Ex Parte Josue Rigoberto Flores-Servellon v. the State of Texas

REVERSE and REMAND and Opinion Filed July 16, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-24-00225-CR

EX PARTE JOSUE RIGOBERTO FLORES-SERVELLON

On Appeal from the County Court
Jim Hogg County, Texas
Trial Court Cause No. 1076C

MEMORANDUM OPINION
Before Justices Garcia, Breedlove, and Kennedy
Opinion by Justice Breedlove
Appellant Josue Rigoberto Flores-Servellon is a noncitizen who was arrested

under Operation Lone Star (OLS) and charged with the misdemeanor offense of

criminal trespass.1 Following his arrest, appellant filed an application for a pretrial

writ of habeas corpus in which he requested the issuance of a habeas writ and a

dismissal of the underlying charge.2 Appellant contended he was the subject of

selective prosecution in violation of state and federal constitutional equal protection

1
This appeal was transferred from the Fourth Court of Appeals pursuant to a Texas Supreme Court
docket equalization order. Accordingly, we apply the Fourth Court of Appeals’ precedent to the extent
required by Texas Rule of Appellate Procedure 41.3. TEX. R. APP. P. 41.3.
2
We note the State declined to file an appellate brief or a response to appellant’s writ of habeas corpus.
principles. The habeas court denied his application on the merits, and appellant

appealed, arguing the habeas court erred in not granting his requested relief. Based

on the reasoning below, we reverse and remand to the habeas court with instructions

to enter an order dismissing appellant’s criminal case with prejudice.

I. STANDARD OF REVIEW

In reviewing the merits of a habeas court’s decision to grant or deny habeas

corpus relief, we defer to the habeas court’s assessment of the facts when those facts

turn on an evaluation of credibility and demeanor. Ex parte Perusquia, 336 S.W.3d

270, 274–75 (Tex. App.—San Antonio 2010, pet. ref’d); Ex parte Quintana, 346

S.W.3d 681, 684 (Tex. App.—El Paso 2009, pet. ref’d). And we view the facts in

the light most favorable to the habeas court’s ruling, upholding it absent an abuse of

discretion. Id.; see also Ex parte Trevino, 648 S.W.3d 435, 439 (Tex. App.—San

Antonio 2021, no pet.) (recognizing that an appellate court views the facts in the

light most favorable to the habeas court’s ruling). Reviewing courts must also grant

deference to implicit findings of fact that support the habeas court’s ultimate ruling.

Perusquia, 336 S.W.3d at 275 (citing Ex parte Wheeler, 203 S.W.3d 317, 324 n.23

(Tex. Crim. App. 2006)). However, “[i]f the resolution of the ultimate question turns

on an application of the law, we review the determination de novo.” Id.; see also Ex

parte Vazquez-Bautista, 683 S.W.3d 504, 510 (Tex. App.—San Antonio 2023, pet.

filed) (recognizing same in the context of an appeal from a habeas court’s decision

granting an OLS applicant’s pre-trial petition for a writ of habeas corpus).

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To prevail on a writ of habeas corpus, the applicant bears the burden of

proving, by a preponderance of the evidence, the facts that would entitle him to

relief. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). Habeas corpus

is a remedy available to applicants who are “restrained in their liberty.” See TEX.

CODE CRIM. PROC. art. 11.01.

II. APPELLANT’S ARREST AND APPLICATION FOR A PRETRIAL
WRIT OF HABEAS CORPUS

On March 6, 2021, Governor Greg Abbott directed the Texas Department of

Public Safety (DPS) to initiate OLS “to deter[ ] illegal border crossing and . . .

prevent criminal activity along the border.” Ex parte Aparicio, 672 S.W.3d 696, 701

(Tex. App.—San Antonio 2023, pet. granted).

