In the

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-24-00040-CR

EX PARTE ANGEL ALBERTO RUIZ VALLESTEROS

On Appeal from the County Court

Kinney County, Texas

Trial Court No. 13329CR

Before Stevens, C.J., van Cleef and Rambin, JJ.

Memorandum Opinion by Justice van Cleef

Concurring and Dissenting Opinion by Justice Rambin
2

MEMORANDUM OPINION

Angel Alberto Ruiz Vallesteros, a noncitizen who was arrested on February 10, 2022, in 

Kinney County under Operation Lone Star (OLS), was charged with the misdemeanor offense of 

criminal trespass.1 Vallesteros filed an application for a writ of habeas corpus seeking dismissal 

of the criminal charge. The trial court denied his requested relief.

Originally appealed to the Fourth Court of Appeals in San Antonio, 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.). Pursuant to Rule 41.3 of the Texas Rules of 

Appellate Procedure, we must follow the precedent of the Fourth Court of Appeals.2 As a result, 

we must “stand in the shoes of the transferor court so that [this] transfer will not produce a 

different outcome . . . had the case not been transferred.” TEX. R. APP. P. 41.3 cmt. That said, 

had we “not been required to decide this case in accordance with the transferor court’s 

precedent,” this Court would have decided this case differently. TEX. R. APP. P. 41.

I. Background

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

Safety (‘DPS’) to initiate [OLS] and ‘devote additional law enforcement resources toward 

deterring illegal border crossings and protecting . . . border communities.’” Ex parte Aparicio, 

672 S.W.3d at 701. On May 31, 2021, Governor Abbott issued a proclamation and declared a 

1Vallesteros posted a $500.00 cash bond and was released from custody by the magistrate on March 2, 2022.

2The controlling case of our sister court is presently on review by the Texas Court of Criminal Appeals. Ex parte 

Aparicio, 672 S.W.3d 696, 701 (Tex. App.—San Antonio 2023, pet. granted) (en banc). Even so, Ex parte Aparicio

remains the controlling authority in the Fourth Court, and the Fourth Court continues to apply it. See, e.g., State v. 

Rodriguez-Gomez, No. 04-23-00157-CR, 2024 WL 590425, at *7 (Tex. App.—San Antonio Feb. 14, 2024, no pet. 

h.).
3

disaster in thirty-four counties (the OLS Counties), including Kinney County, because of “the

ongoing surge of individuals unlawfully crossing the Texas-Mexico border.” In the 

proclamation, Governor Abbott directed “DPS to use available resources to enforce all 

applicable federal and state laws to prevent the criminal activity along the border, including 

criminal trespassing, smuggling, and human trafficking, and to assist Texas counties in their 

efforts to address those criminal activities.” By November 2022, the State had devoted more 

than four billion dollars toward securing the border. 

Vallesteros was arrested for criminal trespass as part of that program. See TEX. PENAL 

CODE ANN. § 30.05(a) (Supp.). He then filed a pretrial application for a writ of habeas corpus

and argued that the State selectively prosecuted him in violation of his equal protection rights. 

After initially denying the application without issuing a writ, the trial court granted the 

application and informed the parties that it would hear the merits by submission of evidence. 

In addition to submitting evidence regarding the formation of OLS and the funding of the 

border security efforts, Vallesteros submitted evidence similar to the evidence submitted in Ex 

parte Vazquez-Bautista, State v. Gomez,

3

and Ex parte Aparicio.

4

See Ex parte VazquezBautista, 683 S.W.3d 504, 507–09 (Tex. App.—San Antonio 2023, pet. filed) (en banc) (op. on 

reh’g); State v. Gomez, No. 04-22-00872-CR, 2023 WL 7552682, at *1–3 (Tex. App.—

San Antonio Nov. 15, 2023, pet. filed); Ex parte Aparicio, 672 S.W.3d at 701–06. 

3The evidence in the case at bar included the transcript of the habeas corpus hearing held in State v. Gomez. 

4The evidence in the case at bar included the transcript of the habeas corpus hearing held in Ex parte Aparicio. 
4

The State submitted (1) the affidavit of DPS South Texas Regional Director Victor 

Escalon, (2) the affidavits or sworn statements of more than two dozen residents of Texas border 

counties, (3) fifty-nine photographs, and (4) documents evidencing the arrest and prosecution for 

criminal trespass of five persons with presumptive female names that occurred in October 2022

and September 2023.

After the parties submitted their briefs and evidence, the trial court entered its judgment 

denying Vallesteros relief. The trial court included findings of fact and conclusions of law in its

judgment that relied principally on Escalon’s affidavit.5

On appeal, Vallesteros asserts that the trial court erred in denying his requested relief 

because (1) he “properly raised his selective-prosecution claim in a pretrial writ of habeas 

corpus,” (2) he met his burden of establishing a prima facie claim of selective prosecution based 

on sex discrimination, and (3) the State failed to meet its burden of justifying its discriminatory 

conduct under the United States or Texas Constitutions.

