Full Opinion (html_with_citations)

                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS


                                                   §                 No. 08-23-00196-CR

 EX PARTE:                                         §                      Appeal from

 DAVID CAYETANO-VAZQUEZ,                           §                   the County Court

                                   Appellant.      §               of Kinney County, Texas

                                                   §                    (TC# 11472CR)

                                   MEMORANDUM OPINION

        David Cayetano-Vazquez (Cayetano-Vazquez) is a noncitizen who was arrested under

Operation Lone Star (OLS) and charged with the misdemeanor offense of criminal trespass.

Following his arrest, Cayetano-Vazquez filed an application for a pretrial writ of habeas corpus in

which he requested the issuance of a habeas writ, an evidentiary hearing, and a dismissal of the

underlying charge, contending he was the subject of selective prosecution in violation of state and

federal constitutional equal protection principles. Without issuing a writ or holding a hearing, the

trial court denied his habeas application. Cayetano-Vazquez appealed, contending the trial court

erred in not granting his requested relief. Treating the appeal as a mandamus petition, we remand

to the trial court to give it the opportunity to reconsider its ruling in light of recent Fourth Court of

Appeals’ precedent governing Cayetano-Vazquez’s claims.
                               FACTUAL AND PROCEDURAL BACKGROUND

        A. Cayetano-Vazquez’s arrest and request for habeas relief

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

to initiate OLS “to deter[] illegal border crossing and . . . prevent criminal activity along the

border.” Ex parte Aparicio,
672 S.W.3d 696
, 701 (Tex. App.—San Antonio 2023, pet. granted).

As part of OLS, Cayetano-Vazquez, a noncitizen, was arrested for criminal trespass in Kinney

County on November 5, 2021. He filed an application for a pretrial writ of habeas corpus seeking

dismissal of the criminal charge, arguing his rights had been violated under the United States

Constitution’s Equal Protection Clause and the Texas Constitution’s Equal Rights Amendment, as

the State was selectively prosecuting men, and not similarly situated women, for criminal trespass

as part of OLS. See U.S. Const. amend. XIV; Tex. Const. art. I, § 3a. Cayetano-Vazquez attached

several exhibits supporting his claim that the State had a policy of arresting only male noncitizens

for criminal trespass while referring similarly situated female noncitizens to Border Patrol. The

State did not file a response to the application.

        On June 16, 2023, the trial court denied Cayetano-Vazquez’s application without issuing

the writ or holding an evidentiary hearing. Cayetano-Vazquez appealed. 1

        B. Aparicio and its progeny

        On June 21, 2023, the Fourth Court of Appeals issued Ex parte Aparicio,
672 S.W.3d 696
.

In that case, a noncitizen (Aparicio), who had been arrested for criminal trespass in Maverick

County as part of OLS, filed a similar application for a pretrial writ of habeas corpus seeking

dismissal of the charge against him, making an identical claim that the State was selectively


1
  The appeal was transferred from the Fourth Court of Appeals pursuant to a Texas Supreme Court docket equalization
order. Accordingly, we apply the Fourth Court of Appeals’ precedent to the extent it conflicts with our own. See
TEX. R. APP. P. 41.3.


                                                        2
prosecuting men under OLS in violation of his constitutional rights.
Id. at 701
. Unlike the present

case, however, the trial court in Aparicio issued the writ and held a full evidentiary hearing on the

question of whether the State had engaged in selective prosecution.
Id.
 at 701–06. The trial court

denied the writ on its merits despite undisputed evidence that the State was criminally prosecuting

only male noncitizens for trespass under OLS, finding that Aparicio’s equal protection argument

failed because the State could prosecute women if it “chose to.” 2
Id. at 706
.

        The Fourth Court of Appeals disagreed, finding Aparicio met his initial burden of

establishing a prima facie case of selective prosecution, i.e., that “the prosecutorial policy had a

discriminatory effect and that it was motivated by a discriminatory purpose.”
Id. at 715
. The burden

then shifted to the State “to justify the discriminatory treatment.”
Id.
 at 715 (citing Ex parte

Quintana,
346 S.W.3d 681, 685
 (Tex. App.—El Paso 2009, pet. ref’d)). Aparicio’s federal equal

protection claim was subject to intermediate scrutiny; namely, the State had to demonstrate that its

“discriminatory classification is substantially related to an important governmental interest.”
Id.
 at

708 (citing Clark v. Jeter,
486 U.S. 456, 461
 (1988); Casarez v. State,
913 S.W.2d 468, 493

(Tex. Crim. App. 1994) (en banc) (op. on reh’g)). And Aparicio’s state-based equal rights claim

was subject to strict scrutiny; namely, the State had to demonstrate that its actions “were narrowly

tailored to serve a compelling governmental interest.”
Id.
 at 716 (citing In re Dean,
393 S.W.3d 741, 749
 (Tex. 2012)).

