Opinion
08-23-00227-CR
08-16-2024
EX PARTE: ANDRES ARANDA DAMIAN Appellant.
Do Not Publish
Appeal from the The County Court of Kinney County, Texas (TC# 12266CR)
Before Alley, CJ, Palafox and Soto, JJ.
MEMORANDUM OPINION
LISA J. SOTO, Justice
Appellant Andres Aranda Damian (Aranda-Damian) is a noncitizen who was arrested under Operation Lone Star (OLS) and charged with the misdemeanor offense of criminal trespass. Contending he was the subject of selective prosecution in violation of state and federal constitutional equal protection principles, Aranda-Damian filed an application for pretrial writ of habeas corpus requesting a habeas writ, evidentiary hearing, and dismissal of the underlying charge. The trial court denied his application on the merits, and Aranda-Damian appealed, contending the trial court erred in not granting his requested relief. For the reasons set forth below, we reverse the trial court's order and remand for the trial court to dismiss the criminal proceedings against him with prejudice.
I. Factual and Procedural Background
A. Aranda-Damian's arrest and his application for habeas relief
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, Aranda-Damian was arrested for criminal trespass in Kinney County on January 16, 2022. On April 4, 2023, he filed an application for 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, as the State was selectively prosecuting men, and not similarly situated women, for criminal trespass as part of OLS. See U.S. Const. amend. XIV; Tex. Const. art. I, § 3a. Aranda-Damian attached several exhibits supporting his claim that the State had a policy of arresting only male noncitizens for criminal trespass while referring similarly situated female noncitizens to Border Patrol. Among the exhibits was a Notice of Stipulation the State filed in another OLS case in which it stipulated: "women are not prosecuted for trespass as part of Operation Lone Star, even when they are found trespassing." He also provided an affidavit from the Maverick County Sheriff, stating he was told during a meeting with Texas DPS that "only men would be arrested for criminal trespass" pursuant to the OLS policy and "it was their policy that women would not be arrested for criminal trespass." Finally, Aranda-Damian provided an affidavit from Claudia Molina, the assignment supervisor for the Lubbock County Public Defender's office, dated September 23, 2022, stating that based on her review of the records, of the 5,000 noncitizens arrested at the border, "no women have ever been appointed counsel for OLS misdemeanor trespass charges." The State did not file a response to the application.
On June 26, 2023, the trial court denied Aranda-Damian's application. Aranda-Damian filed an appeal with the Fourth Court of Appeals, which was then transferred to this Court through a Texas Supreme Court docket equalization order. See Tex.R.App.P. 41.3. As discussed below, we follow the Fourth Court of Appeals' precedent in resolving the appeal, as we are required to do by Texas Rule of Appellate Procedure 41.3. Id.
Rule 41.3 provides that: "In cases transferred by the Supreme Court from one court of appeals to another, the court of appeals to which the case is transferred must decide the case in accordance with the precedent of the transferor court under principles of stare decisis if the transferee court's decision otherwise would have been inconsistent with the precedent of the transferor court. The court's opinion may state whether the outcome would have been different had the transferee court not been required to decide the case in accordance with the transferor court's precedent." Tex.R.App.P. 41.3.
B. Aparicio and its progeny
On June 21, 2023, five days before the trial court denied Aranda-Damian's application, the Fourth Court of Appeals issued its opinion in Ex parte Aparicio, 672 S.W.3d 696. In that case, a noncitizen (Aparicio), who had been arrested for criminal trespass in Maverick County as part of OLS, filed a similar application for pretrial writ of habeas corpus seeking dismissal of the charge against him, making an identical claim that the State was selectively prosecuting men under OLS in violation of his State and federal constitutional rights. Id. at 701. Unlike the present case, however, the trial court in Aparicio issued the writ and held a full evidentiary hearing on the question of whether the State was engaging in selective prosecution. Id. at 701-06. The trial court denied the writ on the merits, despite undisputed evidence that the State was criminally prosecuting only male noncitizens for trespass under OLS, finding that Aparicio's equal protection argument failed because the State could prosecute women if it "chose to." Id. at 706.
The State does not contend that the trial court was unaware of the Fourth Court of Appeals' holding in Aparicio when it ruled on Aranda-Damian's application.
In particular, the trial court heard evidence that "as part of OLS, 4,076 people had been arrested for misdemeanor offenses and not a single individual arrested was a woman." Ex parte Aparicio, 672 S.W.3d 696, 714 (Tex. App.- San Antonio 2023, pet. granted).