II. Discussion

In Ex parte Aparicio, the San Antonio Court of Appeals, sitting en banc, determined that 

a selective prosecution claim on the basis of equal protection is cognizable in a pretrial habeas 

proceeding. Ex parte Aparicio, 672 S.W.3d at 713. That court has consistently followed its 

holding in Ex parte Aparicio and consistently rejected the same arguments made by the State in 

this case. See, e.g., Ex parte Vazquez-Bautista, 683 S.W.3d at 510; Gomez, 2023 WL 7552682,

at *4; State v. Del Campo-Chavez, 674 S.W.3d 714, 717 (Tex. App.—San Antonio 2023, pet. 

5The trial court adopted Escalon’s affidavit as part of its findings. 
5

filed). Based on the precedent of the San Antonio Court of Appeals in this transfer case, we hold 

that Vallesteros’s pretrial habeas claim is cognizable in an interlocutory appeal.

Vallesteros also argues that he met his burden of showing a prima facie case for selective 

prosecution based on sex discrimination. In Ex parte Vazquez-Bautista, the San Antonio Court 

of Appeals noted that it had previously “considered whether a noncitizen who had been charged 

with trespass under OLS had met his burden of stating a prima facie case for selective 

prosecution on the basis of gender discrimination.” Ex parte Vazquez-Bautista, 683 S.W.3d at 

510–11 (citing Ex parte Aparicio, 672 S.W.3d at 715). Because the evidence in Ex parte 

Vazquez-Bautista was “similar to the evidence presented in Aparicio,” id. at 511 (citing Ex parte 

Aparicio, 672 S.W.3d at 701–06), and because the State’s arguments were the same in both

cases, the court “conclude[d] Vazquez met his burden of proving a prima facie case for selective 

prosecution on the basis of gender discrimination,” “for the same reasons enunciated in 

Aparicio,” id. (citing Ex parte Aparicio, 672 S.W.3d at 713–15).

Likewise, the evidence submitted by the writ applicant here to show discriminatory effect 

and discriminatory purpose is similar to the evidence presented in Ex parte Aparicio and 

Ex parte Vazquez-Bautista. As a result, based on the precedent of the San Antonio Court of 

Appeals, we find that Vallesteros met his burden of establishing “a prima facie claim for 

selective prosecution on the basis of gender discrimination.” Id. (citing Ex parte Aparicio, 672 

S.W.3d at 715).

In Ex parte Vazquez-Bautista, the San Antonio Court of Appeals noted that, “even though 

given an opportunity, the State failed to present any evidence of the feasibility of the State to 
6

bear the financial burden of arresting, housing, and prosecuting women, as it did by modifying 

its existing facilities to house male detainees.” Id. at 513 (citing Gomez, 2023 WL 7552682, at 

*5). As a result, the San Antonio Court of Appeals found there was “no evidence . . . to support 

the State’s assertion that OLS [wa]s ‘narrowly tailored to serve its compelling interest of border 

security.’” Id. (quoting Gomez, 2023 WL 7552682, at *5). Consequently, the court held that 

“the trial court abused its discretion in denying Vazquez relief on his selective prosecution claim 

under the Texas Equal Rights Amendment.” Id. (citing Ex parte Perusquia, 336 S.W.3d 270, 

274–75 (Tex. App.—San Antonio 2010, pet. ref’d)). Based on this same lack of evidence, the 

San Antonio Court of Appeals held that the record did not “support the State’s assertion that its 

discriminatory conduct is substantially related to its important governmental interest of border

security,” as required to pass intermediate scrutiny under the United States Constitution for 

gender discrimination. Id. at 514 (citing Gomez, 2023 WL 7552682, at *6). 

Although the State submitted evidence in this case, the evidence submitted suffered from 

the same deficiency relied on by the San Antonio Court of Appeals in Ex parte Vazquez-Bautista

in determining that the State did not meet its burden under the Texas Equal Rights Amendment

(ERA) or the United States Constitution. As a result, based on the precedent of the San Antonio 

Court of Appeals, “even in reviewing the facts in the light most favorable to the trial court’s 

ruling, we hold the trial court [erred] in denying [Vallesteros] relief on his selective prosecution 

claim under the Texas [ERA],” id. at 513, and “on his federal equal protection selective

prosecution claim,” id. at 514.
7

III. Conclusion

Although the outcome of this case would have been entirely different had we not been 

required to decide this case in accordance with another district’s precedent, faithful application 

of Rule 41.3 of the Texas Rules of Appellate Procedure requires us to reverse the trial court’s 

order and remand this cause to the trial court for further proceedings consistent with this opinion.

Charles van Cleef

Justice

CONCURRING AND DISSENTING OPINION

Since July 2021, I have been working with State and Federal OLS partners to 

increase jail space capacity, including to house more female arrestees.

Those are the words of Victor Escalon, the DPS’s South Texas Regional Director, in an 

affidavit concerning the State’s response to an overwhelming, multifaceted problem.

