Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-22-00872-CR
The STATE of Texas,
Appellant
v.
Wilter Olivia GOMEZ,
Appellee
From the County Court, Kinney County, Texas
Trial Court No. 12051CR
Honorable Dennis Powell, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: November 15, 2023
AFFIRMED
The State appeals the trial court’s order granting Wilter Olivia Gomez’s requested habeas
relief and dismissing his criminal case with prejudice. We affirm.
BACKGROUND
On March 6, 2021, Governor Greg Abbott directed the Texas Department of Public Safety
(“DPS”) to initiate Operation Lone Star (“OLS”) and “devote additional law enforcement
resources toward deterring illegal border crossing and protecting [] border communities.” He
further directed “DPS to use available resources to enforce all applicable federal and state laws to
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prevent criminal activity along the border, including criminal trespassing, smuggling, and human
trafficking, and to assist Texas counties in their efforts to address those criminal activities.” As
part of OLS, Gomez, a noncitizen, was arrested for criminal trespass in Kinney County; he filed
an application for writ of habeas corpus seeking dismissal of the criminal charge, arguing his rights
had been violated under the Constitution’s Equal Protection Clause and the Texas Constitution’s
Equal Rights Amendment. See U.S. CONST. amend. XIV; TEX. CONST. art. I, § 3(a). Specifically,
Gomez argued the State’s selective prosecution of men, and not similarly situated women, for
criminal trespass as part of OLS violated his constitutional rights. The trial court granted the writ
and set the matter for an evidentiary hearing.
At the hearing, Claudia Molina with the Laredo Private Defenders Office (“LPDO”)
testified about OLS and the process through which individuals arrested and charged are appointed
counsel. She testified that LPDO was awarded a grant allowing it “to become the indigent defense
hub for individuals arrested under Operation Lone Star.” Molina, an assignment supervisor,
oversees “all things related to the assignments process including the appointment of counsel,
communication with the court and [the appointed] attorneys.” She testified that pursuant to OLS,
if a defendant is arrested in Val Verde, Kinney, Maverick or Uvalde counties, he is taken to the
Val Verde Temporary Processing Center, but if a defendant is arrested in Jim Hogg, Webb, or
Zapata counties, he is taken to the Jim Hogg Temporary Processing Center. LPDO is then notified
within twenty-four hours of the defendant being magistrated and assigns appointed counsel.
Molina testified that as part of her job, she reviews probable cause statements, which are forwarded
to LPDO after the defendant is magistrated. Molina testified the primary charges in OLS cases are
criminal trespass and smuggling of persons. Molina was asked to prepare a report of all OLS cases
in which LPDO had appointed counsel from August 2021 (when LPDO began appointing counsel
for OLS cases) to the end of October 2022. Molina testified that LPDO had appointed counsel in
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7,750 total OLS cases. Of those 7,750 cases, 5,700 cases involved individuals charged with
criminal trespass. With regard to Kinney County specifically, Molina testified that 4,800 cases
arose out of Kinney County, and 3,700 were related to individuals charged with criminal trespass.
Molina was then asked whether LPDO had appointed counsel to any women arrested for criminal
trespass in Kinney County before October 31, 2022. Molina testified that as of October 31, 2022,
no women had been arrested for criminal trespass and appointed counsel. According to Molina, in
her review of probable cause statements, the women detained are not arrested for criminal trespass,
but are instead referred to border patrol.
On October 15, 2021, Gomez was arrested for criminal trespass of a critical infrastructure
facility (a railroad) in an area subject to a declaration of a state disaster made by the governor under
section 418.014 of the Texas Government Code. During her testimony, Molina was asked whether,
during the week of Gomez’s arrest, LPDO had appointed any counsel for women charged with
criminal trespass. She replied no such women had been appointed counsel. According to Molina,
out of 7,000 people LPDO has appointed counsel since OLS began, only four women have been
magistrated for criminal trespass and appointed counsel, and those appointments occurred on
November 8, 2022.
