Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-22-00884-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.

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, 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. CONST. amend. XIV; TEX. CONST. art. I, § 3(a). Specifically, Avila Vasquez 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 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-

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 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. 04-23-00327-CR, 2024 WL 2164653, at *2 

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

application sought 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 selectiveenforcement 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.
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discriminatory treatment. Consequently, the trial court granted Avila Vasquez’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 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 selectiveenforcement 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. 04-23-00327-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 Avila Vasquez habeas relief and dismissing 

his criminal case with prejudice.

Beth Watkins, Justice

DO NOT PUBLISH