Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-22-00887-CR

The STATE of Texas,

Appellant

v.

Pablo Jose Javier MARQUEZ,

Appellee

From the County Court, Kinney County, Texas

Trial Court No. 13939CR

Honorable Dennis Powell, Judge Presiding

Opinion by: Beth Watkins, Justice

Sitting: Beth Watkins, Justice

Liza A. Rodriguez, Justice

Lori I. Valenzuela, Justice

Delivered and Filed: July 17, 2024

AFFIRMED

The State of Texas appeals the trial court’s order granting Pablo Jose Javier Marquez’s 

requested habeas relief and dismissing his criminal case with prejudice. We affirm.

BACKGROUND

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

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

resources toward deterring illegal border crossing and protecting [] border communities.” He 

further directed “DPS to use available resources to enforce all applicable federal and state laws to 
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prevent 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.” 

As part of OLS, Marquez, a noncitizen, was arrested for criminal trespass on October 12, 

2022, in Kinney County. On October 18, 2022, Marquez filed an application for writ of habeas 

corpus seeking dismissal of the criminal charge, arguing his rights had been violated under the 

Constitution’s Equal Protection Clause and the Texas Constitution’s Equal Rights Amendment. 

See U.S. CONST. amend. XIV; TEX. CONST. art. I, § 3(a). Specifically, Marquez argued that the 

State’s selective enforcement1 of criminal trespass against men, and not similarly situated women, 

as part of OLS violated his constitutional rights. The trial court granted the writ and set the matter 

for an evidentiary hearing on November 18, 2022. 

At the hearing, the trial court heard the merits of Marquez’s pretrial habeas claim, along 

with twenty-one other cases, all filed on selective enforcement grounds. We described the evidence 

presented at this hearing in a previous opinion, State v. Gomez, — S.W.3d —, No. 04-22-00872-

CR, 2023 WL 7552682, at *1–4 (Tex. App.—San Antonio Nov. 15, 2023, pet. filed), as both the 

habeas claim in Gomez and the habeas claim in the instant case were heard at the same time. After 

considering the evidence presented at the hearing, on December 21, 2022, the trial court found that 

Marquez had presented a prima facie selective-enforcement claim on the basis of equal protection

and further found that the State had not met its burden of justifying the discriminatory treatment. 

1 The terms “selective prosecution” and “selective enforcement” are sometimes used interchangeably, although they 

are distinct claims. See Ex parte Marcos-Callejas, — S.W.3d —, No. 04-23-00327-CR, 2024 WL 2164653, at *2 

(Tex. App.—San Antonio May 15, 2024, no pet. h.) (citations omitted). Here, while Marquez’s pretrial habeas 

application sought dismissal on “selective-prosecution” grounds, the evidence Marquez presented in his application 

and at the hearing shows that under OLS, law enforcement officers arrested and charged men, but not women, for

criminal trespass—evidence that indicates Marquez was asserting a selective-enforcement claim. See id. at *2–3 & 

n.2. Moreover, the trial court, in its order granting Marquez habeas relief, found that Marquez was “the target of 

selective enforcement” and that “the unconstitutional prosecution is fully implemented at the level of arrest of only 

male suspects.” We therefore conclude that Marquez effectively presented a selective-enforcement claim and that the 

trial court construed his claim as one for selective enforcement, and we will refer to his claim as a selectiveenforcement claim. See id. at *3.
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Consequently, the trial court granted Marquez’s requested relief and “order[ed] the criminal 

prosecution against Applicant be dismissed with prejudice.” The State appealed. 

DISCUSSION

In its brief, the State argues the trial court erred in granting relief on Marquez’s selectiveenforcement equal protection claim for the following three reasons: (1) his claim is not cognizable

in a pretrial habeas proceeding; (2) he did not present a prima facie case of selective-enforcement

on the basis of a violation of his equal protection rights; and (3) the State met its burden of showing 

its policy passes “the strictest of scrutiny.” These are the same arguments brought by the State in 

Gomez, 2023 WL 7552682, at *4. For the reasons enunciated in Gomez, we hold that Marquez’s 

claim is cognizable in a pretrial habeas proceeding, that the trial court did not abuse its discretion 

in determining that Marquez met his burden of showing a prima facie claim for selective 

enforcement on the basis of gender discrimination, and that the trial court did not abuse its 

discretion in determining that the State had not met its burden to justify its discriminatory conduct 

under either strict scrutiny (Marquez’s state claim) or intermediate scrutiny (Marquez’s federal 

claim). See id. at *4–6; Ex parte Marcos-Callejas, — S.W.3d —, No. 04-23-00327-CR, 2024 WL 

2164653, at *3–4 (Tex. App.—San Antonio May 15, 2024, no pet. h.); Ex parte Aparicio, 672 

S.W.3d 696, 716 (Tex. App.—San Antonio 2023, pet. granted). Therefore, we affirm the trial 

court’s order granting Marquez habeas relief and dismissing his criminal case with prejudice.

Beth Watkins, Justice

DO NOT PUBLISH