Ex Parte Herbert E. Dishman III ( 2018 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-18-00301-CR
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EX PARTE HERBERT E. DISHMAN III
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On Appeal from the County Court at Law No. 2
Jefferson County, Texas
Trial Cause No. 316272
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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
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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
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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).
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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
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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.
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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.
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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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