Ex Parte Candido Antonio Gomez-Mercado v. the State of Texas

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-23-00213-CR

EX PARTE CANDIDO ANTONIO GOMEZ-MERCADO

On Appeal from the County Court
Kinney County, Texas
Trial Court No. 12024CR

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice van Cleef
MEMORANDUM OPINION

Candido Antonio Gomez-Mercado appeals the trial court’s order in this Operation Lone

Star (OLS) case, which denied his application for a writ of habeas corpus without an evidentiary

hearing. In line with the precedent of the Fourth Court of Appeals, we previously determined

that Gomez-Mercado’s claim was cognizable, a decision upheld by the Texas Court of Criminal

Appeals in Ex parte Aparicio, No. PD-0461-23, 2024 WL 4446878, at *8 (Tex. Crim. App.

Oct. 9, 2024). In this case, Gomez-Mercado was denied the benefit of an evidentiary hearing,

while Ex parte Aparicio was decided after a full evidentiary hearing. Even so, the Texas Court

of Criminal Appeals reversed our decision requiring the trial court to conduct any evidentiary

hearing. Instead, they remanded this matter to us to decide whether Gomez-Mercado made a

prima facie showing that he was arrested and prosecuted because of his gender.1

As part of OLS, Gomez-Mercado, a noncitizen, was arrested for trespassing on private

property in Kinney County, Texas. He filed an application for a writ of habeas corpus seeking

dismissal of the criminal charge based on a violation of his rights under the United States

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

See U.S. CONST. amend. XIV; TEX. CONST. art. 1, § 3(a). Specifically, Gomez-Mercado argued

the State’s selective prosecution of men, and not similarly situated women, for criminal trespass

as part of OLS violated his state and federal equal protection rights.

In Ex parte Aparicio, the Texas Court of Criminal Appeals discussed evidence introduced

at the evidentiary hearing in that case, which also pertained to the administration of OLS cases in

1
Originally appealed to the Fourth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.).
2
Kinney County. Ex parte Aparicio, 2024 WL 4446878, at *12–13. For the reasons discussed in

Ex parte Aparicio, we find that Gomez-Mercado would be unable to make a prima facie showing

that he was arrested and prosecuted because of his gender.

As a result, we affirm the trial court’s denial of Gomez-Mercado’s pretrial writ of habeas

corpus.

Charles van Cleef
Justice

Date Submitted: December 11, 2024
Date Decided: December 19, 2024

Do Not Publish

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