order. Later, officers arrested Arnett and charged him with

assault on a family member.


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      At trial, Arnett objected to the admission of five photos of Huston’s

damaged cell phone that were taken on the day of the altercation. Arnett also asked

the trial court to admonish the jury as to the “limitations considering an extraneous

offense.” The trial court overruled Arnett’s objection. Later, when Sergeant Leland

began testifying about the condition of Huston’s cell phone, Arnett renewed his

objection. Outside the presence of the jury, the trial court asked Arnett to explain

his objection. Arnett explained that his objection to the admission of the photos

was based on the damage to the cell phone being an unadjudicated charge of

criminal mischief. He stated:

      The testimony is going to be that that’s her cell phone, and I think it’s
      all been referenced at one point to him damaging the cell phone. And
      that’s State’s Exhibits 10 through 14. And I would object that under
      403 balancing, although it has some relevance because it’s what was
      going on inside, it’s more prejudicial than it is probative. It basically
      risks putting the Defendant on trial for the criminal mischief, and
      that’s also the reason asking for an admonishment, if we get into this
      further, that they should limit their consideration of the extraneous
      offense to only if they believe beyond a reasonable doubt and for the
      limited purposes. And I think it’s the State’s prerogative to suggest
      what legitimate purposes it may be in order for you to tell the jury, but
      they still have to do that. And I am entitled to have an instruction not
      just in the written instructions at the end, but also at the time the
      extraneous evidence is presented.

The trial court asked whether the cell-phone evidence was from the altercation

between Huston and Arnett. The State responded, “This is purely evidence of the

scene where we are alleging all occurred.” The State acknowledged that it declined

to pursue a related charge against Arnett for “an interference with [a] 911 call.”
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And the State confirmed that it did not charge Arnett with criminal mischief. The

trial court overruled Arnett’s objection. Arnett does not challenge that ruling. His

challenge is limited to the trial court’s failure to instruct the jury that the photo

evidence may be considered only for a limited purpose.

      After the close of evidence, the jury convicted Arnett of assault involving

family violence. The jury sentenced Arnett to confinement in jail for one year,

suspended his sentence, placed him on community supervision for two years, and

assessed a $4,000 fine. The trial court made an affirmative finding of family

violence. See TEX. CODE CRIM. PROC. art. 42.013. Arnett does not challenge that

finding either. When the trial court provided Arnett with a notice prohibiting him

from possessing or transferring firearms or ammunition, Arnett then moved to hold

Texas Penal Code 46.04(b) to be a violation of the Second Amendment to the

United States Constitution. The trial court denied his motion. This appeal followed.

                               Limiting Instruction

      In his first issue, Arnett contends that he was entitled to a mid-trial limiting

instruction on extraneous-offense evidence consisting of testimony and pictures of

Huston’s damaged cell phone. The State counters that the evidence was properly

admitted as same-transaction contextual evidence and thus no limiting instruction

was necessary.




                                          5
      A criminal defendant is “entitled to be tried on the accusations made in the

State’s pleading and he should not be tried for some collateral crime or for being a

criminal generally.” Wilkerson v. State, 736 S.W.2d 656, 659 (Tex. Crim. App.

1987) (en banc). Evidence of an uncharged offense, however, may be admissible to

show the context in which the criminal act occurred. Id. at 659–60; Ex parte Lane,

303 S.W.3d 702, 710 (Tex. Crim. App. 2009). In addition, Rule 404(b) provides

that evidence of other crimes, wrongs, or acts may be admissible for other

legitimate purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake. TEX. R. EVID. 404(b). Evidence of

extraneous offenses may also be admitted where “several crimes are intermixed, or

blended with one another, or connected so that they form an indivisible criminal

transaction, and full proof by testimony . . . of any one of them cannot be given

without showing the others.” Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim.

App. 2011). When evidence of extraneous offenses is admitted as same-transaction

contextual evidence, the trial court need not provide the jury with a limiting

instruction. Id. at 471.

      Arnett does not challenge the trial court’s ruling on the admissibility of the

photographs and testimony of Huston’s damaged cell phone as same-transaction

contextual evidence. Rather, he challenges the trial court’s failure to give a mid-

trial limiting instruction. But Texas courts have held that a limiting instruction is


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not required when evidence is admitted as same-transaction contextual evidence.

Castaldo v. State, 78 S.W.3d 345, 352 (Tex. Crim. App. 2002) (per curiam);

Wesbrook v. State, 29 S.W.3d 103, 114–15 (Tex. Crim. App. 2000) (en banc).

Because Arnett had no right to a limiting instruction following the unchallenged

ruling on the admissibility of the cell-phone-damage evidence as same-transaction

contextual evidence, we overrule Arnett’s first issue.

