## In t he 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 S tevens , C.J., van Cleef an d Rambin , JJ. Memorandum Opinion by Justice van Cleef Concurring and Dissenting Opinion by Justice Rambin2 

### ME MORANDUM OPINION

A ngel Alber to Ruiz Vallesteros , a noncitizen who was arrested on February 10 , 202 2 , in Kinney Count y under Operation Lone S ta r (OLS) , was c harged with the misdemeanor offense of criminal trespass. 1 Vallesteros filed an application for a writ of habea s corpus seeking dismissa l of the criminal charge

. T he trial court denied his requested relief. Originall y appealed to t he F o ur th Court of Appeals in San Antonio , this cas e was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts.
See T EX

. G OV ’ T C ODE A NN

. § 73.001 (Supp.)

. Pursuant to Rule 41.3 of the Tex as R ule s o f App ell at e P rocedu re , w e must f ollow the pr ecedent 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 outcom e
. . . had t he case no t been transferre d. ” T EX

. R. A PP

. P

. 41. 3 c m t

. That said,
h ad we “ not been required to decide this case in accordance with the transferor court ’ s precedent , ” this Cou rt would have d ecided this case differently

. T EX

. R. A PP

. P. 41.
I. Backgrou nd

“ On Mar ch 6 , 2021, Governor Greg A bbo tt directe d the Te xas Department of Public Safety (‘ DPS’) to initiate [OLS] and ‘ devote additional law enforcement reso urces toward deterring illegal border crossings and protecting

. . . b order communities. ’ ” Ex parte Aparicio , 672 S.W. 3d at 701

. On May 31, 2021, Gover no r Abbott issued a p roclamation and de clared a

1 Valles te ros pos ted a $500.00 cas h bo nd and was release d from custody by the magistrate on March 2 , 2022.

2 The controlling case of our si ster court is pre sently on review by the Texas Court of Criminal Appeals. Ex parte Ap aric io , 67 2 S.W.3d 696 , 701 (Tex. App.

— San Anto nio 2023 , pet. gr anted) (en banc). Even so, E x p arte Aparicio remai ns the controlling authority in the Fourth Court, and t he Fourth Court c ontinues t o apply it. See, e.g. , Stat e v. Rodriguez

- Gomez , N o. 04

- 23

- 00157

- CR, 2 024 WL 590 425, at *7 (Tex. App.

— San Antonio Feb. 14, 2024 , no pet. h. ).3

disaste r in thirty

- four counties (the OLS Counties) , incl uding Kinney County, because of “ the

ongo ing surge of individu als unlawfully crossing the Texas

- Mexico border.” In t he

p roclamation , Governor Abbott d ir ected “ DPS to use available res ources to enforce all applicable federa l and state laws to prevent t he criminal activity al on g the border, including

cr iminal trespassing, smugglin g, and human trafficking, and to ass ist Te xas counties in their
efforts to a dd ress those criminal activities. ” By November 2022, the Sta te had devoted more
than fo ur billion dollars toward securin g the border.
Vallesteros was arrested for criminal tr espass as part of that program

. S ee T EX

. P ENAL
C ODE A NN

. § 30.05(a) (Supp .)

. He then filed a pretrial application for a writ of habea s corpus and argu ed that the Sta te selectively prosecut e d him in violat ion of his eq ual protection rights.
After initia lly denying the appl ication without iss uing a writ, the trial court grante d the

a p plication and informed the partie s that it would hear the merits b y submission of evidence

. In addition to submitting evidence regar ding the formation of OLS and the fundin g of the border security efforts, Vallesteros submitted eviden ce similar to the e v idence submitted in E x parte Vazquez

- Bautista , St ate v. Gomez , 3 and Ex pa rte Apar icio

. 4 See Ex parte Vazquez

Bautista , 683 S.W.3 d 504, 5 07

– 09 (Tex. App.

— San Antonio 2023, pet. filed) (en banc) (op. on
reh ’ g) ; Sta te v. Go mez , No. 04

- 22

- 00872

- CR , 2023 WL 7 5 52682 , at * 1

– 3 (Tex. App.

— San Antoni o Nov . 15, 2023, pet. filed) ; Ex parte Aparicio , 672 S. W.3d at 701

– 06

.

3 The evid ence in the case at bar included the transcript of the habeas corpus h e aring h eld i n State v. Gomez

.

4 Th e evidence in the case at bar included the transcript of the habeas cor pus h earing held in Ex p arte Apa ricio

.4

The State submitt ed (1) the affidavit of DPS South Texas Regional Director Victor
Escalon , (2) the affidavits or sworn statements of more than tw o doz en residents of Tex as borde r

count ies , (3) fifty

- nine photographs, and (4) documents evidencing t he arrest and p rosecution fo r criminal trespass of five persons wit h presumptive female name s t hat occur red in October 2022 and Sept ember 2023.
After the p arties submitted their briefs and evidence, the trial court entered its judgment denying Vallestero s relief. The trial court inc luded findings of fact and conclusions of law in its judgment that rel i ed princ ipally on Escalon’s affidavit. 5 On appeal, Valle steros asserts that the trial court erred in denying his requeste d relief because ( 1) he “ properly raise d his selective

- prosecution claim in a pre trial writ of habeas

corpus, ” (2) he me t his bur den of es tablishing a prima facie claim of selecti ve prose cuti on based
on sex discrimination , and (3) the State failed to meet its burden of jus tifying its discrimina tory
conduct under the United States or Te xas Constitu tion s.
II. Disc ussion
In Ex parte Aparicio , the San Antonio C ourt of A ppeals, s ittin g en ba nc, dete rmined that

a selective prosecution claim on the bas is of equal protection is cognizable in a pre trial habeas proceed ing. E

x parte Aparicio , 6 72 S.W.3 d at 713. Th at c ourt ha s consistentl y followed its holding in E

x parte Aparicio a nd consisten tly rejecte d the same arguments made by the State in
this cas e. See, e.g. , Ex par te Vazquez

- Bautista , 683 S.W.3d at 510; Gomez , 2023 WL 7552682 ,

a t *4; State v. Del Campo

- Ch avez , 674 S. W.3d 714 , 717 ( Tex. App.

