Opinion
05-24-00082-CR
03-27-2024
EX PARTE LUIS GUSTAVO GARCIA LOPEZ
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the County Court Kinney County, Texas Trial Court Cause No. 14221CR
Before Justices Molberg, Pedersen, III, and GoldsteinMEMORANDUM OPINION
KEN MOLBERG JUSTICE
Appellant Luis Gustavo Garcia Lopez is a noncitizen who was arrested under Operation Lone Star (OLS) and charged with the misdemeanor offense of criminal trespass. 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. Appellant contended he was the subject of selective prosecution in violation of state and federal constitutional equal protection principles. The habeas court denied his application on the merits, and appellant appealed, contending the habeas court erred in not granting his requested relief. Based on the reasoning below, we affirm the habeas court's denial of relief.
I. BACKGROUND FACTS
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 Kinney County on January 22, 2023. 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 denied his application for writ of habeas corpus after finding
[t]he applicant has established women not being arrested for criminal trespass at the inception of OLS but fails to establish what exactly was the status of women being arrested on Jan 22, 2023, the date of defendant's arrest thus failing to establish a prima facia case of discrimination.
II. APPLICABLE LAW
In conducting our review of the habeas court's decision, we afford almost total deference to the habeas court's factual findings when supported by the record, especially when those findings are based upon credibility and demeanor. Ex parte Torres, 483 S.W.3d 35, 46 (Tex. Crim. App. 2016). In addition, we afford almost total deference to the habeas court's application of law to the facts if the resolution of the ultimate question turns on an evaluation of credibility and demeanor. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). We review de novo the habeas court's resolution of mixed questions of law and fact that do not turn on witness credibility and its resolution of pure questions of law. Absalon v. State, 460 S.W.3d 158, 162 (Tex. Crim. App. 2015); Ex parte Peterson, 117 S.W.3d at 819; see also Ex parte Vazquez-Bautista, 683 S.W.3d 504, 510 (Tex. App.-San Antonio, pet. filed) (recognizing same in the context of an appeal from a habeas court's decision granting an OLS applicant's pretrial petition for a writ of habeas corpus).
The purpose of a pretrial habeas corpus application is to stop the trial and secure immediate release from confinement. Kelson v. State, 167 S.W.3d 587 (Tex. App.-Beaumont 2005, no pet.). Thus, as a general principle, a claim is cognizable in a pretrial writ of habeas corpus if, resolved in the defendant's favor, it would deprive the trial court of the power to proceed and result in the defendant's immediate release. Ex parte Smith, 185 S.W.3d 887, 207 (Tex. Crim. App. 2006). Conversely, except when double jeopardy is involved, a pretrial writ of habeas corpus is not appropriate when resolution of the question, even when resolved in favor of the applicant, would not result in immediate release. Ex parte Sheffield, No. PD-1102-20, 2023 WL 4092747 at *5 (Tex. Crim. App. 2023).
In reviewing a habeas court's decision to grant or deny habeas relief, we review the facts in the light most favorable to the court's ruling and, absent an abuse of discretion, must uphold the ruling. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006); Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). An abuse of discretion does not occur unless the court acts "arbitrarily or unreasonably" or "without reference to any guiding rules and principles." State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)), or unless the court's decision "falls outside the zone of reasonable disagreement." Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).
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, 206 S.W.3d at 664. Habeas corpus is a remedy available to applicants who are "restrained in their liberty." See Tex. Code Crim. Proc. art. 11.01.
III. DISCUSSION
A. Appellant's pretrial selective prosecution equal protection claim is cognizable on habeas.
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 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.'" 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. As it did in prior cases, the State argues appellant's claim is not cognizable but offers no new authority for this claim; it simply contends Aparicio was wrongly decided, and we should resolve the issue differently. We disagree and follow the on-point precedent of the Fourth Court of Appeals. See Tex. R. App. P. 41.3 (holding a transferee court must follow the precedent of the transferor court). Thus, for the same reasons explained in Aparicio, we hold appellant's pretrial habeas claim is cognizable.
