In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-25-00115-CR ___________________________
CATDERIAN DEJUAN STRONG, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 3 Tarrant County, Texas Trial Court No. 1786726
Before Kerr, Bassel, and Walker, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION
Appellant Catderian Dejuan Strong shot Marquece Taylor fourteen times, killing
him. A jury rejected Strong’s self-defense and defense-of-others theories and convicted
him of murder, see Tex. Penal Code Ann. §§ 9.31, 9.32, 19.02. It found that he had
committed the murder under the immediate influence of sudden passion,
see id. § 19.02(d), found that he was a repeat offender based on his 2021 conviction of
unlawful possession of a firearm by a felon, and assessed his punishment at 27 years’
confinement. The trial court sentenced Strong accordingly.
Strong challenges his conviction in a single issue: that the trial court erred by
failing to instruct the jury that when considering his defensive theories, it should have
presumed that Strong’s belief—that the deadly force he used was immediately
necessary—was reasonable. See id. §§ 2.05, 9.31(a), 9.32(b). Underlying this alleged
charge error, Strong admits that he had prior convictions for felony-level evading-arrest
and unlawful-possession-by-a-felon offenses. But he argues that because Section
46.04 of the Texas Penal Code—unlawful possession of a firearm by a felon—is
unconstitutional under the Second Amendment as applied to him, he was not engaged
in criminal activity—being a felon who unlawfully possessed a firearm—when he shot
and killed Marquece, entitling him to a presumption-of-reasonableness instruction.
See id. §§ 9.31(a)(3), 46.04; see also U.S. Const. amend. II. We will affirm.
2 I. Background
A. The shooting
On July 1, 2023, Kiana Williams had a pool party at her apartment complex.
Kiana’s friend Nashae Boykin (who was temporarily living with Kiana), Kendra
McDonald (Kiana’s cousin), Strong (Nashae’s brother), and Marquece (Nashae’s “baby
daddy”) attended the party. Everyone was drinking hard liquor and was either “drunk”
or “intoxicated.”
Kiana, Kendra, and Strong briefly left together. When they returned around
10:00 p.m., they observed Nashae and Marquece outside and upset. Kiana recalled that
Nashae was “bleeding everywhere,” and Nashae told them that Marquece had punched
her in the mouth. 1 According to Nashae, Marquece “was like, [y]eah, I did it[,] and I’d
do it again.”
Strong argued with Marquece, which escalated to their punching each other.
Kiana and Kendra tried to get them to stop fighting, and when the fight stopped,
multiple witnesses thought that Strong had “won.” Strong, Nashae, and Kendra walked
up to Kiana’s apartment. Marquece followed them upstairs, and while on the landing,
Strong shot Marquece fourteen times and killed him.
It is not clear what else Nashae said in the moment, but at trial, she said that 1
Marquece had beat her up after she had refused his sexual advances.
3 B. The trial
The State charged Strong with and tried him for Marquece’s murder, and his
primary defensive theories were self-defense, defense of others, and necessity. Neither
Kendra nor Kiana wanted to testify at trial but did so under the State’s subpoena; both
Nashae and Strong testified. Each account varied, particularly with reference to the
presence or absence of a gun on the coffee table in Kiana’s apartment.
1. Kendra’s testimony
Kendra testified that Strong went into the apartment first, then Nashae, and she
followed them. At the time, she knew someone was behind her but did not know who
it was. When asked what happened once she was inside, Kendra testified, “As soon as
I opened the door, I was like, [n]o, no, no, you don’t want to do this.” She continued,
“[T]hen the shots rang off[,] and I ran” into a back room. When asked why she had told
Strong “you don’t want to do this,” she reiterated that it was “[b]ecause as soon as [she]
walked in the door, [Strong] was standing there” with a gun in his hand. She did not see
the actual shooting.