— San Antonio 202 3 , pet.

5 The trial c ourt adopted E s cal on ’s af fidavit as part of its findings

.5

filed )

. B ased on the precedent o f the San Antonio C ourt of A ppeals in thi s tra nsfe r case, we hold
that Vallesteros ’s pre trial ha beas claim i s cogni zable in an interlocutory appeal

. Vallesteros also argues that he m et his burden of show ing a prima facie ca s e for selective prosecution base d on sex discrimin ation. In Ex parte Vazquez

- Bautista , the San Antonio C ou rt
of A ppeal s noted that it had previously “ conside red whether a n oncitize n who had been ch arged with trespass u nder OLS had met his burden of stati ng a prima facie case for selecti ve prosecution on t he basis of gender discriminatio n.” Ex parte Vazquez

- Ba utista , 683 S.W.3d at
510

– 11 (citing Ex parte Aparicio , 672 S.W.3d at 715). B ecause the ev idence in Ex parte Vazquez

- Bautista was “similar to the e vidence pres ented in Apar i cio , ” i d

. at 511 (citin g Ex parte Aparicio , 672 S.W.3d at 701

– 06), and because the State’s arguments w ere the same in both

cases, the c our t “ conclu de [ d ] Vazqu ez met his burden of proving a pr ima facie case for selective

prosecu tion on the basis of gender dis crimi nation ,” “ for the same r easons enunciated i n Aparic io , ” i d

. (c iting Ex parte Aparicio , 672 S.W.3d at 713

– 15). Likewise, the evidenc e submitted by the w rit applicant here to show discriminatory effect and discriminatory p urpo se is similar to the evidence pr esented in Ex par te Apar icio and
Ex parte V

azquez - B autista

. A s a result , based on the precedent o f the San Antonio C ourt of
A ppeals, we find that Vallesteros met his burden of estab lishi ng “ a prima facie claim for
sele ctive prosecution on the basis o f gen d er discrimina tion .” Id. (citi ng Ex p arte Aparicio , 672
S.W.3d at 71 5 ).
In E x parte Vazquez

- Bautista , the San Antonio C ourt of A ppeals n ot ed th at , “ even though given an opportunity, the State failed to pres ent any evid ence of the fea sibility of the State t o6

bear t he finan cial burden of arre st ing, housing, and prosecuting women, as it did by modifying its existing facilities to house male d et ainees

. ” Id. at 513 (citing Gomez , 2023 WL 7552682 , at *5). As a result, the S an Antonio C ourt of A ppeals found the r e was “ no evidence

. . . to support
the State’s assertion that OLS [w a] s ‘ narrowly tailored to serve its compelling interest of border

s ecurity .’ ” Id

. (quoting Gome z , 2023 WL 7552682 , at *5). Consequently, the c ourt held that

“ th e trial court abu se d its discretion in denying Vazquez relief on his selective prosecuti on claim under the Texas Equal Rig hts Amendment

. ” Id

. (citing Ex p art e Perusquia , 336 S.W.3d 270,
274

– 75 (Tex. App.

— San Antonio 2010, pet. ref’d) ). Based on this same lack of evidence , the
S a n Antonio C our t of A p peals held that the record did not “ suppor t the State’s assertion that its
d iscriminatory conduct is substant ial ly related t o its important gove rnmental interest o f border security ,” as required to pass interme diate scrutiny un de r the United States Constit ution for gender discrimination

. Id

. at 5 14 (citing Gomez , 2023 WL 7552682 , at * 6 ). Although the State sub mi tted evidenc e in this case, the evidence submitted suffered from the same deficiency relied on by t he San Antonio C our t of A ppeals in Ex p arte Va zquez - Bautista in determining that the Sta te did not meet its burden under the Texas Equal Rights Amendment ( ERA) or th e Unit ed States Constitution

. As a result, based on the prec edent of the Sa n Anton io
C ourt of A ppeals, “ even i n r e viewing the facts in the light most favorable to the trial court’s ruling, we hold the trial court [ erred ] in denyin g [ Vallesteros ] relief o n his selective prosecut ion
clai m under the Texas [ERA] , ” id. at 5 13, and “on his fede ral equal protection select iv e prosecution claim , ” i d

. at 514

.7

III. Conclusion Although t he o utcome of this case would have been en tirely diffe rent ha d we not been

re quired to decide th is case in accordance with another d i str ict ’ s pr ecede nt , fait hful applicati on of Rule 41.3 of the Texas R ules of Appellate Procedure requires us to reverse the t rial court’s
order and remand this ca use to the trial court for fu r th er proc eedings consistent with thi s opinion.

Ch arles van Cleef Justice

CON CURRING AND DISS ENTING OPINION
Si nce Ju ly 2021, I h ave been working with State a nd Federal OLS partners to increase jail space capa city , including to house more female arrestee s.
Th ose are the wor ds of Victor Escalon , the DPS ’s S outh Texas Re gi onal Direc tor , i n a n affidav it concerni ng th e State ’s res ponse to an overw helming, multifac eted p roblem.
Th e record before us shows that 2021 set “an all

- time record” for illegal border crossi ng s whereas jus t t he year before , in 2020 , the State had experienced “the fe west illeg al [ b order ]

c ros sings in decades

. ” Thi s gave rise to a situation wh ich Governor Abbott has declared “ a humanitarian crisis , ” an “ i nvasion , ” and a “ d isaster

. ” “Operation Lone Star ,” or OLS , began on March 6, 2021, as a direc tive by Governor
Abbot t to the DPS to respond to the increas e in illeg al border crossings. On May 31, 2 021, OL S

expan de d; Governo r Abbot t d eclared a disaster in thirty

- fo ur counties on or near the border with
Me xico.8

The record in this case contains affidavits from more than two dozen resid ents of the
OL S bord er counties, including Kinney County. T im e a nd again, these affidavits speak o f the danger presented by men. F or example, o ne Kinney County resident st ates that thirty