B. Appellant failed to make a prima facie case of discrimination.
In its ruling, the habeas court acknowledged appellant established that at the inception of OLS-men and not women-were arrested for criminal trespass. The habeas court, however, dismissed appellant's writ of habeas corpus because appellant failed to show the State's discriminatory policy of prosecuting men and not women was still in effect on the date of his arrest. Accordingly, the habeas court found that appellant failed to establish a prima facie case of discrimination. We agree with the habeas court.
In response to appellant's habeas application, the State provided an affidavit from the South Texas Regional Director at DPS, Victor Escalon. Escalon acknowledged DPS personnel were directed not to arrest females for criminal trespass when OLS was initially implemented. However, as Escalon explained, that practice changed in November 2022. Escalon stated, "since late 2022, Department personnel have been arresting single adult females for criminal trespass and utilizing the county jails in Zapata, Webb, Jim Hogg, and Maverick Counties."
Appellant was arrested January 22, 2023, about three months after DPS ended its discriminatory policy of arresting men and not women. Thus, appellant did not establish that the State's discriminatory OLS policy was ongoing at the time of his arrest.
Appellant, however, argues that Escalon's affidavit-which failed to list Kinney county as a jail that was being utilized to hold women arrested for criminal trespass in November 2022-proves that women in Kinney county were not being arrested for criminal trespass in January 2023. We disagree with appellant's interpretation of this omission. Escalon never stated DPS did not arrest women in Kinney county; Escalon merely stated that after DPS arrested women for criminal trespass, DPS utilized jails in "Zapata, Webb, Jim Hogg, and Maverick Counties." And the evidence demonstrated Kinney county was unable to hold individuals-men or women-arrested for any offense in Kinney county; the county simply did not have an operational jail. Appellant recognized this fact when he pointed out "some counties, like Kinney County, [] lack[] any local capacity to detain anyone." Moreover, later in Escalon's affidavit, he stated, "[m]any South Texas Region jails, like in Kinney County, have not been operational since OLS's inception." Escalon's statement that failed to list Kinney county as a county in which women were jailed upon arrest for criminal trespass, does not support appellant's claim that women were not being arrested for criminal trespass in Kinney county in January 2023.
Appellant also argues an exhibit attached to his habeas application showing that a noncitizen-woman was arrested for criminal trespass in Kinney county on February 27, 2023, demonstrates women were not arrested in Kinney county until that date. We disagree. Indeed, the exhibit shows that a woman was arrested for criminal trespass in Kinney county on that date, but the exhibit fails to prove exactly what date DPS began arresting women for criminal trespass in Kinney county.
Finally, appellant argues the State did not provide any evidence proving Kinney county stopped its discriminatory administration of the OLS program before he was arrested. But the State had no burden to disprove appellant's claim; the burden of proof was on appellant, the habeas applicant, to present sufficient evidence to prove his claim by a preponderance of the evidence. Ex parte Peterson, 117 S.W.3d 804, 818 (Tex. Crim. App. 2003).
Appellant presented no evidence to the habeas court to support his claim that he was the subject of selective prosecution in violation of state and federal constitutional equal protection principles.
IV. CONCLUSION
Because appellant provided no evidence in support of his claim for habeas corpus relief, he failed to satisfy his requisite burden of proving, by a preponderance of the evidence, facts that would entitle him to relief. See Ex parte Scott, 190 S.W.3d 672, 673 (Tex. Crim. App. 2006) (holding it is the applicant's burden to prove, by a preponderance of the evidence, that he is entitled to relief on a writ of habeas corpus.). Specifically, appellant failed to demonstrate, by a preponderance of the evidence, that the State's discriminatory policy of prosecuting men and not women for criminal trespass was still in effect on the date of arrest and, thus, he failed to establish, by a preponderance of the evidence, that he was the subject of selective prosecution in violation of state and federal constitutional equal protection principles. Accordingly, the habeas court did not abuse its discretion in denying appellant's application for writ of habeas corpus.
We affirm the habeas court's order denying relief.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.