1

Affirmed and Memorandum Opinion filed January 10 , 202 3
.

In The 

## Fourteenth Court of Appeals

____________ NO. 14

- 2 2

- 00 16 1

- C R NO. 14

- 22

- 00 162

- C R

_ ___________ EX PARTE TIMOTHY DEWAYNE ISED ORE
On Appeal from the County Criminal Co u rt at La w No. 10

Harr i s Count y , Texas Trial C ourt Ca u se No s . 238403 2 & 238403 3

M EMORANDUM O PINIO N Appellant Timo thy Dew ayne Isedore brings this habeas appeal from the trial court’s two h abeas

- co rpus judgments in associat ion with a bond condition that he

mus t no t use or pos se ss a firearm while relea sed on bond

. We affirm.
B A CKGROUND
On or about November 18, 2021 , a Hous ton Police Department officer allegedly o bserved app ellant drivi ng a vehicle ; the observation was

c ontempo ran eo us w ith a ppel lant alle gedly almost sideswiping th e officer ’ s own vehicle. Shor tly after that encounter , appellant allegedly drove his car through an2

intersection despite having a red light

. The office r stopped appellant ’ s vehicle short ly afterwards and a rrested app el lant after detectin g sig ns that he w as into xicated . When appellant ’ s car was inventorie d, two handgun s w ere fou nd in appellant ’ s vehicle with maga zines of ammunition , one of which was in the vehicle ’ s m idd le cons ole and the other of wh ich w as in the vehic le ’ s glove
compar tment. Consequen t ly, appellant was c harged with two offenses : driving while into xicated in violation of Texas Penal Code § 49.04 , a nd unl awfully

carr ying a weapon in violation of Texas Penal Code § 4 6.02(a

- 1)(2). 1

A lso o n November 1 8, 2021, the State filed a motion to en ter several bond conditions regarding appell ant. Most relevant ly here, the State requested that appellant “ not possess any f irearms, amm unition, or other weapons. ” The tr ial

c ourt held a hearing on the S tate ’ s moti on o n November 29, 2021

. During the hear ing, appellant ’ s cou nsel r aised objections to a variety of the bond conditions requested by the State, specifically including the propose d condition that appellant not poss ess a n y f

irearms , ammun ition , o r weapons. That same day, the trial court signe d an “ Order for Pr etrial Supervision and Bond Conditions ” (the “ Bond Conditions Order ” ) , which set a variety of conditio n s for appel lant ’ s release on bond, including t hat appellant “ must not use or po ssess a firear m. ” Al so on November 29th, appellant sig ned an ackno wledgment at the end of the Bond Condition s O rder stat ing that he “ agree[ d ] to these condition s ” listed in the Bond Condition s Order.

1 The latt er statute prohib its “ intentionally, knowingly , or r ecklessly carr [ying] on or about his or h e r pe r son a handgun in a mot or vehicl e or watercraft that is o wned by the person or under the person's co n trol at any tim e in which [] . . . the person is[] engaged in criminal acti vity, other than a Class C mi sdemea nor that is a violation of a law or ordin a nce r egulating traffic or b oating; o r [] prohibited by l aw fr om possessing a firea rm. ” Texa s Penal Code Ann. § 4 6.0 2(a

1)(2) ( A)

– (B)

.3

On Dec ember 12, 202 1, appellant fi led a d ocument titled “ App lication fo r Writ of Habeas Co rpus & Mo tion to S t rike Un reasonable Bond Conditions, ” in which he challenged the bond condition that he must not use or p ossess a firearm as unlawful, unrea sonable, and unconsti tutiona l. Af ter hold ing h ear ings on appellant ’ s filing on J anuary 12 and Febr uary 3 , 2022, the trial co urt signed an order denying appellant ’ s request on F ebruary 3rd. 2 This appeal followed. While the appeal was pending, the United S tates Suprem e Court issued its opinion i n New York State Rif l e & P ist ol Associa t ion, Inc. v. Bruen , 142 S. C t. 2111 (2022). The Court ’ s opinion substantially elaborated on the constitutional standards applying to the possession of firearms both inside and outside home s. Se e id. at 2134.
A NAL YS IS
A s an i nitial matter, t he State cont e nds this court lacks jur isdiction o ver th e ap peal based on what ap pellant filed in the t rial c ourt . Essentially, the St ate contends that what appellant filed on December 12th a nd what the trial court subsequently de nied on Fe br uary 3rd was n ot a petition for a pretrial writ of habeas
corpu s but was instead a pretrial motion, th us making the trial court ’ s denial of his
requ est an unap pealable interloc utory order. The State ’ s ar gument focus es on the fact the docu ment refer s to itself as a “ m ot ion, ” an d thu s by the S t ate ’ s reckoning
was not a ctually a petition. 3 We disagre e.