- five men were apprehended on his ranch in October 2021

. In his estima tion , “ [ninety] pe rcent of th es e
gro ups tha t t respass t hru the ranch are military age males.” The trial court found that the se affidavits “tell a terrifying and compelling story of the effect of the surge beginning in 2021.” Regional Director Es cal on states : “ S in c e OLS’ [ s ] incepti on, DP S leader ship 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 20 21, women were arrested and pro sec ut ed for fel on y off ens e s, b ut
not for misde meanor cri m inal t respass. Escalon says t here were “ma n y factors” in that decisi on. One of them being the assess ment that adult m ale t respassers presented a greater threa t than
femal e tresp ass ers , an asse ssment th at, in tur n, w as based on mult iple factors.
Valleste ros was arrested for criminal tresp ass on February 10 , 202 2 , as part of OLS

. He
was arrested on a ra nch i n Kinney C o un ty. There is no indication in the record of whether he
was with a group that included wom en , or whet her h e was in a group at all. He wa s twenty

- nine years old at th e t ime. He asserts, via an appl ic ation for pre trial w rit of ha beas corp us, that he h as been prosecuted, while women have not, in contr avention of his rights to e qual prote ction und er the Cons titut ions of both the United States and Texas. He asks that the ca se against him be
dismiss ed

. The trial co urt did not d ismiss the case

. The tri al court granted the wri t, but d enied the
relief re quested

. The trial court ma de detaile d factual and legal findi ngs
. The t r ial c ourt found9

th at th e “swift s urge in il leg al c rossi ngs” acco mpanied by “car tel involvement

. . . created a crisis
for law enforcement akin to a tsunami

. ” The trial court found that the decision to prosecu te men for criminal trespass was no t m otivated by a pr oh ibited di s crimi nator y p urpose, but inst ea d was
b ase d on an assessment that adult males posed the grea test danger, and on a lack of jail space for

wom en. The trial court f ound Regional Director E scalo n’s affida vit “cred ible” and “ adopt [ ed
his ] af f idavi t as part of it s fi ndings. ” T he trial court specifically credited Escalon’s statement
that , from the beginning, the State was trying t o ramp up jail space f or women to meet the

“ tsunami

. ” The trial cour t found th is conclu sio n s uppor t ed by the fact th at, i n 2023, jail space f or women had become avai lable, and women too were then prosecuted not only for felonies , which they had been all along, but also for crimi nal trespass.
There h ave been num er ous OLS ca ses. Thi s ca se wa s t ransferr e d to our C o ur t pu rsuant

to standin g doc ket equalization practices of the Texas Supreme Court. We are , therefore , required to decide the case b ased on how our sister court would decide it.
Thi s case, however, has three things no prior Fourth C o urt O LS decisio n h as h ad: (1 ) the
af f i davit o f Re gio nal Dir ector Escalon, (2) the affidavits from OLS borde r
- cou nty residents, and (3) a decision from the trial court denyin g habeas relief in reliance on those affidavits.
Even so , it appears that the r ul i ngs of ou r sister c our t on prior OLS c a ses m an date th at the
trial court be rev ersed

. I concur in th at ou tcome , 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 th a t we wo u ld decide the case dif fe rently

. As in d icate d by t h e main opinion, our entire court would decide thi s cas e dif ferently. Given the substantive legal10

standards re ga rding selecti ve prosecution, and under the governing standard of review, abuse of
di s creti on , I would affirm the tr ia l court’s de ci s ion a s bein g w ithin its discretion and supported by the recor d. I therefore dissent

. I. The Governor’s Proclamation

“ The Governor is ‘the C hief Executive Officer of the State.’” Abbott v. Harris Cnty

. , 6 72 S.W.3d 1, 1 8 (Tex. 20 23) ( quoti n g T EX

. C ONST . ar t

. IV, § 1 )

. “ The Disaster Act [ 6 ] envis ions a coherent statewid e or r egional governmental response to a disaster, wh ich c annot be accomplish ed without clear lines of authority coordinating Texas ’ s patchwo rk of overla pp ing
local jurisdicti ons
. ” Id

. a t 18

– 1 9. Th e Dis as ter Act serves as delegati on of the Legislature’s

po wers to the G overnor. Id. at 16

– 17. 7 The G overn or’s P ro clamation , pursuant to the Disaster
Act , constitutes a finding by the C hief E xecutive O fficer of t he S tate. T EX

. G OV ’ T C ODE A NN

. § 41 8. 01 4( a). Th e G overno r’s P roclamation has “ the force an d effect of law

. ” T EX

. G OV ’ T
C ODE A NN

. § 418.012

. On May 31, 2021, Governor Abbo tt p roclaimed that:

▪ The State is experiencing “escalating border cros sings.”

▪ The G overnor’ s “ calls fo r the federa l go ve rn me nt to do its job and secure the b order have gone unanswered.”

▪ T his has “ enabled escalating violenc e from the cartels, dramatically inc reased the risk of human trafficking, and created a s evere cris is of ille g al drugs crossing into t he Uni te d St a tes i nc lu din g 21.5 million lethal doses of fentanyl that w ere

6 T E X

. G OV ’ T C ODE A NN

. § 418 .001 e t seq

. “ The [ L ] egislature by l aw may terminate a state o f disaster at any time

. ” T EX

. G OV ’ T C O DE A NN

. § 418.014(c). The record in t his c ase reflec ts no such action by the Leg islature. I nstead, the record conta ins an Ap ril 29, 2022 , lett er by Gove rn or Abb ott c o
- signed by Lieutenant G overnor Dan Patrick, Spe a k e r of the House D ade Phelan, Senator Jo an Huffma n, and Representa tive Greg Bo nnen, M.D

. The letter approves the transfe r of Texa s G eneral Revenue funds to the Gov er nor’s Di saster Fun ds.

