Jarod Cade Swindle v. the State of Texas

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

JAROD CADE SWINDLE, § No. 08-23-00057-CR

Appellant, § Appeal from the

v. § 109th Judicial District Court

THE STATE OF TEXAS, § of Andrews County, Texas

Appellee. § (TC# 8172)

MEMORANDUM OPINION

Appellant Jarod Cade Swindle was tried by a jury and convicted of the offense of unlawful

possession of a firearm by a felon. See TEX. PENAL CODE ANN. § 46.04(a). In two issues, he

challenges the constitutionality of § 46.04(a), on its face, and as applied to him. Because the record

establishes a clerical error in the trial court’s judgment, we reform the judgment to reflect the

proper statute for the offense. We affirm the trial court’s judgment as reformed.

BACKGROUND

On December 31, 2021, an officer with the Andrews County Sheriff’s Office responded to

a 911 call reporting a subject with a firearm at a property located at 2150 S.E. 2700 in Andrews

County. A small group of people were celebrating the New Year. The caller, who knew Swindle,

reported that Swindle had said something that sounded like a threat, and he saw him with a gun in his hand. Another witness saw “ammo” on his shoulder. When the officer arrived, he asked

Swindle if he had a gun, and Swindle responded, “I don’t have a gun. I’m a felon. I can’t have

one.” The officers searched Swindle’s vehicle and found a loaded AK-47. The officer then arrested

Swindle “[f]or felon in possession of a firearm.”

Prior to that date, Swindle was convicted, in 2014, of aggravated assault with a deadly

weapon by threat. For that offense, he was sentenced to serve seven years in prison. Eventually,

Swindle was indicted on one count of unlawful possession of a firearm by a convicted felon for

the incident occurring on New Years’ Eve. See TEX. PENAL CODE ANN. § 46.04(a).

Swindle filed a pretrial application for writ of habeas corpus where he argued the

indictment should be dismissed because § 46.04(a) of the Texas Penal Code facially violated the

Second Amendment of the United States Constitution. After a hearing, the trial court denied the

application.

The case proceeded to trial where the State presented testimonial evidence through six

witnesses. By certified copy of prior judgments, it also presented prior conviction evidence

establishing that Swindle had previously pleaded guilty to felony arson in 2004, terroristic threat

in 2010, and assault family violence in 2014. After the State rested its case, Swindle moved for

directed verdict asserting that Texas Penal Code § 46.04, subparts (a) and (e), were

unconstitutional on their face and as applied to him. The trial court denied Swindle’s motion.

Swindle next testified in his own defense where he testified that he believed he could own the

weapon in question because his research showed it was not a “firearm” as prohibited by the terms

of the applicable statute.

After deliberating, the jury returned a guilty verdict for unlawful possession of a firearm

by a felon as prohibited by Texas Penal Code § 46.04(a). The trial court entered a final judgment

2 of conviction for “Unlawful Possession of a Firearm by a Felon,” referencing “46.04(e) Texas

Penal Code” as the statute for the offense, and sentenced Swindle to ten years confinement. This

appeal followed.

DISCUSSION

Swindle presents two issues for review. First, he contends that § 46.04(a) of the Texas

Penal Code is unconstitutional because recent decisions of the United States Supreme Court and

the United States Court of Appeals for the Fifth Circuit demonstrate that regulations purporting to

disarm persons convicted of crimes, even felonies, are not rooted in the nation’s history nor its

tradition of firearms regulations, and therefore, such laws offend the Second Amendment. Second,

he argues that § 46.04(a) is unconstitutional as applied to him because the five-year prohibition on

owning a firearm in one’s own home, post-release from sentence, does not survive the recent test

announced by the United States Supreme Court in New York State Rifle & Pistol Ass’n, Inc. v.

Bruen, 142 S. Ct. 2111, 2123 (2022).

