In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-23-00210-CR
EX PARTE FRANCISCO ELPIDIO ALVARADO-ACEVEDO
On Appeal from the County Court
Kinney County, Texas
Trial Court No. 11642CR
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Chief Justice Stevens
MEMORANDUM OPINION
Francisco Elpidio Alvarado-Acevedo 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), Alvarado-Acevedo, 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,
Alvarado-Acevedo 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. Alvarado-Acevedo’s application included transcripts of hearings before
another judge who had granted relief on identical claims in other cases.
Without conducting an evidentiary hearing, on September 16, 2023, the trial court denied
Alvarado-Acevedo’s application for a writ of habeas corpus stating, “[U]pon review of the
Application allegations and the Court taking Judicial Knowledge of the filings in this cause, the
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.
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application for Writ to bring the defendant to the Court is denied without further hearing[2] and
requested relief is denied.”3
II. The Order Denying Habeas Relief Must Be Reversed Pursuant to the Precedent of
the Fourth Court of Appeals
Alvarado-Acevedo 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
evidentiary hearing, the trial court denied [Alvarado-Acevedo’s] application for writ of habeas
2
Although the order denied the matter “without further hearing,” the record establishes, and the State concedes, that
there was no evidentiary hearing.
3
As a preliminary matter, we address our jurisdiction. The trial court’s order in this case specifies that it “(1) heard
and considered [Alvarado-Acevedo’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))).
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corpus asserting his equal protection rights.”4 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 [Alvarado-Acevedo] to present a prima
facia [sic] case of a selective-prosecution equal protection claim.” Id. “If [Alvarado-Acevedo]
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 696).
“On remand, the trial court should make specific findings of fact and conclusions of law
setting out its rulings on whether [Alvarado-Acevedo] met his prima facia [sic] case of a
selective-prosecution equal protection claim.” Id. at *3. “If [Alvarado-Acevedo] 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 [Alvarado-Acevedo] at the
time of his arrest.” Id.
4
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).
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III. Disposition
We reverse the trial court’s order denying Alvarado-Acevedo’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 30, 2023
Date Decided: December 1, 2023
Do Not Publish
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