        On appeal, the State argued “‘the emergency situation on Texas’s southern border’ justifies

its discriminatory actions.” Id. at 716. However, the court of appeals noted that the trial court never

reached the merits of that issue, as it determined Aparicio had not met his burden of establishing


2
  In particular, the trial court heard evidence that “as part of OLS, 4,076 people had been arrested for misdemeanor
offenses and not a single individual arrested was a woman.” Ex parte Aparicio,
672 S.W.3d 696
, 714 (Tex. App.—
San Antonio 2023, pet. granted).


                                                         3
a prima facie case of selective prosecution on the basis of sex.
Id.
 The court therefore reversed the

trial court’s denial of Aparicio’s application for a writ of habeas corpus and remanded the matter

to the trial court to “determine whether the State’s discriminatory classification was justified”

under both constitutional claims. 3
Id.

        The Fourth Court of Appeals has since decided several cases involving OLS prosecutions

of men. Recently, the court issued State v. Gomez, No. 04-22-00872-CR,
2023 WL 7552682

(Tex. App.—San Antonio Nov. 15, 2023, no pet. h.) (not designated for publication) involving a

similar claim of selective prosecution on the basis of sex made in an application for a pretrial writ

of habeas corpus by another male noncitizen (Gomez) who had been arrested in Kinney County

for criminal trespass as part of OLS. In that case, the trial court issued the writ, held an evidentiary

hearing, then granted the writ. Id. at *1. The State appealed, conceding it had only arrested males

at the border under OLS, but arguing its discriminatory actions were justified based on: “(1)

Governor Abbott’s Proclamation declaring an emergency regarding border security; and (2)

testimony that the counties implementing OLS do not have sufficient facilities to hold women

detainees.” 4 Id. at *5. The Fourth Court of Appeals rejected the State’s argument, finding that

although security at the border may be considered a compelling interest, the State did not

demonstrate its actions were narrowly tailored to serve that interest. Id. The court noted OLS was

a multi-billion-dollar operation, and the State did not explain why it could not have allocated funds




3
  The State filed a petition for discretionary review of the Fourth Court of Appeals’ decision, which is currently
pending. In the petition, the State argues the court erroneously concluded that Aparicio’s claim was cognizable in a
pretrial writ of habeas corpus.

4
  At the evidentiary hearing, Captain Joel Betancourt, who oversees the district in which participating OLS counties
are located, testified that women were “always sent to immigration” because there was no “place to put them,” as “the
local county jails have no capacity.” State v. Gomez, No. 04-22-00872-CR,
2023 WL 7552682
, at *2 (Tex. App.—
San Antonio Nov. 15, 2023, no pet. h.) (not designated for publication).


                                                         4
for a facility to hold women.
Id.
 The court therefore held that the trial court did not abuse its

discretion in “concluding the State failed in its burden of justifying its discriminatory conduct

under strict scrutiny, as required by Texas’s Equal Rights Amendment,” and it affirmed the

decision to grant the applicant his requested relief and dismiss his criminal case.
Id.

       C. The issues before us

       Here, the State does not deny Cayetano-Vazquez was the subject of selective prosecution,

nor does it attempt to justify its discriminatory actions. The State’s only argument on appeal is that

the trial court lacked jurisdiction to hear Cayetano-Vazquez’s application, contending that a claim

of selective prosecution is not cognizable in an application for a pretrial writ of habeas corpus. We

reject that argument in light of Aparicio and turn to the question of whether we have jurisdiction

to hear Cayetano-Vazquez’s appeal, and if not, whether we may treat his appeal as a petition for a

writ of mandamus. And if treated as a mandamus petition, we must determine how that petition

should be resolved.