A. The Second Amendment

The Second Amendment to the Constitution of the United States provides: “A well

regulated Militia, being necessary to the security of a free State, the right of the people to keep and

bear Arms, shall not be infringed.” U.S. CONST. amend. II. In a series of recent cases, the United

States Supreme Court has addressed this amendment. First, in District of Columbia v. Heller, 554

U.S. 570, 635 (2008), the Supreme Court held that “[a] ban on handgun possession in the home

violates the Second Amendment, as does its prohibition against rendering any lawful firearm in

the home operable for the purpose of immediate self-defense.” Second, in McDonald v. City of

Chicago, 561 U.S. 742, 791 (2010), the Court held that the Second Amendment applies to the

states through the Fourteenth Amendment. Third and lastly, in Bruen, the Court held that the

3 Second Amendment also protects possession of a handgun outside the home for self-defense and

this protected right was violated by a “proper cause” gun licensing standard that required

applicants to “demonstrate a special need for self-protection.” 142 S. Ct. at 2123.

In Bruen, the Court substantially clarified the level of scrutiny applicable to regulations

impacting an individual’s right to possess and carry a handgun publicly for self-defense. Id. The

required analysis requires a court to initially ask whether the “Second Amendment’s plain text

covers [the] individual’s conduct.” Id. at 2126. This includes the question of whether the person

challenging the regulation is one of “the people” who holds Second Amendment rights. See id. at

2134 (“It is undisputed that petitioners Koch and Nash-two ordinary, law-abiding, adult citizens-

are part of the people whom the Second Amendment protects.”); United States v. Rahimi, 61 F.4th

443, 452 (5th Cir. 2023), cert. granted, 143 S. Ct. 2688 (2023) (“Heller’s reference to law-abiding,

responsible citizens meant to exclude from the Court’s discussion groups that have historically

been stripped of their Second Amendment rights . . . Bruen’s reference to ordinary, law-abiding

citizens is no different.”). If the Amendment’s plain text covers the person and his conduct, that

conduct is presumptively protected. Bruen, 142 S. Ct. at 2129–30. Accordingly, when the historical

record presented to a court does not demonstrate a Second Amendment-encompassed firearm

regulation that is consistent with American historical tradition, it is deemed unconstitutional. See

id. at 2138. To show consistency, however, the government does not have to provide restrictions

that are identical to the one being challenged, but rather “identify a well-established and

representative historical analogue.” Id. at 2133 (emphasis omitted).

Relevant to this case, § 46.04(a) of the Texas Penal Code provides that:

(a) A person who has been convicted of a felony commits an offense if he possesses a firearm:

4 (1) after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or

(2) after the period described by Subsection (1), at any location other than the premises at which the person lives.

TEX. PENAL. CODE ANN. § 46.04(a).

B. Analysis

The State contends that Swindle’s constitutional challenge fails because the Second

Amendment’s plain text does not cover the possession of a firearm by a violent felon like Swindle.

Our sister courts of appeals have held, prior to Bruen, that the government may limit firearm

possession without violating the Second Amendment. See Arnett v. State, No. 01-18-00859-CR,

2019 WL 6755503, at *4 (Tex. App.—Houston [1st Dist.] Dec. 12, 2019, pet. ref’d) (mem. op.)

(holding § 46.04(b) was not unconstitutional on its face); Wells v. Texas Dep’t of Pub. Safety, No.

14-17-00547-CV, 2019 WL 962214, at *2 (Tex. App.—Houston [14th Dist.] Feb. 28, 2019, no

pet.) (mem. op., not designated for publication) (holding revocation of handgun license following

a DWI conviction does not violate the Second Amendment); Wargocz v. Brewer, No. 02-17-

00178-CV, 2018 WL 4924755, at *9 (Tex. App.—Fort Worth Oct. 11, 2018, no pet.) (mem. op.,

not designated for publication) (holding that protective-order statute prohibiting possession of a

firearm, as applied in appellant’s case, did not violate the Second Amendment).

