Jordan Lee Arnett v. State ( 2019 )

Opinion issued December 12, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00859-CR
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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.
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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
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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
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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
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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.
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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
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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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