On appeal, the Fourth Court of Appeals disagreed, finding Aparicio had met his initial burden of establishing a prima facie case of selective prosecution, i.e., that the State had a "prosecutorial policy" which resulted in a "discriminatory effect and that it was motivated by a discriminatory purpose." Id. at 713-14. The State then argued "'the emergency situation on Texas's southern border' justifies its discriminatory actions." Id. at 716. However, the court of appeals noted that the trial court never reached the merits of that issue, and it therefore reversed the trial court's denial of Aparicio's application for a writ of habeas corpus and remanded the matter to the trial court to "determine whether the State's discriminatory classification was justified" under both constitutional claims. Id.
The State filed a petition for discretionary review of the Fourth Court of Appeals' decision in Aparicio to the Texas Court of Criminal Appeals, which granted review. In its petition, the State's sole argument focused on whether the trial court erred in finding that Aparicio's claim was cognizable in a pretrial writ of habeas corpus. However, upon accepting the State's petition, the Court of Criminal Appeals ordered the parties to brief the following question: "Whether the Court of Appeals erred in reversing the trial court's finding that Appellant failed to establish a prima facie case of selective prosecution on the basis of sex discrimination." See Aparcio v. State, No. PD-0461-23, 2024 WL 178283 (Tex. Crim. App. 2024. As of this date, the Court of Criminal Appeals has not issued its opinion deciding either issue.
The Fourth Court of Appeals has since decided several cases involving OLS criminal trespass prosecutions in which it found, under State constitutional standards, that the State did not meet its burden of establishing a justification for its discriminatory policy of selectively prosecuting men only. For example, in State v. Gomez, No. 04-22-00872-CR, 2023 WL 7552682 (Tex. App.- San Antonio Nov. 15, 2023, pet. filed) another male non-citizen (Gomez) filed an application for pretrial writ of habeas corpus making a similar claim of selective prosecution on the basis of sex following his arrest in Kinney County for criminal trespass as part of OLS. In that case, the trial court issued the writ, held an evidentiary hearing, then granted the writ. Id. at *1. The State appealed, conceding it had only arrested males at the border under OLS, but arguing its discriminatory actions were justified based on: "(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." Id. at *5. The Fourth Court of Appeals rejected the State's argument, finding that although security at the border may be considered a compelling interest, the State did not demonstrate its actions were narrowly tailored to serve that interest. Id. The court noted that OLS was a multi-billion-dollar operation, and the State did not explain why it could not have allocated funds for a facility to hold women. Id. The court therefore held that the trial court did not abuse its discretion in "concluding the State failed in its burden of justifying its discriminatory conduct," and it affirmed the trial court's decision to grant the defendant his requested relief and dismiss his criminal case. Id.; see also State v. Garcia 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) (affirming trial court's order granting pretrial habeas relief where State failed to meet its burden of justifying its discriminatory policy); Ex parte Marcos-Callejas, No. 04-23-00327-CR, 2024 WL 2164653, at *7 (Tex. App.-San Antonio May 15, 2024, no pet. h.) (reversing trial court's order denying OLS defendant's application for pretrial writ of habeas corpus and ordering defendant's criminal case dismissed, where the State failed to meet its burden of justifying its discriminatory policy); Ex parte Vazquez-Bautista, 683 S.W.3d 504, 510 (Tex. App.-San Antonio 2023, pet. filed) (opinion on en banc reconsideration) (same).
C. The issue before us
In this case, the State does not deny that Aranda-Damian was the subject of selective prosecution, nor does it attempt to justify its discriminatory policy of prosecuting only men for criminal trespass under OLS. The State's only argument on appeal is that the trial court lacked jurisdiction to hear Aranda-Damian's application, contending that a claim of selective prosecution is not cognizable in a pretrial writ of habeas corpus. As explained below, we reject that argument in light of Aparicio, and we then consider whether we have jurisdiction to hear Aranda-Damian's appeal, and if so, how we resolve the merits of the appeal.
II. Aranda-Damian's Claims are Cognizable in a Pretrial Writ of Habeas Corpus
We start with the State's argument that Aranda-Damian's claim of selective prosecution is not cognizable in a pretrial writ of habeas corpus. The State acknowledges that the Fourth Court of
Appeals held in Aparicio that claims of this nature are cognizable in a pretrial habeas proceeding, but contends that "[t]here is no competent legal authority supporting the Court's ruling" and urges us to reject the court's ruling.