                CAYETANO-VAZQUEZ’S CLAIMS ARE COGNIZABLE IN A
                      PRETRIAL WRIT OF HABEAS CORPUS
       We start with the State’s argument that Cayetano-Vazquez’s claim of selective prosecution

was not cognizable in a pretrial writ of habeas corpus. The State argues “[n]ot only is there no

legal authority supporting the ruling, to grant such claims cognizability would cause cascading

problems for Texas’ Courts.” The State acknowledges, however, that the Fourth Court of Appeals

rejected the same argument in Aparicio. And the State offers no new authority; it simply contends

Aparicio was wrongly decided, and we should resolve the issue differently. We disagree on both

fronts and follow the on-point precedent of the Fourth Court of Appeals. See TEX. R. APP. P. 41.3

(a transferee court must follow the precedent of the transferor court to the extent it conflicts with




                                                  5
its own; in the opinion, the deciding court may indicate “whether the outcome would have been

different” had it “not been required to decide the case in accordance with the transferor court’s

precedent”); see also Brazos Elec. Power Coop., Inc. v. Texas Comm’n on Env’t Quality,
576 S.W.3d 374
, 382–83 n.6 (Tex. 2019) (an opinion issued by a transferor court remains binding

precedent even though the case is pending on rehearing).

       Accordingly, we conclude that Cayetano-Vazquez’s claim of selective prosecution is

cognizable in a pretrial writ of habeas corpus.

                    THE TRIAL COURT’S ORDER IS NOT APPEALABLE
       We must next consider whether Cayetano-Vazquez has a right to appeal the trial court’s

order denying his application for a writ of habeas corpus. We conclude he does not.

       Whether a trial court’s order denying an application for a writ of habeas corpus is

appealable depends on whether the trial court ruled on the merits of the claim. An order denying

an application for a writ of habeas corpus is only appealable when the trial court either grants or

denies the relief requested in the application on its merits. See Ex parte Villanueva,
252 S.W.3d 391, 394
 (Tex. Crim. App. 2008) (recognizing that except as provided by statute, only when “there

is a ruling on the merits of the claims may a losing party appeal” from the denial of a writ of habeas

corpus); see also In re Perez, No. 04-23-00294-CR,
2023 WL 5270488
, at *2 (Tex. App.—

San Antonio Aug. 16, 2023, no pet.) (mem. op., not designated for publication) (per curiam)

(recognizing that an appeal is the proper remedy when a trial court denies an application for a writ

of habeas corpus on the merits) (citing Ex parte Sifuentes,
639 S.W.3d 842
, 846 (Tex. App.—

San Antonio 2022, pet. ref’d) (“If the record shows that the trial court heard evidence and

addressed the merits, the result is appealable.”)).




                                                  6
        In making a merits-based decision on an application for a writ of habeas corpus, a trial

court generally issues the writ then considers evidence to determine whether it has merit and

whether the requested relief should be granted. See State v. Lara,
924 S.W.2d 198, 203

(Tex. App.—Corpus Christi 1996, no pet.) (citing Ex parte Noe,
646 S.W.2d 230, 231
 (Tex. Crim.

App. 1983)); see also TEX. CODE CRIM. PROC. ANN. art. 11.01 (“The writ of habeas corpus is the

remedy to be used when any person is restrained in his liberty. It is an order issued by a court or

judge of competent jurisdiction, directed to any one having a person in his custody, or under his

restraint, commanding him to produce such person, at a time and place named in the writ, and

show why he is held in custody or under restraint.”). 5 Thus, when a trial court refuses to issue a

writ and does not issue a decision on the merits of the applicant’s habeas claims, there is no right

to appeal. Ex parte Noe,
646 S.W.2d at 231
 (citing Ex parte Moorehouse,
614 S.W.2d 450, 451

(Tex. Crim. App. 1981) (recognizing that there is “no appeal from a refusal to issue or grant a writ

of habeas corpus”)); see also In re Perez,
2023 WL 5270488
, at *2 (recognizing same in the

context of an OLS challenge).

        Despite the usual process, a court is not required to formally issue a writ before making a

merits-based decision on an application for a writ of habeas corpus. See Ex parte Villanueva,
252 S.W.3d at 395
 (recognizing that even when the trial court has not formally issued a writ, if the

court rules on the merits, the trial court has “in effect, issued the writ”). And Cayetano-Vazquez

argues that in his case, the court made a merits-based ruling on his habeas claim when it stated it

“considered” the application and it was “denied,” even though it did not formally issue a writ. We

disagree.



