                                        In The

                                 Court of Appeals

                       Ninth District of Texas at Beaumont

                               _________________

                                NO. 09-18-00301-CR
                               _________________

                       EX PARTE HERBERT E. DISHMAN III

________________________________________________________________________

                 On Appeal from the County Court at Law No. 2
                            Jefferson County, Texas
                            Trial Cause No. 316272
________________________________________________________________________

                           MEMORANDUM OPINION

       This is an interlocutory appeal of the trial court’s denial of Herbert E. Dishman

III’s (“Herbert”) application for pretrial writ of habeas corpus. See Tex. R. App. P.

31. The State charged Herbert by information with the Class A misdemeanor offense

of unlawful installation of a tracking device. See Tex. Penal Code Ann. § 16.06

(West 2011). After an evidentiary hearing, the trial court denied Herbert’s

application for pretrial writ of habeas corpus, and this appeal ensued. We affirm the

trial court’s order.


                                           1
                                Factual Background

      Herbert was married to Miranda Dishman (“Miranda”). Herbert alleges they

purchased a 2014 Mazda SUV during the marriage which he claims was community

property. Herbert and Miranda became estranged in November of 2016 and

subsequently filed for divorce. The trial judge in the divorce proceeding entered the

final decree of divorce in July 2017, with the vehicle at issue reportedly awarded to

Miranda in the divorce.

      The probable cause affidavit prepared by Jefferson County Sheriff’s Detective

Daniel Powell stated that on September 13, 2017, Miranda Dishman filed a report

with their office regarding the unlawful installation of a tracking device on her

vehicle. The affidavit further explained that Miranda reported the dashboard lights

on her 2014 Mazda SUV began to flicker on August 7, 2017. She brought the vehicle

to an auto dealership and a mechanic located a “Brinkhouse Security Vehicle GPS

Devi[c]e” under the dashboard. Per the affidavit, Miranda suspects Herbert is

responsible for placing the device in her vehicle, as he had reportedly done so before.

      Miranda also advised law enforcement she received an anonymous text

message indicating Herbert and his employee, Tyler Griffin, placed a tracking device

on her car, and it was linked to their cell phones. Detective Powell unplugged the

device and took it into possession for evidence purposes. Miranda represented to the

                                          2
detective that she was the only registered owner of the vehicle. Additionally, the

affidavit noted Miranda and Herbert resided in separate homes since November

2016. 1 In the probable cause affidavit, Powell stated his investigation revealed that

on two occasions, Herbert purchased a tracking device and attached it to Miranda’s

vehicle without her consent or knowledge. Powell’s affidavit indicated he had text

messages and pictures which show Herbert had Tyler follow Miranda.

                              Procedural Background

      Herbert was subsequently charged by information with the Class A

misdemeanor offense of unlawful installation of a tracking device. In his application

for pretrial writ of habeas corpus, Herbert argues: (1) he was illegally confined and

restrained; 2 (2) the charge in the case violated his right of equal protection under the

Texas and United States Constitutions in that the State unlawfully treated his

guaranteed community property rights as inferior to the community property rights

of his spouse at the time of the alleged offense; and (3) the language of Texas Penal

Code section 16.06 is unconstitutionally vague with respect to the term “owner” and,



      1
          The probable cause affidavit listed the separation as occurring in November
2017; however, the State alleges in its brief that this is a typographical error, and the
date should be November 2016.
        2
          Although asserted in Herbert’s application for pretrial writ of habeas corpus,
it is not a substantive argument advanced on appeal, and the record is devoid of any
details of the conditions of his bond.
                                            3
therefore, violates his right to due process, equal protection, and his right to a fair

trial under the Texas and United States Constitutions. See U.S. CONST. amend. XIV;

Tex. Const. art. I, §§ 3, 19; Tex. Penal Code Ann. § 16.06.

       In the State’s response to Herbert’s application for pretrial writ of habeas

corpus, the State argues he was not illegally confined as he was released on

reasonable bond. The State further asserts that an as-applied constitutional challenge

may not be resolved pretrial because it necessarily requires development of specific

case facts to show how the statute is being applied to the defendant. Finally, the State

counters that Texas Penal Code section 16.06 is constitutional and not overly vague.

      The trial court held an evidentiary hearing on the application for pretrial writ

of habeas corpus. At the hearing, Herbert essentially argued that because the car was

purchased during the marriage, it was community property and he is also an owner

of the vehicle. Herbert’s divorce attorney testified at the hearing and opined that title

ownership of the vehicle was irrelevant to a legal division of the community property

estate. Because the automobile was acquired during the marriage, it is legally

considered community property, with an ownership interest in both spouses. The

divorce attorney testified Herbert had joint ownership of the vehicle until the date of

the divorce decree. The trial court took judicial notice of the divorce decree.