7 No tin g, but expr essly avoiding deciding, the c onsti tut ional quest i on raised by such delegati on
.11 intercepted by DP S from January through April 2 021, all of which threatens harm thr oughout Texas and in other states

. ”

▪ The r esult has als o been “a humanitar ian crisi s in many Texas c ommunitie s alo ng t he bo rder.”

▪ In the months prior t o the Disaster D eclaration, the G overnor had directed the DPS t o “ initiat e Operation Lone Star ” and “de vote addit i on al law enforcement resources towards d eterrin g illeg al border crossings and pr otectin g our border com mu ni ti es
. ” Those efforts resulted in

o t he appre he nsion of “over 3 5,000 illegal migran ts ; ”
o “1,300 c riminal arrests ; ” and
o t he seizure of “ over 1 0 0 f irearms ,” and “ 10,000 pounds of drugs

. ”

▪ In s um, “the ongo i ng surge of individ uals unlawfully cros sing the Tex as
- M exico border poses an ongoing and imminent threat of widespread and severe damage, inju ry , an d loss of life and property, including proper t y d amage, property crime, human traffickin g, vio lent crim e, t h reats to public hea lth and a violat ion of sover eign ty a nd te rritorial integrity” in the designate d counties. “The People ele ct legislative and execut ive branch o fficials

— n ot j udges or ‘experts’

— to make judgments ab out th e costs and benefits of government acti on a nd to balance competing polic y goals in light of tho se judg ments. ” Ha rr is Cnt y
. , 672 S.W.3d at 5 (quoting Ab bo tt v. Anti

Defamation League Au stin, S w., & Texoma Re gion s , 6 10 S.W.3d 911, 926 (Tex. 2020) (per
curia m) (Blacklock, J., concurring )

. Th e P rocla m ation acknowledged that “there may not be an a dequat e numb er of j ail b ed s

a vai la ble” and directed t he Texas C om missi on on Jail Standards and t he Texas Commission on
La w Enforcement to assist with the response.
Th e trial court re lied on the G overn o r’s P roc lamation. 8

8 No tably , Vallesteros asser ted to the tri al court that the G over no r’s P roclamation “ sets out the motiv a ti on for [ OLS]

. [ Th e] declara tion d oes no t ment ion t he sex of the u nla wful c rossers once. ”12

II. Regional Director Escalon’s Aff idavit
Vic tor Escalon h as be en t h e DPS ’s S ou th Texas Regiona l Director since 2019. He has
directed O LS’s mission in the twenty

- seven count y South Texas Region si nce the beginni ng. Today , he oversees more than 1 ,600 employees. In 1994, he started hi s DPS care er as a t r o oper.
In t he th r e e dec ade s since, he advanced through the ranks, from underc over narcotic s officer in Laredo, to supervising “rural operations to dismantle and disrupt criminal organiz ations

op e r a ti ng on bo th s ides of the [ Rio Grande ] , ” to headqu arters p o sitions as a Tex a s R ang e r
Di vision Captain and then Ranger Major, with duties involving ov ersight of unit s including, among others, the Border Security Operation s Center. Thes e duties req uired co ordina tion with
federal , state, a nd local au thorities on bo r der se cur ity.
In h is sev en
- page , single

- spaced affidavit, Regional Di rector Escalon expla ins why, from 2021 until 2022, men were arrested for criminal trespas s, but not w omen , and why , present ly , the
fo cus regard ing criminal trespass is o n “sing le adult m ale and femal e vio la tor s betw een the ages
of 18 and 65.” (Emphasis add ed). The background for that decision is that, since early 2021 , there has be en an “ infl ux o f undocumented migran ts” which has “ o verwhelm ed the criminal justice s yst em in the South
Texa s Region.” Da t a fr om be f ore 2 021 showe d that those trespassing in remote ru ral areas were

p redominately m en. In 2 021 , the n umber of such “ trespass [ ers ] increased at an alarmin g rate

. ”
B y con tras t, “[f]ew females were being encountered.” Regional D irect or Escalon st at es th at
S t ate a nd federal data gathered since th e i nitiation of OLS b ear out th at most trespassers “ are male s , not femal e s. ” He states that hi s exp erience is t hat tresp assers ho pe to avoid detection and13

capture. Sometimes this is becaus e t hey want to m ee t a h uman smugg ler a t a remote lo c at ion,
and f rom there be taken to “transpor tation hub s, like San Antonio and Houston.” Sometimes this
is because they are smu ggling dr ugs. Esc alon stated that a consideration present f rom the ou tset

o f OLS i s th a t “[t ] he public safety threat posed by cartels, dr ug and hu man traf ficking organiz ati ons, and associated gangs increase[s] as these actors take advant age of increa sed illegal
mi grant flo ws to conduct their criminal activities, i ncl u ding human s mugg l i n g , h u man

t r af ficking, narcot ics trafficking, weapons trafficking, money la undering, ext ort ion, and violent
crimes.” For numerous reasons, the DPS consid er ed “non

- elderly adult male [ s ] ” to pr esent “the greater public safety threat.”
N o matter the reaso n for t raver sin g remote a reas, the trek i nvolves r isks such as

ex haustion and dehydration. I n Regional Director Escalon’s words , “ [ t ] here are pu blic safety concerns for the trespasser s themsel ves.” “ I n just t he South Texas Region, hu ndr e ds of dead

t respa ss ers h ave b e en recove red on p ri vat e property. Most of them have been mal e.”
Women , according to Regional Director Escalon, typically follow a different p attern.
F ro m both his own personal observation and data report ed to him, he s tat e s that w omen and
f a mi ly units ar e less p rone to trespass, but instead, are more prone to cr oss into Texas at

“ designated Ports of Entry ” where “the city provides more infrastructure on b oth sides of th e river

. ” 9 When wome n are encountered on ru ral proper t y i t i s diff icult t o te l l whe the r they a re trespassing or they are “being smuggled or traf ficked by their male companions.”