The record before us shows that 2021 set “an all-time record” for illegal border crossings 

whereas just the year before, in 2020, the State had experienced “the fewest illegal [border]

crossings in decades.” This gave rise to a situation which Governor Abbott has declared “a 

humanitarian crisis,” an “invasion,” and a “disaster.”

“Operation Lone Star,” or OLS, began on March 6, 2021, as a directive by Governor 

Abbott to the DPS to respond to the increase in illegal border crossings. On May 31, 2021, OLS 

expanded; Governor Abbott declared a disaster in thirty-four counties on or near the border with 

Mexico.
8

The record in this case contains affidavits from more than two dozen residents of the

OLS border counties, including Kinney County. Time and again, these affidavits speak of the 

danger presented by men. For example, one Kinney County resident states that thirty-five men 

were apprehended on his ranch in October 2021. In his estimation, “[ninety] percent of these 

groups that trespass thru the ranch are military age males.” The trial court found that these 

affidavits “tell a terrifying and compelling story of the effect of the surge beginning in 2021.”

Regional Director Escalon states: “Since OLS’[s] inception, DPS leadership has adapted

its practices . . . to protect Texans as best it can while triaging limited resources like jail space.”

As part of that triage, as of 2021, women were arrested and prosecuted for felony offenses, but 

not for misdemeanor criminal trespass. Escalon says there were “many factors” in that decision.

One of them being the assessment that adult male trespassers presented a greater threat than 

female trespassers, an assessment that, in turn, was based on multiple factors.

Vallesteros was arrested for criminal trespass on February 10, 2022, as part of OLS. He 

was arrested on a ranch in Kinney County. There is no indication in the record of whether he 

was with a group that included women, or whether he was in a group at all. He was twenty-nine

years old at the time. He asserts, via an application for pretrial writ of habeas corpus, that he has 

been prosecuted, while women have not, in contravention of his rights to equal protection under

the Constitutions of both the United States and Texas. He asks that the case against him be

dismissed.

The trial court did not dismiss the case. The trial court granted the writ, but denied the 

relief requested. The trial court made detailed factual and legal findings. The trial court found 
9

that the “swift surge in illegal crossings” accompanied by “cartel involvement . . . created a crisis 

for law enforcement akin to a tsunami.” The trial court found that the decision to prosecute men

for criminal trespass was not motivated by a prohibited discriminatory purpose, but instead was

based on an assessment that adult males posed the greatest danger, and on a lack of jail space for 

women. The trial court found Regional Director Escalon’s affidavit “credible” and “adopt[ed

his] affidavit as part of its findings.” The trial court specifically credited Escalon’s statement 

that, from the beginning, the State was trying to ramp up jail space for women to meet the 

“tsunami.” The trial court found this conclusion supported by the fact that, in 2023, jail space for 

women had become available, and women too were then prosecuted not only for felonies, which 

they had been all along, but also for criminal trespass.

There have been numerous OLS cases. This case was transferred to our Court pursuant 

to standing docket equalization practices of the Texas Supreme Court. We are, therefore,

required to decide the case based on how our sister court would decide it.

This case, however, has three things no prior Fourth Court OLS decision has had: (1) the 

affidavit of Regional Director Escalon, (2) the affidavits from OLS border-county residents, and 

(3) a decision from the trial court denying habeas relief in reliance on those affidavits.

Even so, it appears that the rulings of our sister court on prior OLS cases mandate that the 

trial court be reversed. I concur in that outcome, as I must.

The same rule which requires our court to follow the precedent of our sister court also 

gives our court latitude to state that we would decide the case differently. As indicated by the 

main opinion, our entire court would decide this case differently. Given the substantive legal 
10

standards regarding selective prosecution, and under the governing standard of review, abuse of 

discretion, I would affirm the trial court’s decision as being within its discretion and supported 

by the record. I therefore dissent.

I. The Governor’s Proclamation

“The Governor is ‘the Chief Executive Officer of the State.’” Abbott v. Harris Cnty., 672 

S.W.3d 1, 18 (Tex. 2023) (quoting TEX. CONST. art. IV, § 1). “The Disaster Act[6]envisions a 

coherent statewide or regional governmental response to a disaster, which cannot be 

accomplished without clear lines of authority coordinating Texas’s patchwork of overlapping

local jurisdictions.” Id. at 18–19. The Disaster Act serves as delegation of the Legislature’s 

powers to the Governor. Id. at 16–17.7 The Governor’s Proclamation, pursuant to the Disaster 

Act, constitutes a finding by the Chief Executive Officer of the State. TEX. GOV’T CODE ANN.

§ 418.014(a). The Governor’s Proclamation has “the force and effect of law.” TEX. GOV’T 

CODE ANN. § 418.012. On May 31, 2021, Governor Abbott proclaimed that:

▪ The State is experiencing “escalating border crossings.”

