Ex parte Poe

Decision Date20 April 2016
Docket NumberNO. 09–15–00373–CR,09–15–00373–CR
Citation491 S.W.3d 348
PartiesEx parte Derek Ty Poe
CourtTexas Court of Appeals

T. Edwin Walker, Walker & Byington, PLLC, Houston, for Appellant.

Bob Wortham, Criminal District Attorney, Walyn G. Thompson, Assistant Criminal District Attorney, Beaumont, for Appellee.

Before McKeithen, C.J., Horton and Johnson, JJ.



, Chief Justice

Derek Ty Poe was charged by information with the misdemeanor offense of disorderly conduct. See Tex. Penal Code Ann. § 42.01(a)(8)

(West Supp.2015). Poe filed an application for pretrial writ of habeas corpus, in which he contended that the disorderly conduct statute is facially unconstitutional due to its alleged vagueness and its alleged infringement upon his rights under the First, Second, Fifth, and Fourteenth Amendments to the United States Constitution and Article I, sections 8, 10, 19, and 23 of the Texas Constitution. See Tex. Penal Code Ann. § 42.01(a)(8).1 After conducting an evidentiary hearing, the trial court denied Poe's application. In two appellate issues, Poe challenges the trial court's denial of his habeas application. We affirm the trial court's order denying habeas relief.


The State charged Poe with disorderly conduct. Specifically, the State contended that Poe “intentionally and knowingly display[ed] a deadly weapon, namely a firearm, in a public place and in a manner calculated to alarm [.] Poe filed an application for pretrial writ of habeas corpus, in which he asserted that section 42.01(a)(8) of the Penal Code

is unconstitutionally vague, overbroad, and violates his “constitutional rights to free speech and to bear arms[.] Poe asserted that the act of displaying a firearm is conduct protected by the First Amendment.” Poe contended that the terms “displaying,” “manner,” “calculated,” and “alarm” are undefined, rendering the statute vague and overly broad, and he argued that the statute fails to give a person of ordinary intelligence fair notice “that the statute outlaws certain conduct and therefore encourages the police and the prosecution to make arbitrary and erratic arrests and convictions.”

According to Poe, the statute “provides no guidance or explanation as to what facts or circumstance[s] must exist in order to determine if a defendant's conduct was done with the specific intent showing that he calculated his display of a firearm to be alarming.” Poe maintained that the statute fails to give a reasonable person guidance as to what specific conduct is prohibited, and the statute's deficiencies “prevent law enforcement from having clear guidance as to what conduct in displaying a firearm is criminalized as being ‘a manner calculated to alarm.’ Poe also argued that section 42.01(a)(8)

has a chilling effect on public displays of firearms as an exercise of First Amendment rights. In addition, Poe contended that the statute violates the fundamental rights of persons to keep and bear arms under the Second Amendment.

Poe attached three affidavits to his application. The affidavit of T. Edwin Walker, Poe's attorney, stated that Walker had done an internet search for protests and activities involving open display of firearms for First Amendment purposes, and he averred that the twenty-eight pages attached to his affidavit were true and correct copies of the original news articles as posted on the Internet. Terry Louis Holcomb averred in his affidavit that he is the Executive Director of Texas Carry, Inc., a non-profit corporation that advocates for open carry of handguns. Holcomb explained in the affidavit that we plainly communicated to the Texas Legislature that if they did not allow a vote on the bill for open carry of a handgun with a concealed handgun license, ... we would put on our long guns and carry them all across Texas in protest of the restrictions on our handguns.” According to Holcomb,

[t]he sole purpose of openly carrying rifles and shotguns is to express our belief that people should be allowed to openly carry handguns. We are attempting to educate the public not alarm them. We have no intention to alarm anyone which is why all rifles and shotguns are displayed in a safe[,] non-threatening manner.

Holcomb further averred that in Texas, there have been eighteen arrests for openly carrying a rifle, shotgun, or “replica pre–1899 black powder pistol,” without a single conviction. According to Holcomb, [w]e are intimidated with threat of arrest and told we cannot openly carry rifles, shotguns, and replica pre–1899 black powder pistols because a person may find the mere display of them to be alarming.” Christopher John Grisham averred in his affidavit that he is President and Founder of Open Carry Texas (OCT), a non-profit gun rights group. According to Grisham, “OCT members have been arrested more than two dozen times for the lawful carry of their firearms openly as an expression of our mission to educate Texans on gun rights and secure more meaningful legislation that recognizes our right to keep and bear arms.” Grisham averred that “citizens can be arrested for a mere complaint and claim that one is ‘alarmed’ and not because any actual crime was committed.” According to Grisham, openly carrying long arms and pre–1899 antique or replica revolvers is

immensely important as a [First] Amendment issue as it draws attention and encourages dialogue on our efforts. No single method of speech has been more successful for us than the open display of firearms in a peaceful and respectful manner than carrying these long arms. Signs and flags only draw attention to the protestor, not the cause.

Grisham stated that “the law creates different standards depending on the complainant's beliefs about guns in public.”