Omar Saucedo, a social worker with Neighborhood Defender Service Texas
(“Neighborhood Defender”), oversees a group of client advocates who regularly visit clients
arrested under OLS. He explained that Neighborhood Defender is assigned to clients by LPDO.
Since OLS began, Neighborhood Defender has been assigned 900 cases. Saucedo testified that
none of those 900 clients were women.
Captain Joel Betancourt, the captain of DPS’s south Texas region, testified as to his role in
coordinating with local officials to plan how to implement and execute OLS. He explained that
individuals arrested in Kinney County are sent to the Val Verde Temporary Processing Center
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where they are magistrated. According to Captain Betancourt, the Val Verde Temporary
Processing Center and the Jim Hogg Temporary Processing Center had to be retrofitted to meet
the criteria of a county jail, including adding air conditioning to the facilities.
Captain Betancourt testified that as part of his role in OLS, he met with county prosecutors
involved with OLS, including those in Kinney County. He helped define the arrest criteria for
OLS. He further testified that he sent an email on August 12, 2021. Captain Betancourt explained
that men and women are sometimes detained together on private property, and the email provided
examples of how to handle certain types of groups, including mixed-sex groups. The email, which
was admitted in evidence without objection, states the following:
We will continue to arrest those immigrants who are trespassing on private property
(Only in Val Verde and Kinney County) where the landowner has either agreed to
file a complaint or agreed to have us sign them on their behalf. The criteria has been
expanded to include the majority of single adult males. While it would be difficult
to cover every single scenario, below are some examples:
Father, Mother, and Child under 18 – Family Unit. Release to BP.
Father, Mother, and Child over 18 and are trespassing-Male father will be arrested.
Mom and adult child will be released to BP.
Uncle and adult nephew and are criminal trespassing – Arrest both.
Uncle and child nephew – Family Unit, refer to BP.
The basic common denominators are:
If there is a child who is part of a family[,] [w]e will refer to BP.
If the family consists of male adults (18 and over)[,] we will arrest, if they are
trespassing.
Please let me know if you have any questions.
Joel A. Betancourt
Captain
South Texas Region – Del Rio.
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(emphasis in original). Captain Betancourt testified that he expected every DPS trooper making
criminal trespass arrests to be aware of his guidance.
Captain Betancourt further explained that when women are found on private property
allegedly committing criminal trespass, DPS officers never call local facilities to check for
capacity. Women are “always sent to immigration” because there was no “place to put them” as
the local county jails have no capacity. Captain Betancourt was asked whether there were sufficient
facilities to hold men charged with criminal trespass when OLS was first initiated. Captain
Betancourt testified there were not sufficient facilities. He admitted that the State had to fund the
modification of facilities to hold the men who were being arrested for criminal trespass pursuant
to OLS. Captain Betancourt was asked, “In all fairness, this is a multi-billion-dollar operation?”
He replied, “Yes, sir.” He was then asked, “And so it’s just a matter of money, but certainly the
State could build a facility or convert a facility to put women in; isn’t that right?” Captain
Betancourt replied, “Yes, sir.” Captain Betancourt testified the Val Verde facility was built to hold
men arrested pursuant to OLS because, otherwise, the local jail in Kinney County would have been
overwhelmed. He testified that jail standards require men and women to be housed separately and
that he had informed prosecutors there were not facilities to hold women arrested for criminal
trespass pursuant to OLS. He admitted that women would be arrested for criminal trespass pursuant
to OLS if the State built another holding facility for women.
Trooper Osvaldo Guajardo testified that in criminal trespass arrests he has made under
OLS, if there were mixed gender groups, men were arrested and women were released to border
patrol. He testified that he had orders that when making a criminal trespass arrest pursuant to OLS,
“if there’s a female or if there’s a family, refer them to Border Patrol.” When asked where those
orders came from, Trooper Guajardo replied, “Probably in an email or word of mouth from our
sergeants. Somewhere in the chain of command.”
