Ex Parte Timothy Dewayne Isedore ( 2023 )

Affirmed and Memorandum Opinion filed January 10, 2023.
In The
Fourteenth Court of Appeals
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NO. 14-22-00161-CR
NO. 14-22-00162-CR
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EX PARTE TIMOTHY DEWAYNE ISEDORE
On Appeal from the County Criminal Court at Law No. 10
Harris County, Texas
Trial Court Cause Nos. 2384032 & 2384033
MEMORANDUM OPINION
Appellant Timothy Dewayne Isedore brings this habeas appeal from the trial
court’s two habeas-corpus judgments in association with a bond condition that he
must not use or possess a firearm while released on bond. We affirm.
BACKGROUND
On or about November 18, 2021, a Houston Police Department officer
allegedly observed appellant driving a vehicle; the observation was
contemporaneous with appellant allegedly almost sideswiping the officer’s own
vehicle. Shortly after that encounter, appellant allegedly drove his car through an
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intersection despite having a red light. The officer stopped appellant’s vehicle
shortly afterwards and arrested appellant after detecting signs that he was
intoxicated. When appellant’s car was inventoried, two handguns were found in
appellant’s vehicle with magazines of ammunition, one of which was in the
vehicle’s middle console and the other of which was in the vehicle’s glove
compartment. Consequently, appellant was charged with two offenses: driving
while intoxicated in violation of Texas Penal Code § 49.04, and unlawfully
carrying a weapon in violation of Texas Penal Code § 46.02(a-1)(2).1
Also on November 18, 2021, the State filed a motion to enter several bond
conditions regarding appellant. Most relevantly here, the State requested that
appellant “not possess any firearms, ammunition, or other weapons.” The trial
court held a hearing on the State’s motion on November 29, 2021. During the
hearing, appellant’s counsel raised objections to a variety of the bond conditions
requested by the State, specifically including the proposed condition that appellant
not possess any firearms, ammunition, or weapons. That same day, the trial court
signed an “Order for Pretrial Supervision and Bond Conditions” (the “Bond
Conditions Order”), which set a variety of conditions for appellant’s release on
bond, including that appellant “must not use or possess a firearm.” Also on
November 29th, appellant signed an acknowledgment at the end of the Bond
Conditions Order stating that he “agree[d] to these conditions” listed in the Bond
Conditions Order.
1
The latter statute prohibits “intentionally, knowingly, or recklessly carr[ying] on or
about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or
under the person's control at any time in which[] . . . the person is[] engaged in criminal activity,
other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or
boating; or [] prohibited by law from possessing a firearm.” Texas Penal Code Ann. § 46.02(a-
1)(2)(A)–(B).
2
On December 12, 2021, appellant filed a document titled “Application for
Writ of Habeas Corpus & Motion to Strike Unreasonable Bond Conditions,” in
which he challenged the bond condition that he must not use or possess a firearm
as unlawful, unreasonable, and unconstitutional. After holding hearings on
appellant’s filing on January 12 and February 3, 2022, the trial court signed an
order denying appellant’s request on February 3rd.2 This appeal followed.
While the appeal was pending, the United States Supreme Court issued its
opinion in New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct.
2111 (2022). The Court’s opinion substantially elaborated on the constitutional
standards applying to the possession of firearms both inside and outside homes.
See id. at 2134.
ANALYSIS
As an initial matter, the State contends this court lacks jurisdiction over the
appeal based on what appellant filed in the trial court. Essentially, the State
contends that what appellant filed on December 12th and what the trial court
subsequently denied on February 3rd was not a petition for a pretrial writ of habeas
corpus but was instead a pretrial motion, thus making the trial court’s denial of his
request an unappealable interlocutory order. The State’s argument focuses on the
fact the document refers to itself as a “motion,” and thus by the State’s reckoning
was not actually a petition.3 We disagree.
2
Although the State’s brief contends the record lacks a written order denying appellant
habeas relief, this is not correct.
3
The State’s argument also emphasizes the December 12th filing allegedly fails to
comply with certain statutory requirements for habeas corpus petitions, but it advances these
alleged defects as further evidence that the document is actually a motion rather than
jurisdictional flaws that would otherwise bar appellant from obtaining relief. Cf. Ex parte
Golden, 991 S.W.2d 859, 862 (Tex. Crim. App. 1999) (holding that a filing’s failure to comply
with procedural requirements of Texas habeas statutes did not bar the court from considering the
3
Appellant’s December 12th filing requested the trial court to modify its bond
condition forbidding his use and possession of firearms while released on bond,
which is indisputably a matter to be contested in a pretrial habeas petition. Cf. Ex
parte Perry, 483 S.W.3d 884, 895–96 (Tex. Crim. App. 2016) (acknowledging that
“constitutional protections involving . . . bail” may properly be raised in a pretrial
habeas proceeding). The fact the document does not refer to itself as a petition
makes no difference here. Although titled as a motion, the document is essentially
a habeas corpus petition, and the document’s essence rather than its title controls
for purposes of this appeal. See Hall v. Hubco, Inc., 292 S.W.3d 22, 35 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied) (“In determining the nature of a
filing, we look to the substance of [a] document, not merely its title.”).