2. Kiana’s testimony
Kiana testified that she did not see anything. She said that “when Marquece
walked off and went up the stairs and followed him, . . . [she] was still standing right
there [on ‘the grass area’] because [she] was mad.” When asked how soon the shots
were fired after Marquece had gone upstairs, she testified, “I don’t remember. . . . [I]t
happened so quick, because I didn’t even get a chance to walk[,] and it happened.” She
4 could not describe how Marquece went up the stairs. And as for the gun, Kiana testified
that she did not have a gun in her apartment and had not seen one on her coffee table
that day.
3. Nashae’s testimony
Nashae testified that after Marquece’s fight with Strong, Marquece walked over
toward his car. Although she did not see a gun in Marquece’s hand that night, she
testified that he typically kept a hidden gun under his car. She said, “We were already
upstairs, and then that’s when he came up the steps.” Nashae said that she, Kendra, and
Strong were trying to hold the door back while Marquece tried to push it open. She said
that once the door opened, she “had already took off running” to lie on a bedroom
floor “because [she] started hearing shooting.”
When she returned, she saw Marquece on the ground, but neither Strong nor
Kendra was there. Nashae testified that she had feared that Marquece would kill or hurt
her if he entered the apartment. She also claimed that Marquece had threatened Strong’s
life after their earlier fight, telling “him he was going to give him something he could
feel.”
But on cross-examination, Nashae confirmed that she had not provided any of
these details to the responding officers; specifically, she did not tell them that Marquece
was trying to break through the door. When asked whether Marquece had a gun, she
admitted that she did not see Marquece or Strong with a gun. She also admitted that
after Strong and Marquece’s fight, she had thought they “were going to hash it out, go
5 back upstairs, take some more shots and, you know, apologize, talk about the situation.”
And when asked, “Do you think your brother had to kill [Marquece],” Nashae said,
“No.”
4. Strong’s testimony
Strong’s counsel asked him whether he had “ever been to the penitentiary.”
Strong conceded that he had, for “[u]nlawfully carrying a weapon,” and that he had also
been to state jail for evading—admitting that he had previously run from the police. On
cross-examination, Strong admitted that he had been a felon since his August
2017 evading conviction, which led to two September 2021 convictions for unlawful
possession of a firearm by a felon. He also testified to having misdemeanor convictions
for three vehicle burglaries and another evading offense.
The State questioned Strong about his using a firearm to shoot Marquece:
Q. So the gun that you used to shoot him, you just left it there at the scene?
A. Yes, sir.
Q. Okay. You didn’t try to get rid of it at any time?
A. No, sir.
Q. You know as a felon you’re not supposed to own a gun, right?
Q. Okay. You’re not supposed to be around guns, right?
6 Despite this acknowledgment, Strong admitted that he had caused Marquece’s death by
shooting him with a firearm, which Strong agreed was a deadly weapon.
Strong wanted the jury to believe that he had acted in self-defense or in defense
of others. According to Strong, after his fight with Marquece, he left when he “heard
[Marquece] say . . . he was going to do harm to me.” Strong said that he, Nashae, and
Kendra walked up to the apartment, and he estimated that Marquece came up about
two or three minutes later. Although Strong testified that he had felt threatened and
had feared Marquece, he also said that he had not thought that Marquece was going to
come upstairs.
But once he did, Strong described the situation as “a bunch of chaos at once.”
He said Nashae and Kendra “were closing the door,” and he told them, “[D]on’t let
him come in here.” Strong testified, “I didn’t know what he was coming upstairs for,
so I retreated to the weapon [sitting on a coffee table in the apartment] when I seen
him. And I -- I shot him.”2 He testified, “I didn’t want to take any chances.”
Strong said that he was scared for his life because earlier that day, before his fight
with Marquece, Marquece had shown him a handgun—albeit in a non-threatening
manner. Yet when Strong shot Marquece, he admitted that he “did not see him having
2 Strong denied bringing the gun and said that he did not know to whom it belonged, but he also acknowledged that he had brought his “luggage” to Kiana’s apartment earlier that day.
7 one”; he claimed that Marquece was “forcing his way in” the apartment and that he
“was afraid for everybody over there.”
