REVERSE and REMAND and Opinion Filed March 27, 2024 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-24-00073-CR 

EX PARTE FERNANDO ALVAREZ BARRAGAN 

On Appeal from the County Court 

Kinney County, Texas 

Habeas Court Cause No. 12249CR 

MEMORANDUM OPINION 

Before Justices Garcia, Breedlove, and Kennedy 

Opinion by Justice Kennedy 

Appellant Fernando Alvarez Barragan 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 
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appealed, contending the habeas court erred in not granting his requested relief.1

Based on the reasoning below, we reverse and remand to the habeas court with 

instructions to enter an order dismissing appellant’s criminal case with prejudice. 

I. STANDARD OF REVIEW 

In reviewing the merits of a habeas court’s decision to grant or deny habeas 

corpus relief, we defer to the habeas 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) (not designated for 

publication); Ex parte Quintana, 346 S.W.3d 681, 684 (Tex. App.—El Paso 2009, 

pet. ref’d) (not designated for publication). And we view the facts in the light most 

favorable to the habeas court’s ruling, upholding 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.) (not designated for publication) (recognizing that an appellate court views the 

facts in the light most favorable to the habeas court’s ruling). Reviewing courts must 

also grant deference to implicit findings of fact that support the habeas court’s 

ultimate ruling. 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.” 

1

The appeal was transferred from the Fourth Court of Appeals pursuant to a Texas Supreme Court 

docket equalization order. Accordingly, we apply the Fourth Court of Appeals’ precedent to the extent 

required by Texas Rule of Appellate Procedure 41.3. 
 –3– 

Id.; 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 pre-trial petition for a writ of habeas 

corpus). 

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 v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). Habeas corpus 

is a remedy available to applicants who are “restrained in their liberty.” See TEX.

CODE CRIM. PROC. ANN. art. 11.01. 

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Appellant’s arrest and application for a pretrial writ of habeas corpus 

On March 6, 2021, Governor Greg Abbott directed the Texas Department of 

Public Safety 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 February 14, 2022. 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, as 

the State was selectively prosecuting men, and not similarly situated women, for 
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criminal trespass under the OLS. See U.S. CONST. amend. XIV; TEX. CONST. art. 

I, § 3a. Appellant 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 filed in another OLS case in which the State stipulated: 

“women are not prosecuted for trespass as part of Operation Lone Star, even when 

they are found trespassing.” 

Appellant argued the State’s policy of selectively prosecuting only men 

violated his equal protection rights, as it had both a discriminatory intent and a 

discriminatory effect. He further argued the State could not meet its burden of 

justifying its discriminatory conduct, because the State’s rationalization that it only 

prosecuted men due to financial constraints was insufficient to meet this burden. 

The habeas court subsequently denied appellant’s application, and Appellant 

filed a notice of appeal. For the reasons set forth below, we reverse the habeas court’s 

denial of relief. 

B. Aparicio and its progeny 

On appeal, appellant heavily relies on the Fourth Court of Appeals opinion in 

Ex parte Aparicio, 672 S.W.3d 696, which was issued on June 21, 2023, about six 

months before the habeas court ruled on his habeas application. Thus, we start with 

a review of our sister court’s opinion in Aparicio. In that case, a noncitizen 

(Aparicio), who had been arrested for criminal trespass in Maverick County as part 
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of OLS, filed a 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 constitutional rights. Aparicio, 672 S.W.3d at 701. As in this 

case, the habeas court denied Aparicio’s writ on the merits despite undisputed 

evidence that the State was criminally prosecuting only male noncitizens for trespass 

under OLS. Id. at 706. The habeas court found Aparicio’s equal protection argument 

failed because the State could prosecute women if it “chose to.”2 Id. 

The Fourth Court of Appeals disagreed, finding Aparicio 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.” Id. at 713. The burden then shifted to the State “to justify 

the discriminatory treatment.” Id. at 715 (citing Ex parte Quintana, 346 S.W.3d 681, 

685 (Tex. App.—El Paso 2009, pet. ref’d)). 

As the Fourth Court pointed out, Aparicio’s federal equal protection claim 

was subject to intermediate scrutiny; namely, the State had to demonstrate that its 

“discriminatory classification is substantially related to an important governmental 

interest.” Id. at 708 (citing Clark v. Jeter, 486 U.S. 456, 461 (1988)); Casarez v. 

