Ex Parte Guadalupe Fabian Soto-Gervacio v. the State of Texas

REVERSE and REMAND and Opinion Filed July 17, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-24-00224-CR

EX PARTE GUADALUPE FABIAN SOTO-GERVACIO

On Appeal from the County Court
Jim Hogg County, Texas
Trial Court Cause No. 1082C

MEMORANDUM OPINION
Before Justices Garcia, Breedlove, and Kennedy
Opinion by Justice Garcia
Appellant Guadalupe Fabian Soto-Gervacio 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. See 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. We

reverse and remand to the habeas court with instructions to enter an order dismissing

appellant’s criminal case with prejudice.

I. BACKGROUND

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 September 21, 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.

The habeas court conducted a hearing on appellant’s habeas application.

During the hearing appellant presented testimony from two witnesses, Tracy

Segundo and Jose F. Aguilar.

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Segundo works as an assignment coordinator for the Lubbock Private

Defender’s Office, which provides counsel to indigent OLS defendants. Segundo

testified that as of November 2022, she was not aware of a single female charged

with criminal trespass pursuant to the OLS program, and that the LPDO did not

begin appointing females counsel for criminal trespass until January 2023.

Trooper Aguilar of the Texas Highway Patrol testified he arrested appellant

for criminal trespass on September 21, 2022. At the time he arrested appellant,

Aguilar had been ordered to arrest only men for criminal trespass and not to arrest

women.

The State declined to present testimony from any witnesses. The habeas court

subsequently denied appellant’s habeas application, and appellant filed a notice of

appeal. For the reasons set forth below, we reverse the habeas court’s denial of relief.

II. 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

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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).

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.

III. ANALYSIS

Appellant argues the habeas court erred by denying his selective prosecution

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

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

policy. We agree with appellant.

A. Cognizabilty of Appellant’s claim.

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 has

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concluded that a “selective-prosecution claim on the basis of equal protection is the

type of claim ‘in which the protection of the applicant’s 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. Following the Fourth Court of

Appeals, we hold appellant’s pretrial habeas claim is cognizable. See TEX. R. APP.

P. 41.3 (holding a transferee court must follow the precedent of the transferor court).

B. Appellant’s duty 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 [14th Dist.] 2019, pet. ref’d) (applying Armstrong standard to gender

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

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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 September 21, 2022.

Appellant’s evidence—including Segundo’s testimony that as of November

2022, she was not aware of a single female charged with criminal trespass pursuant

to the OLS program as well as Aguilar’s testimony that he was instructed to arrest

only males and to turn the females over to border patrol—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 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.

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C. The State’s duty.

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.

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

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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. Relief.

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.

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,

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

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“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

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

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

prejudice the misdemeanor criminal trespass charge against appellant.

/Dennise Garcia/
DENNISE GARCIA
Do Not Publish JUSTICE
TEX. R. APP. P. 47
240224F.U05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

EX PARTE GUADALUPE FABIAN On Appeal from the County Court,
SOTO-GERVACIO Jim Hogg County, Texas
Trial Court Cause No. 1082C.
No. 05-24-00224-CR Opinion delivered by Justice Garcia.
Justices Breedlove and Kennedy
participating.

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

Judgment entered July 17, 2024

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