In support of its argument, the State primarily relies on Ex parte Perry, 483 S.W.3d 884, 896 (Tex. Crim. App. 2016) for the proposition that the Court of Criminal Appeals adopted an "exclusive list" of situations in which a defendant may seek a pretrial writ of habeas corpus, to include only double jeopardy claims, bail claims, and claims relating to and raised by elected officials. The court in Aparicio, however, did not read Perry so narrowly, and instead referred to its earlier holding in Ex parte Dominguez Ortiz, 668 S.W.3d 126, 131 (Tex. App.-San Antonio 2023, no pet.) in which it interpreted Perry as holding that a pretrial writ "may be appropriate when 'the particular constitutional right at issue . . . is the type that would be effectively undermined if not vindicated prior to trial.'" Ex parte Aparicio, 672 S.W.3d at 710 (citing Ex parte Dominguez Ortiz, 668 S.W.3d at 131, quoting Ex parte Perry, 483 S.W.3d at 896). And in Aparicio, the court determined that the defendant's "constitutional right to equal protection would be effectively undermined if not vindicated before trial." Ex parte Aparicio, 672 S.W.3d at 711.
The State argues that the court's decision in Aparicio conflicts with its earlier decision in Ex parte Dominguez Ortiz, 668 S.W.3d 126, 131 (Tex. App.-San Antonio 2023, no pet.). We disagree. As the court recognized in Aparicio, the defendant in Dominguez Ortiz did not raise a selective prosecution issue, and instead raised a "right to counsel claim under the Sixth Amendment." Ex parte Aparicio, 672 S.W.3d at 711. The court in Dominguez Ortiz held that this was not the "type of claim that would be 'effectively undermined if not vindicated prior to trial' because the right to prepare for trial does not encompass a right to avoid trial." Ex parte Dominguez Ortiz, 668 S.W.3d at 139. In turn, the court in Aparicio expressly distinguished Dominguez Ortiz on the ground that a selective prosecution claim is the type of constitutional claim that would entitle the defendant to avoid trial. Id. at 711.
The State also cites Ex parte Sheffield, 685 S.W.3d 86, 95 (Tex. Crim. App. 2023), which was issued after Aparicio, in an attempt to persuade us that the ruling in Aparicio was wrongly decided. We reject this argument for two reasons.
First, we do not read Sheffield as having any impact on the holding in Aparicio. In Sheffield, the court simply reiterated its long-standing view that an "applicant may not use a pretrial writ to assert his or her constitutional rights to a speedy trial[.]" Ex parte Sheffield, 685 S.W.3d at 95 (citing Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001); Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010); Ex parte Delbert, 582 S.W.2d 145, 146 (Tex. Crim. App. [Panel Op.] 1979); Ex parte Jones, 449 S.W.2d 59, 60 (Tex. Crim. App. 1970)). While the court did recognize that "pretrial habeas corpus is available 'only in very limited circumstances,'" such as in cases in which a defendant has raised a claim of double jeopardy, it did not hold that a double jeopardy claim is the only claim that a defendant may bring in a pretrial habeas application. Id. at 93 (citing Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005)). To the contrary, the court in Sheffield referred to its prior pronouncement in Perry, in which it recognized that a defendant may bring a pretrial habeas application to assert a constitutional right in situations in which "postponing relief until after trial . . . would effectively undermine the right, such that vindication would have to come before trial." Id. at 96 (citing Perry, 483 S.W.3d at 895-96). And, as set forth above in Aparicio, the Fourth Court of Appeals expressly determined that the constitutional right to be free from selective prosecution is such a right that must be vindicated prior to trial, or it would be lost. Ex parte Aparicio, 672 S.W.3d at 711.
Second, although the State encourages us to reject the Fourth Court of Appeals' holding on the issue of cognizability, as a transferee court, we are prohibited from doing so. The Rules of Appellate Procedure provide that a transferee court is bound by the transferor court's precedent, even if it conflicts with its own. Tex.R.App.P. 41.3. Therefore, given the binding authority from the Fourth Court of Appeals on this issue, we are constrained to follow that authority, and must do so even though the Court of Criminal Appeals has granted review of the Aparicio opinion. See Brazos Elec. Power Coop., Inc. v. Tex. Comm'n on Envtl. Quality, 576 S.W.3d 374, 382-83, n. 6 (Tex. 2019) (an opinion issued by a transferor court remains "binding precedent" even though the case is pending on rehearing).
Accordingly, we conclude that Aranda-Damian's claim of selective prosecution is cognizable in a pretrial writ of habeas corpus.