State, 913 S.W.2d 468, 493 (Tex. Crim. App. 1994) (en banc) (op. on reh’g)). And 

Aparicio’s state-based equal rights claim was subject to strict scrutiny; namely, the 

2

In particular, the habeas 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.” Aparicio, 672 S.W.3d at 714. 
 –6– 

State had to demonstrate that its actions were “narrowly tailored to serve a 

compelling governmental interest.” Id. at 716 (citing In re Dean, 393 S.W.3d 741, 

749 (Tex. 2012)). 

On appeal, the State argued “the emergency situation on Texas’s southern 

border justifies its discriminatory actions.” Id. However, the court of appeals noted 

that the habeas court never reached the merits of that issue, as it determined Aparicio 

had not met his burden of establishing a prima facie case of selective prosecution on 

the basis of sex. Id. The court therefore reversed the habeas court’s denial of 

Aparicio’s application for a writ of habeas corpus and remanded the matter to the 

habeas court to “determine whether the State’s discriminatory classification was 

justified” under both constitutional claims.3 Id. 

The Fourth Court of Appeals, however, has since decided several cases 

involving OLS prosecutions of men and held the State failed to meet its burden of 

establishing a justification for its gender discrimination. Recently, the court issued 

State v. Gomez, No. 04-22-00872-CR, 2023 WL 7552682 (Tex. App.—San Antonio 

Nov. 15, 2023, pet. filed) involving a similar claim of selective prosecution on the 

3

We note the Court of Criminal Appeals granted the State’s petition for discretionary review. See 

Aparcio v. State, No. PD-0461-23, 2024 WL 178283 (Tex. Crim. App. 2024). In the petition, the State 

argues the court erroneously concluded Aparicio’s claim was cognizable in a pretrial writ of habeas corpus. 

The Court of Criminal Appeals, on its own motion, granted review on the following ground: 

Whether the Court of Appeals erred in reversing the habeas court’s finding that Appellant 

failed to establish a prima facie case of selective prosecution on the basis of sex 

discrimination. 

See id.
 –7– 

basis of sex made in an application for a pretrial writ of habeas corpus by another 

male noncitizen (Gomez) who had been arrested in Kinney County for criminal 

trespass as part of OLS. In that case, the habeas 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.”4 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 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 the habeas court did not abuse its discretion in “concluding the State 

failed in its burden of justifying its discriminatory conduct under strict scrutiny, as 

required by Texas’s Equal Rights Amendment,” and it affirmed the decision to grant 

Gomez his requested relief and dismiss his criminal case.5 Id. 

4

At the evidentiary hearing, Captain Joel Betancourt, who oversees the district in which participating 

OLS counties are located, testified that women were “always sent to immigration” because there was no 

place to put them,” as “the local county jails have no capacity.” Gomez, 2023 WL 7552682, at *2. 

5

The Fourth Court has reached a similar result in several other cases. See, e.g., State v. Rodriguez 

Rodas, No. 04-22-00885-CR, 2023 WL 8103194, at *2 (Tex. App.—San Antonio Nov. 22, 2023, pet. filed.) 

(mem. op., not designated for publication); State v. Garcia Compean, No. 04-22-00886-CR, 2023 WL 
 –8– 

In addition, the Fourth Court of Appeals recently held a habeas court erred in 

denying an OLS defendant’s habeas applications where the State again failed to meet 

its burden of establishing a justification for its gender discrimination despite having 

the opportunity to do so. See Vazquez-Bautista, 683 S.W.3d at 513–14; Ex Parte 

Gonzalez-Morales, No. 04-22-00629-CR, 2023 WL 8793121, at *3 (Tex. App.—

San Antonio Dec. 20, 2023, pet. filed) (mem. op., not designated for publication). 

III. WE REVERSE AND REMAND FOR DISMISSAL OF THE CHARGE 

Appellant argues the habeas court erred by denying his selective-prosecution 

claim because he properly raised his claim in pretrial habeas writ, he established a 

prima-facie case of sex discrimination, and the State failed to justify its 

discriminatory policy. We agree with appellant. 