The State further contends appellant failed to timely preserve his objection
for appeal, based primarily on appellant’s signing an order agreeing to his bond
conditions on November 29, 2021 and the thirteen-day gap between the bond
conditions being imposed and his filing a written challenge. This court recently
examined a similar situation in Ex parte Buks, where a party signed a written
acknowledgment that he agreed to all bond conditions and waited approximately a
month after having bond conditions imposed before filing a pretrial habeas
challenge to those conditions. 654 S.W.3d 516, 521–22 (Tex. App.—Houston
[14th Dist.] 2022, no pet.) We held this set of circumstances failed to demonstrate
the party had waived challenges to those bond conditions. Id. at 523. As the
present case involves a shorter time between when bond conditions were imposed
and when they were challenged in writing, as well as an oral challenge to bond
conditions on the same day they were originally imposed, the holding in Buks
applies with even greater force here: there has been no showing that appellant
merits of a party’s appeal). We conclude this aspect of the state’s argument does not change the
outcome.
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waived his challenge to the bond condition restricting his possession and use of
firearms.
It is therefore proper for this court to consider the merits of appellant’s sole
issue on appeal, that the trial court ostensibly erred by failing to strike the bond
condition that appellant not use or possess a firearm. Appellant’s challenge centers
on the Second Amendment of the United States Constitution: “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. This
provision applies with equal force to the federal and state governments. McDonald
v. City of Chicago, 561 U.S. 742, 750 (2010).
This past summer, the Supreme Court elaborated on the protections provided
by the Second Amendment in the Bruen decision. Therein, the Court held that
when “the Second Amendment’s plain text covers an individual’s conduct,” a
regulation restricting that conduct must be “consistent with [the United States’]
historical tradition of firearm regulation” to be constitutional. 142 S. Ct. at 2126.
In reaching this holding, the Court rejected assertions that courts should further
assess “how close the law comes to the core of the Second Amendment right and
the severity of the law’s burden on that right.” Id. at 2126–27 (quoting Kanter v.
Barr, 919 F.3d 437, 441 (7th Cir. 2019)). Accordingly, when the historical record
presented to a court does not demonstrate a Second-Amendment-encompassed
firearm regulation is consistent with American historical tradition, it is
unconstitutional. See id. at 2138. To show consistency, however, the government
does not have to provide restrictions that are identical to the one being challenged,
but rather “identify a well-established and representative historical analogue.” Id.
at 2133 (emphasis omitted).
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As the Bruen opinion was issued in the middle of this appeal, we requested
supplemental briefing from the parties analyzing the bond condition in light of
Bruen. Based on that supplemental briefing, we conclude the challenged bond
condition is constitutional based on two aspects of American historical tradition in
particular.
First is an American historical tradition of temporarily restricting Second
Amendment and other constitutional rights generally in association with pretrial
detention. Those who are subjected to pretrial detention are frequently deprived
not only of the right to bear arms while in custody, but also other core
constitutional rights ordinarily without constitutional defect. United States v. Slye,
No. 1:22-MJ-144, 2022 WL 9728732, at *2 (W.D. Pa. Oct. 6, 2022); see also
United States v. Salerno, 481 U.S. 739, 751 (1987) (rejecting the proposition that
pretrial detention “offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental”). Although appellant is
not in pretrial detention but is instead released on conditions of bond, pretrial
detention is nevertheless a useful analogue here. After all, as one court has
cogently observed, “[i]t would be illogical to conclude that [courts have] the
authority to set conditions temporarily depriving an accused of [myriad]
constitutional protections by ordering his detention but lack[] the authority to
impose far less severe restrictions, such as ordering his release on bond with a
firearms restriction.” Slye, 2022 WL 9728732, at *2.
The second aspect is one highlighted in the Bruen opinion itself: surety laws.
See 142 S. Ct. at 2148–50. These laws, which began to be adopted across multiple
portions of the country in the mid-19th century, generally required particular
individuals to post bond before publicly carrying weapons. See id. at 2148. Those
laws, in general, had their restrictions applied when there was a specific showing
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of “reasonable cause to fear an injury, or breach of the peace.” Id. (citation
omitted). Although appellant’s bond condition differs from surety laws
highlighted in Bruen as it does not allow him to carry weapons even with the bond
he has posted, we find it is nevertheless relevantly similar due to the scope of the
restrictions they involve as well as what risks implicated them, namely fears of
injury or breach of the peace. Appellant’s bond condition was preceded by his
indictment for unlawfully carrying a weapon, and the circumstances of the offense
involved appellant allegedly possessing handguns while intoxicated, a
characteristic potentially increasing the chance the weapons could be used
violently, see Roberts v. State, 220 S.W.3d 521, 530–31 (Tex. Crim. App. 2007)).
Moreover, appellant’s indictment for driving while intoxicated provides a further
parallel to the circumstances implicating surety laws; driving while intoxicated is
itself a breach of the peace. LeCourias v. State, 341 S.W.3d 483, 489 (Tex.
App.—Houston [14th Dist.] 2011, no pet.).4
Accordingly, analyzing appellant’s challenge as the Supreme Court’s Bruen
decision requires, we hold the bond condition forbidding appellant from using or
possessing a firearm while released on bond is consistent with American historical
tradition and therefore passes muster under the Second Amendment. We reject
appellant’s sole issue on appeal.
CONCLUSION
As we have jurisdiction to resolve appellant’s habeas corpus appeal on the
merits, we affirm the trial court’s habeas-corpus judgments.
4
Although these surety laws actually were narrower than appellant’s bond condition
insofar as they did not restrict private possession of firearms in the subject’s own home, this
distinction cannot matter here as the historical tradition of pretrial detention encompasses the
bond condition in full.
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PER CURIAM
Panel consists of Chief Justice Christopher and Justices Wise and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).
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