As part of OLS, appellant, a noncitizen, was arrested for misdemeanor

criminal trespass in Jim Hogg County on May 28, 2022. Appellant then filed an

application for a pretrial writ of habeas corpus seeking dismissal of the criminal

charge, arguing his rights had been violated under the United States Constitution’s

Equal Protection Clause and the Texas Constitution’s Equal Rights Amendment,

because the State was selectively prosecuting men, and not similarly situated

women, for criminal trespass under the OLS. See U.S. CONST. amend. XIV; TEX.

CONST. art. I, § 3a.

Appellant attached several exhibits supporting his claim that the State had a

policy of arresting only noncitizen men for criminal trespass while referring

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similarly situated noncitizen women to Border Patrol. Among the exhibits was an

affidavit from Maverick County Sherriff Tom Schmerber stating he was “told by

DPS that only men would be arrested on criminal trespass charges as part of OLS”

and that it was DPS’s “policy that women would not be arrested for criminal

trespass.”

Additionally, the trial court conducted a hearing on appellant’s habeas

application. During the hearing, appellant presented testimony from DPS trooper Joe

Guadalupe Hernandez. Hernandez testified that when OLS began there was no

directive to arrest females; he was instructed to only arrest males.

Hernandez stated that at the time he arrested appellant for criminal trespass

on May 28, 2022, the policy of arresting men only was still in place. In fact,

Hernandez testified that two females were with appellant at the time he was arrested,

yet Hernandez did not arrest the females and instead turned them over to U.S. Border

Patrol.

Appellant also presented testimony from Trace Segundo, an assignments

coordinator at the Lubbock Private Defender’s Office (LPDO). Segundo explained

that LPDO is the organization responsible for assigning counsel to indigent

defendants arrested pursuant to OLS. Segundo generated a report for the writ hearing

that showed the total number of OLS cases in which the LPDO had appointed

counsel to OLS indigent defendants. In Jim Hogg County, Segundo reported the

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LPDO had appointed counsel for 493 defendants charged with criminal trespass and

that not one of the 493 defendants was female.

Additionally, Segundo testified that a part of her job is to review OLS

probable cause affidavits. During her review of the affidavits, Segundo saw cases

where men were arrested for trespassing alongside women. To Segundo’s

knowledge, none of the women had been prosecuted for criminal trespass through

the end of September 2022.

The habeas court subsequently denied appellant’s application, and appellant

filed a notice of appeal. For the reasons set forth below, we reverse the habeas court’s

denial of relief.

III. WE REVERSE AND REMAND FOR DISMISSAL OF THE CHARGE

Appellant argues the habeas court erred by denying his selective prosecution

claim because he properly raised his claim in pretrial habeas writ, he established a

prima facie case of sex discrimination, and the State failed to justify its

discriminatory policy. We agree with appellant.

A. Appellant’s pretrial selective prosecution equal protection claim is
cognizable on habeas.

We start with appellant’s argument that his claim of selective prosecution is

cognizable in a pretrial writ of habeas corpus. The Fourth Court of Appeals

considered this issue and concluded a “selective-prosecution claim on the basis of

equal protection is the type of claim ‘in which the protection of the applicant’s

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substantive rights or the conservation of judicial resources would be better served

by interlocutory review.’” Aparicio, 672 S.W.3d at 709 (quoting Ex parte Ingram,

533 S.W.3d 887, 892 (Tex. Crim. App. 2017)). Accordingly, the Fourth Court of

Appeals held the claim was cognizable in a pretrial habeas proceeding. Id. We follow

the on-point precedent of the Fourth Court of Appeals and hold appellant’s pretrial

habeas claim is cognizable.3 See TEX. R. APP. P. 41.3 (holding a transferee court

must follow the precedent of the transferor court).

B. Appellant met his burden to establish a prima facie claim of
selective prosecution.

We next consider whether appellant met his burden of proving a prima facie

claim of discrimination. To establish a prima facie case of selective prosecution,

appellant must show the “prosecutorial policy ‘had a discriminatory effect and that

it was motivated by a discriminatory purpose.’” United States v. Armstrong, 517

U.S. 456, 465 (1996) (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)).

