Ex Parte Marcos M. Flores, 14-14-00663-CR

Flores challenged Penal Code §46.02(a-1)(2)(C) via a pre-trial writ of habeas corpus after being charged in Harris County for unlawfully carrying a handgun in a vehicle while allegedly in a criminal street gang.
Statute §46.02(a-1) prohibits carrying a handgun in a motor vehicle or watercraft under certain conditions; §46.02(a-1)(2)(C) ties that prohibition to being “a member of a criminal street gang” as defined by §71.01(d) (three or more persons with common signs/symbols or identifiable leadership who regularly commit crimes).
The State argues the statute regulates conduct and not protected speech, permitting incidental First Amendment limits; Flores argues it is an overbroad/ vague speech-related restriction.
Pre-trial writs of habeas corpus are extraordinary remedies and facial challenges are disfavored when the claim is actually as-applied; the court addresses whether the challenged provisions are constitutional as applied or facially.
The court ultimately addresses the proper construction and constitutionality of §46.02(a-1)(2)(C) and related provisions, upholding the statute as applied and rejecting overbreadth and vagueness challenges.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does §46.02(a-1)(2)(C) regulate speech or expression?	Flores argues it regulates expressive conduct (First Amendment).	Flores contends the provision targets gang membership as expression.	No; statute regulates weapon possession, not speech; if viewed as regulation of speech, it is content-neutral.
Is §46.02(a-1)(2)(C) unconstitutionally overbroad?	Flores maintains the statute sweeps in substantial protected conduct.	State contends statute reaches criminal activity and limits only incidental speech.	Overbreadth challenge fails; statute does not reach substantial protected conduct; can be saved by construction.
Is §46.02(a-1)(2)(C) vague on its face?	Flores claims lack of clarity for ordinary people.	State contends statute clearly defines a gang member linked to possession restrictions.	Not unconstitutionally vague; definitions in combination with §71.01(d) provide adequate notice.
Should the court construe the statute in a manner consistent with constitutional limits?	A broader construction risks unconstitutionality.	Court should apply fair import and avoid invalidation through narrow construction.	Court favors limiting construction consistent with constitutional requirements and legislative intent.

City of Chicago v. Morales, 527 U.S. 41 (1999) (overbreadth/loitering context; limits on allowed regulation of gang activity without suppressing association rights)
O’Brien v. United States, 391 U.S. 367 (1968) (intermediate scrutiny for regulation of conduct with expressive elements)
Martinez v. State, 323 S.W.3d 493 (Tex. Crim. App. 2010) (content-neutral/compelling state interest; gang-related injunction guidance)
Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010) (facial vs as-applied challenges; pre-trial habeas corpus limits)
Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth doctrine applied with limiting constructions where possible)
Ward v. Rock Against Racism, 491 U.S. 781 (1989) (content-neutral regulation; tailoring to state interests)
Lanzetta v. New Jersey, 306 U.S. 451 (1939) (due process/vagueness concerns in gang-related statutes)