                             Constitutional Challenge

      Section 46.04(b) criminalizes the unlawful possession of a firearm. See TEX.

PENAL CODE § 46.04(b). Arnett contends that Section 46.04(b) of the Texas Penal

Code violates the Second Amendment to the United States Constitution. The basis

of Arnett’s facial constitutional challenge is that the finding of family violence

immediately threatens his right to bear arms. In response, the State argues that

Arnett lacks standing to challenge the constitutionality of Section 46.06(b).

A.    Standard of review

      A facial challenge is an attack on the statute itself as opposed to a particular

application. Salinas v. State, 523 S.W.3d 103, 106 (Tex. Crim. App. 2017).

Whether a criminal statute is constitutional is a question of law that we review de

novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). A person

challenging the constitutionality of a statute has the burden of establishing its

unconstitutionality. Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015).


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“Statutes are presumed to be constitutional until it is determined otherwise.”

Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009); see Ex parte

Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978) (en banc) (requiring the

appellate court to “commence with the presumption that such statute is valid and

that the Legislature has not acted unreasonably or arbitrarily in enacting the

statute.”).

       To establish that a statute is facially unconstitutional the appellant must

show that “no set of circumstances exists under which that statute would be valid.”

Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992) (citing United

States v. Salerno, 481 U.S. 739, 745 (1987)). We should consider “the statute only

as it is written, rather than how it [may operate] in practice” State ex rel. Lykos v.

Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011). “If a statute can be construed

in two different ways, one of which sustains its validity, we apply the interpretation

that sustains its validity.” Kfouri v. State, 312 S.W.3d 89, 92 (Tex. App.—Houston

[14th Dist.] 2010, no pet.). We uphold the statute if we can apply a reasonable

construction rendering the statute constitutional. Id. (citing Ely v. State, 582

S.W.2d 416, 419 (Tex. Crim. App. 1979)).

B.     Constitutionality of Section 46.04(b)

       A person convicted of assault-family violence faces the consequences

enunciated in Section 46.04(b) of the Texas Penal Code. See Moliere v. State, 574


                                          8
S.W.3d 21, 26 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d); Hernandez v.

State, 562 S.W.3d 500, 513–14 (Tex. App.—Houston [1st Dist.] 2004, no. pet.)

(Keyes, J., concurring in part and dissenting in part). A finding of family violence

makes it unlawful for a person against whom the finding was made to possess or

transfer firearms or ammunition.

      Before we can decide whether this statute is constitutional, we must first

resolve whether Arnett has standing to challenge the constitutionality of the

statute. See Meshell v. State, 739 S.W.2d 246, 250 (Tex. Crim. App. 1987) (en

banc); Merritt v. State, No. 01-02-00763-CR, 2004 WL 350254, at *2 (Tex.

App.—Houston [1st Dist.] Feb. 26, 2004, pet. ref’d) (mem. op., not designated for

publication). Arnett has standing to challenge the constitutionality of Section

46.06(b) only if the statute adversely impacted his own rights. DeBlanc v. State,

799 S.W.2d 701, 706 n.5 (Tex. Crim. App. 1990) (en banc) (citing County Court of

Ulster County, N. Y. v. Allen, 442 U.S. 140, 153 (1979)). Following his conviction

and sentencing, the trial court ordered Arnett to “surrender . . . all guns and

ammunition to the Galveston County Sheriff’s Department . . . within 72 hours of

release on the appeal bond” because he was not entitled to possess any weapons or

ammunition as a result of the trial court’s affirmative finding of family violence.

The trial court prohibited Arnett from possessing firearms and ammunition as

criminalized by Section 46.04(b). See Hernandez, 562 S.W.3d at 513–14. Because


                                         9
Arnett’s conviction for an assault on a family member adversely affects his Second

Amendment rights under the United States Constitution, we conclude that Arnett

has standing to challenge Section 46.04(b), even though he has not been charged or

convicted under this section. A violation of a statute is not required to establish

injury in fact for standing purposes so long as the threat of such is sufficiently

imminent. State v. Johnson, 475 S.W.3d 860, 864 n.12 (Tex. Crim. App. 2015)

(citing Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)).

          The Second Amendment provides, “A well regulated Militia, being

necessary to the security of a free State, the right of the people to keep and bear

Arms, shall not be infringed.” U.S. CONST. amend II. Arnett relies on District of

Columbia v. Heller, 554 U.S. 570 (2008). In Heller, the Supreme Court held that

the Second Amendment secures an individual’s right to keep a handgun at home

for self-defense and struck down a law that prohibited a person from possessing a

handgun in the home. Id. at 635. In McDonald v. City of Chicago, 561 U.S. 742,

791 (2010), the Supreme Court held that the Second Amendment applies to the

states.