To establish a discriminatory effect in a selective prosecution case based on gender

discrimination, appellant had to show similarly situated individuals of the opposite

sex were not prosecuted for the same conduct. See id. (stating standard with respect

to race discrimination); Robles v. State, 585 S.W.3d 591, 597 (Tex. App.—Houston

3
We note the Court of Criminal Appeals granted the State’s petition for discretionary review. See
Aparcio v. State, No. PD-0461-23, 2024 WL 178283 (Tex. Crim. App. 2024). In the petition, the State
argues the court erroneously concluded Aparicio’s claim was cognizable in a pretrial writ of habeas corpus.
The Court of Criminal Appeals, on its own motion, granted review on the following ground:
Whether the Court of Appeals erred in reversing the habeas court’s finding that Appellant failed to
establish a prima facie case of selective prosecution on the basis of sex discrimination. See id.
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[14th Dist.] 2019, pet. ref’d) (applying Armstrong standard to gender

discrimination). To demonstrate the prosecution was motivated by a discriminatory

purpose, appellant had to show the State’s selection of him for prosecution was based

on an impermissible consideration like gender. See Wayte, 470 U.S. at 610; Lovill v.

State, 287 S.W.3d 65, 79 (Tex. App.—Corpus Christi-Edinburg 2008), rev’d on

other grounds, 319 S.W.3d 687 (Tex. Crim. App. 2009).

In Aparicio, the Fourth Court held the State’s policy of prosecuting men but

not women for trespass established a prima facie case of sex discrimination. See

Aparicio, 672 S.W.3d at 713–15. Like the appellant in Aparicio, appellant

introduced evidence demonstrating the State prosecuted men but not women

trespassers as part of OLS and that this policy was in effect when the State arrested

him on May 28, 2022.

Appellant’s evidence—including the affidavit from Maverick County Sherriff

Tom Schmerber stating he was “told by DPS that only men would be arrested on

criminal trespass charges as part of OLS” as well as Hernandez’s testimony that he

was instructed to arrest only males and Segundo’s testimony that not one of the 493

defendants arrested in Jim Hogg County for criminal trespass was female—

demonstrates appellant’s gender was the reason he was prosecuted. Accordingly, we

hold appellant established by a preponderance of the evidence a prima facie case of

sex discrimination by showing OLS had a discriminatory effect and it was motivated

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by a discriminatory purpose. See Armstrong, 517 U.S. at 465; Ex parte Richardson,

70 S.W.3d 865, 871 (Tex. Crim. App. 2002); Aparicio, 672 S.W.3d at 714.

C. The State failed to adequately justify its decision to discriminate.

We now turn to appellant’s final argument in which he asserts the State did

not meet its burden of justifying its discriminatory conduct under the United States

Constitution or the Texas Constitution. See Aparicio, 672 S.W.3d at 716. With

regard to appellant’s claim under the Texas Constitution’s Equal Rights

Amendment, the State had to show that its discriminatory classification is narrowly

tailored to serve a compelling governmental interest. Id. With regard to his federal

equal protection claim, the State had to show “that the classification serves

‘important governmental objectives and that the discriminatory means employed’

are ‘substantially related to the achievement of those objectives.’” Miss. Univ. for

Women v. Hogan, 458 U.S. 718, 724 (1982) (quoting Wengler v. Druggists Mut. Ins.

Co., 446 U.S. 142, 150 (1980)).

The Fourth Court of Appeals has rejected attempts by the State to justify its

policy of gender discrimination under both the United States Constitution and Texas

Constitution. See State v. Compean, No. 04-22-00886-CR, 2023 WL 8104870, at *2

(Tex. App.—San Antonio Nov. 22, 2023, pet. filed) (mem. op., not designated for

publication); State v. Rodas, No. 04-22-00885-CR, 2023 WL 8103194, at *2 (Tex.