▪ The Governor’s “calls for the federal government to do its job and secure the 

border have gone unanswered.”

▪ This has “enabled escalating violence from the cartels, dramatically increased the 

risk of human trafficking, and created a severe crisis of illegal drugs crossing into 

the United States including 21.5 million lethal doses of fentanyl that were 

6TEX. GOV’T CODE ANN. § 418.001 et seq. “The [L]egislature by law may terminate a state of disaster at any time.”

TEX. GOV’T CODE ANN. § 418.014(c). The record in this case reflects no such action by the Legislature. Instead, 

the record contains an April 29, 2022, letter by Governor Abbott co-signed by Lieutenant Governor Dan Patrick, 

Speaker of the House Dade Phelan, Senator Joan Huffman, and Representative Greg Bonnen, M.D. The letter 

approves the transfer of Texas General Revenue funds to the Governor’s Disaster Funds.

7Noting, but expressly avoiding deciding, the constitutional question raised by such delegation.
11

intercepted by DPS from January through April 2021, all of which threatens harm 

throughout Texas and in other states.”

▪ The result has also been “a humanitarian crisis in many Texas communities along

the border.”

▪ In the months prior to the Disaster Declaration, the Governor had directed the 

DPS to “initiate Operation Lone Star” and “devote additional law enforcement 

resources towards deterring illegal border crossings and protecting our border

communities.” Those efforts resulted in

o the apprehension of “over 35,000 illegal migrants;”

o “1,300 criminal arrests;” and

o the seizure of “over 100 firearms,” and “10,000 pounds of drugs.”

▪ In sum, “the ongoing surge of individuals unlawfully crossing the Texas-Mexico

border poses an ongoing and imminent threat of widespread and severe damage, 

injury, and loss of life and property, including property damage, property crime, 

human trafficking, violent crime, threats to public health and a violation of 

sovereignty and territorial integrity” in the designated counties.

“The People elect legislative and executive branch officials—not judges or ‘experts’—to 

make judgments about the costs and benefits of government action and to balance competing 

policy goals in light of those judgments.” Harris Cnty., 672 S.W.3d at 5 (quoting Abbott v. AntiDefamation League Austin, Sw., & Texoma Regions, 610 S.W.3d 911, 926 (Tex. 2020) (per 

curiam) (Blacklock, J., concurring).

The Proclamation acknowledged that “there may not be an adequate number of jail beds 

available” and directed the Texas Commission on Jail Standards and the Texas Commission on

Law Enforcement to assist with the response.

The trial court relied on the Governor’s Proclamation.8

8Notably, Vallesteros asserted to the trial court that the Governor’s Proclamation “sets out the motivation for [OLS].

[The] declaration does not mention the sex of the unlawful crossers once.”
12

II. Regional Director Escalon’s Affidavit

Victor Escalon has been the DPS’s South Texas Regional Director since 2019. He has 

directed OLS’s mission in the twenty-seven county South Texas Region since the beginning.

Today, he oversees more than 1,600 employees. In 1994, he started his DPS career as a trooper.

In the three decades since, he advanced through the ranks, from undercover narcotics officer in 

Laredo, to supervising “rural operations to dismantle and disrupt criminal organizations

operating on both sides of the [Rio Grande],” to headquarters positions as a Texas Ranger 

Division Captain and then Ranger Major, with duties involving oversight of units including, 

among others, the Border Security Operations Center. These duties required coordination with

federal, state, and local authorities on border security.

In his seven-page, single-spaced affidavit, Regional Director Escalon explains why, from 

2021 until 2022, men were arrested for criminal trespass, but not women, and why, presently, the

focus regarding criminal trespass is on “single adult male and female violators between the ages 

of 18 and 65.” (Emphasis added).

The background for that decision is that, since early 2021, there has been an “influx of 

undocumented migrants” which has “overwhelmed the criminal justice system in the South 

Texas Region.” Data from before 2021 showed that those trespassing in remote rural areas were 

predominately men. In 2021, the number of such “trespass[ers] increased at an alarming rate.”

By contrast, “[f]ew females were being encountered.” Regional Director Escalon states that 

State and federal data gathered since the initiation of OLS bear out that most trespassers “are 

males, not females.” He states that his experience is that trespassers hope to avoid detection and 
13

capture. Sometimes this is because they want to meet a human smuggler at a remote location, 

and from there be taken to “transportation hubs, like San Antonio and Houston.” Sometimes this 

is because they are smuggling drugs. Escalon stated that a consideration present from the outset 

of OLS is that “[t]he public safety threat posed by cartels, drug and human trafficking 

organizations, and associated gangs increase[s] as these actors take advantage of increased illegal 

migrant flows to conduct their criminal activities, including human smuggling, human 

trafficking, narcotics trafficking, weapons trafficking, money laundering, extortion, and violent 

crimes.” For numerous reasons, the DPS considered “non-elderly adult male[s]” to present “the 

greater public safety threat.”

