Ex Parte: Scott Kent Chamberlain

Opinion

AFFIRMED and Opinion Filed August 24, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-01102-CR

EX PARTE SCOTT KENT CHAMBERLAIN

On Appeal from the County Court at Law No. 7 Collin County, Texas Trial Court Cause No. 007-83088-2020

MEMORANDUM OPINION Before Justices Myers, Partida-Kipness, and Garcia Opinion by Justice Garcia Scott Kent Chamberlain appeals the trial court’s order denying his pretrial

application for writ of habeas corpus. Appellant is accused of violating section 42.12

of the penal code which prohibits recklessly discharging a firearm inside the

corporate limits of a municipality with a population of 100,000 people or more. See

TEX. PENAL CODE ANN. § 42.12 (a). In two issues, appellant contends section 42.12

violates the federal and state constitutional guarantees to equal protection under the

law. We affirm the trial court’s order denying relief. BACKGROUND

The information charges appellant did “recklessly discharge a firearm inside

the corporate limits of a municipality having a population of 100,000 or more,

namely the City of Frisco, by discharging his AR-15 inside his apartment causing

the bullet to enter the apartment above the defendant’s residence.” After he was

charged, appellant filed an application for writ of habeas corpus pursuant to article

11.09 of the code of criminal procedure. In his writ application, appellant argued

that by criminalizing only reckless discharges of firearms that take place in cities

with populations of 100,000 or more, the statute divides people who recklessly

discharge firearms into two classes only one of which faces criminal prosecution.

Citing census data he provided as an exhibit, appellant contended the legislative

determination to criminalize only reckless discharges that take place in larger cities

is not rationally related to a legitimate state interest.

The trial court conducted a teleconference hearing on the writ application at

which counsel presented argument. The trial court denied relief and this appeal

follows.

STANDARD OF REVIEW

We review a trial court’s ruling on a habeas application for an abuse of

discretion, viewing any factual determinations in the light most favorable to the trial

court’s ruling. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). A

defendant may use pretrial habeas to challenge the facial constitutionality of a

–2– statute, but may not use the habeas process to challenge the constitutionality of the

statute as applied to the defendant’s particular circumstances. Ex parte Ellis, 309

S.W.3d 71, 79 (Tex. Crim. App. 2010). A facial challenge attacks the statute itself.

Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015). To prevail on a facial

challenge, the challenger must establish that the statute always operates

unconstitutionally in all possible circumstances. Salinas v. State, 464 S.W.3d 363,

367 (Tex. Crim. App. 2015).

When a habeas applicant challenges the facial constitutionality of a statute,

that determination is a question of law that we review de novo. Id. at 366. In

conducting our de novo review, we presume the statute is valid and that the

legislature did not act unreasonably or arbitrarily in creating it. Rodriguez v. State,

93 S.W.3d 60, 69 (Tex. Crim. App. 2002). We make every reasonable presumption

in favor of the statute’s constitutionality, unless the contrary is clearly shown.

Peraza, 467 S.W.3d at 514. The challenger bears the burden to establish the statute

is unconstitutional. Rodriguez, 93 S.W.3d at 69.

ANALYSIS

Appellant contends Texas Penal Code Section 42.12 violates the Equal

Protection Clauses of the United States Constitution and the Texas constitution.1 See

1 Appellant organizes his state and federal constitutional challenges as separate issues, but does not provide a separate argument under the Texas constitution. Both parties recognize that the Texas constitution’s guarantee of equal protection is considered co-extensive with the federal guarantee and thus may be evaluated under the federal standard. See Cannady v. State, 11 S.W.3d 205, 215 (Tex. Crim. App.

–3– U.S. CONST. amend. XIV, § 1; TEX. CONST. art. 1, § 3. The Fourteenth Amendment

provides in relevant part that no State shall “deny to any person within its jurisdiction

the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. The constitutional

guarantee of equal protection is “essentially a direction that all persons similarly

situated should be treated alike.” Estes v. State, 546 S.W.3d 691, 697 (Tex. Crim.

App. 2018) (quoting City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432,

439 (1985).

The protections afforded by the Equal Protection Clause “must coexist with

the practical necessity that most legislation classifies for one purpose or another,

with resulting disadvantage to various groups or persons.” Romer v. Evans, 517 U.S.

620, 631 (1996). Equal protection “does not require that all persons be dealt with

identically, but it does require that a distinction made have some relevance to the

purpose for which the classification is made.” Baxstrom v. Herold, 383 U.S. 107,

111 (1966). Thus, in evaluating the challenged statute, “if a law neither burdens a

fundamental right nor targets a suspect class, we will uphold the legislative

classification so long as it bears a rational relation to some legitimate end.” Romer,

517 U.S. at 631.

2000); see also Downs v. State, 244 S.W.3d 511, 518 (Tex. App.—Fort Worth 2007, pet. ref’d) (federal and state guarantees of equal protection are generally co-extensive and appellate court will address issue under federal constitution unless appellant argues Texas constitution provides greater protection). Because appellant does not present a separate argument for the violation of the Texas constitution, we will discuss the issues together and analyze them under the federal constitution. –4– Appellant contends the statute divides individuals who recklessly discharge

firearms into two classes: those who fire their weapons within the boundaries of

cities with a population of 100,000 or more and those who fire their weapons in areas

that are not within the boundaries of cities with populations of 100,000 or more.