As to § 46.04(a), the Texarkana Court of Appeals upheld the statute’s constitutionality. See

Ross v. State, No. 06-14-00157-CR, 2015 WL 4594130, at *6 (Tex. App.—Texarkana July 31,

2015, no pet.) (mem. op., not designated for publication) (determining that § 46.04(a)(1) was not

unconstitutional as applied to appellant). There, our sister court of appeals noted that Heller and

McDonald did not support appellant’s assertion that the Second Amendment protected his right,

5 as a felon, to possess firearms in his own home. See id. Furthermore, the court cited to precedent

of the United States Fifth Circuit Court of Appeals upholding the constitutionality of a federal

statute forbidding felons from possessing firearms, on similar facts, which it noted was more

restrictive than § 46.04(a). See United States v. Anderson, 559 F.3d 348, 351–52 (5th Cir.2009),

cert. denied, 557 U.S. 913 (2009) (defendant may be convicted under federal statute as felon in

possession of firearm for possessing firearm in his own home); see also United States v.

Darrington, 351 F.3d 632, 633–34 (5th Cir.2003), cert. denied, 541 U.S. 1080 (2004) (holding 18

U.S.C.A. § 922(g) “does not violate the Second Amendment”).

Swindle contends that because of the more recent Bruen decision, all prior caselaw

regarding the constitutionality of firearms restrictions is now in question. But we note that,

although these cases were decided before Bruen, they were all premised on the principle that felons

had historically lacked Second Amendment rights. See United States v. Emerson, 270 F.3d 203,

261 (5th Cir. 2001) (reasoning that “felons, infants and those of unsound mind may be prohibited

from possessing firearms”); see also Heller, 554 U.S. at 635 (stating that “nothing in our opinion

should be taken to cast doubt on longstanding prohibitions on the possession of firearms by

felons”); McDonald, 561 U.S. at 791. 1

Swindle relies on two post-Bruen cases out of the United States Fifth Circuit Court of

Appeals and the United States Third Circuit Court of Appeals to assert they support a finding that

1 The Texas Court of Appeals have yet to review the effect Bruen has on the constitutionality of § 46.04(a) but have reviewed Bruen under the light of different scenarios. See Ex parte Isedore, No. 14-22-00161-CR, 2023 WL 142514, at *4 (Tex. App.—Houston [14th Dist.] Jan. 10, 2023, no pet.) (holding, while analyzing appellant’s challenge as the Bruen decision requires, that the bond condition forbidding appellant from using or possessing a firearm while released on bond is consistent with American historical tradition and therefore passes muster under the Second Amendment); Lynch v. Lopez, No. 02-22-00435-CV, 2023 WL 3878434, at *4 (Tex. App.—Fort Worth June 8, 2023, no pet.) (rejecting appellant’s request for a new trial based on argument that new case law demonstrates a default protective order’s prohibition of his right to possess a firearm is unconstitutional); Galovelho LLC v. Abbott, No. 05-21-00965- CV, 2023 WL 5542621, at *7 (Tex. App.—Dallas Aug. 29, 2023, no pet. h.) (rejecting appellant’s argument that the Bruen test is applicable in any context other than the Second Amendment).

6 § 46.04(a) is unconstitutional on its face. See Rahimi, 61 F.4th at 452 (holding federal statute that

prohibited possession of firearms by someone subject to domestic violence restraining order

violated the Second Amendment); Range v. Attorney Gen. United States of Am., 69 F.4th 96, 98,

106 (3d Cir. 2023) (holding federal statute that prohibited possession of firearms by someone “who

has been convicted . . . of [] a crime punishable by imprisonment for a term exceeding one year”

was unconstitutional as applied to someone with a false statement conviction). But we conclude

the cases are unavailing.