2 Although the State ’ s brief co ntends the rec ord lacks a written order den ying a ppellant habeas relief , this is not corre c t.

3 The State ’ s argument a lso empha s izes the December 12th f iling allegedly fa ils to compl y with certa in s tatutory requirements for habeas co rpus pe tition s , but it advances the se alleged defects as further ev idenc e that the document is actually a mo ti on r ather than jurisdic tional fla ws that would otherwise bar appe llant f rom obtaining rel i ef. Cf. Ex par te Golden , 991 S.W.2d 859, 862 (Tex. Crim. App

. 1999) (holding that a filing ’ s failur e t o comply with p rocedural requirem ents of Tex as habeas statute s did not b ar the court f rom consid ering t h e4

Appellant ’ s December 12th filing re quested the trial court to modify it s bond condition fo rbidding his use and possession of firearms while r eleas e d on bond , which is ind isputably a m atter to be contested in a pre trial habeas pet ition. Cf. Ex parte P erry , 483 S.W.3d 884, 895

– 96 (Tex. Crim. App

. 2016) (acknowledging that

“ constitutional protections inv olving .

. . bail ” may properly be r aised i n a p retri al habeas proceedin g). The fact the document does not refer t o itse lf as a pe tition 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 co ntrols for purposes of this a ppeal

. See H all v . Hubco, Inc. , 292 S.W

. 3d 22, 3 5 (Tex. Ap p.

— 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 S tate further contends appellant failed to timely prese rve 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 imp osed and his filing a written c ha llenge. This cou rt recently

e xamined a similar situation in Ex pa rte Buks , where a party sign ed a written acknowledgment that he agree d to all bond conditions a nd waited approximately a month after having bond conditions impose d before filing a pretrial habeas challenge t o t hose condi t ions. 654 S.W.3d 516, 5 21

– 22 (Tex. App.

— Houst on [14th Dist.] 2022, no pet. ) W e held this set of c irc umstances failed to demonstrate the party had waived challenge s to those bond conditions

. Id. at 523

. As the present case involves a s horte r time betwee n wh en bond co nditions were i mposed and w hen t hey were challenged in writing , a s well as a n oral challenge to bond conditions on the same day they were originally imp osed, the holding in Buks applies with e ven greater for ce here: there has be en no showing that appella nt merits of a party ’ s ap peal). We conclude t his aspect of the state ’ s argument does not change the outcome.5

waiv e d his cha l l enge to the bo nd co ndition restricting his possession and use of firearms. It is therefore prop er for th is court to co nsider the merit s of appel lant ’ s sole issue on appeal , that the trial c ourt ostensibly erred by failing to strike the bond condition t h at appe llan t no t use or posse ss a f ire arm
. Appellant ’ s challenge centers on the Second Amendment of the United S t ates Constitution : “ A w ell

- regula ted militia, being necessary to the security of a free State, the r ight of the p eople to keep and bear Arms, shall n ot be infr i nged

. ” U.S . Const. amend. II. Th is provision applies with equal for ce to the federal and state governments. McDonald v. Ci ty o f Chi cago , 561 U.S. 742, 7 50 (2010).
This past sum mer, the Supreme Court elabora ted on the prote ctions provided by t he S e cond Amendm ent in the Bruen decision. Therein, the Court held that when “ the Second Amendment ’ s plain text covers an individual ’ s conduct, ” a regula tion restricting that conduct must b e “ consistent wit h [th e United State s ’ ] historical tradition of fi rearm regu lation ” to be constitutional. 142 S. Ct. at 2126. I n reaching this holdin g, the Court rejected assertions that courts shoul d further

assess “ how close th e law comes to the co re o f the Second Amen dment right a nd the severit y of the law ’ s burden on that ri ght. ” Id. at 2126