In response to Poe's application, the State asserted that three days after Christmas 2013, during evening hours when Parkdale Mall was crowded, Poe “harnessed and shouldered an AR–15 223 Caliber Assault Rifle [ ] and began traversing the Mall. Mall patrons[ ] and store workers were horrified, and as a result, many calls were made to 911.”2 According to the State, when Beaumont police officers approached Poe, Poe “immediately became belligerent with the officers while espousing [his] Second Amendment Rights [,] but Poe eventually gave the rifle to the officers. The State asserted that Poe revealed to the officers that he was walking around the mall simply to exercise his Second Amendment right. The State argued that section 42.01(a)(8)

is not overly broad or unconstitutionally vague, and asserted that Poe's actions were “clearly calculated to cause fear and panic.”

At the habeas hearing, Poe testified that he had served in the Army for four years, and at the time of the alleged offense, he owned a firearms accessory store called Golden Triangle Tactical, which was located in Parkdale Mall. Poe testified that he commonly carried his rifle from his home to his place of business at the mall. Poe testified that on the day of the incident in December 2013, he was carrying the rifle across his back, and he had a bag of food in one hand and a drink in the other hand. According to Poe, he was carrying the rifle in a safe manner, and he was not threatening anyone or presenting the rifle in a threatening manner. Poe testified that, based upon his experience in the military, whenever a threat is anticipated, a rifle is carried in front of the body in what is called the “low ready” stance “so we could bring it up to the high ready if we're ready to engage.” According to Poe, if someone were walking in anticipation of using his rifle, he would not carry it across his back.

Poe explained that part of the reason he carries his rifle on his back is because he believes he has a First Amendment right to do so to advocate for his Second Amendment rights. According to Poe, whenever he is walking with his rifle on his back, he is expressing his belief in the Second Amendment. Poe testified that he also carries his rifle to protest restrictions on open carry of handguns. Poe testified that Parkdale Mall is owned by a private company, and he explained that prior to the incident that led to his being charged with disorderly conduct, Parkdale Mall's management and security guards had never told him not to bring his rifle into the mall.

Terry Holcomb Sr. testified that he is the executive director of Texas Carry, which he explained is “a Second Amendment gun rights policy group that works with the legislature to enact removing barriers for our Second Amendment rights.” Holcomb testified that he engages in First Amendment activities as an advocate for firearms rights. According to Holcomb, some of Texas Carry's First Amendment activities involve walking while wearing long rifles or long shotguns. Holcomb explained that the purpose of carrying guns in that manner was to protest Texas's lack of an open carry law for handguns, and people who were doing so were anticipating that other people will see them. Holcomb testified that the purpose of displaying the firearms in such a manner is not to cause alarm, but to “educate the Texas citizens to the absurdity of our current laws.” According to Holcomb, displaying a rifle on a sling across someone's back or side is a safe, non-threatening means of displaying the gun.

Holcomb testified that activists against gun rights sometimes use the disorderly conduct statute against gun rights protesters by a practice called “swatting.” Holcomb explained that swatting involves contacting law enforcement and reporting that someone protesting by wearing a gun is about to rob a store, waving the gun around, or doing something threatening.

According to Holcomb, although swatting is a common practice, no protester has been convicted under the disorderly conduct statute. Holcomb testified, we're all very much aware that if we try and express our protests [at the capitol in Austin] that they will arrest us.” During...

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8 cases
  • State v. Ross
    • United States
    • Texas Court of Criminal Appeals
    • 15 Mayo 2019
    ...have adopted an interpretation of the word "calculated" similar to the one that I have suggested above. See Ex parte Poe , 491 S.W.3d 348, 354 (Tex. App.—Beaumont 2016, pet. ref'd) ; Lovett v. State , 523 S.W.3d 342, 347 (Tex. App.—Fort Worth 2017, pet. ref'd). In both cases, the individual......
  • Grisham v. State
    • United States
    • Texas Court of Appeals
    • 23 Marzo 2017
    ...Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime."); Ex parte Poe, 491 S.W.3d 348, 355 (Tex. App.—Beaumont 2016, pet. ref'd) ("[A]lthough there clearly are constitutional rights to bear arms and to express oneself freely, there is no consti......
  • State v. Doyal
    • United States
    • Texas Court of Appeals
    • 7 Febrero 2018
    ...Doyal's contention that we must apply strict scrutiny in reviewing section 551.143.This Court's opinion in Ex parte Poe , 491 S.W.3d 348 (Tex. App.—Beaumont 2016, pet. ref'd), is instructive. In Ex parte Poe , the appellant asserted that the disorderly conduct statute is facially unconstitu......
  • Roberts v. State
    • United States
    • Texas Court of Appeals
    • 29 Noviembre 2016
    ...protected right to display a firearm in a public place in a manner that is calculated to alarm." Ex parte Poe, 491 S.W.3d 348, 355 (Tex. App.—Beaumont 2016, pet. ref'd). We hold Appellant has failed to establish that his counsel was ineffective for not challenging the constitutionality of t......
  • Request a trial to view additional results

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