          Even under Heller, the Second Amendment is not unlimited. See 554 U.S. at

626 (“Like most rights, the right secured by the Second Amendment is not

unlimited. From Blackstone through the 19th-century cases, commentators and

courts routinely explained that the right was not a right to keep and carry any


                                          10
weapon whatsoever in any manner whatsoever and for whatever purpose.”). The

Supreme Court noted that concealed-weapon restrictions did not violate the Second

Amendment. Id. Likewise, the Fifth Circuit has recognized the limitation of

Second Amendment rights. In United States v. Emerson, 270 F.3d 203, 261 (5th

Cir. 2001), the Fifth Circuit explained that the individual right it recognized does

not preclude the government from prohibiting the possession of firearms by certain

classes of people.

      [T]he Second Amendment does protect individual rights, that does not
      mean that those rights may never be made subject to any limited,
      narrowly tailored specific exceptions or restrictions for particular
      cases that are reasonable and not inconsistent with the right of
      Americans generally to individually keep and bear their private arms
      as historically understood in this country.

Emerson reasoned that “felons, infants and those of unsound mind may be

prohibited from possessing firearms.” Id.

      Texas courts examining Second Amendment claims post-Heller have

acknowledged that the government may limit firearm possession without running

afoul of the Second Amendment. See, e.g., Webb v. Schlagal, 530 S.W.3d 793, 810

(Tex. App.—Eastland 2017, pet. denied) (holding “that Articles 7A.03, 7A.05,

and 7A.07 of Texas Code of Criminal Procedure, as applied to Webb, do not

infringe on his Second Amendment right to bear arms and are not unconstitutional,

as applied to him, under Section 23, Article 1 of the Texas Constitution”); Wells v.

Texas Dep’t of Pub. Safety, No. 14-17-00547-CV, 2019 WL 962214, at *2 (Tex.
                                        11
App.—Houston [14th Dist.] Feb. 28, 2019, no pet.) (mem. op., not designated for

publication) (holding revocation of handgun license following a DWI conviction

does not violate the Second Amendment); Wargocz v. Brewer, No. 02-17-00178-

CV, 2018 WL 4924755, at *9 (Tex. App.—Fort Worth Oct. 11, 2018, no pet.)

(mem. op., not designated for publication) (holding that protective-order statute

prohibiting possession of a firearm, as applied in appellant’s case, did not violate

the Second Amendment); Ross v. State, No. 06-14-00157-CR, 2015 WL 4594130,

at *6 (Tex. App.—Texarkana July 31, 2015, no pet.) (mem. op., not designated for

publication) (determining that Section 46.04(a)(1) was not unconstitutional as

applied to appellant).

      Arnett argues that “[t]here is no rational basis for holding that the mere fact

of a conviction in this [case] demonstrates a need to forbid Arnett from possessing

a firearm.” We disagree. Arnett’s loss of his right to possess firearms or

ammunition is a collateral consequence of his assault-family-violence conviction.

See Moliere, 574 S.W.3d at 26 (describing “a restriction on weapons possession as

a direct non-punitive consequence of certain crimes”). And, after the jury found

Arnett guilty, the trial court made a finding of family violence, which

automatically made it unlawful for him to possess or transfer firearms or

ammunition. See TEX. CODE CRIM. PROC. art. 42.013. Courts have held that gun-

possession statutes do not violate the Second Constitution in domestic violence


                                         12
cases. For instance, Congress had a substantial and compelling government interest

in decreasing domestic violence when it enacted 18 U.S.C. § 922(g)(8), which

prohibits gun possession by individuals subject to domestic protective orders. See

Webb, 530 S.W.3d at 809 (citing United States v. Lippman, 369 F.3d 1039, 1044

(8th Cir. 2004)). Similarly, in United States v. Spruill, 61 F. Supp. 2d 587, 591

(W.D. Tex. 1999), the court rejected the defendant’s Second-Amendment

challenge and held that “the Second Amendment does not prohibit the federal

government from imposing some restrictions on private gun ownership.” For these

reasons, we hold that Arnett has failed to establish that the statute on its face

operates in all possible circumstances to unconstitutionally infringe upon the rights

guaranteed under the Second Amendment. See generally Salinas v. State, 464

S.W.3d 363, 367 (Tex. Crim. App. 2015).

                                    Conclusion

      We affirm the judgment of the trial court.




                                                Sarah Beth Landau
                                                Justice

Panel consists of Chief Justice Radack and Justices Landau and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).



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