# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION
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- 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. B ACKGROUND 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 communi ties.” He further directed “DPS to use available resources to enforce all applicable federal and state laws to04

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- prevent criminal activity along the border, including criminal trespassing, smuggling, and human trafficking, and to assist Texas counties in the ir 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 dismissa l 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. C ONST . amend. XIV; T EX
. C ONST . art. I, § 3(a). Specifically, Marquez argued that t he State’s selective enforcement 1 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 op inion, State v. Gomez , — S.W.3d

— , No. 04

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- 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

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- CR, 2024 WL 2164653, at *2 (Tex. App.

— San Antonio May 15, 2024, no pet. h.) (citations omitted). Here, w hile Marquez ’s pretrial habeas application s ought dismissal on “selective

- prosecution” grounds, the evidence Marquez presented in his a pplication 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 tr ial 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 M arquez 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 selective

enforcement claim. See id . at *3.04

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- Consequently, t he trial court granted Marquez ’s requested relief and “order[ed] the criminal prosecution against Applicant be dismissed with prejudice.” The State appealed. D ISCUSSION In its brief, the State argues the trial court erred in granting relief on Marquez ’s selective

enforcement 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 sho wing 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 th e 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

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- 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