# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION N o. 04

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- CR The STATE of Texas, Appellant

v. Abraham Jose AVILA VASQUEZ , Appellee From the County Court , Kinney County, Texas Trial Court No. 13928CR Honorable Dennis Powell , Judge Presiding Opinion by: Beth Watkins, Justice Sitting: Luz Elena D. Chapa, Justice Beth Watkins, Justice Lori I. Valenzuela, Justice Delivered and Filed: July 24, 2024 AFFIRMED The State of Texas appeals the trial court’s order granting Abraham Jose Avila Vasquez ’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 their efforts to address those criminal activities.” As part of OLS, Avila Vasquez , a noncitizen, was arrested for criminal trespass on October 11, 2022 , in Kinney County

. On October 18, 2022 , Avila Vasquez 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. C ONST . amend. XIV; T EX . C ONST . art. I, § 3(a). Specifically, Avila Vasquez argued that the 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 Avila Vasquez ’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

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- 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 presente d at the hearing, on December 21 , 2022, the trial court found that Avila Vasquez 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

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 Avila Vasquez ’s pretrial habeas application s ought dismissal on “selective

- prosecution” grounds, the evidence Avila Vasquez 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 Avila Vasquez was asserting a selective

- enforcement claim. See id . at *2

– 3 & n.2. Moreover, the trial court, in its order granting Avila Vasquez habeas relief, found that Avila Vasquez 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 Avila Vasquez 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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- discriminatory treatment

. Consequently, t he trial court granted Avila Vasquez ’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 Avila Vasquez ’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 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 Avila Vasquez ’s claim is cognizable in a pretrial habeas proceeding , that the trial court did not abuse its discretion in determining that Avila Vasquez 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 ( Avila Vasquez ’s state claim) or intermediate scrutiny ( Avila Vasquez ’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 Avila Vasquez habeas relief and dismissing his criminal case with prejudice.
Beth Watkins , Justice DO NOT PUBLISH