5
  An applicant accused of committing a misdemeanor offense who has not been convicted of the offense may apply
to the judge of the court in which the charge is pending. TEX. CODE CRIM. PROC. ANN. art. 11.09.


                                                      7
         The trial court’s order in Cayetano-Vazquez’s case stated:

         ON this day came on to be heard the Application for Pretrial Writ of Habeas Corpus
         filed in the above entitled and number cause. The Court having considered same is
         of the opinion same should be:

          x the Application is denied without hearing and the writ is not issued
               the Application is granted, and an in-person hearing will be held on
               the Application is granted, and the merits will be heard by submission of
               evidence . . .

         Interpreting an order by the same trial court using virtually identical language in denying

habeas relief to an applicant’s challenge to his OLS prosecution, the Fourth Court of Appeals held

that the trial court did not consider the merits of the applicant’s habeas claims. 6 In re Martinez-

Jimenez, No. 04-23-00547-CR,
2023 WL 7005866
, at *2 (Tex. App.—San Antonio Oct. 25, 2023,

no pet. h.) (mem. op., not designated for publication) (per curiam). And because the record did not

otherwise suggest the trial court considered the merits of the applicant’s habeas claims, the court

found the trial court’s decision was not merits-based. Id. at *2. We similarly conclude that the

order in Cayetano-Vazquez’s case reflects that the trial court did not issue the writ, hold a hearing,

or consider the evidence Cayetano-Vazquez submitted in support of his habeas application.

         Cayetano-Vazquez, however, correctly points out that we may consider the “entire record”

in determining whether a trial court issued a merits-based ruling on a defendant’s application for

a writ of habeas corpus, and in turn whether the trial court’s order is appealable. See In re Martinez-

Jimenez,
2023 WL 7005866
, at *2 (citing Ex parte Sanchez-Hernandez, Nos. 13-22-00120-CR,

No. 13-22-00121-CR,
2023 WL 3749555
, at *2 (Tex. App.—Corpus Christi June 1, 2023, no pet.)



6
  In Martinez-Jimenez, the trial court’s order stated: “the Application is denied and the writ is not issued,” omitting
the term “without hearing.” In re Martinez-Jimenez, No. 04-23-00547-CR,
2023 WL 7005866
, at *2 (Tex. App.—
San Antonio Oct. 25, 2023, no pet. h.) (mem. op., not designated for publication) (per curiam). We do not find this
distinction sufficient to alter our interpretation of the order, as the order in Cayetano-Vazquez’s case was identical in
all other material respects. Id.


                                                           8
(mem. op., not designated for publication) (per curiam) (“We review the entire appellate record to

make the determination of whether a court’s denial is merit-based.”); Ex parte Bowers,
36 S.W.3d 926, 927
 (Tex. App.—Dallas 2001, pet. ref’d) (order and record may be considered to determine

whether order was on the merits)); see also Nichlos v. State,
255 S.W.2d 522, 526
 (Tex. Crim.

App.1952) (appealability “is not to be determined alone from the form of the order entered, but

the entire record may be looked to”). Cayetano-Vazquez finds it significant that the trial court

issued a “Certification of Defendant’s Right of Appeal” providing the right to appeal the “order

denying application for pretrial writ of habeas corpus and for other ancillary matters.” Cayetano-

Vazquez then points to the appellate rules to argue that by confirming his right to appeal in the

certification, the trial court confirmed that it reached the merits of his claims because only merits-

based rulings are appealable. See TEX. R. APP. P. 25.2 (a)(2) (providing that a trial court must enter

such a certification upon entering an appealable order). We disagree.

       Cayetano-Vazquez has not cited any authority for the proposition that the certification,

standing alone, demonstrates a trial court considered the merits of an application for a writ of

habeas corpus, nor are we aware of any. To the contrary, a trial court’s certification of the right to

appeal is subject to appellate review, and the certification may be rejected if the record reflects

that the certification is inaccurate. See Jones v. State,
488 S.W.3d 801
, 804–05 (Tex. Crim. App.

2016) (recognizing that an appellate court is obligated to review a trial court’s certification of the

right to appeal to determine whether it is “contrary to the record and therefore defective”); see also

Gomez v. State, No. 08-14-00007-CR,
2016 WL 3536407
, at *3 (Tex. App.—El Paso May 31,

2016, no pet.) (not designated for publication) (recognizing court’s obligation to review the record

to determine whether trial court’s certification of defendant’s right to appeal is accurate).