                                           4
      During the hearing, the State contended Herbert was making an as-applied

constitutional challenge, which is not appropriate for pretrial habeas relief. The State

also argued Herbert was attempting to assert an affirmative defense to the criminal

charges under Texas Penal Code section 2.04, which is an issue that should be

submitted to a jury. See Tex. Penal Code Ann. § 2.04 (West 2011).

      In a supplemental response filed after the date of the hearing, the State

discounted the community property argument and argues there is no such affirmative

defense or exception to the tracking device statute allowed for in section 16.06(d) or

(e). 3 The State also opposes Herbert’s assertion that a “right to privacy” does not

exist in a marriage—countering there is no exception to the right of privacy between

spouses. Instead, the State argues that the installation of a tracking device on an

estranged spouse’s vehicle is a “clear violation of her unalienable right to privacy.”

Herbert maintains there can be no expectation of privacy by members of a family in

a family-owned community property vehicle. The trial court denied the application

for pretrial writ of habeas corpus.


      3
        In support of this argument, the State pointed to two cases. See Miller v.
Talley Dunn Gallery, LLC, No. 05-15-00444-CV, 2016 WL 836775, at *11 (Tex.
App.—Dallas Mar. 3, 2016, no pet.) (mem. op.) (“Nothing in chapter 33 of the penal
code incorporates community property law for the purpose of establishing ownership
of [a] computer.”); Kent v. State, 809 S.W.2d 664, 667–68 (Tex. App.—Amarillo
1991, pet. ref’d) (upholding revocation of husband’s probation for wiretapping and
intercepting his wife’s calls in violation of Texas Penal Code section 16.02(b)).
                                            5
      In this interlocutory appeal, Herbert complains the trial court abused its

discretion by denying his application for pretrial writ of habeas corpus. In support

of this issue, Herbert advances two arguments in his interlocutory appeal: (1) the

vehicle was community property and Texas Penal Code section 16.06 is

unconstitutionally vague; and (2) the charges made by the State violate his equal

protection and due process rights under the Texas Constitution and United States

Constitution by treating his community property rights as inferior to those of

Miranda. See U.S. CONST. amend. XIV; Tex. Const. art. I, §§ 3, 19; Tex. Penal Code

Ann. § 16.06.

                               Standard of Review

      When reviewing a trial court’s decision on a pretrial application for writ of

habeas corpus, we review the facts in the light most favorable to the trial court’s

ruling and will uphold the ruling absent an abuse of discretion. Ex parte Wheeler,

203 S.W.3d 317, 319, 324 (Tex. Crim. App. 2006); Ex parte Paxton, 493 S.W.3d

292, 297 (Tex. App.—Dallas 2016, pet. ref’d) (citing Ex parte Wilson, 171 S.W.3d

925, 928 (Tex. App.—Dallas 2005, no pet.)). A trial court does not abuse its

discretion unless the act was “arbitrary or unreasonable” or “without reference to

any guiding rules and principles[.]” Montgomery v. State, 810 S.W.2d 372, 380 (Tex.

Crim. App. 1990) (citations omitted). When determining if a trial court has abused

                                         6
its discretion, we look at whether its decision “falls outside the zone of reasonable

disagreement.” See Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).

However, whether a statute is facially unconstitutional is a question of law we review

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

                                      Analysis

      “Because an interlocutory appeal is an extraordinary remedy, appellate courts

have been careful ‘to ensure that a pretrial writ is not misused to secure pretrial

appellate review of matters that in actual fact should not be put before appellate

courts at the pretrial stage.’” Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App.

2010) (quoting Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005)); see

also Ex parte Ingram, 533 S.W.3d 887, 892 (Tex. Crim. App. 2017). “Neither a trial

court nor an appellate court should entertain an application for writ of habeas corpus

when there is an adequate remedy by appeal.” Ex parte Weise, 55 S.W.3d 617, 619

(Tex. Crim. App. 2001). Pretrial habeas is “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.” Id. at 620; see also Ex

parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016).