When asked how many times he shot Marquece, Strong answered, “Too many.”3
And he admitted that after shooting Marquece, he “took off,” stepping over Marquece’s
body before taking an Uber to his father’s house.
C. The jury charge
During the guilt–innocence phase’s charge conference, Strong requested a
presumption-of-reasonableness instruction, see Tex. Penal Code Ann. § 9.32(b)(3), and
raised his Second Amendment arguments. The State argued that Strong was not entitled
to an instruction on the presumption of reasonableness because he was engaged in
criminal activity when—as a convicted felon—he unlawfully possessed a firearm in
violation of Section 46.04. See id. § 46.04.
Strong’s counsel argued that although Strong had been convicted of the felony
offenses of “evading with a vehicle” and two prior state felon-in-possession offenses4
—which had not been set aside—he should be viewed as a “non[-]violent felon” for
The medical examiner testified that Strong shot Marquece fourteen times. 3
4 Neither Strong nor the State offered into evidence Strong’s judgments of conviction during the guilt–innocence phase, so those documents were not before the trial court during the charge conference. Strong’s counsel told the court that Strong had an evading-with-a-vehicle conviction, but the type of evading conviction was not before the court until the punishment phase, when Strong stipulated to the trial court’s admitting his felony convictions, which include his judgment of conviction for evading with a prior conviction.
8 purposes of determining whether he had a Second Amendment right to possess a
firearm when he shot Marquece. Counsel argued that “he was not actually a felon in
possession of a firearm . . . [and met] the requirements of the presumption that he was
not engaging in conduct that was illegal” and that “he didn’t lose his gun rights under
the 2nd Amendment.”
The trial court denied Strong’s request and charged the jury as follows after
setting out the self-defense and defense-of-others justifications:
In determining the defendant’s reasonable belief that the use of deadly force was necessary, you may not consider whether the defendant failed to retreat. You are also instructed that a person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described above.
Being a felon in possession of a firearm is a third[-]degree felony.
D. The conviction
The jury rejected Strong’s defenses and found him guilty of murder. During
punishment, Strong pleaded true to a repeat-offender enhancement. The jury found
that he had proved that he had acted under the immediate influence of sudden passion
and assessed his punishment at 27 years’ confinement. The trial court sentenced him
accordingly.
II. Discussion
In his sole issue, Strong complains that the trial court failed to instruct the jury
on the presumption of reasonableness, raising an as-applied challenge to the
9 constitutionality of Section 46.04 of the Texas Penal Code under the Second
Amendment. See id. § 46.04. We conclude that Strong has failed to demonstrate error.
A. Standards of Review
We review “all alleged jury-charge error . . . regardless of preservation in the trial
court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); Garrett v. State,
No. 02-25-00049-CR, 2025 WL 3039150, at *1 (Tex. App.—Fort Worth Oct. 30, 2025,
pet. ref’d) (mem. op., not designated for publication). If no error occurred, our analysis
ends. Kirsch, 357 S.W.3d at 649; Garrett, 2025 WL 3039150, at *1.
Further, whether a criminal statute is constitutional is a question of law that we
review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013); Modarresi v. State,
488 S.W.3d 455, 465 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (setting out
standard for as-applied challenge). A person challenging the constitutionality of a statute
has the burden of showing it is unconstitutional. Peraza v. State, 467 S.W.3d 508,
514 (Tex. Crim. App. 2015). “Statutes are presumed to be constitutional until it is
determined otherwise.” Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009).
B. Instructing the Jury on the Presumption of Reasonableness
“[A] person is justified in using force against another when and to the degree the
actor reasonably believes the force is immediately necessary to protect the actor against
the other’s use or attempted use of unlawful force.” Tex. Penal Code Ann. § 9.31(a);
see also id. § 9.33 (describing when a person is justified in using deadly force to protect
third persons). Deadly force may be used when and to the degree the actor further
10 reasonably believes that such force is immediately necessary to protect the person from
another person’s “use or attempted use of unlawful deadly force” or to prevent the
other person’s commission of certain enumerated offenses, including murder.