No matter the reason for traversing remote areas, the trek involves risks such as

exhaustion and dehydration. In Regional Director Escalon’s words, “[t]here are public safety 

concerns for the trespassers themselves.” “In just the South Texas Region, hundreds of dead 

trespassers have been recovered on private property. Most of them have been male.”

Women, according to Regional Director Escalon, typically follow a different pattern. 

From both his own personal observation and data reported to him, he states that women and 

family units are less prone to trespass, but instead, are more prone to cross into Texas at 

“designated Ports of Entry” where “the city provides more infrastructure on both sides of the 

river.”

9 When women are encountered on rural property it is difficult to tell whether they are 

trespassing or they are “being smuggled or trafficked by their male companions.” 

9See Jennings v. Rodriguez, 583 U.S. 281, 285 (2018) (plurality op.) (“Every day, immigration officials must

determine whether to admit or remove the many aliens who have arrived at an official ‘port of entry’ (e.g., an 

international airport or border crossing) or who have been apprehended trying to enter the country at an 

unauthorized location.”).
14

Given 2021’s alarming increase in trespassing, Regional Director Escalon states that OLS

initiated an emphasis on arrests for criminal trespass in July 2021. This required ongoing 

coordination with local and federal authorities through the stages of arrest, processing, and 

detention, within the State system, and then federal Immigration and Customs Enforcement

custody. Variables such as the place of arrest and the nature of the offense impacted where 

arrestees would go in the process. When processing or detention facilities had no more capacity, 

arrestees would be handed directly over to United States Customs and Border Patrol. “Many 

South Texas Region jails, like in Kinney County, have not been operational since OLS’s 

inception.” Escalon notes the “logistical hurdles” involved because “the Texas Commission on 

Jail Standards requires women and men to be house[d] separately.”

Regional Director Escalon states that, from the beginning of OLS, women have been 

arrested for felony offenses, local jail space permitting. However, “limited jail space has forced 

DPS personnel to release male and female arrestees.” He also states that, in November 2022,

DPS personnel began arresting women as county jail space became available. Further, by July 

19, 2023, the State had readied the Lopez Unit in Edinburg, Texas, to house “adult females who 

have committed criminal trespass and other border nexus-related State crimes.”

10

10Here, Vallesteros asked the trial court to consider facts which developed after his arrest. That takes this case 

outside of our sister court’s holding that the only “evidence relevant to [a] . . . selective-prosecution claim is that 

which existed at the time of the applicant’s arrest.” 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). In 

particular, Vallesteros asked the trial court to consider the subsequent arrests and prosecutions of women in hopes 

that it would persuade the trial court of the State’s discriminatory intent at the time of his arrest. Having done so, 

Vallesteros cannot complain when the evidence he put before the trial court has the opposite effect of demonstrating

Escalon’s sincerity. See Woodall v. State, 336 S.W.3d 634, 644 (Tex. Crim. App. 2011) (“The law of invited error 

provides that a party cannot take advantage of an error that it invited or caused, even if such error is fundamental.”).
15

The trial court found Regional Director Escalon’s affidavit credible and adopted it as part 

of its decision.

III. The OLS Border County Resident Affidavits

Cole Hill manages a working cattle and hunting ranch in Kinney County. He has lived 

on the ranch with his wife and three children since 2015. He states that since January 2021, he

has experienced “increasingly aggressive confrontations” with trespassers. He recounts a young 

male “fully dressed in nice camouflage from head to toe” trying to enter the barn at the ranch 

headquarters. There had been occasional trespassers before, but none had approached the 

headquarters. In February 2021, a group of trespassers surrounded Hill’s house while his wife 

and daughter were inside. The trespassers were banging on the doors and trying to find a way 

inside. The trespassers did not respond to pleas that they leave until Hill returned home and told 

the trespassers that he had called the Border Patrol. Later, in February 2021, Hill discovered that

an eight-foot-tall section of his ranch fence had been cut. Tracks indicated that a vehicle had 

entered, picked up a group, and then left through the cut opening. Hill had to repair the fence

immediately lest cattle discover it and exit the ranch onto the nearby highway, endangering 

motorists. By April 2021, Hill had decided that it was not safe for the children to play outside 

unless he was home. Hill had just started mowing the yard when he saw five male trespassers 

crawling under the fence by the barn and then running for his house. Hill yelled at his children 

to get inside and yelled at the men to stop. The men kept running towards Hill’s home. They did 

not stop until Hill won the footrace to his house, got a shotgun he had started keeping just inside 

the front door, and “racked a round.”
16

Hill describes multiple incidents of trespassers breaking into a ranch workers’ residence 

and the main hunting lodge by breaking windows and kicking in doors. The trespassers left the 

ranch house “trashed” and the lodge “completely ransacked” with the damage including human 

feces. The trespassers stole hunting gear including camouflage, spotting scopes, and knives. 