                                                  9
         Here, because the record does not otherwise suggest the trial court considered the merits

of Cayetano-Vazquez’s habeas claims, we find the certification of his right to appeal is contrary

to the record and does not provide a basis for giving us jurisdiction to hear his appeal. 7 See

Gonzales v. State, No. 08-13-00066-CR,
2021 WL 3556653
, at *3 (Tex. App.—Corpus Christi

2021, no pet.) (mem. op., not designated for publication) (when a certification of the right to appeal

is defective, and there is no right to appeal, we do not have jurisdiction to hear the appeal); see

also Sherwood v. State,
340 S.W.3d 929
, 932–33 (Tex. App.—El Paso 2011, no pet.) (where trial

court’s certification of right to appeal did not accurately reflect the record, no right of appeal

existed).

          WE TREAT THE APPEAL AS A PETITION FOR A WRIT OF MANDAMUS

         Having concluded Cayetano-Vazquez has no right to appeal, we next consider whether we

may treat his appeal as an original petition for a writ of mandamus. An appellate court may, in

certain circumstances, treat an interlocutory appeal as a petition for writ of mandamus if requested

to do so by the appellant. See CMH Homes v. Perez,
340 S.W.3d 444
, 452–53 (Tex. 2011); see

also Hodge v. Kraft,
490 S.W.3d 510
, 517 n.2 (Tex. App.—San Antonio 2015, no pet.) (“the party

seeking appellate review must specifically request that its appeal be treated as a mandamus

petition”); In re Commitment of Renshaw,
672 S.W.3d 426
, 427 (Tex. 2023), reh’g denied (Sept. 1,

2023) (recognizing that an appellate court may treat a petition for a writ of habeas corpus as a

petition for a writ of mandamus when the appellant asks the court to do so, and appellate courts


7
  While Cayetano-Vazquez also finds it significant that the same trial court has provided written explanations for
denying writ applications in other similar OLS cases—meaning that the court has found the applicants’ habeas claims
to be without merit and that they have the right to appeal—this does not demonstrate that the court intended to deny
his claims on the merits, as no such written explanation appears in the record in his case. See, e.g., Ex parte Barahona-
Gomez, No. 04-23-00230-CR,
2023 WL 6285324
, at *1 (Tex. App.—San Antonio Sept. 27, 2023, no pet. h.)
(mem. op., not designated for publication) (finding trial court’s order denying application for a pretrial writ of habeas
corpus to be merits-based where trial court “explained its reasoning” in denying application).


                                                          10
have broad original jurisdiction to issue writs of mandamus pursuant to TEX. GOV’T CODE ANN.

§ 22.221(b)). It would be an unnecessary waste of judicial resources and the parties’ time to require

an appellant “to file a separate document with the title ‘petition for writ of mandamus’ listed on

the cover where the party has expressly requested mandamus treatment of its appeal in an uncertain

legal environment.” CMH Homes, 340 S.W.3d at 453 (citing Wagner & Brown, Ltd. v. Horwood,
53 S.W.3d 347, 351
 (Tex. 2001) (rejecting an “approach [that] catapults form over substance to

deny appellate review on the merits”)).

         In his brief, Cayetano-Vazquez urges that, given the trial court’s failure to hold a hearing

and failure to otherwise allow the full development of the facts in support of his application for a

writ of habeas corpus, we should remand the matter to the trial court “either by way of an order on

appeal or mandamus.” We find this sufficient to constitute a request that we treat his appeal as a

petition for a writ of mandamus. And the State does not provide any reason why we should not do

so. Accordingly, in the interest of judicial economy, we will treat it as such. 8 Id.; see also Gruss

v. Gallagher, Nos. 14-21-00178-CV, 14-21-00179-CV, and 14-21-00180-CV,
2023 WL 1975016
,

at *14 (Tex. App.—Houston [14th Dist.] Feb. 14, 2023, no pet.) (treating appeal as a petition for

a writ of mandamus where appellant expressly requested such relief and it was in the interest of

judicial economy to do so).

                           RESOLUTION OF THE MANDAMUS PETITION

         Our final step in the analysis is to determine how to resolve the petition. In a similar

situation, an applicant brought an application for a pretrial writ of habeas corpus, challenging his

prosecution for criminal trespass under OLS on equal protection grounds. In re Martinez-Jimenez,


8
  Under the circumstances of this case, we have jurisdiction to consider the mandamus as a transferee court. See
Government Code § 73.002(a) (“The court of appeals to which a case is transferred has jurisdiction of the case without
regard to the district in which the case originally was tried and to which it is returnable on appeal.”).