9 See J en n i ngs v. Rodriguez , 583 U.S. 281, 285 (2018) (plura lity op. ) (“Every day , immigration officia ls must d etermin e whether to admit or remove the many a liens w ho hav e arrived a t an offic ial ‘port of entry ’ ( e. g ., a n i nternational air port or border crossin g) o r who have been a ppreh ended trying to enter the c ountry at an unauthorize d location.”)

.14

Given 2021’s alarming increa se in t respa ssing, Regional Director Escalon st ates t hat OLS
initiated an emphas is on arre sts for cr im inal trespa ss in J uly 2 021

. Thi s required ongoing

coo rdination with local and federal aut horities through the stages of arrest, processing , and
detention , wi thin th e State system, and then federa l Imm igration and Customs E nforcemen t

c u stody

. Variables su ch as the place of a rr est a nd th e nature of the offense impacted where arrestees would go in t he process. Wh en processin g or detention facilities had no more cap aci ty,

arrestees wo uld be ha nded direc t ly over t o United States Customs and Bord er Patrol. “ M an y South Texas Regi on j ai l s, li ke in Kinney County, have not been operational since OLS’s
in c e ption.” Escalon notes the “logistical h urdles” involv ed bec ause “the Texas Co mmi ssion on
Jail Standards r equires w omen a nd men to be house [d] separately.” Reg io nal Dire c tor Escalon state s th at , from the beginning of OLS, wome n have been arrested for felony off

enses, local jail space permitting. How e ver , “limited jail space has f orced
DPS person nel to rele a se male a nd female arre stees

. ” He also states that , in N ovember 2022 , DPS pers onnel b e gan arr es ting women as county jail space became available

. Further, by July
19 , 20 23 , the State had r eadied the Lopez Unit in Edinburg , Texas , to house “adult fema les w ho
have c ommitted criminal trespass and other borde r ne x us
- related State crimes

. ” 10

10 Here, Valleste ros as ked the trial court to consider f acts whic h de v elo p ed after h is arrest. That takes this ca se outside o f o ur sister co urt ’s holdi ng that the on l y “ evidence relev ant to [ a ]

. . . sele ctive

- prosecution claim is that whi ch existed at the time of the appl ic ant’s arrest.” Ex parte Barahona

- Go me z , No. 04

- 2 3

- 00 2 30

- CR, 202 3 WL 62853 24, at *2 (T ex. A p p.

— Sa n Antonio Sept. 27 , 2023 , pet. filed ) (mem. op., n ot designated for publicat ion)

. In particular, Vallesteros asked the trial court t o conside r the subsequent arrests and prosecutions of w omen in h op es t hat i t would pers uade the t rial court o f the State ’s discriminatory inten t at the time of his arres t

. Having do ne so , Vallesteros cannot complain when the evidence he pu t before the trial court has the opposite effect o f de monstrati n g Escalon’s sinceri ty

. S e e Woodall v. State , 3 36 S.W.3d 6 34, 64 4 (Te x. Crim. A p p. 2011) (“Th e law of in vited er ror pr o vides that a part y cannot take advantage of an error that it invited or c aused, ev en if suc h error is fundamental.”).15

Th e tr i al co urt found Regional Di rector Escalon’s affidav it cred ible an d a dopted it as part
of its decis ion.
III. The OLS Border County Resident Affi davi ts
Cole Hill mana ges a wor king cattle and hunting ranch in Kinne y County

. He has lived
on th e ranch wit h his w if e an d thr e e children since 2015. He s t ates that since January 2021, he has experienc ed “increasingly aggressive con frontations” with trespass ers. He recounts a young

m ale “fully dressed i n nice camou flage from hea d to toe ” trying to enter t he ba r n at the ra nch
h eadqu arters. There had been occasional trespassers before, but non e had approached the
he adquarters

. In February 2021 , a group o f trespa ssers surround ed Hill’s h ou se while h is wif e and daughter were inside

. The t respassers were bangi ng on t h e doo rs and tryin g to find a way
inside. The trespassers did not res pond to pl eas that they leave until Hill returned home and told the tresp assers t hat h e had cal l ed the B order P atrol. Lat er , in February 2021, Hill d iscover ed that

a n eight

- f oot

- tal l sect ion o f his ranc h fenc e had been cut. Tracks in dicated that a vehicle had

ent ered, picked up a group, and then left through the cut o pening

. Hill had to repair th e fence
i mmediately lest ca ttle discov er it a nd exit th e ranch ont o the nearby highw ay , endangeri ng

mo to rist s
. By April 2021, Hill had decided that it was not safe for t he chi ldren to play outsid e unless he was home. Hill had just start ed mowing the yard when he saw five ma le tres passer s crawling under the f

ence by the barn and then run nin g for his hous e
. Hil l yell ed at his children to get inside and yelled at the men t o st op
. The men kept running to wards Hill’s h o me
. They did

n ot s top unt il H ill won t he footra ce to his house, g ot a shotgun he had started keeping jus t inside
the front do or, an d “ racked a round

. ”16

Hill describes multiple inc idents of trespasse rs breaking into a ranch workers ’ residence
and the main hunting lod ge by b re aking windows and k icking in doors. The trespasse r s left the
ranch house “trashe d” an d the l odge “complet ely ransa ck ed” with t he damage includi ng human
feces. The trespassers stole hunting gear includi ng camouflage, spottin g scop es, and knives

. Hill states that “ [ a ] pprox imately 9 5 % ” of trespassers were “young male s.” R egard ing the

“ f ew wo men t ha t h ave com e throug h , ” Hill states : “ I hav e found 2 abandoned by t heir coyote
and left for dead with no food or wat er. One had been rape d re peatedly on her trip, and the other
ha d a bro ke n leg and a broken arm.” Beth Ann Smith, a f

ifty

- two

- year Ki nney Count y resi d ent , also states t hat what began happening in 2021 is something she has never experienced be for e
. She des cribes cut fence s, cut water lines, and ranch

- house break ins. Sh e has had trespassers “slip up on [ her ] ” when s h e w as in her y ard a lone