App.—San Antonio Nov. 22, 2023, pet. filed.) (mem. op., not designated for

publication); State v. Gomez, No. 04-22-00872-CR, 2023 WL 7552682 at *5-6 (Tex.

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App.—San Antonio Nov. 15, 2023, pet. filed) (mem. op., not designated for

publication). In those cases, the Fourth Court of Appeals held although security at

the border may be considered a compelling interest, the State failed to demonstrate

that its actions were narrowly tailored to serve that interest. Id. Additionally, the

Fourth Court has rejected the State’s attempts to justify “that the classification serves

‘important governmental objectives and that the discriminatory means employed’

are ‘substantially related to the achievement of those objectives.’” Id. Thus, for the

same reasons explained in those cases, we hold the State failed to justify its policy

of gender discrimination.

D. We direct the habeas court to enter an order of dismissal.

The proper remedy in this case is to reverse the habeas court’s order denying

appellant’s writ application, without the necessity of remanding for any further

proceedings on the merits of his claims and direct the habeas court to enter an order

of dismissal. The sole purpose of an appeal from a habeas court’s ruling is to “do

substantial justice to the parties,” and in resolving such an appeal, we may “render

whatever judgment . . . the nature of the case require[s].” TEX. R. APP. P. 31.2, .3.

And under the circumstances of this case, we do not believe it would do substantial

justice to the parties to remand for any further proceedings on the merits.

Here, the State has not requested we remand this case to the habeas court for

further proceedings to give it the opportunity to present additional evidence or

arguments on the issue. Accordingly, because there is no dispute in the present case,

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either in the law or in the facts, on the question of whether the State unjustifiably

engaged in gender discrimination against appellant, we conclude it would be an

“exercise in futility” to remand for further proceedings on the merits. N. Cypress

Med. Ctr. Operating Co., Ltd. v. Aetna Life Ins. Co., 898 F.3d 461, 479–80 (5th Cir.

2018) (where facts and law were well-settled, court recognized that it would be an

“exercise in futility” and “diminish judicial economy” to remand to the habeas court

for further proceedings, where there was a “high likelihood” that the same issue

would return to the court in a subsequent appeal, thereby further prolonging the

litigation unnecessarily). As well, we find that remanding to the habeas court for

additional proceedings on the merits would unnecessarily cause further delays in

resolving appellant’s habeas claim, which cuts against the principle that habeas

proceedings should be handled in an expedited manner. Ex parte Johnson, 876

S.W.2d 340, 343 (Tex. Crim. App. 1994) (finding it appropriate to issue a writ of

habeas corpus, without remanding to the habeas court, by utilizing its habeas corpus

jurisdiction and power to “expedite a fair resolution of the unconstitutional situation

the courts below have created for this applicant”); TEX. R. APP. P. 31.2(b) (providing

that an appeal in a habeas corpus proceeding other than one challenging a

defendant’s conviction or placement on community supervision, “shall be submitted

and heard at the earliest practicable time”).

IV. CONCLUSION

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The habeas court erred as a matter of law in denying appellant’s application

for a pretrial writ of habeas corpus on the merits. Accordingly, we reverse the habeas

court’s order and remand to the habeas court to grant the writ and dismiss with

prejudice the misdemeanor criminal trespass charge against appellant.

/Maricela Breedlove/
MARICELA BREEDLOVE
Do Not Publish JUSTICE
TEX. R. APP. P. 47
240225F.U05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

EX PARTE JOSUE RIGOBERTO On Appeal from the County Court,
FLORES-SERVELLON Jim Hogg County, Texas
Trial Court Cause No. 1076C.
No. 05-24-00225-CR Opinion delivered by Justice
Breedlove. Justices Garcia and
Kennedy participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
REVERSED and REMANDED for further proceedings consistent with this
opinion.

Judgment entered July 16, 2024

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