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In addition to the above testimony, several exhibits were admitted in evidence, including
Governor Abbott’s Proclamation of May 31, 2021. At the end of the hearing, the trial court set
deadlines by which the State and Gomez could file supplemental briefing. On December 20, 2022,
the trial court granted Gomez’s requested relief, finding that Gomez had presented a prima facie
selective prosecution claim on the basis of equal protection:
Specifically, the Court finds Applicant [Gomez] is a man, and the evidence proves
purposeful discrimination in this case. The Applicant was arrested and charged, but
would not have been arrested if he were a woman; hence, he was treated differently
from similarly situated women, based on sex. Hence, the Applicant is the target of
selective enforcement based on the constitutionally protected class of sex, in
violation of equal protection [as] guaranteed by the U.S. Constitution and the Texas
Constitution. Accordingly, the defendant [Gomez] made a prima facie case of sex
discrimination. The policy of Operation Lone Star, as it now stands, has a
discriminatory effect and is motivated by a discriminatory purpose.
The trial court then found the State had not met its burden of justifying the discriminatory
treatment:
The State, in turn, failed to prove an adequate justification for the discrimination.
There was no evidence that the discrimination based on sex served an important
governmental objective, and naturally therefore, no evidence to establish that the
discrimination was substantially related to achievement of important governmental
objectives. Furthermore, the State failed to prove that the State has a compelling
interest and there is no other manner to protect that compelling interest without
systematically arresting only men for criminal trespass and releasing all women.
The Court does not find the criminal trespass statute to be unconstitutional, but
finds the application of that law under Operation Lone Star renders the prosecution
under that statute to be unconstitutional as applied to this individual.
The Court does not find unconstitutional enforcement at the level of the local
prosecutor’s office. Prosecution of women is not being summarily declined by the
County Attorney’s office, but that office is limited to decisions of whether or not to
prosecute the cases which the office receives, which are only cases involving
accused males. Under the current system, the unconstitutional prosecution is fully
implemented at the level of arrest of only male suspects.
However, ostensibly Kinney County could have eradicated the discriminatory
intent of Operation Lone State by pulling out the county checkbook, and bearing
the financial burden of arresting, housing, and prosecuting women, as the County
surely does for other crimes. The State failed to produce evidence about the
feasibility, or lack of feasibility, of that alternative. If the County had done so there
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is no reason to think the arresting officers could have been instructed to not only
arrest men, but to also arrest women, when the probable cause existed to do so. But
that has not happened.
The trial court “order[ed] the criminal prosecution against Applicant be dismissed with prejudice.”
The State appealed.
DISCUSSION
In its brief, the State argues the trial court erred in granting relief on Gomez’s selective
prosecution equal protection claim for the following three reasons: (1) Gomez’s pretrial habeas
claim is not cognizable; (2) Gomez did not present a prima facie case of selective prosecution on
the basis of violation of his equal protection rights; and (3) the State met its burden of showing its
policy passes “the strictest of scrutiny.”
A. Standard of Review
In reviewing a trial court’s decision to grant or deny habeas corpus relief, we defer to the
trial 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). Thus, we
view the facts in the light most favorable to the court’s ruling and will uphold it absent an abuse
of discretion. Perusquia, 336 S.W.3d at 274-75; Quintana, 346 S.W.3d at 684. “We afford almost
total deference to the trial court’s determination of historical facts that are supported by the record,
and to mixed questions of law and fact, when the resolution of those questions, turn[s] on
evaluations of credibility and demeanor.” Perusquia, 336 S.W.3d at 275. “If the resolution of the
ultimate question turns on an application of the law, we review the determination de novo.” Id.
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B. Cognizability of a Pretrial Selective Prosecution Equal Protection Habeas Claim on
the Basis of Gender Discrimination
The State first argues that Gomez’s pretrial selective prosecution claim is not cognizable.