. Bot h from her own eyes and from monitoring camer as on her pro per ty, she
estimates that “ 99% of [ the tre s passe rs ] are men
. ” Smith s tates she no longer feels saf e.
Sta nford Cono ly, also of Kinney County, de scri bes mu ch the same. He d e scribes the ri sk
to cattle fr om ea ting the trash the trespassers leave behind. He states that , since the tr esp assers

were breaking off the sp igots on water tanks, he installed fau cets, so that the y could tu rn the
water on and off. The tr espas sers “l ef t t hem on every s ingle time.” C onoly r eports that he and
his wife have bo th been confronted by trespassers at the ir home. H e also re ports being out on the
ranch with his son and ha v ing a gro up of fif teen tres passers “fan out around us as we were work in g
. ”17

Tiffan i Sanch ez, of Ki nney C ounty, states t hat , on the afte rnoon of Sep tember 21, 2023,
her five

- yea r
- old son fo und two m ale trespassers in their back ya rd. The trespassers were p a rt of
a “bailout ” near he r home. 11 Sanchez call ed th e Kinne y Co un ty Sh e r iff’ s Office. The
trespasse rs could not b e found. The two trespas sers, and three others, returned to he r home at
10:00 p.m. They were all male and all d ressed in b lack. They rang the doorbell. Th e trespas sers
i nitially i nsisted th at she help t hem

. T hey l eft on ly when she said the sheri ff was on his way.
Laura Allen , a f

ifty

- year resident of Val V erde County , describes cameras on her

p ro perty show ing armed trespassers. She states that “almost a ll” the t r espassers were “adult
males dresse d in fu l l c a mouflage and c arrying backpacks .” Allen describes mu ltiple car chases

acr oss her property. One of t hem resulted in the ar rest of two cartel members sm uggling six migrants, “ one of whom was a convic t e d sex of fe nder. ” Time and ag ain, the af

fi davit s stat e tha t the majo rity of trespasse rs are male. None of the
affi ant s t esti fy to being a ccosted b y female trespassers

. The trial court relied on t hese affidavits.
IV. Selec tive Pros ec ution
In E x p arte Ap aricio an d its progeny, our sis ter court has he ld th at ther e are three ste ps to

eva luat ing a habeas claim of selective prosecutio n based o n an alleged equal prote ction
violation. 12 The bu rden is on the claimant to present a prima faci e case satis fy ing the first two

11 See Unit ed S tates v. Za pata

- Ibarra , 2 12 F.3 d 8 77, 88 2 n. 2 (5th C ir. 2000) (“ A bail out i s when t he vehicle pulls over to t he sid e of the r oad or appe ars to be sort of back and forth on the lane to try to look fo r a place that is not fenced in or maybe doesn ’ t have any obstac les s o he can run o n the s i d e of the road, and so everybod y can bail out and ru n.”)

. The aff

idavits contain numerous a ccounts of bailou ts

.

12 Ex parte Aparicio , 672 S.W.3d at 708 ; Del Campo

- Ch avez , 67 4 S.W.3d 714 ; Gomez , 2023 WL 7552682, at *5

.18

steps: “ [ t ] he defend ant must dem onst rate th a t th e prosecutorial policy ‘ had a discriminatory
effec t a nd that it was moti va ted by a discriminatory purp ose. ’ ” Ex parte Aparicio , 67 2 S.W.3d at
708 ( quoting United S tates v. Ar ms trong , 517 U .S. 456, 457 (199 6) ). Once the prima f aci e hurdle has been cl e ared , the third ste p is an evalu ation of the State’s j ust ification for its a ctions. 13 On the second step, our sister court sees discrimi natory inten t when “ a discrimina tory

purpos e has been a mo tivating factor ” in the exercise of p rosec utorial d iscr etion

. 14 Ex p arte Apar i cio quoted “a dis criminatory purpose” wor d

- f or
- word fro m a 1977 eq ua l p r otection
decis ion of the United States Supreme Court. 15 The 1 977 case, though, had ot her words, amo ng them words w hich indi cate that this is a “sensitive in quiry” which includes among it s non
exhau s tiv e considerations, whether the record r eve als “a clear patter n, un exp l ainable on gro unds
other than ” a prohibited dis cri minatory intent. 16 Th e Supreme Cour t said that suc h a patte rn would be “rare.” 17
The 1977 ca se was not th e Supreme Court’s l ast word. In 1982, the Court , in explaini n g

t he very same legal tes t, us e d the words “ t he motivating factor.” 18 In 1985, th e Court used the

13 Ex pa rte Aparicio , 672 S.W. 3d at 7 08 (“Once the defend ant e stablis hes a prima facie ca s e of selective pr osecution in violation of equal protecti ons rights, the burden shifts to the State to justify th e d iscrimi natory tr eatment.”) ; Ex parte Vazquez

- B autista , 68 3 S .W .3d at 513

.

14 Ex parte Apar i cio , 6 72 S.W.3d at 714 ( quoting Village of Arling t on He ights v. Metro. Hous. Dev. Corp

. , 429 U.S. 252, 26 5

– 66 (1 977 )

.
15 Id.

16 Vi llage of Arlington Heights v. Metro. Hous. De v. Corp

. , 429 U. S. 252 , 26 6 (197 7 )

.
17 Id.