First, considering the cases in reverse order, Range is factually distinguishable as the

federal court of appeals specifically concluded the claimant remained “among ‘the people’

protected by the Second Amendment,” despite his conviction of a nonviolent, non-dangerous

misdemeanor for which he had not been incarcerated. Range, 69 F.4th at 98. Similarly, in Rahimi,

the United States Fifth Circuit Court of Appeals reiterated the longstanding prohibition on the

possession of firearms, stating that “Heller’s reference to law-abiding, responsible citizens” and

“Bruen’s reference to ordinary, law-abiding citizens” “meant to exclude from the Court’s

discussion groups that have historically been stripped of their Second Amendment rights.” Rahimi,

61 F.4th at 452. Specifically, the Fifth Circuit concluded that, even though the defendant was

subject to an agreed domestic violence restraining order entered in a civil proceeding, “Rahimi

was not a convicted felon or otherwise subject to another longstanding prohibition[] on the

possession of firearms that would have excluded him” from the political community within the

amendment’s scope. Id. Because it concluded that Rahimi was among “the people” entitled to the

Second Amendment guarantees, it continued its analysis to apply the scrutiny imposed by Bruen.

Id. at 453.

7 Here, Swindle was previously convicted of aggravated assault, a second-degree felony.

The State asserts this conviction disqualified him from the exercise of Second Amendment rights

because § 46.04(a) finds historical analogues in laws that disarmed convicted felons. Indeed,

federal circuit courts, post-Bruen, have examined and acknowledged that the Nation’s history and

traditions include “longstanding prohibitions on the possession of firearms by felons” and that

such measures are “presumptively lawful.” Heller, 554 U.S. at 626 n.26; McDonald, 561 U.S. at

786. Moreover, by analogizing to 18 U.S.C.A. § 922(g)(1), decisions reflect that Bruen itself

signals the statute survives the new Bruen test. Bruen, 142 S. Ct. at 2122 (beginning the opinion

by expressly reaffirming the holdings of the Supreme Court’s decisions in Heller and McDonald);

United States v. Jackson, 69 F.4th 495, 506 (8th Cir. 2023) (upholding the constitutionality of §

922(g)(1)). The United States Supreme Court specifically stated: “nothing in [its] opinion should

be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.”

Bruen, 554 U.S. at 626. For these reasons, it remains unnecessary to engage in the historical

analysis test articulated in Bruen. We conclude the United States Supreme Court left generally

undisturbed the regulatory framework that keeps firearms out of the hands of dangerous felons

through its decision in Bruen by reaffirming and adhering to its reasoning in Heller and McDonald.

Moreover, we conclude that Swindle’s as applied challenge also fails. He asserts that

because he was no longer serving his sentence for the prior felony when he was arrested for

possessing a firearm, § 46.04(a) is unconstitutional as applied to him. Swindle directs us to the

United States Third Circuit Court of Appeal’s decision in Range to assert that even if

“[d]isarmament of persons for firearms-related offenses was permitted,” the disarmament should

not last longer than the length of the sentence imposed. See Range, 69 F.4th at 105–06. He

contends, for this reason, the five-year prohibition against possessing firearms in § 46.04(a) is

8 unconstitutional since his disability based on parole would have expired on January 8, 2021, or

prior to his arrest for possession of a firearm in December 2021. Swindle, however, misunderstands

the holding of Range, as there, the Court determined that a lifetime bar to firearm possession was

unconstitutional when applied to Range because he was not a convicted felon or violent criminal.

See id. at 105.

Accordingly, we conclude § 46.04(a) is constitutional on its face and as applied to Swindle.

We overrule Swindle’s first and second issue.

CONCLUSION

Although we overrule Appellant’s two issues, we do find a clerical error in the trial court’s

judgment. The judgment identifies the statute for the offense as §46.04(e) of the Texas Penal Code.

But the record shows Swindle was indicted under §46.04(a), and a jury found him guilty as charged

under that provision. Accordingly, we reform the judgment so that the statutory offense reads

§46.04(a) of the Penal Code. We affirm the judgment as reformed.

GINA M. PALAFOX, Justice

October 31, 2023

Before Rodriguez, C.J., Palafox, and Soto, JJ.

(Do Not Publish)