Id. § 9.32(a); see also id. § 9.33. “Reasonable belief” is defined as “a belief that would be
held by an ordinary and prudent man in the same circumstances as the actor.”
Id. § 1.07(a)(42).
Since 2007, an actor’s belief that deadly force was immediately necessary is
presumed to be reasonable under certain circumstances. Morales v. State, 357 S.W.3d
1, 6 (Tex. Crim. App. 2011). As is relevant here, “[t]he actor’s belief . . . that the deadly
force was immediately necessary . . . is presumed to be reasonable if the actor . . . was
not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a
violation of a law or ordinance regulating traffic at the time the force was used.”
Tex. Penal Code Ann. § 9.32(b)(3); see id. § 9.31(a)(3). An instruction on the
presumption of reasonableness must be included in the jury charge if sufficient evidence
exists of the facts giving rise to the presumption “unless the court is satisfied that the
evidence as a whole clearly precludes a finding beyond a reasonable doubt of the
presumed fact.” Id. § 2.05(b)(1); Morales, 357 S.W.3d at 7.
C. Section 46.04 of the Texas Penal Code
Under Section 46.04, a convicted felon commits an offense if he possesses a
firearm “after conviction and before the fifth anniversary of [his] release from
confinement following conviction of the felony or [his] release from supervision under
11 community supervision, parole, or mandatory supervision, whichever date is later.”
Tex. Penal Code Ann. § 46.04(a)(1). After that period, such a person commits an
offense if he possesses the firearm at “any location other than the premises at which
the person lives.” Id. § 46.04(a)(2).
“Possession of a firearm by a convicted felon is a third[-]degree felony,” and
felonies fall within the statutory prohibition against engaging in criminal activity during
the use of force. Larrinaga v. State, No. 02-14-00199-CR, 2015 WL 4730710, at
*3 (Tex. App.—Fort Worth Aug. 6, 2015, pet. ref’d) (mem. op., not designated for
publication) (citing Tex. Penal Code Ann. § 46.04(e)); see Tex. Penal Code Ann.
§§ 9.31(a)(3), 9.32(b)(3). Indeed, trial courts have routinely refused to instruct juries on
the presumption of reasonableness when the evidence demonstrates a defendant’s
violation of Section 46.04 at the time of his use of force, and appellate courts have
upheld such refusals. See, e.g., Marshall v. State, No. 01-23-00503-CR, 2025 WL 1759021,
at *10–11 (Tex. App.—Houston [1st Dist.] June 26, 2025, pet. filed) (mem. op., not
designated for publication); Johnson v. State, No. 01-15-00101-CR, 2016 WL 4536954,
at *12–14 (Tex. App.—Houston [1st Dist.] Aug. 30, 2016, pet. ref’d) (mem. op., not
designated for publication); Larrinaga, 2015 WL 4730710, at *2; McCurdy v. State,
No. 06-12-00206-CR, 2013 WL 5433478, at *4 (Tex. App.—Texarkana Sept. 26, 2013,
pet ref’d) (mem. op., not designated for publication); Davis v. State,
No. 05-10-00732-CR, 2011 WL 3528256, at *10–11 (Tex. App.—Dallas Aug. 12, 2011,
pet. ref’d) (not designated for publication). But none of these cases have involved a
12 constitutional challenge to Section 46.04. See Marshall, 2025 WL 1759021, at *10–11;
Johnson, 2016 WL 4536954, at *12–14; Larrinaga, 2015 WL 4730710, at *2; McCurdy,
2013 WL 5433478, at *4; Davis, 2011 WL 3528256, at *10–11.
D. The Second Amendment
Strong admits that he was a convicted felon at the time he shot and killed
Marquece. But unlike the defendants in the above authorities, Strong maintains that the
trial court should have instructed the jury on the presumption of reasonableness
because—according to him—Section 46.04 is unconstitutional under the Second
Amendment as applied to him. We disagree.