18 Crawford v. Bd. o

f Edu c . of City of Lo s Angele s , 458 U .S. 527, 544 (1 98 2 ) (emphasis added ).19

words “bec ause of

. ” 19 Even more recently, in 2021, th e Cour t exp lained the “motivated by a di sc r iminatory purpose” test in terms that permit a broad view both of the condi tions giving rise to the act, and of who constitutes the a ctor

. 20 For exam pl e, the Co urt appr oved a district court’s
considera tion of “ the histo rical background and t he sequence of events leading to ” the
challe ng e d action. 21 Likewise, r ather than giving contro lling weight to the motives o f indi vid ua l

p r oponents of a sta tu te, the Court exa min ed the evidence regarding the motives o f the l eg islature
“as a whole

. ” 22
There is also Texas Su preme Court authority on the mo t i v ation pro ng of the prima facie equal protection ca se. Ex parte Ap aricio do es no t consult its g uid ance on the motivation inq uiry

. 23 I would. Ex parte Aparicio and its progeny do cite to Bell v. Low Income Wom en of
Texas f or two proposition s: (1) that t h e Texas E qual Rights Ame ndment supp lements federal equal protection guar ant ees a nd (2) that , once a pr ima f aci e case has been made, the Texas Equal Rights Amendment (ER A) subjec ts the S tate’s actions to “strict sc rutiny.” 24

19 Wa yt e v. United States , 470 U.S. 598, 610 (1985).

20 Brn ovich v. Democratic Nat ’ l Comm

. , 1 41 S. Ct. 23 21, 23 32 , 210 L. Ed

. 2d 753 ( 2021)

. Brno vic h was a voting ri ghts case in w hich the Supre me Court asse s sed “discr iminatory purpose , ” id. a t 2348, for a Fift eent h Amendment claim by using “the familiar approa ch” us ed in the ver y same equal protection precedent on wh ich our s is ter court relies , i d

. at 2349 ( citin g A rlington He ights , 429 U.S. at 266

– 268

.
21 Br n ov ich , 1 41 S. C t. at 2349

.

22 Id. at 2349

– 50

. The Supr eme Court also noted that “partisan motive s are not the same as [prohibited disc ri minatory motives]

. ” Id. at 2349.

23 Se e E x part e A p aricio , 6 72 S.W .3d at 71 3.

24 Id. at 7 16 ( c i ting Bell v. L ow I nc ome Wo m en of Tex

. , 95 S.W.3d 253, 2 57 (Tex. 2002) )

.20

Bell , though, also addresses th e bu r den on th e claimant at t he “because of” stage. Be ll v.
Low I nc ome Women of Tex

. , 95 S.W.3d 253 , 2 57 (Tex. 2002)

. Similar to th e t est d escribed above, Bell used a three

- ste p process for claims under the Texas ERA , one of them bei ng

“ w hether equ ality was denied because of a person ’ s me mber ship in a p ro t ected cl a ss o f sex, race,

co lor , creed, or national origin. ” 25 On this “because of” inquiry, Bell found federal auth orities t o be “helpful g uidance

. ” 26 In particular, Bell looked to th e same 1977 United States Supreme
Court cas e from which Ex parte Ap a rici o quoted. 27 F ur ther , B ell ’s terminology fo r t he motivation inquiry , “beca use of , ” has also been used by the Supreme Court. 28

B ell evaluated the State’s ab ortion funding pro gram “as a whole,” includi ng the
“inte rplay” with the f

ederal system and federa l fun ding. 29 Bell d i d no t m e rge e ffect and inte nt; though “only women c an beco me pregnant[,]” id. at 258, Bell held that “w e do not believe the
d iscouragement of abo rtion through funding restrictio ns can, by i t self, be considered pur poseful
discrimin ation ag ains t women as a cl ass , ” i d. at 263 (emphasis add ed)

. Bell ackn owledg ed that
the adverse effect on women cou ld give rise to an in ference of discriminatory intent, but he ld

25 Bell , 95 S.W.3d at 257 ( quoting In re M cLean , 72 5 S.W.2d 696, 697 (Tex. 1987) )

.
26 Id. at 259.

27 Id. at 260 ( citing Villag e of A rlington H e i ghts , 429 U.S. at 2 64

– 65 ).

28 Wayte , 4 70 U.S

. at 610

. Notably, Wayte h e l d that “ [f] ew interests can be more compellin g than a nation’ s need to ensure its own securi ty.

. . . U nless a society ha s the c ap ability and will to defend itself from the aggressi o n s of othe rs, const i tutional protections of a ny so rt have little meaning

. ” Id. at 611

– 12.

29 Bell , 95 S.W.3d at 263. T he rec ord here s hows that, as of November 14, 2 022, “Texas ha [d] devoted mo r e than $4 b illion of Texas taxpayer dollars

. . . t o secu re the b or der and en hance public safety .” ( E mp ha sis a dd ed ). The record bef o re us shows that Texas was see k ing, but had not obta ined , federal reimbursement for t hose expenditur es.21

tha t “an inf

erenc e i s a working too l, not a synonym for pr oof.” 30 Accordi ngly, Bell fou nd that , “[w] ha teve r o ne mi g ht think of th e l egisla tive poli cy cho ice

. . . plaintiffs have simply failed to
demonstr ate that it reflects a purpose to discriminate because of sex. ” 31 Con seq ue ntly, the Bel l
claimant failed to me et the “because of” test. 32
Cr ucially

— and e xp ress ly

— Bell u sed “because o f” at the second s tep of the process to
determine whether or no t s trict scr utiny app lied at the third step in the process, justifi cation fo r the St at e’s action : “[b] ecause the [action on review] does not discr imin ate ‘ because of ’ se x, we ju d ge the classif

ica tion b y the mor e defe rential rational

- basis standard of revi ew. ” 33 In su m,
Ex par te Aparicio cited Bell to place the State unde r strict scrut iny w ithout usi ng Bell ’s “because
of” tes t to see if str ict scruti ny w as warranted in the fi rst p l ace. 34
V. The Abus e o f Disc retion St and ard of Review
Our sister c ourt states the abu se of discretio n standard in a way that, by the words used,

m ight aff ord too l itt le actual di scretion to the trial cour t. Our sister c ourt states t hat “we de fer to
th e t rial c ourt’s assessm ent of th e facts w h en those facts turn on an evaluation of cred ibi lity a nd

30 Id. at 264 (quoting Pers. Adm ’ r of Mass v. Feeney , 442 U.S. 2 56 , 279 n.25 (19 79) )

.
31 I d.

32 Id. ( “the TMAP fundin g sche me doe s not discriminate ‘beca u se o f’ sex”) ( quoting Sullivan v. Univ. Interscholastic League , 616 S.W.2d 170, 172 (Tex. 1981)

.
33 Id. ( quo ting Sul l i van , 616 S .W.2 d at 172 ).