III. The Trial Court's Order is Appealable
We must next consider whether Aranda-Damian has a right to appeal the trial court's order denying his application for a writ of habeas corpus. We conclude he does.
We addressed a similar situation in our Ramos-Morales opinion, another OLS case transferred to us from the Fourth Court of Appeals, in which we recognized that a trial court's order denying a pretrial habeas application is only appealable if the trial court either grants or denies the application on its merits. Ex parte Ramos-Morales, No. 08-23-00285-CR, 2023 WL 8813572 *4 (Tex. App.-El Paso Dec. 20, 2023, pet. filed) (citing Ex parte Villanueva, 252 S.W.3d 391, 394 (Tex. Crim. App. 2008) (recognizing that except as provided by statute, only when "there is a ruling on the merits of the claims may a losing party appeal" from the denial of a writ of habeas corpus)). But, as we explained in that case, a trial court need not formally issue the writ or hold an evidentiary hearing before making a merits-based decision. Id. at *5.
Here, we agree with Aranda-Damian that the trial court made a merits-based-and therefore appealable-ruling when it denied his habeas application despite not formally issuing the writ or holding an evidentiary hearing. In its order, the trial court stated that Aranda-Damian's writ application "came on to be heard" that day, and "having considered same [and] upon 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." As in Ramos-Morales, we find this language sufficient to demonstrate that the trial court considered the merits of Aranda-Damian's habeas claims and expressly denied the relief he requested in his application, which makes the denial of his application an appealable order. Id. (finding trial court's order to be merits-based and therefore appealable, where the trial court stated that it had reviewed the "allegations" in the writ application, was taking "Judicial Knowledge of the filings in this cause," and was denying his "requested relief.") (citing Ex Parte Suarez, No. 06-23-00214-CR, 2023 WL 8287582, at *1-2) (Tex. App.-Texarkana Dec. 1, 2023) (pet. filed.) (mem. op., not designated for publication) (finding trial court's use of similar language in order denying OLS defendant's application for pretrial writ of habeas corpus to be merits-based, making the order appealable)). The State does not contend otherwise.
The Fourth Court of Appeals has distinguished Ramos-Morales from other cases in which the trial court did not expressly state that it was denying an OLS defendant's "requested relief," finding the use of such language to be significant in determining whether a trial court's order was merits-based. See Ex parte Lopez, No. 04-22-00784-CR, 2024 WL 350595, at *2, n. 2 (Tex. App.-San Antonio Jan. 31, 2024, no pet.) (mem. op., not designated for publication) (distinguishing Ramos-Morales, where trial court did not state that it was expressly denying OLS defendant's "requested relief," and instead stated that the defendant was "manifestly not entitled to relief," thereby justifying the trial court's decision to deny the application without issuing the writ or setting forth any rulings on the merits of the application).
Accordingly, we conclude that we have jurisdiction to consider Aranda-Damian's appeal. We now turn to the merits.
IV. The Merits of the Appeal
A. Standard of review
In reviewing the merits of 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. Gomez, 2023 WL 7552682, at *4 (citing Ex parte Perusquia, 336 S.W.3d 270, 27475 (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)). We view the facts in the light most favorable to the trial court's ruling and will uphold 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 appellate court views the facts in the light most favorable to the trial court's ruling). Reviewing courts must also grant deference to implicit findings of fact that support the trial court's ultimate ruling. See Ex parte 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 at 510 (recognizing same in context of an appeal from a trial court's decision granting an OLS applicant's pretrial petition for writ of habeas corpus). Here, we resolve the appeal as a matter of law.
B. We reverse and remand for dismissal of the charge
As we have previously recognized, the State's judiciary has been inundated with appeals from various trial courts' rulings on applications for pretrial writs of habeas corpus from OLS defendants. Ex parte Ramos-Morales, 2023 WL 8813572, at *5. And the Fourth Court of Appeals has already determined, as a matter of law, that the State engaged in gender discrimination by only prosecuting males for criminal trespass at the border under OLS during the same timeframe in which Aranda-Damian was arrested. Ex parte Aparicio, 672 S.W.3d at 715. Accordingly, we conclude- as we did in Ramos-Morales-that Aranda-Damian has, as a matter of law, met his initial burden of establishing a prima facie case of selective prosecution, i.e., that "the prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose." Ex parte Ramos-Morales, 2023 WL 8813572, at *6 (citing Aparicio, 672 S.W.3d at 715).