A. Appellant’s pretrial selective prosecution equal protection claim was 

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, 

8104870, at *2 (Tex. App.—San Antonio Nov. 22, 2023, pet. filed) (mem. op., not designated for 

publication). 
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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 that 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 (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 established a prima-facie claim of discrimination. 

We next consider whether appellant met his burden of proving a prima-facie 

claim.6

 To establish a prima-facie case of selective prosecution, appellant 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, 

appellant had to show similarly situated individuals of the opposite sex were not 

6

The habeas court did not find that appellant established a prima-facia claim of discrimination or that 

appellant failed to establish a prima-facia claim of discrimination. The habeas court’s ruling on appellant’s 

habeas application simply failed to mention whether appellant met his burden to establish a prima-facie 

claim. In its ruling, however, the habeas court determined the State met its burden of justifying its 

discriminatory conduct under the United States Constitution and the Texas Constitution. Accordingly, 

because the habeas court could not consider whether the State met its burden of justifying its discriminatory 

conduct unless appellant made a prima-facia claim of discrimination, we presume the habeas court found 

that appellant did indeed establish a prima-facia claim of discrimination, and we review the habeas court’s 

implied ruling. See Aparicio, 672 S.W.3d at 715 (holding once a defendant meets his burden of presenting 

a prima-facie case, the burden shifts to the State to justify the discriminatory treatment). 
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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 the prosecution was motivated by a discriminatory purpose, appellant 

had to show 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). 

In Aparicio, the Fourth Court held the State’s policy of prosecuting men but 

not women for trespass established a prima-facie case of sex discrimination. See 

Aparicio, 672 S.W.3d at 713–15. As the appellant in Aparicio did, here, appellant 

introduced evidence demonstrating the State prosecuted men but not women 

trespassers as part of OLS and that this policy was in effect when the State arrested 

him on February 22, 2022. 

Appellant introduced testimony from Captain Joel Betancourt, a senior 

official at the Texas Department of Public Safety. Betancourt’s testimony was made 

in a prior case and concerned State-created detention facilities used to enforce OLS. 

At a November 2022 hearing, Betancourt testified the State did not have facilities to 

house women arrested for trespassing. Thus, only men were arrested for trespassing. 

Betancourt also testified about an email he sent his subordinates in August 2021 that 

provided guidance regarding whom should be arrested pursuant to OLS. Betancourt 
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confirmed during his testimony, that his email directed DPS officers to arrest men 

only. 

Appellant also provided an affidavit from Claudia Molina, a supervisor at the 

Lubbock Private Defenders Office. As part of her duties, Molina assigns appointed 

counsel to OLS defendants. In her affidavit, Molina stated that as of September 2022, 

all 5,000 people the State prosecuted for trespassing under the OLS program were 

men. 

In its response, the State provided an affidavit from the South Texas Regional 

Director Victor Escalon.7

 Escalon acknowledged that “DPS personnel were directed 

not to arrest females for criminal trespass” when the program began. Escalon further 

declared the State discriminated based on sex to “triage finite resources,” and the 

State wanted to target “males between the ages of 18-65” because it believed that 

those individuals presented the greatest risk to Texans. 

The State argues, appellant “would have been arrested whether the policy 

existed or not.” This does not, however, answer the question of whether “similarly 

situated individuals of the opposite sex were not prosecuted for the same conduct.” 

Additionally, the State argues, as it did in Aparicio, that its discriminatory policy did 

not have a discriminatory purpose because it had not targeted men per se but chose 

7

In the habeas court’s ruling on appellant’s habeas application, the habeas court stated it accepted the 

statements in the affidavit of Victor Escalon as “credible.” Moreover, the habeas court “adopt[ed] his 

affidavit as part of its findings.” 
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not to prosecute women because of a lack of a “facility” that could hold “other 

individuals.” Aparicio, 672 S.W.3d at 714. The Fourth Court of Appeals found this 

argument unavailing and held the State’s policy had a discriminatory purpose. Id. 