We begin our analysis with the text of the constitutional provision at issue,
followed by a review of the relevant caselaw.
The Second Amendment provides that “the right of the people to keep and bear
Arms[] shall not be infringed.” U.S. Const. amend. II; see McDonald v. City of Chicago,
561 U.S. 742, 791, 130 S. Ct. 3020, 3050 (2010) (providing that the Second Amendment
applies to the states through the Fourteenth Amendment). In determining whether a
challenged law violates the Second Amendment, a court must consider whether the
Second Amendment’s plain text covers the individual’s conduct and then, if the
challenged regulation implicates a Second Amendment right, the State must show that
the regulation is consistent with this country’s historical tradition of firearms regulation.
United States v. Cockerham, 162 F.4th 500, 505 (5th Cir. 2025). In Cockerham, the Fifth
Circuit discussed the Supreme Court’s recent Second Amendment cases: District of
13 Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008); N.Y. State Rifle & Pistol
Ass’n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111 (2022); and United States v. Rahimi,
602 U.S. 680, 144 S. Ct. 1889 (2024). See id. at 502–09. 5
In Heller, the Supreme Court wrote that the Second Amendment protects the
“right of law-abiding, responsible citizens” to possess firearms “in defense of hearth
and home,” and “nothing in [the] opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons.” 554 U.S. at 626,
635, 128 S. Ct. at 2816–17, 2821. The Court referred to such prohibitions as
“presumptively lawful regulatory measures.” Id. at 627 n.26, 128 S. Ct. at 2817 n.26.
Then, fourteen years later, the Supreme Court enunciated its historical-analysis
test for evaluating regulations on an individual’s right to bear arms.
Bruen, 597 U.S. at 24, 142 S. Ct. at 2130. Its analysis focused on the right of “ordinary,
law-abiding citizens” to carry a firearm outside the home. Id. at 9, 142 S. Ct. at 2122,
2132–33, 2156; see id. at 81, 142 S. Ct. at 2162 (Kavanaugh, J., concurring) (reiterating
Heller’s statement that nothing in that opinion “should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons”). Bruen did not
overrule Heller’s statement that “nothing in [that] opinion should be taken to cast doubt
5 We note that although Fifth Circuit decisions may be persuasive, we are not obligated to follow them in the same way as we must follow the precedent of our State’s highest courts and the United States Supreme Court. Bundy v. State, 280 S.W.3d 425, 432 n.5 (Tex. App.—Fort Worth 2009, pet. ref’d).
14 on longstanding prohibitions on the possession of firearms by felons.” Heller, 554 U.S.
at 626, 128 S. Ct. at 2816–17.
Most recently, the Court upheld a federal law temporarily disarming persons who
were subject to restraining orders. Rahimi, 602 U.S. at 697–98 144 S. Ct. at 1901. The
Court conducted a historical analysis and concluded that two categories of historical
laws “confirm[ed] what common sense suggests: When an individual poses a clear threat
of physical violence to another, the threatening individual may be disarmed.” Id. at 698,
144 S. Ct. at 1901. Although the Court could have revisited and rejected its previous
statements about laws restricting felons’ firearms possession, the Court instead
reiterated that prohibitions on the possession of firearms by felons are presumptively
lawful. Id. at 699, 144 S. Ct. at 1902 (rejecting Rahimi’s argument that Heller had
invalidated absolute prohibitions of handguns in the home, stating, “Heller never
established a categorical rule that the Constitution prohibits regulations that forbid
firearm possession in the home. In fact, our opinion stated that many such prohibitions,
like those on the possession of firearms by ‘felons[’] . . . , are ‘presumptively lawful’”).
