Salas-Martinez, Isaiah

Penal Code § 9.31(b)(5)(A) provides a limitation on self-defense if, at the time the actor uses force against another, he has “differences” with another person or persons and seeks an explanation or discussion about their differences while violating Tex. Penal Code § 46.02 (Unlawfully carrying a weapon).  

Salas-Martinez heard his girlfriend (who was over at a friend’s house for a party) had just been sexually assaulted. He went there brandishing a shotgun and carrying a handgun. A man at the party separated Salas-Martinez from his shotgun. During a struggle with him, Salas-Martinez’s handgun discharged three times, resulting in another man being shot and killed.

At the time this occurred, the Legislature had not yet passed permit-less carry. Unlawful carrying of a weapon under Penal Code § 46.02 still made it illegal to carry a handgun away from a person’s home or vehicle without a permit.

Salas-Martinez was tried for murder. In the jury charge, the judge instructed the jury on self-defense but made the defense inapplicable if the jury found that when he was using force against the group, he was seeking an explanation or discussion and carrying a handgun away from his home. He did not object to this charge or make any constitutional complaints about the applicable statutes. The jury convicted.

On appeal, Salas-Martinez argued that (1) the version of § 46.02 in effect at the time violated the 2nd and 14th Amendments, and relatedly, that (2) counsel was ineffective for failing to object to the inclusion of § 46.02 in the jury charge. The court of appeals concluded that because Salas-Martinez had not raised his constitutional challenge to § 46.02 in the trial court, the State was deprived of an opportunity of showing how the statute was constitutional under the Supreme Court’s decision in New York Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). Along the way, it observed that Bruen involved a constitutional challenge to a gun licensing statute and did not address the constitutionality of a self-defense limitation on going armed to an airing of one’s disagreements or Tex. Penal Code § 46.02 in particular.

Salas-Martinez argues that instructing jurors that it was unlawful for the defendant to carry a handgun outside his home or vehicle contravened his 2nd/14th Amendment right (recognized in Bruen) to carry a gun for self-defense outside the home. He points to Texas’s long history of recognizing a right to peacefully approach with a weapon—that a person doesn’t forfeit self-defense simply by approaching a person he has a disagreement with, gun in hand, even when he has the intent of provoking deadly conflict if he doesn’t use language or perform acts that would reasonably lead to deadly conflict. He sees the Legislature’s codification of Penal Code § 9.31(b)(5)(A) as contrary to that history, but ultimately contends it is § 46.02 that is unconstitutional. He argues Bruen controls even though it involved a licensing statute and did not specifically address § 46.02. Because Bruen made § 46.02 unconstitutional, it should not have stood in the way of the jurors finding him justified in using deadly force.