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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.
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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 
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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. 
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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. 
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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)). 
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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 asapplied 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.

 ________________________________

 CHARLES KREGER 

 Justice

 

Submitted on November 13, 2018

Opinion Delivered December 12, 2018

Do Not Publish

Before Kreger, Horton, and Johnson, JJ