Following Heller, Bruen, and Rahimi in Cockerham, the Fifth Circuit reasoned that
the Supreme Court’s failure to enunciate a categorical felon-disarmament ban “by
implication, means that there must exist the possibility that the ban could be
unconstitutional in the face of an as-applied challenge.” 162 F.4th at 503–04 (quoting
United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010)). To illustrate application to a
“non-violent” felony, the Fifth Circuit examined whether a person could be deprived
15 of his Second Amendment rights when he had pleaded guilty to failing to pay child
support but was not delinquent of such conduct when he was found in possession of a
firearm. Id. at 504. Upon concluding its historical analysis, the Fifth Circuit held that
when the defendant’s sole predicate offense was failure to pay child support, for which
he was not sentenced to a single day in prison, 18 U.S.C. § 922(g)(1) was
unconstitutional as applied to him based on historical law applying to debtors rather
than thieves. Id. at 504, 507 (noting that the relevant consideration is the defendant’s
prior convictions that are punishable by imprisonment for a term exceeding one year).
On that record, the Fifth Circuit upheld Cockerham’s as-applied challenge. Id. at 510;
see also Range v. Att’y Gen., 124 F.4th 218, 222–23 (3rd Cir. 2024) (en banc) (upholding
as-applied challenge when criminal history consisted of the defendant’s making false
statements to obtain food stamps).
On the other hand, the Fifth Circuit has rejected as-applied challenges involving
violent felonies. See, e.g., United States v. Reyes, 141 F.4th 682, 687 (5th Cir. 2025);
United States v. Diaz, 116 F.4th 458, 471 (5th Cir. 2024). In Diaz, the defendant’s
predicate offenses of theft of a vehicle, evading arrest or detention with a vehicle, and
felon-in-possession-of-a-firearm were sufficient to defeat his as-applied challenge to
18 U.S.C. § 922(g)(1); the court noted that when the Second Amendment was ratified,
those guilty of certain crimes like theft were punished permanently and severely, and
permanent disarmament was part of the country’s arsenal of available punishments at
the time. 116 F.4th at 462, 472.
16 Similarly, in Reyes, the defendant’s convictions for evading arrest with a vehicle,
drug possession and delivery, and unlawful firearms possession doomed his as-applied
challenge. 141 F.4th at 687; see also United States v. Simpson, 152 F.4th 611, 613 (5th Cir.
2025) (rejecting an as-applied challenge involving convictions for possession of a
controlled substance, evading arrest or detention with a vehicle, and being a felon in
possession of a firearm); United States v. Betancourt, 139 F.4th 480, 484 (5th Cir. 2025)
(same involving aggravated-assault conviction), cert. denied, 2026 WL 135617 (2026);
United States v. Alaniz, 146 F.4th 1240, 1241–42 (5th Cir. 2025) (same involving
controlled-substance and burglary predicate offenses).6
Each of these cases involved direct appeals from federal firearms-possession
convictions. Here, Strong relies solely on Cockerham and Range to launch an as-applied
challenge to Section 46.04’s constitutionality—not in the context of seeking to overturn
a conviction for unlawfully carrying a firearm as a felon but in the context of whether
6 A number of other federal circuit courts have similarly rejected as-applied Second Amendment challenges when the person’s underlying criminal history included violent felonies. See United States v. Hunt, 123 F.4th 697, 700–04 (4th Cir. 2024) (involving breaking and entering), cert. denied, 145 S. Ct. 2756 (2025); United States v. Jackson, 110 F.4th 1120, 1125 (8th Cir. 2024) (involving two controlled-substance convictions), cert. denied, 145 S. Ct. 2708 (2025); United States v. Duarte, 137 F.4th 743, 748–52, 761–62 (9th Cir. 2025) (en banc) (involving convictions for vandalism, unlawful possession of a firearm, evading (twice), and possession of a controlled substance), cert. denied, 2026 WL 135692 (2026); cf. Zherka v. Bondi, 140 F.4th 68, 77, 93 (2nd Cir. 2025) (rejecting an as-applied challenge involving non-violent financial felonies), cert. denied, 2026 WL 135708 (2026); Vincent v. Bondi, 127 F.4th 1263, 1264–66 (10th Cir. 2025) (same involving bank fraud), cert. denied, 2026 WL 568283 (2026).
17 he was engaging in that criminal activity when he shot and killed Marquece for the
purpose of the presumption-of-reasonableness instruction. Neither party has cited any
Texas authority in which a party has so argued.
