Ex Parte William Lamar Smith v. the State of Texas

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-24-00322-CR ___________________________ Ex parte William Lamar Smith

On Appeal from the 213th District Court Tarrant County, Texas Trial Court No. C-0012154

Before Sudderth, C.J.; Bassel and Womack, JJ.

Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION William Lamar Smith challenges the facial constitutionality of Texas Penal Code Section 46.04(a)—the statute criminalizing a felon’s possession of a firearm. See Tex. Penal Code Ann. § 46.04(a). Smith sought pretrial habeas corpus relief on this basis, arguing that his pending charge for unlawful possession of a firearm amounts to an unconstitutional restraint on his Second Amendment right to keep and bear arms, see U.S. Const. amends. II, XIV, and pointing to Bruen and Rahimi for support. See generally United States v. Rahimi, 602 U.S. 680, 144 S. Ct. 1889 (2024); N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111 (2022); see also Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010) (recognizing that “[p]retrial habeas can be used to bring a facial challenge to the constitutionality of the statute that defines the offense”). The trial court denied relief, prompting Smith to file this appeal.

But while Smith’s appeal was pending, we considered and rejected a substantially similar challenge to the felon-in-possession statute’s facial constitutionality. See Ex parte Huell, No. 02-24-00315-CR, 2024 WL 5083192, at *1–3 (Tex. App.—Fort Worth Dec. 12, 2024, no pet. h.).1 In Huell, we held that “Section 46.04 is not unconstitutional on its face,” that “the Second Amendment does not

As in Huell, Smith’s habeas application stated that it was “brought pursuant to” both the federal constitution and the Texas Constitution, but the substance of his application focused on the federal constitution, and he did not argue that the Texas Constitution provided any greater protection. See Huell, 2024 WL 5083192, at *1 n.2; see also Tex. Const. art. I, § 23.

prohibit the government’s restriction of firearm possession by convicted felons,” and that Bruen and Rahimi did not change this.2 Id. at *2–3 (recognizing that neither Bruen nor Rahimi “overrule[d] Heller’s statement that ‘nothing in [that] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons’” (quoting District of Columbia v. Heller, 554 U.S. 570, 626, 128 S. Ct. 2783, 2816– (2008))); see also Ex parte Strickland, No. 12-24-00031-CR, 2024 WL 4471121, at *1– (Tex. App.—Tyler Oct. 9, 2024, pet. filed) (mem. op., not designated for publication) (discussing Bruen and Rahimi; concluding that Bruen analysis does not apply to felon-in-possession statute; and holding that, whether or not Bruen applies, Section 46.04 is constitutional on its face); Swindle v. State, No. 08-23-00057-CR, 2023 WL 7171472, at *2–5 (Tex. App.—El Paso Oct. 31, 2023, pet. ref’d) (mem. op., not designated for publication) (holding that Section 46.04(a) is constitutional on its face and clarifying that Bruen “left generally undisturbed the regulatory framework that keeps firearms out of the hands of dangerous felons”).

Like Huell, Smith targets the facial constitutionality of Subsection (a) of the felon-in-possession statute. See Huell, 2024 WL 5083192, at *1 n.1 (noting that Huell’s challenge targeted Subsection (a) but no others). Subsection (a) prohibits “[a] person who has been convicted of a felony” from “possess[ing] a firearm . . . (1) after conviction and before the fifth anniversary of the person’s release from confinement . . . [or] supervision . . . ; or (2) after the period described by Subdivision (1), at any location other than the premises at which the person lives.” Tex. Penal Code Ann. § 46.04(a). Huell was indicted under Subsection (a)(1), and Smith was indicted under Subsection (a)(2). See Huell, 2024 WL 5083192, at *1.

Smith’s challenge to Section 46.04(a) is materially indistinguishable from that raised in Huell; in fact, a significant portion of Smith’s habeas application is identical to Huell’s.3 For the reasons explained in that case—as well as the binding precedent it reflects—we again hold that the felon-in-possession statute is not a facially unconstitutional violation of the Second Amendment. Huell, 2024 WL 5083192, at *2–3.

We therefore affirm the trial court’s order denying Smith’s application for pretrial habeas corpus relief. See Tex. R. App. P. 43.2(a).

/s/ Bonnie Sudderth Bonnie Sudderth Chief Justice Do Not Publish Tex. R. App. P. 47.2(b) Delivered: January 2, 2025

Smith’s counsel also represented Huell. See id.