Recently, in Ex parte Aparicio, 672 S.W.3d 696, 713 (Tex. App.—San Antonio 2023, pet.
granted), we 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 substantive rights
or the conservation of judicial resources would be better served by interlocutory review.’” Id. at
709 (quoting Ex parte Ingram, 533 S.W.3d 887, 892 (Tex. Crim. App. 2017)). Accordingly, we
held the claim was cognizable in a pretrial habeas proceeding. Id. Thus, for the same reasons
explained in Aparicio, 672 S.W.3d at 707-13, we hold Gomez’s pretrial habeas claim is cognizable.
C. Gomez’s Prima Facie Claim
The State further argues that Gomez failed to establish a prima facie case of selective
prosecution equal protection. To establish a prima facie case of selective prosecution, Gomez 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, Gomez 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 that the
prosecution was motivated by a discriminatory purpose, Gomez had to show that 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).
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In Aparicio, 672 S.W.3d at 715, we also considered whether a noncitizen who had been
charged with trespass under OLS had met his burden of stating a prima facie case for selective
prosecution on the basis of gender discrimination. After reviewing the evidence presented at the
habeas hearing, we held the applicant had met his burden of showing discriminatory effect and
discriminatory purpose, and thus had stated a prima facie claim for selective prosecution on the
basis of gender discrimination. See id. Here, the evidence presented at Gomez’s habeas hearing is
similar to the evidence presented in Aparicio. See id. at 701-06. Additionally, the arguments made
by the State in its brief are the same arguments it presented in Aparicio. See id. at 713-15.
Therefore, for the same reasons enunciated in Aparicio, we conclude Gomez met his burden of
showing a prima facie case for selective prosecution on the basis of gender discrimination. See id.;
see also State v. Del Campo-Chavez, No. 04-22-00737-CR, 2023 WL 4916433, at *2 (Tex. App.—
San Antonio Aug. 2, 2023, pet. filed (relying on Aparicio and affirming the trial court’s granting
of habeas relief on applicant’s selective prosecution claim brought on the basis of equal
protection).
D. State’s Burden
Because Gomez met his burden of showing a prima facie case for selective prosecution on
the basis of gender discrimination, the burden shifted to the State to justify the discriminatory
treatment. See Aparicio, 672 S.W.3d at 715. With regard to Gomez’s state claim, the Texas
Constitution’s Equal Rights Amendment was “designed expressly to provide protection which
supplements the federal guarantees of equal treatment” and specifies “sex, race, color, creed, or
national origin” as protected classes. Bell v. Low Income Women of Tex., 95 S.W.3d 253, 257 (Tex.
2002). Accordingly, it “grants additional protection against gender-based classifications” than
those found in the federal Constitution. Id. at 262; see also In re McLean, 725 S.W.2d 696, 698
(Tex. 1987) (concluding that “the Equal Rights Amendment is more extensive and provides more
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specific protection” than Constitution). “It does so by elevating sex to a suspect class and
subjecting sex-based classifications to heightened strict-scrutiny review.” Bell, 95 S.W.3d at 257.
Thus, under the Texas Equal Rights Amendment, “the State’s discriminatory conduct is subject to
strict scrutiny.” Aparicio, 672 S.W.3d at 716. To justify its discriminatory conduct, the State must
show that its discriminatory classification “is narrowly tailored to serve a compelling
governmental interest.” Id. (quoting In re Dean, 393 S.W.3d 741, 749 (Tex. 2012) (quoting Bell,
95 S.W.3d at 257)) (emphasis added). The Texas Supreme Court has explained that under this
standard, “[e]ven the loftiest goal does not justify sex-based discrimination in light of the clear
constitutional prohibition.” McLean, 725 S.W.2d at 698. “Under our model of strict judicial
scrutiny, such discrimination is allowed only when the proponent of the discrimination can prove
that there is no other manner to protect the state’s compelling interest.” Id.
