The Texas Court of Criminal Appeals has declined to review a case concerning the constitutionality of a former Texas statute that restricted permitless carry outside of one’s house.
Isaiah Kain Salas-Martinez was sentenced to 12 years’ confinement following a murder conviction that rested, in part, on this outdated statute that was in effect at the time of the offense. Salas-Martinez contends the statute violated his Second and Fourteenth Amendment rights.
The case highlights the issue of courts using an outdated statute in instructions to the jury if it governed at the time of the offense.
Background
In December 2017, Salas-Martinez showed up at a party after his girlfriend facetimed him, accusing a male attendee of sexually assaulting her. Upon arrival, Salas-Martinez was armed with a shotgun and handgun.
After Salas-Martinez confronted the man accused of sexual assault with a shotgun, a fight broke out. The shotgun flew away from them. While face down with others on top of him, Salas-Martinez drew the handgun from his waistband. Although he disputes pulling the trigger, three shots were fired in the struggle—one of which killed a male attendee who was not the one accused of the sexual assault.
In February 2023, Salas-Martinez was found guilty by a Harris County grand jury for the first-degree felony offense of murder. Judge Ana Martinez of the 179th District Court sentenced him to twelve years’ confinement.
Salas-Martinez immediately appealed his conviction to the First District Court of Appeals in Houston, raising multiple alleged errors.
Contested Jury Charge
Trial courts are required to provide a written charge that informs the jury of the applicable law and guides the jury in applying it to the case.
According to court filings, “[Salas-Martinez] argues that the jury charge erroneously included an instruction on Penal Code section 46.02, which violated his right to carry a firearm in public under the Second and Fourteenth Amendments.”
This was the 2017 version of the law, which was applicable at the time of the offense. However, it had been amended by the time Judge Martinez—a Democrat—wrote it into the self-defense portion of the jury charge.
It was explained to the jury that “[a] person violates Penal Code section 46.02 if the person intentionally, knowingly, or recklessly carries a handgun and the person is not on the person’s property or inside of or directly en route to the person’s vehicle or watercraft.”
Salas-Martinez contends that the U.S. Supreme Court has effectively declared such statutes unconstitutional, citing precedent set by the 2022 U.S. Supreme Court decision in New York State Rifle & Pistol Association v. Bruen.
In Bruen, the Court ruled that “New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.”
Nonetheless, amendments were made to section 46.02 through the passage of the Firearm Carry Act, which took effect on September 1, 2021. This means Salas-Martinez was not challenging the constitutionality of a statute on the books, but rather that of a former statute that was applied against him.
However, the court pointed out that Salas-Martinez did not object to the jury charge in the trial court, only making an issue of it following his conviction.
Ineffective Counsel
Secondarily, Salas-Martinez argued that his trial counsel provided ineffective assistance by failing to object to inclusion of the 2017 version of section 46.02 in the jury charge.
He pointed to the Sixth Amendment of the U.S. Constitution, which guarantees a criminal defendant the right to have the effective assistance of counsel for his defense.
However, the court reasoned that this does not entitle a defendant to errorless representation.
In reviewing an ineffective assistance claim, the court must therefore consider the totality of the representation. A single error will rarely prove that counsel was ineffective, unless the error was “egregious” and had a seriously damaging impact on counsel’s representation as a whole.
On these bases, the First District Court dismissed Salas-Martinez’ claims in August 2024, affirming the trial court’s judgement of conviction.
Court of Criminal Appeals
In January 2025, Salas-Martinez filed a petition for discretionary review with the Court of Criminal Appeals (CCA)—Texas’ highest criminal court.
The only issue for the Court to consider was “whether Penal Code Section 46.02, which says it is unlawful for a person to carry a gun outside of his house, is unconstitutional in light of the Supreme Court’s opinion issued in New York State Rifle and Pistol Association, Inc. v. Bruen.”
The CCA granted review on April 23, 2025.
However, after having “examined the record and the briefs of the parties,” the Court decided this month that its previous decision to grant review was “improvident.” Salas-Martinez’ petition was therefore dismissed, and his conviction upheld.
No further reasoning was provided by the CCA.
Salas-Martinez’ case highlights how a retired statute—particularly one that may now be considered unconstitutional under subsequent U.S. Supreme Court decisions—could still be written into a defendant’s jury charge if it governed at the time of the offense.
Had Salas-Martinez’ legal team more clearly challenged the statute’s use in the charge during trial, his Second Amendment arguments might have been better positioned for review by the CCA.
Nonetheless, because the Court dismissed the case without deciding the Bruen question, the issue remains a gray area in Texas law.
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