But this court has previously addressed the facial constitutionality of Section
46.04 in light of Second Amendment challenges, concluding that it is facially
constitutional.7 See Ex parte Huell, 704 S.W.3d 246, 247 (Tex. App.—Fort Worth 2024,
no pet.) (affirming denial of pretrial habeas corpus application because Section
46.04 was not facially unconstitutional); see also Jimison v. State, No. 02-23-00084-CR,
2025 WL 52113, at *1–2 (Tex. App.—Fort Worth Jan. 9, 2025, pet. ref’d) (mem. op.,
not designated for publication) (holding that Section 46.04(a) is facially constitutional
and noting that “felon-in-possession statutes are permissible regulations under the
Second Amendment”); Ex parte Sharpe, No. 02-24-00282-CR, 2024 WL 5162850, at
*2 (Tex. App.—Fort Worth Dec. 19, 2024, pet. ref’d) (mem. op., not designated for
publication) (relying on Huell to affirm denial of application for pretrial habeas relief
based on facial challenge to Section 46.04); Ex parte Strickland, No. 12-24-00031-CR,
2024 WL 4471121, at *1 & n.1, *4 (Tex. App.—Tyler Oct. 9, 2024, pet. ref’d) (mem.
op. on reh’g, not designated for publication) (affirming denial of application for writ of
7 Strong has not raised a facial challenge to Section 46.04. See Pokhrel v. State, No. 02-25-00123-CR, 2025 WL 3119093, at *3 (Tex. App.—Fort Worth Nov. 6, 2025, no pet.) (“In a facial constitutional challenge, the claimant asserts that the complained-of law is unconstitutional on its face, meaning that it operates unconstitutionally in all of its potential applications.” (citation modified)).
18 habeas corpus challenging Section 46.04 when prior felony conviction was DWI-3rd);
Swindle v. State, No. 08-23-00057-CR, 2023 WL 7171472, at *1, *5 (Tex. App.—El Paso
Oct. 31, 2023, pet. ref’d) (mem. op., not designated for publication) (affirming
conviction for unlawful possession of a firearm by a felon over appellant’s facial and
as-applied challenges to Section 46.04 in light of his prior convictions for aggravated
assault with a deadly weapon by threat, felony arson, terroristic threat, and assault–
family violence). Although we have not yet addressed an as-applied challenge, as we
noted in Huell, “[T]he Second Amendment does not prohibit the government’s
restriction of firearm possession by convicted felons.” 704 S.W.3d at 250.
We find persuasive both the Fifth Circuit’s analysis in Diaz, see 116 F.4th at 465–
71, and the analysis our sister court performed in Strickland, see 2024 WL 4471121, at
*4. In Strickland—arising from the denial of a pretrial writ of habeas corpus application
based on the Second Amendment—the defendant had been indicted for being a felon
in possession of a firearm, and his indictment identified his prior felony conviction as
DWI-3rd or more. Id. at *1 & n.1. Our sister court observed that Section
46.04 “involves a prior finding that a person poses a threat to others, [that is], his alleged
prior conviction of a felony offense, and, thus, ‘fits neatly within the tradition the
[historical] surety and going-armed laws represent,’” and, like those laws, “applies to
individuals found to have threatened the physical safety of others or otherwise shown a
propensity for consequential lawlessness.” Id. at *3 (emphasis added).
19 Our sister court noted that “such a prior finding resulting in a felony conviction
has all the procedural and constitutional safeguards afforded by our judicial system.” Id.
Further, “Section 46.04 restricts gun use to mitigate either demonstrated threats of
physical violence or prior disregard of penal law similarly to the manner the surety and
going-armed laws do and does not broadly restrict arms use by the public generally.”
Id. If, as alleged in the indictment, the State proved that the defendant was a convicted
felon, then he “is not a law-abiding citizen entitled to Second Amendment rights” under
Supreme Court precedent. Id. at *4 (referencing Bruen); see also Swindle,
2023 WL 7171472, at *1, *5 (concluding that Section 46.04 was constitutional
as-applied).