Hill states that “[a]pproximately 95%” of trespassers were “young males.” Regarding the

“few women that have come through,” Hill states: “I have found 2 abandoned by their coyote 

and left for dead with no food or water. One had been raped repeatedly on her trip, and the other 

had a broken leg and a broken arm.”

Beth Ann Smith, a fifty-two-year Kinney County resident, also states that what began 

happening in 2021 is something she has never experienced before. She describes cut fences, cut 

water lines, and ranch-house break ins. She has had trespassers “slip up on [her]” when she was 

in her yard alone. Both from her own eyes and from monitoring cameras on her property, she 

estimates that “99% of [the trespassers] are men.” Smith states she no longer feels safe.

Stanford Conoly, also of Kinney County, describes much the same. He describes the risk 

to cattle from eating the trash the trespassers leave behind. He states that, since the trespassers 

were breaking off the spigots on water tanks, he installed faucets, so that they could turn the 

water on and off. The trespassers “left them on every single time.” Conoly reports that he and 

his wife have both been confronted by trespassers at their home. He also reports being out on the 

ranch with his son and having a group of fifteen trespassers “fan out around us as we were

working.”
17

Tiffani Sanchez, of Kinney County, states that, on the afternoon of September 21, 2023, 

her five-year-old son found two male trespassers in their back yard. The trespassers were part of 

a “bailout” near her home.11 Sanchez called the Kinney County Sheriff’s Office. The 

trespassers could not be found. The two trespassers, and three others, returned to her home at 

10:00 p.m. They were all male and all dressed in black. They rang the doorbell. The trespassers

initially insisted that she help them. They left only when she said the sheriff was on his way.

Laura Allen, a fifty-year resident of Val Verde County, describes cameras on her 

property showing armed trespassers. She states that “almost all” the trespassers were “adult

males dressed in full camouflage and carrying backpacks.” Allen describes multiple car chases 

across her property. One of them resulted in the arrest of two cartel members smuggling six 

migrants, “one of whom was a convicted sex offender.”

Time and again, the affidavits state that the majority of trespassers are male. None of the 

affiants testify to being accosted by female trespassers.

The trial court relied on these affidavits.

IV. Selective Prosecution

In Ex parte Aparicio and its progeny, our sister court has held that there are three steps to 

evaluating a habeas claim of selective prosecution based on an alleged equal protection 

violation.12 The burden is on the claimant to present a prima facie case satisfying the first two

11See United States v. Zapata-Ibarra, 212 F.3d 877, 882 n.2 (5th Cir. 2000) (“A bailout is when the vehicle pulls

over to the side of the road or appears to be sort of back and forth on the lane to try to look for a place that is not 

fenced in or maybe doesn’t have any obstacles so he can run on the side of the road, and so everybody can bail out 

and run.”). The affidavits contain numerous accounts of bailouts.

12Ex parte Aparicio, 672 S.W.3d at 708; Del Campo-Chavez, 674 S.W.3d 714; Gomez, 2023 WL 7552682, at *5.
18

steps: “[t]he defendant must demonstrate that the prosecutorial policy ‘had a discriminatory 

effect and that it was motivated by a discriminatory purpose.’” Ex parte Aparicio, 672 S.W.3d at

708 (quoting United States v. Armstrong, 517 U.S. 456, 457 (1996)). Once the prima facie 

hurdle has been cleared, the third step is an evaluation of the State’s justification for its actions.13

On the second step, our sister court sees discriminatory intent when “a discriminatory 

purpose has been a motivating factor” in the exercise of prosecutorial discretion.

14 Ex parte 

Aparicio quoted “a discriminatory purpose” word-for-word from a 1977 equal protection 

decision of the United States Supreme Court.15 The 1977 case, though, had other words, among 

them words which indicate that this is a “sensitive inquiry” which includes among its nonexhaustive considerations, whether the record reveals “a clear pattern, unexplainable on grounds 

other than” a prohibited discriminatory intent.16 The Supreme Court said that such a pattern 

would be “rare.”17

The 1977 case was not the Supreme Court’s last word. In 1982, the Court, in explaining 

the very same legal test, used the words “the motivating factor.”18 In 1985, the Court used the 

13Ex parte Aparicio, 672 S.W.3d at 708 (“Once the defendant establishes a prima facie case of selective prosecution 

in violation of equal protections rights, the burden shifts to the State to justify the discriminatory treatment.”); Ex 

parte Vazquez-Bautista, 683 S.W.3d at 513.

14Ex parte Aparicio, 672 S.W.3d at 714 (quoting Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.

252, 265–66 (1977).

15Id.

16Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).

17Id.

18Crawford v. Bd. of Educ. of City of Los Angeles, 458 U.S. 527, 544 (1982) (emphasis added). 
19

words “because of.”

19 Even more recently, in 2021, the Court explained the “motivated by a 

discriminatory purpose” test in terms that permit a broad view both of the conditions giving rise 

to the act, and of who constitutes the actor.