Appellant concedes, and we agree, that this classification does not burden a

fundamental right nor do persons recklessly discharging firearms constitute a

“suspect class” that would elevate the level of scrutiny the statute receives to strict

scrutiny. See Cleburne, 473 U.S. at 440 (defining suspect classes as those defined

by race, alienage, or national origin); Kiss v. State, 316 S.W.3d 665, 668 (Tex.

App.—Dallas 2009, pet. ref’d) (government may not discriminate against members

of class of individuals who have historically suffered discrimination); see also

Dinkins v. State, 894 S.W.2d 330, 342 (Tex. Crim. App. 1995) (criminal defendants

do not constitute suspect class); Walker v. State, 222 S.W.3d 707, 711 (Tex. App.—

Houston [14th Dist.] 2007, pet. ref’d) (felons are not a suspect class).

Thus, we will uphold section 42.12 if it advances a legitimate government

interest even if it seems unwise, works to the disadvantage of a particular group, or

the rationale for it seems tenuous. Romer, 517 U.S. at 632; see also Kiss, 316 S.W.3d

at 668 (under rational relationship review, we presume discriminatory classification

is valid and uphold classification as long as it bears rational relationship to any

legitimate governmental interest).

–5– Appellant contends section 42.12 is unconstitutional because it is not

rationally related to a legitimate state interest. Appellant contends that the legitimate

state interest at issue is the State’s interest in stopping the reckless discharge of

firearms. Appellant quotes from the bill analysis for the statute’s rationale:

“Houston, Dallas, and other heavily populated metropolitan areas are confronted

with the problem of citizens recklessly discharging firearms without regard to the

safety of the people around them, with no means to regulate them.” See Bill Analysis,

Tex. S.B. 68, 74th Leg., R.S. (1995).

Appellant contends the statute is not rationally related to the State’s legitimate

interest because it prohibits reckless discharges only in large cities without regard to

the density of the cities and without taking into account that some smaller

metropolitan areas not covered by the law have even greater population densities,

and thus presumably a greater safety risk from recklessly discharging firearms, than

the large cities covered by the statute. Appellant further contends that the large cities

are frequently interwoven with smaller suburbs into “municipal quilts” where

boundary lines are arbitrary and bullets fired from a smaller suburb could easily

cross municipal boundary lines and strike someone in a city covered by the statute.

Appellant analogizes the statute to the laws regulating driving while

intoxicated and possession of illegal drugs, suggesting the current statute would be

analogous to a statute banning driving while intoxicated only in large cities or

prohibiting consumption of certain drugs only by males. Appellant contends the

–6– statute cannot be rational unless it generally prohibits the reckless discharge of

firearms anywhere and that restricting the law based on population size is an

irrational way to stop the reckless discharge of firearms.

The State responds that the statute is rationally related to a legitimate state

interest and that appellant’s criticisms are really just complaints that the legislature

could have drafted a better statute rather than showing that the legislature acted

irrationally in drafting the statute it enacted. The State points to the bill analysis

appellant admitted into evidence as showing the purpose of the statute was to protect

citizens at greater risk of bodily injury and death resulting from the reckless

discharge of firearms in places actually experiencing a problem with reckless use of

firearms. Using the voluminous information appellant provided to the trial court, the

State points out that, while not perfect, larger cities tend to have dense populations

and more weapons offenses. The State concludes the legislature could rationally

conclude that people living in more populous cities are at a great risk of injury or

death from the reckless discharge of firearms.

According to the State, appellant’s argument that the legislature should have

used population density rather than population to draw the protected areas is merely

proposing another way to advance the State’s goal. The State concedes that

appellant’s census data shows some small cities are more dense than some large

cities, but contends mathematical precision is not required when drafting a statute.

The State also highlights that using population density instead of population brings

–7– its own set of challenges such as the uneven density of urban areas that tend to be

divided more between commercial and residential areas than suburbs that tend to

have more concentrated residential areas. The State contends appellant asks the

Court to focus on exceptions while ignoring the general rule that large cities contain

dense concentrations of people.