In an as-applied challenge—such as this one—the claimant “concedes the
general constitutionality of the statute[ ] but asserts that the statute is unconstitutional
as applied to his particular facts and circumstances.” Estes v. State, 546 S.W.3d 691,
698 (Tex. Crim. App. 2018). Resolving an as-applied challenge “requires a recourse to
evidence.” Id. And a litigant raising an as-applied challenge “must show that, in its
operation, the challenged statute was unconstitutionally applied to him; that it may be
unconstitutional as to others is not sufficient (or even relevant).”
State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011) (orig. proceeding);
see Owens v. State, 728 S.W.3d 155, 160 (Tex. Crim. App. 2025) (explaining that the merits
of an as-applied challenge depend on the evidence: “The challenger must show that the
statute was unconstitutionally applied to him.”).
20 Here, during the guilt–innocence phase, Strong conceded the basics of his
criminal record almost immediately upon taking the stand. Then, and during the State’s
cross examination, although his judgments of conviction were not before the trial court,
he freely admitted to having two 2021 felony convictions for unlawfully carrying a
firearm as a felon, and he admitted to having a 2017 felony-level evading conviction.
He likewise admitted that he knew as a felon that he was not supposed to own or be
around guns. No other details were given about his convictions, including whether he
had pleaded guilty to the gun charges to avoid trial on more serious charges. And
importantly, Strong presented nothing to rebut his own confession that he knew he was
not supposed to own or be around guns. Nor did Strong demonstrate that any of his
three prior felony convictions had been overturned.
At the charge conference, Strong’s counsel argued that although Strong had been
convicted of the felony offenses of “evading with a vehicle” and two prior state
felon-in-possession offenses—which had not been set aside—he should be viewed as
a “non[-]violent felon” for purposes of determining whether he had a Second
Amendment right to possess a firearm when he shot Marquece. But counsel’s
arguments were not evidence that Strong’s felonies were non-violent.
See Brumfield v. State, No. 01-24-00166-CR, 2025 WL 1710287, at *15 n.26 (Tex. App.—
Houston [1st Dist.] June 19, 2025, pet. ref’d) (mem. op., not designated for publication)
(“The arguments of counsel are not evidence.”).
21 Because, as our sister court noted in Strickland, Section 46.04 involves a prior
finding that a person poses a threat to others, it fits neatly in the historical tradition of
laws applying to individuals found to have threatened others’ physical safety or
otherwise having shown a propensity for consequential lawlessness and does not
broadly restrict arms use by the public generally. See 2024 WL 4471121, at *3; see also
Swindle, 2023 WL 7171472, at *4 (“[T]he United States Supreme Court [has] left
generally undisturbed the regulatory framework that keeps firearms out of the hands of
dangerous felons.”). The trial court had before it Strong’s admission to three prior
felony convictions and his unrebutted admissions that he was not supposed to own or
be around guns. We thus conclude that the trial court properly determined that the
evidence adduced at trial was insufficient to give rise to the presumption of
reasonableness; that is, because the trial court properly rejected Strong’s attempted
as-applied challenge from the evidence before it and determined that he was engaging
in criminal activity when he shot and killed Marquece, it did not err by refusing Strong’s
requested instruction. See Tex. Penal Code Ann. § 2.05(b)(1); Morales, 357 S.W.3d at 7;
Duke v. State, Nos. 05-24-01092-CR, 05-24-01093-CR, 2025 WL 2988742, at
*4 (Tex. App.—Dallas Oct. 23, 2025, no pet.) (mem. op., not designated for
publication) (rejecting as-applied challenge to Section 46.04 because the appellant failed
to offer any supporting evidence). We overrule Strong’s sole appellate issue.
22 III. Conclusion
Having overruled Strong’s sole appellate issue, we affirm the trial court’s
judgment.
/s/ Elizabeth Kerr Elizabeth Kerr Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: March 26, 2026