Appellant’s evidence demonstrates women were not prosecuted for 

trespassing, but men were. Moreover, the evidence demonstrates appellant’s gender 

was the reason he was prosecuted. Accordingly, we hold appellant established—by 

a preponderance of the evidence—a prima-facie case of sex discrimination by 

showing OLS had a discriminatory effect and that it was motivated by a 

discriminatory purpose. See Armstrong, 517 U.S. at 465; Richardson, 70 S.W.3d at 

870; Aparicio, 672 S.W.3d at 714. 

C. The State failed to adequately justify its decision to discriminate. 

We now turn to appellant’s final argument in which he asserts the State did 

not meet its burden of justifying its discriminatory conduct under the United States 

Constitution or the Texas Constitution. See Aparicio, 672 S.W.3d at 716. With 

regard to appellant’s claim under the Texas Constitution’s Equal Rights 

Amendment, the State had to show that its discriminatory classification is narrowly 

tailored to serve a compelling governmental interest. Id. With regard to his federal 

equal protection claim, the State had to 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 
 –13– 

Women v. Hogan, 458 U.S. 718, 724 (1982) (quoting Wengler v. Druggists Mut. Ins. 

Co., 446 U.S. 142, 150 (1980)). 

As set forth above, the Fourth Court of Appeals has rejected various attempts 

by the State to justify its policy of gender discrimination during the same relevant 

time period, finding that although security at the border may be considered a 

compelling interest, the State failed to demonstrate that its actions were narrowly 

tailored to serve that interest. See Gomez, 2023 WL 7552682 at *5–6; Rodas, 2023 

WL 8103194 at *2; Compean, 2023 WL 8104870, at *2. Additionally, the Fourth 

Court has rejected the State’s attempts to justify “that the classification serves 

‘important governmental objectives and that the discriminatory means employed’ 

are ‘substantially related to the achievement of those objectives.’” Id. Thus, for the 

same reasons explained in those cases, we hold the State failed to justify its policy 

of gender discrimination. 

D. We direct the habeas court to enter an order of dismissal. 

The proper remedy in this case is to reverse the habeas court’s order denying 

appellant’s writ application, without the necessity of remanding for any further 

proceedings on the merits of his claims and direct the habeas court to enter an order 

of dismissal. The sole purpose of an appeal from a habeas court’s 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].” TEX. R. APP. P. 31.3 (in 

habeas appeals, an “appellate court will render whatever judgment and make 
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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”). And under the circumstances of this case, we do not believe it would do 

substantial justice to the parties to remand for any further proceedings on the merits. 

Here, the State has not requested we remand this case to the habeas court for 

further proceedings to give it the opportunity to present additional evidence or 

arguments on the issue. Instead, in its prayer for relief, the State requests we affirm 

the habeas court’s order denying appellant’s habeas application. 

Accordingly, because there is no dispute in the present case, either in the law 

or in the facts, on the question of whether the State unjustifiably engaged in gender 

discrimination against appellant, we conclude it would be an “exercise in futility” to 

remand for further proceedings on the merits. 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 habeas 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). As 

well, we find that remanding to the habeas court for additional proceedings on the 

merits would unnecessarily cause further delays in resolving appellant’s habeas 

claim, which cuts against the principle that habeas proceedings should be handled in 

an expedited manner. Ex parte Johnson, 876 S.W.2d 340, 343 (Tex. Crim. App. 
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1994) (finding it appropriate to issue a writ of habeas corpus, without remanding to 

the habeas 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”). 

IV. CONCLUSION 

The habeas court erred, as a matter of law, in denying appellant’s application 

for a pretrial writ of habeas corpus on the merits. Accordingly, we reverse the habeas 

court’s order and remand to the habeas court to grant the writ and dismiss with 

prejudice the misdemeanor criminal trespass charge against appellant. 

 

 

Do Not Publish 

TEX. R. APP. P. 47 

240073F.U05 

 

/Nancy Kennedy/

NANCY KENNEDY 

JUSTICE 
 –16– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

EX PARTE EX PARTE 

FERNANDO ALVAREZ 

BARRAGAN 

No. 05-24-00073-CR 

 On Appeal from the County Court, 

Kinney County, Texas 

Trial Court Cause No. 12249CR. 

Opinion delivered by Justice Garcia. 

Justices Breedlove and Kennedy 

participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is 

REVERSED and the cause REMANDED for further proceedings consistent with 

this opinion. 

Judgment entered March 27, 2024