– 2 7 (quotin g Kanter v. Barr , 919 F .3d 437, 441 (7th Cir . 20 19)). Accord ingly, when the histor ic al record
p resented t o a court does not demonstrate a Second

- Amend ment

- encompassed firearm regul ation is consisten t with American hi storical t radition, it is unconstitutional. See id. at 2138. To show consistency , h owever, the government does not have to p rovide restrictions that are identical to the one being challenged, but rather “ identify a wel l

- established and representative his torical a n alogue. ” Id. at 2133 (emphasis omitted).6

As the Bruen opinion was issued in the m i ddle of th is appeal, we requested supplemental briefing from the parties analyzing the bo nd condition in light of Bruen . Based on that supplemental briefing, we conclude th e c hallenged bond condition is const itutional based on two aspects of American historical tradition in particular.
Fir st is a n American historical tradition of temporar ily restricting Second Amendment and othe r constitutional rights generally in associatio n 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

c onstitutional rights ordinarily wi tho ut constitutional defect

. United St ates v. Sly e , No. 1:22

- MJ

- 144, 2022 WL 9728732, at *2 (W.D. Pa. O c t. 6, 2022) ; see also United States v. Salerno , 481 U.S. 739, 751 (1987) (rejecting the proposition tha t pretrial det ention “ offends some principle of jus tice so rooted in the traditions and

con science of our people as to be ranked a s fundamental ” )

. Although appellant is not in pretrial de tention but i s inst ead released on conditio n s of bond, pretrial detention is never theless a useful analogue here. Afte r all, as one court has cogently ob s erv ed, “ [i] t would be illogical to conclude that [court s have] the authority to set conditions temporarily depriving an accused of [ myriad]

cons t itutional protections by ordering his detention but lack [] the authority to impose far less severe restri ctions , such as o rdering 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: sure ty laws. See 142 S. Ct. at 2148

– 50. These laws , which began to be adopted ac r oss mul tiple porti ons of the country in the mid

- 19th cent ury, generally required particular indi viduals to post bond before pub licly carrying weap ons
. Se e id. at 2148. Those laws, in gener al, had their restrictions applied wh en there was a specific showing7

of “ reasonable cause to fear an injury, or breach of the peace. ” Id

. (citatio n omitted). Although appellant ’ s bond con dition differs from surety laws highlighted in Bruen as it does not allow him to carry weapons even with the bond he h as posted , we find it is never the less relevantly similar due to the scope of the
restr ictions they involve as well as what risks implicated them, namely fears of injury or breach of the peace. Appellant ’ s bond con dition was preceded by his i ndictment for unlawfully carrying a weapon, and the circumstances of the offense involved appellan t allegedly possessing handgu ns while intoxicated , a characteristic potentially increasing the chan ce the weapons could b e used viol ently , see Roberts v. Stat e , 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 i mplicating surety laws; driving while intoxicated is i tself a breach of the peac e. Le Couri as v. State , 341 S.W.3d 483, 489 (Te x. App.

— Hou ston [14 th Dist.] 2011, no pet.). 4 Accordingly, analyzing appellant ’ s cha lle nge as the Supreme Court ’ s Bruen decision requires , we hold the bond c ondition for bi dding a ppellant from us ing or pos sess ing a firear m while relea sed on bond is consiste nt with Ame rican his torical tradition and therefor e passe s muster under the Second Amendment. W e reject appellant ’ s sole issue on appeal.
C ONCLUSION As we have juris diction to r esolve appellant ’ s habeas corpus appeal on the merits, w e af

firm the trial cou rt ’ s habeas

- cor p us judgments

.

4 Although these surety laws actually were narrower than appellant ’ s bond condition insofar as they did not re stric t private possession of firearm s in the subject ’ s own home, this distinction cannot matter here as the historical tradition of pretrial detention encompasses the bond condition in full.8 PER CURIA M

P ane l c on s ists of Chief Justice Christopher and Justi ces Wise and Jewell. Do Not Publish

— Tex. R. App. P. 47.2(b).