      Courts have held pretrial habeas is “generally not available to test the

sufficiency of the charging instrument or to construe the meaning and application of

                                          7
the statute defining the offense charged.”4 Perry, 483 S.W.3d at 895 (citing Ex parte

Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010)). While pretrial habeas can be

utilized to assert a facial constitutional challenge to a statute, it is not allowed to urge

an as-applied constitutional challenge to a statute. Id. (citing Ellis, 309 S.W.3d at

79); see Weise, 55 S.W.3d at 618. A facial challenge is one that can only succeed if

it is shown the law is unconstitutionally vague in all its applications. Ellis, 309

S.W.3d at 79–80. Moreover, when the resolution of a claim may be aided by the

development of a record at trial, pretrial habeas is unavailable. Perry, 483 S.W.3d at

895; Doster, 303 S.W.3d at 724. If a defendant characterizes a challenge as facial,

but it is in fact an as-applied challenge, we will refuse to consider the merits of the

claim. See Ellis, 309 S.W.3d at 80. We address cognizability as a threshold issue. Id.

at 79; Paxton, 493 S.W.3d at 298.

       Herbert argues in his application for pretrial writ of habeas corpus that “the

charge in this case” violates his right to equal protection because his community

property rights are being treated as inferior to the community property rights of his

complainant spouse. (Emphasis added.) This directly attacks the sufficiency of the



       4
        The exception to testing the sufficiency of the charging instrument or
indictment by pretrial habeas is when the face of the charging instrument shows the
prosecution is barred by limitations. Ex parte Doster, 303 S.W.3d 720, 724 (Tex.
Crim. App. 2010) (citations omitted).
                                         8
charging instrument. Such an attack on the sufficiency of the charge is not available

by pretrial writ of habeas corpus. See Perry, 483 S.W.3d at 895; Ellis, 309 S.W.3d

at 79.

         Moreover, Herbert’s constitutional claim is not that the statute is

unconstitutionally vague in all its applications. See Ellis, 309 S.W.3d at 80. He does

not assert the statute can never be applied where it would not be considered overly

vague. The crux of his argument is that because he had a community property

ownership interest in the vehicle when the tracking device was allegedly installed,

the statute is unconstitutionally vague as it applies to him. Therefore, it is an as-

applied constitutional challenge and not cognizable as a claim for pretrial habeas

relief. See Perry, 483 S.W.3d at 895; Ellis, 309 S.W.3d at 79; Weise, 55 S.W.3d at

618.

         Herbert specifically contends Penal Code section 16.06 is unconstitutionally

vague because “there is no way that he can determine from the language of the

Statute [] whether the term owner is that defined” by Texas Penal Code section

1.07(a)(35) or Texas Transportation Code section 541.001(2). See Tex. Penal Code

Ann. § 1.07(a)(35)(A) (West Supp. 2018), § 16.06; Tex. Transp. Code Ann. §

541.001(2), (19) (West 2011). This argument lacks merit. While section 16.06 of the

Penal Code indicates “[m]otor vehicle” has the definition assigned by section

                                           9
501.002 of the Transportation Code, there is no incorporation of or reference to the

Transportation Code to define “owned.” See Tex. Penal Code Ann. § 16.06(a)(2),

(b); Tex. Transp. Code Ann. § 501.002(17) (West Supp. 2018). Nevertheless, the

Texas Penal Code provides the definition of “[o]wner” in section 1.07, which is a

person who “has title to the property, possession of the property, whether lawful or

not, or a greater right to possession of the property than the actor[.]” See Tex. Penal

Code Ann. § 1.07(a)(35)(A), § 16.06(a), (b). “Owner[,]” as defined by statute, “has

been held not to be constitutionally vague.” Freeman v. State, 707 S.W.2d 597, 603

(Tex. Crim. App. 1986) (citing Ex parte Davis, 542 S.W.2d 192, 196 (Tex. Crim.

App. 1976)).

      While Herbert focuses on the community property aspect of ownership under

the Texas Family Code rather than that provided by the Texas Penal Code, the

determination of questions such as who had possession of the vehicle and who had

the superior right of possession are fact-driven inquiries. See Tex. Penal Code Ann.

§ 1.07(a)(35)(A), § 16.06. Because Herbert’s claims for relief are dependent on facts

not present in the record before us and would be aided by the development of a

record at trial, we conclude his claim for pretrial habeas relief is not cognizable for

this reason as well. See Perry, 483 S.W.3d at 895; Doster, 303 S.W.3d at 724.



                                          10
                                    Conclusion

      The trial court did not abuse its discretion in denying Herbert’s pretrial

application for writ of habeas corpus as Herbert failed to present a cognizable claim

for pretrial habeas relief. We overrule Herbert’s issue and affirm the trial court’s

order denying the application for pretrial writ of habeas corpus.

      AFFIRMED.



                                              ________________________________
                                                      CHARLES KREGER
                                                            Justice

Submitted on November 13, 2018
Opinion Delivered December 12, 2018
Do Not Publish

Before Kreger, Horton, and Johnson, JJ




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