We note that although the State does not do so in this case, it has alleged in other OLS cases that beginning in February of 2023, it began arresting female noncitizens for criminal trespass under OLS. See, e.g., Ex parte Barahona-Gomez, No. 04-23-00230-CR, 2023 WL 6285324, at *2 (Tex. App.-San Antonio Sept. 27, 2023, pet. filed.) (mem. op., not designated for publication). Aranda-Damian, however, was arrested on January 16, 2022, over a year prior to that time. And, as the Fourth Court of Appeals has recognized, the fact that the State may have changed its discriminatory after a defendant's arrest has no bearing on the defendant's selective prosecution claims, as the only relevant issue in such a case is the policy the State had in place at the time of the defendant's arrest. Id.
This leaves us with only the second prong in the analysis, i.e., whether the State has a justification for its discriminatory policy. As explained above, the Fourth Court of Appeals has rejected the State's various attempts to justify its gender discrimination policy during the same relevant time period, finding that although security at the border may be a compelling interest, the State failed to demonstrate that its actions were narrowly tailored to serve that interest. See Gomez, 2023 WL 7552682 at *5; State v. Rodriguez Rodas, No. 04-22-00885-CR, 2023 WL 8103194, at *1 (Tex. App.-San Antonio Nov. 22, 2023, pet. filed) (mem. op, not designated for publication) (same); Garcia Compean, 2023 WL 8104870, at *2 (same). In various cases, the Fourth Court of Appeals has reversed a trial court's order denying an OLS defendant's application for pretrial writ of habeas corpus and remanded for the trial court to dismiss the defendant's criminal cases with prejudice, with no further proceedings, when the record reflects that the State provided no further justification for its discriminatory policy. See Ex parte Vazquez-Bautista, 683 S.W.3d at 515 (citing Aparicio, 672 S.W.3d at 711) (explaining that if applicant's "selective-prosecution claim on the basis of equal protection has merit, any conviction resulting from a trial would be void, and he would be entitled to release")); In re Aiken Cnty., 725 F.3d 255, 264 n.7 (D.C. Cir. 2013) ("If the Executive selectively prosecutes someone based on impermissible considerations, the equal protection remedy is to dismiss the prosecution[.]") (Kavanaugh, J.)); see also Ex parte Gonzalez-Morales, No. 04-22-00629-CR, 2023 WL 8793121, at *3 (Tex. App.-San Antonio Dec. 20, 2023, no pet.) (mem. op, not designated for publication) (recognizing same).
Here, we recognize that the trial court did not hold an evidentiary hearing to allow the State to present a justification for its discriminatory policy. But the State has neither requested that we remand to the trial court for such a hearing, nor do we believe that a remand would be appropriate under the circumstances of this case.
As we explained in Ramos-Morales, the sole purpose of an appeal from a trial court's habeas corpus 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]." Ex parte Ramos-Morales, 2023 WL 8813572, at *7 (citing Tex.R.App.P. 31.3 (in habeas appeals, an "appellate court will render whatever judgment and make whatever orders the law and the nature of the case require"); Tex.R.App.P. 31.2 (in habeas appeals, "the sole purpose of the appeal is to do substantial justice to the parties")). Under the circumstances of this case, it would not do substantial justice to the parties to remand for further proceedings on the merits. As in Ramos-Morales, the State in this case did not argue in the trial court or in its appellate briefing that it had any justification for its actions, and it has not requested the opportunity to provide a justification; instead, it has limited its argument solely to the cognizability of Aranda-Damian's habeas application. Id. at *9. In other words, the State has not shown-or even attempted to show-that on remand that it could assert a different justification for its actions that the Fourth Court of Appeals has not already rejected as a matter of law. Accordingly, we find that it would be an "exercise in futility" to remand for an evidentiary hearing on this issue, given the lack of any disputed law or facts. Id. (citing 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 trial 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)).
Remanding to the trial court for additional proceedings on the merits would also unnecessarily cause further delays in resolving Aranda-Damian's habeas claims, which cuts against the principle that habeas proceedings should be handled in an expedited manner. Id. (citing 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 trial 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").
We therefore conclude that the trial court erred as a matter of law in denying Aranda-Damian's application for pretrial writ of habeas corpus, and that he has established his entitlement to the relief requested in his application.
V. Conclusion
We reverse the trial court's order and remand to the trial court with directions to grant the writ and dismiss with prejudice the misdemeanor criminal trespass charge against Aranda-Damian.