At the hearing, the State did not call any witnesses or introduce any evidence. In its brief,
it argues that the following evidence in the record, which was introduced by Gomez, meets its
burden under strict scrutiny: (1) Governor Abbott’s Proclamation declaring an emergency
regarding border security; and (2) testimony that the counties implementing OLS do not have
sufficient facilities to hold women detainees. According to the State, Governor Abbott’s
Proclamation is evidence to demonstrate the State’s compelling interest. It further claims that
“OLS is narrowly tailored to address the specific migrant invasion occurring on the southern
border,” but does not explain how OLS is narrowly tailored to serve its compelling interest of
border security. The State simply argues that it “does not have sufficient facilities to house all
women who are retained.” Notably absent from the State’s argument is any evidence of the
feasibility of the State to, as the trial court stated, “pull[] out the county checkbook” and “bear[]
the financial burden of arresting, housing and prosecuting women,” as it did by modifying existing
facilities to house male detainees. Indeed, Captain Betancourt admitted at the hearing that OLS
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was a multi-billion-dollar operation and that it is merely a matter of allocating funds for the State
to build a facility or convert an existing facility to hold women. In viewing this record in the light
most favorable to the trial court’s ruling, we find no abuse of discretion by the trial court in
concluding the State failed in its burden of justifying its discriminatory conduct under strict
scrutiny, as required by Texas’s Equal Rights Amendment. See McLean, 725 S.W.2d at 698
(explaining that to meet its burden under strict scrutiny, the state must show that “there is no other
manner to protect the state’s compelling interest” other than to discriminate against men).
With regard to Gomez’s federal equal protection claim, “the State’s discriminatory conduct
is subject to intermediate scrutiny.” Aparicio, 672 S.W.3d at 715 (citing Clark v. Jeter, 486 U.S.
456, 461 (1988); Casarez v. State, 913 S.W.2d 468, 493 (Tex. Crim. App. 1995) (op. on reh’g)).
To satisfy intermediate scrutiny, the government must 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)).
That is, the state must provide an “exceedingly persuasive justification” for its classification.
United States v. Virginia, 518 U.S. 515, 533 (1996). “The burden of justification is demanding and
it rests entirely on the State.” Id. This test requires a “genuine” justification, not one that is
“hypothesized or invented post hoc in response to litigation.” Id.
Again, the State points only to the Governor’s Proclamation and the lack of pretrial
facilities to hold women. The State presents no explanation of how its policy of arresting men for
criminal trespass, and not similarly situated women, is substantially related to its important
governmental interest of border security. See Adams v. Sch. Bd. of St. Johns Cty., 57 F.4th 791,
801 (11th Cir. 2022) (“For a policy to be substantially related to an important governmental
objective, there must be ‘enough of a fit between the . . . [policy] and its asserted justification.’”
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(quoting Danskine v. Miami Dade Fire Dep’t, 253 F.3d 1288, 1299 (11th Cir. 2001)) (alteration
in original). While the State points to the lack of facilities to hold women pretrial, once again, it
has not presented any evidence of why it is not possible to modify and/or build temporary facilities
to hold women, as it did for men. We note the same testimony by Captain Betancourt that OLS is
a multi-billion-dollar operation and that it is merely a matter of allocating funds to build or modify
facilities to hold women. Therefore, viewing the facts in the light most favorable to the trial court’s
ruling, we find no abuse of discretion by the trial court in determining the State did not meet its
burden of justifying its discriminatory treatment under intermediate scrutiny. See Perusquia, 336
S.W.3d at 274-75; Quintana, 346 S.W.3d at 684.
CONCLUSION
For the reasons stated above, we hold that Gomez’s pretrial habeas claim is cognizable and
that he met his burden of showing a prima facie claim for selective prosecution on the basis of
gender discrimination. Thus, the burden shifted to the State to justify its discriminatory conduct
under both strict and intermediate scrutiny. Viewing the facts in the light most favorable to the
trial court’s ruling, we find no abuse of discretion by the trial court in determining that the State
had not met its burden under either standard. Therefore, we affirm the trial court’s order granting
Gomez habeas relief and dismissing his criminal case with prejudice.
Liza A. Rodriguez, Justice
PUBLISH
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