In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-23-00207-CR
EX PARTE LUIS ANGEL MARTINEZ HERNANDEZ
On Appeal from the County Court
Kinney County, Texas
Trial Court No. 10984CR
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Chief Justice Stevens
MEMORANDUM OPINION
Luis Angel Martinez Hernandez appeals the trial court’s order denying his application for
a writ of habeas corpus. Because we are bound to follow the precedent of the Fourth Court of
Appeals in this transfer case, we must reverse the trial court’s order and remand the cause for
further proceedings.1
I. Factual and Procedural Background
As part of Operation Lone Star (OLS), Hernandez, 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,
Hernandez argued that 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.
Hernandez’s application included the affidavit of Tom Schmerber, the Sheriff of
Maverick County, Texas, who swore that he “was told by [the Department of Public Safety] that
only men would be arrested on criminal trespass charges” and that “no women would be arrested
for criminal trespass.” Schmerber added, “I was told by [the Department of Public Safety] it was
their policy that women would not be arrested for criminal trespass.”
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.). We follow the
precedent of the Fourth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
2
Without conducting an evidentiary hearing, on August 10, 2023, the trial court denied
Hernandez’s application for a writ of habeas corpus, stating, “[U]pon review of the Application
and allegations the application for Writ to bring the defendant to the Court is denied without
hearing and requested relief is denied.”2 The order further stated, “This Court takes judicial
knowledge of the dockets over which [it] has and is presiding in Texas related to OLS and is
aware that women are being arrested in the State for OLS and OLS trespass offenses.”
II. The Order Denying Habeas Relief Must Be Reversed Pursuant to the Precedent of
the Fourth Court of Appeals
Hernandez argues that the trial court erred in denying his relief on his selective-
prosecution equal protection claim, emphasizing that his claim is cognizable. See Ex parte
Antonio-Santiago, No. 04-22-00628-CR, 2023 WL 5603201, at *3 (Tex. App.—San Antonio
Aug. 30, 2023, no pet.) (mem. op., not designated for publication) (citing Ex parte Aparicio, 672
S.W.3d 696, 707, 713 (Tex. App.—San Antonio 2023, pet. granted) (en banc)). This is “the
same controlling issue” reviewed by the San Antonio Court of Appeals in prior cases. Ex parte
Barahona-Gomez, 2023 WL 6285324, at *2 (citing Ex parte Aparicio, 672 S.W.3d at 708–09);
see Ex parte Antonio-Santiago, 2023 WL 5603201, at *2. Even so, “[w]ithout conducting an
2
As a preliminary matter, we address our jurisdiction. The trial court’s order in this case specifies that it “(1) heard
and considered [Hernandez’s] habeas application, (2) based its ruling on its [review] of the application” and its
allegations, “(3) denied it without an evidentiary hearing, and (4) explained its reasoning.” Ex parte Barahona-
Gomez, No. 04-23-00230-CR, 2023 WL 6285324, at *1 (Tex. App.—San Antonio Sept. 27, 2023, no pet.)
(mem. op., not designated for publication). As did the Fourth Court of Appeals in Ex parte Barahona-Gomez, we
conclude that the trial court ruled on the merits and that, as a result, we have jurisdiction over this appeal. Id. (citing
Ex parte Hargett, 819 S.W.2d 866, 869 (Tex. Crim. App. 1991), superseded in part by statute as discussed in
Ex parte Villanueva, 252 S.W.3d 391, 395–96 (Tex. Crim. App. 2008), (“clarifying an appellate court has
jurisdiction over an appeal of a trial court’s denial of an application for writ of habeas corpus regardless of whether
the trial court refuses to issue the writ or conduct an evidentiary hearing if the trial court ‘under[takes] to rule on the
merits of the application’” (alteration in original))).
3
evidentiary hearing, the trial court denied [Hernandez’s] application for writ of habeas corpus
asserting his equal protection rights.”3 Ex parte Barahona-Gomez, 2023 WL 6285324, at *2.
Following the decisions of the Fourth Court of Appeals, “we reverse and remand this
habeas proceeding for an evidentiary hearing to allow [Hernandez] to present a prima facia [sic]
case of a selective-prosecution equal protection claim.” Id. “If [Hernandez] satisfies his burden,
the State should then be allowed to present its evidence supporting why the State’s
discriminatory classification was justified . . . .” Id. (citing Ex parte Aparicio, 672 S.W.3d at
708, 715).
“On remand, the trial court should make specific findings of fact and conclusions of law
setting out its rulings on whether [Hernandez] met his prima facia [sic] case of a selective-
prosecution equal protection claim.” Id. at *3. “If [Hernandez] satisfies his burden, the trial
court should make further findings of fact and conclusions of law whether the State met its
burden of proof to justify its discriminatory treatment of [Hernandez] at the time of his arrest.”
Id.
3
According to the precedent of the Fourth Court of Appeals, the trial court’s conclusion was incorrect. See id.
(citing Ex parte Aparicio, 672 S.W.3d at 716).
4
III. Disposition
We reverse the trial court’s order denying Hernandez’s requested relief on his application
for a writ of habeas corpus and remand the cause for further proceedings consistent with the
precedent of the Fourth Court of Appeals.
Scott E. Stevens
Chief Justice
Date Submitted: November 29, 2023
Date Decided: December 5, 2023
Do Not Publish
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