20 For example, the Court approved a district court’s 

consideration of “the historical background and the sequence of events leading to” the 

challenged action.21 Likewise, rather than giving controlling weight to the motives of individual 

proponents of a statute, the Court examined the evidence regarding the motives of the legislature 

“as a whole.”

22

There is also Texas Supreme Court authority on the motivation prong of the prima facie 

equal protection case. Ex parte Aparicio does not consult its guidance on the motivation 

inquiry.

23 I would. Ex parte Aparicio and its progeny do cite to Bell v. Low Income Women of 

Texas for two propositions: (1) that the Texas Equal Rights Amendment supplements federal

equal protection guarantees and (2) that, once a prima facie case has been made, the Texas Equal

Rights Amendment (ERA) subjects the State’s actions to “strict scrutiny.”24

19Wayte v. United States, 470 U.S. 598, 610 (1985).

20Brnovich v. Democratic Nat’l Comm., 141 S.Ct. 2321, 2332, 210 L.Ed.2d 753 (2021). Brnovich was a voting 

rights case in which the Supreme Court assessed “discriminatory purpose,” id. at 2348, for a Fifteenth Amendment 

claim by using “the familiar approach” used in the very same equal protection precedent on which our sister court

relies, id. at 2349 (citing Arlington Heights, 429 U.S. at 266–268.

21Brnovich, 141 S.Ct. at 2349.

22Id. at 2349–50. The Supreme Court also noted that “partisan motives are not the same as [prohibited 

discriminatory motives].” Id. at 2349.

23See Ex parte Aparicio, 672 S.W.3d at 713.

24Id. at 716 (citing Bell v. Low Income Women of Tex., 95 S.W.3d 253, 257 (Tex. 2002)).
20

Bell, though, also addresses the burden on the claimant at the “because of” stage. Bell v. 

Low Income Women of Tex., 95 S.W.3d 253, 257 (Tex. 2002). Similar to the test described 

above, Bell used a three-step process for claims under the Texas ERA, one of them being 

“whether equality was denied because of a person’s membership in a protected class of sex, race, 

color, creed, or national origin.”

25 On this “because of” inquiry, Bell found federal authorities to 

be “helpful guidance.”

26 In particular, Bell looked to the same 1977 United States Supreme 

Court case from which Ex parte Aparicio quoted.27 Further, Bell’s terminology for the 

motivation inquiry, “because of,” has also been used by the Supreme Court.28

Bell evaluated the State’s abortion funding program “as a whole,” including the

“interplay” with the federal system and federal funding.29 Bell did not merge effect and intent;

though “only women can become pregnant[,]”id. at 258, Bell held that “we do not believe the

discouragement of abortion through funding restrictions can, by itself, be considered purposeful

discrimination against women as a class,” id. at 263 (emphasis added). Bell acknowledged that 

the adverse effect on women could give rise to an inference of discriminatory intent, but held 

25Bell, 95 S.W.3d at 257 (quoting In re McLean, 725 S.W.2d 696, 697 (Tex. 1987)).

26Id. at 259.

27Id. at 260 (citing Village of Arlington Heights, 429 U.S. at 264–65).

28Wayte, 470 U.S. at 610. Notably, Wayte held that “[f]ew interests can be more compelling than a nation’s need to 

ensure its own security. . . . Unless a society has the capability and will to defend itself from the aggressions of 

others, constitutional protections of any sort have little meaning.” Id. at 611–12.

29Bell, 95 S.W.3d at 263. The record here shows that, as of November 14, 2022, “Texas ha[d] devoted more than $4

billion of Texas taxpayer dollars . . . to secure the border and enhance public safety.” (Emphasis added). The record 

before us shows that Texas was seeking, but had not obtained, federal reimbursement for those expenditures.
21

that “an inference is a working tool, not a synonym for proof.”30 Accordingly, Bell found that,

“[w]hatever one might think of the legislative policy choice . . . plaintiffs have simply failed to

demonstrate that it reflects a purpose to discriminate because of sex.”

31 Consequently, the Bell 

claimant failed to meet the “because of” test.32

Crucially—and expressly—Bell used “because of” at the second step of the process to 

determine whether or not strict scrutiny applied at the third step in the process, justification for 

the State’s action: “[b]ecause the [action on review] does not discriminate ‘because of’ sex, we 

judge the classification by the more deferential rational-basis standard of review.”

33 In sum, 

Ex parte Aparicio cited Bell to place the State under strict scrutiny without using Bell’s “because 

of” test to see if strict scrutiny was warranted in the first place.34

V. The Abuse of Discretion Standard of Review

Our sister court states the abuse of discretion standard in a way that, by the words used, 

might afford too little actual discretion to the trial court. Our sister court states that “we defer to 

the trial court’s assessment of the facts when those facts turn on an evaluation of credibility and 

30Id. at 264 (quoting Pers. Adm’r of Mass v. Feeney, 442 U.S. 256, 279 n.25 (1979)). 

31Id. 