We agree with the State. Although appellant repeatedly states that section

42.12 is irrational, he provides no authority stating or even suggesting that it is

irrational or violates equal protection guarantees to create a category of offenses

applying only in large cities. The cases he does cite as authoritative—Romer and

Quinn v. Millsap—are significantly different factually from the present case. In

Romer, the Supreme Court considered an equal protection challenge to an

amendment to the state constitution of Colorado that prohibited all legislative,

executive, or judicial action to protect “homosexual, lesbian or bisexual orientation,

conduct, practices or relationships . . . .” See Romer, 517 U.S. at 624. In finding the

amendment unconstitutional, the Supreme Court reasoned that it uniquely “identifies

persons by a single trait and then denies them protection across the board.” Romer

is like appellant’s hypothetical statute that only criminalizes drug consumption by

males. We see no parallel between the present case, which provides for criminal

prosecution against any person with any set of personal traits who voluntarily

commits a reckless and irresponsible act within the designated municipal

boundaries, and the type of pervasive personal discrimination that Romer addresses.

–8– In Quinn, the Supreme Court considered whether a provision of the state

constitution of Missouri mandating that only real property owners could serve on a

special board charged with drafting plans to reorganize certain city and county

governments violated the equal protection rights of Missouri voters who did not own

real property. See Quinn v. Millsap, 491 U.S. 95, 96–98 (1989). The Supreme Court

concluded that the constitutional provision could not survive rational basis scrutiny

because “it is a form of invidious discrimination to require land ownership of all

appointees to a body authorized to propose reorganization of local government.” Id.

at 107.

Again, we see no application for Quinn in the existing case. There is no

rational relationship between owning real property and one’s ability to serve on a

government board. On the other hand, appellant concedes that stopping deaths and

injuries caused by the reckless discharge of firearms is a legitimate state interest. See

Hill v. Colorado, 530 U.S. 703, 715 (2000) (protecting health and safety of citizens

is traditional use of States’ police powers and legitimate state interest). In this case,

section 42.12 is rationally related to the protection of Texas residents’ safety because

the statute provides criminal penalties for such behavior and thus attempts to deter

such behavior. See Lopez v. State, 576 S.W.3d 446, 448 (Tex. App.—Austin 2019,

pet. ref’d) (rejecting as-applied equal protection challenge to statute imposing

harsher penalties on drug crimes committed within drug-free zones because statute

–9– attempting to deter drug crimes in zones near areas frequented by children rationally

related to legitimate government interest of protecting children).

Appellant’s argument that a rational statute would use population density as a

criterion, or simply apply universally within the state like the DWI laws, does not

shift our view that the statute is rationally related to and advances a legitimate

governmental interest. See Romer, 517 U.S. at 632; Kiss, 316 S.W.3d at 668. The

legislature chose, for its own reasons, to use population size as a rough proxy for the

type of densely populated urban environment where the danger created by recklessly

discharging a firearm rises to the point of requiring a criminal penalty.

The fact that appellant can point to a few unprotected suburbs with greater

population density than the larger, protected cities they are in proximity with might

make the statute imperfect, but it does not make it irrational. According to census

data appellant provided, Texas has 1,214 incorporated cities, towns, and villages.

Although he did not choose to address the evidence during the habeas hearing,

appellant filed an affidavit into the record attaching crime statistics from the FBI on

a selection of Texas cities showing weapons offenses are more common in larger

cities than in small ones. The bill analysis appellant cited shows the legislature

identified and tried to address a problem concentrated in “Houston, Dallas, and other

heavily populated metropolitan areas.”

To survive an equal protection challenge, a law does not require mathematical

nicety and may involve some rough accommodations to solve the practical problems

–10– of government. See Kiss, 316 S.W.3d at 668 (quoting Dandridge v. Williams, 397

U.S. 471, 485 (1970). “Above all, a court should spurn any attempt to turn rational-

basis review into a debate over the wisdom, eloquence, or efficacy of the law in

question.” Estes, 546 S.W.3d at 698. Appellant’s effort to persuade us that the

legislature could have potentially drafted a better statute questions the wisdom and

efficacy of the statute. Id.

We conclude section 42.12 prohibiting the reckless discharge of a firearm in

municipalities with populations of 100,000 or more, even if imperfect, is rationally

related to the government’s legitimate interest in policing behavior that endangers

its residents. The law applies to anyone who chooses to recklessly discharge a

firearm in one of the prohibited areas. Thus, we further conclude appellant has not

shown that the statute violates the constitutional right to equal protection under the

law. See Romer, 517 U.S. at 632; Kiss, 316 S.W.3d at 668. We overrule appellant’s

issues.

We affirm the trial court’s order denying relief on appellant’s pretrial

application for writ of habeas corpus.

/Dennise Garcia/ DENNISE GARCIA Do Not Publish JUSTICE TEX. R. APP. P. 47.2(b) 201102F.U05

–11– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

EX PARTE SCOTT KENT On Appeal from the County Court at CHAMBERLAIN Law No. 7, Collin County, Texas Trial Court Cause No. 007-83088- No. 05-20-01102-CR 2020. Opinion delivered by Justice Garcia. Justices Myers and Partida-Kipness participating.

Based on the Court’s opinion of this date, the order of the trial court denying relief on appellant’s pretrial application for writ of habeas corpus is AFFIRMED.

Judgment entered August 24, 2021

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