34 Ex parte A

pa rici o , 67 2 S.W.3d at 716 ; G o m ez , 2023 WL 755268 2, at *5 ( p etition for dis cr etio nary review filed (De c. 15, 2023) ) ; Del Campo

- Chavez , 674 S.W.3d at 718

. Consequently , I wo ul d consider t he Bel l “becaus e of” ana lysi s c ont rolli ng w hen strict scrutiny is soug ht under t he Texas ERA. I w ould a ls o consider it persuasive, at a minimum, unde r the federal test, and quite possibly controlling should either of the State’s highes t cour ts f ind that a spect of the Te xas E RA a naly s is to be i dent ica l to the federal analysi s. Furt he r , given that the Texas Su preme Court has spoken to the Texas Cons titu tion, I would take guidance from that before consulting decisions regarding a federal statut e. See Ex p ar te Apa rici o , 67 2 S.W .3d at 7 1 5 ( di scuss i ng precedent regarding a feder al statute ).22

demean or.” Ex parte Aparicio , 672 S.W.3 d at 707 (em phasis added). This raises two questions
which matter bec ause this case was s ubmitted on a paper re cord.
Fir st, w o uld it be corr ect to view “credib ility and demeanor” as a dividing line with trial

co u rt f actua l fin dings turning on “credibility and demeano r” gett ing deferential review, b ut findings not based on “ credibili ty and de me anor” get ting no de fer ence? Th e ans w er i s t hat
“cr edi bility and demea nor” is not that sort of dividing line; where the Fo u rt h Court says “when”
the Texas Court of Criminal Appea ls has said “especially when.” Diamond v. State , 613 S.W.3d
536 , 544 (Te x. Cr im. App. 2020) (“ An appellat e cour t a fford s alm ost total def erence to a habeas

court ’ s factual findings when they are suppo rted by t h e record, especially when those findings

are based o n credibility and demeano r. ” ( E mphasis added) )

. Thus, a ll of the tria l cou rt’s factu al
f indings w i th su ppo r t in the record are to be given almost total deference

. Id. Conseque ntl y, “ reviewin g courts defer to the trial court ’ s impli ed factual fin dings that are

suppo rted by the re cord, even whe n no witnesse s test if y and all o f the evidence is submit ted in
writ ten affidavits.” Ex parte Wheeler , 203 S.W.3d 317, 325

– 26 (Tex. Crim. Ap p. 2006)

. D e ference, alread y due, and “almost total, ” is enhanced w hen the finding turn s on an asse ss ment
of “credi bilit y and de meanor .” Diamond , 613 S.W.3d at 544

. Nota bly , our siste r court relies on Ex parte Wheeler

. Ex parte Aparicio , 672 S.W.3d at 70 7 ( citing E x parte W

heeler , 203 S.W.3d
at 324 )

. Th erefore, we rea d Ex parte Aparicio as following E x parte Wheele r , an d as bei ng

con sis t ent with Diamond

. On t hat unders tan ding , we ar e in accord wit h the Fourth C ourt on this first question

.23

Second, w hat e xactly amo u nts to a “cred ibility and demeanor” asse ssment by a tri al
court? Here too, Ex parte Wh e eler provides guida nce, not ing th at a trial cou rt can make

cr edibil ity and demeanor d e terminations, even from a paper record of one phase of a proceedin g, ba sed on the trial cou rt’s prior experience. Ex part e Wheeler , 203 S.W.3d at 326 (notin g that a
tri a l court could prope rly brin g prio r ex p erience w ith a prosecut or to b ea r wh en assessin g the proffered reason for the exercise of a preemptory strike ). Aga in , we read Ex parte Ap aric io as following Ex parte W

heeler , and on t hat understanding a re in accord with our sist er cou rt.
Li kewise , we a re in acc ord with the p ropositi o n th at, on abus e of discretion review, the reviewing court examines the record in “th e light most f avorable to t he [ trial ] court’s ruling

. ”
Ex parte Apar icio , 672 S.W.3d at 70 7

. VI. Ana lysis
Under the E

x parte Aparicio app roac h , o nce it is establishe d tha t men ar e p rosecuted
while women ar e not , a habeas claimant has carried the prima facie b u rden of s h owing bo th
d iscriminatory effect and moti vation by a d iscriminatory purpose. This is demonstr ated most

s tarkly by D el Cam

po - Ch avez
. Del Cam

po - Chavez , 67 4 S .W.3d at 718 ( citin g Ex parte Apar icio , 672 S.W.3d at 714

– 15 ( “ Del Campo me t his burd en by showing that the Sta te only

prosecu ted men for misdemeanor tre spass under OLS. ” ) )

. T hat has t he effec t of mergin g the two

p rongs of th e prima facie bu rden int o a s i ng le prong , satisfi e d by the same evidence. See i d. Under that approac h, it a ppear s that the aff idavits o f Re gional Directo r Escalon and the OLS
border county residents would not , and cou ld not , make an y difference ; E x part e Apa ricio and
De l Campo

- C

hav e z di c ta te a finding that the State’s ac tions were motivated by an24

unconstitut io nal di scri minatory p urpos e no mat ter what evidence the State submit s regard ing its
motives.
Th ose affi davit s an d Govern or Abbo tt’s proclamati on mad e a d ifference to t he tria l c o urt.
I n its assessment , t he State was n ot acting for improper discriminatory re asons, but to prote ct not

on ly Texans, but the tres passers themselves , doi ng so as best the State coul d on tha t day wit h the
resources availa ble on that day

. Under the abu s e o f dis c re tion standard, th a t should make a difference to us as an appellate cou rt

. I w ould affirm t he trial court.
Because the Ex p arte Aparicio / De l Campo

- Chavez legal test compels a dif feren t

outcome , I respectfully concu r and disse nt.

Jeff Ra mb in Ju stice
Date Submi t ted: March 5, 2024 Date Decided: April 16, 202 4
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