32Id. (“the TMAP funding scheme does not discriminate ‘because of’ sex”) (quoting Sullivan v. Univ. Interscholastic 

League, 616 S.W.2d 170, 172 (Tex. 1981).

33Id. (quoting Sullivan, 616 S.W.2d at 172).

34Ex parte Aparicio, 672 S.W.3d at 716; Gomez, 2023 WL 7552682, at *5 (petition for discretionary review filed 

(Dec. 15, 2023)); Del Campo-Chavez, 674 S.W.3d at 718. Consequently, I would consider the Bell “because of”

analysis controlling when strict scrutiny is sought under the Texas ERA. I would also consider it persuasive, at a 

minimum, under the federal test, and quite possibly controlling should either of the State’s highest courts find that 

aspect of the Texas ERA analysis to be identical to the federal analysis. Further, given that the Texas Supreme 

Court has spoken to the Texas Constitution, I would take guidance from that before consulting decisions regarding a 

federal statute. See Ex parte Aparicio, 672 S.W.3d at 715 (discussing precedent regarding a federal statute).
22

demeanor.” Ex parte Aparicio, 672 S.W.3d at 707 (emphasis added). This raises two questions

which matter because this case was submitted on a paper record.

First, would it be correct to view “credibility and demeanor” as a dividing line with trial 

court factual findings turning on “credibility and demeanor” getting deferential review, but 

findings not based on “credibility and demeanor” getting no deference? The answer is that 

“credibility and demeanor” is not that sort of dividing line; where the Fourth Court says “when” 

the Texas Court of Criminal Appeals has said “especially when.” Diamond v. State, 613 S.W.3d 

536, 544 (Tex. Crim. App. 2020) (“An appellate court affords almost total deference to a habeas 

court’s factual findings when they are supported by the record, especially when those findings 

are based on credibility and demeanor.” (Emphasis added)). Thus, all of the trial court’s factual 

findings with support in the record are to be given almost total deference. Id. 

Consequently, “reviewing courts defer to the trial court’s implied factual findings that are 

supported by the record, even when no witnesses testify and all of the evidence is submitted in 

written affidavits.” Ex parte Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006).

Deference, already due, and “almost total,” is enhanced when the finding turns on an assessment 

of “credibility and demeanor.” Diamond, 613 S.W.3d at 544. Notably, our sister court relies on 

Ex parte Wheeler. Ex parte Aparicio, 672 S.W.3d at 707 (citing Ex parte Wheeler, 203 S.W.3d 

at 324). Therefore, we read Ex parte Aparicio as following Ex parte Wheeler, and as being 

consistent with Diamond. On that understanding, we are in accord with the Fourth Court on this 

first question.
23

Second, what exactly amounts to a “credibility and demeanor” assessment by a trial 

court? Here too, Ex parte Wheeler provides guidance, noting that a trial court can make 

credibility and demeanor determinations, even from a paper record of one phase of a proceeding, 

based on the trial court’s prior experience. Ex parte Wheeler, 203 S.W.3d at 326 (noting that a 

trial court could properly bring prior experience with a prosecutor to bear when assessing the 

proffered reason for the exercise of a preemptory strike). Again, we read Ex parte Aparicio as 

following Ex parte Wheeler, and on that understanding are in accord with our sister court.

Likewise, we are in accord with the proposition that, on abuse of discretion review, the 

reviewing court examines the record in “the light most favorable to the [trial] court’s ruling.”

Ex parte Aparicio, 672 S.W.3d at 707.

VI. Analysis

Under the Ex parte Aparicio approach, once it is established that men are prosecuted

while women are not, a habeas claimant has carried the prima facie burden of showing both 

discriminatory effect and motivation by a discriminatory purpose. This is demonstrated most 

starkly by Del Campo-Chavez. Del Campo-Chavez, 674 S.W.3d at 718 (citing Ex parte 

Aparicio, 672 S.W.3d at 714–15 (“Del Campo met his burden by showing that the State only 

prosecuted men for misdemeanor trespass under OLS.”)). That has the effect of merging the two 

prongs of the prima facie burden into a single prong, satisfied by the same evidence. See id.

Under that approach, it appears that the affidavits of Regional Director Escalon and the OLS 

border county residents would not, and could not, make any difference; Ex parte Aparicio and

Del Campo-Chavez dictate a finding that the State’s actions were motivated by an 
24

unconstitutional discriminatory purpose no matter what evidence the State submits regarding its 

motives.

Those affidavits and Governor Abbott’s proclamation made a difference to the trial court.

In its assessment, the State was not acting for improper discriminatory reasons, but to protect not 

only Texans, but the trespassers themselves, doing so as best the State could on that day with the 

resources available on that day. Under the abuse of discretion standard, that should make a 

difference to us as an appellate court. I would affirm the trial court.

Because the Ex parte Aparicio/Del Campo-Chavez legal test compels a different 

outcome, I respectfully concur and dissent.

Jeff Rambin

Justice

Date Submitted: March 5, 2024

Date Decided: April 16, 2024

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