                                                         11
2023 WL 7005866
, at *1. The trial court denied the application without issuing a writ and without

deciding the merits of his selective prosecution claim prior to the Aparicio decision.
Id.
 at *1–2.

The applicant then filed an original petition for a writ of mandamus with the Fourth Court of

Appeals asking it to order the trial court to issue the habeas writ and address the merits of his

claims.
Id.

         In entertaining the petition, the Fourth Court of Appeals first noted that for “mandamus

relief to be available in a criminal case, a relator must show two things: (1) that he has no adequate

remedy at law, and (2) that what he seeks to compel is a ministerial act.”
Id.
 at *1 (quoting In re

Bonilla,
424 S.W.3d 528, 533
 (Tex. Crim. App. 2014)); see also State ex rel. Young v. Sixth Jud.

Dist. Ct. of App. at Texarkana,
236 S.W.3d 207, 210
 (Tex. Crim. App. 2007) (orig. proceeding).

The court found there was no adequate remedy at law because the trial court did not rule on the

merits of the relator’s habeas claim, and as discussed above, he therefore had no right to appeal

from the trial court’s order denying his habeas application. 9 Id. at *2. The court further recognized

that the ministerial-act requirement “is satisfied if the relator can show a clear right to the relief

sought, which is shown when the facts and circumstances dictate but one rational decision under

unequivocal, well-settled . . ., and clearly controlling legal principles.” Id. at *1. (quoting Bonilla,
424 S.W.3d at 533
) (internal quotation marks omitted).

         The court found it significant that the trial court issued its order declining to entertain the

writ before the Aparicio opinion was issued, and the relator’s claims were similar (if not identical)

to the claims made in Aparicio.
Id.
 at *2 (citing Aparicio, 672 S.W.3d at 713). The court therefore

found it appropriate to give the trial court “the opportunity to reconsider its decision not to issue


9
  The court also held that the relator’s request for mandamus relief was not moot given that it did not grant the relief
requested in his mandamus petition, i.e., issue a writ and decide the claims in his habeas application on the merits.
In re Martinez-Jimenez,
2023 WL 7005866
, at *1–2.


                                                          12
the habeas writ, hold an evidentiary hearing, or rule on the merits of Relator’s application,” in light

of the holding in Aparicio.
Id.
 (citing Ex parte Lizcano, No. WR-68,348-03,
2018 WL 2717035
,

at *1 (Tex. Crim. App. June 6, 2018) (not designated for publication) (per curiam) (remanding

case to trial court, in light of new authority, “to allow it the opportunity to develop evidence, make

new or additional findings of fact and conclusions of law, and make a new recommendation” to

the Court of Criminal Appeals)); see also In re Van Waters & Rogers, Inc.,
988 S.W.2d 740, 741

(Tex. 1998) (orig. proceeding) (per curiam) (denying mandamus relief to allow trial court to

reconsider decision in light of new precedent); In re Cent. Oregon Truck Co., Inc.,
644 S.W.3d 668
, 669 (Tex. 2022) (orig. proceeding) (per curiam) (same). And the court therefore denied the

relator’s petition for writ of mandamus without prejudice to his “seeking relief, if necessary, after

the trial court has had an opportunity to reconsider its ruling.” Id. at *3.

         We rule the same here.

                                                  CONCLUSION

         We remand to the trial court for it to consider Cayetano-Vazquez’s application for a pretrial

writ of habeas corpus on the merits in light of the Fourth Court of Appeals’ holding in Aparicio

and its progeny, and determine whether—at the time Cayetano-Vazquez was arrested and charged

with criminal trespass—the State was applying the criminal trespass statute under Operation Lone

Star in an unconstitutional manner by selectively prosecuting males only, without justification. 10


10
    In his application, Cayetano-Vazquez states that law enforcement officers in Kinney County may have arrested
two women for criminal trespass under OLS in February 2023, approximately one and a half years after his arrest in
November 2021. On remand, however, the court may only consider evidence of the State’s policy as it existed at the
time of Cayetano-Vazquez’s arrest in determining whether his constitutional rights were violated, and not evidence
that the State may have changed its policy at a later date. See Ex parte Barahona-Gomez, No. 04-23-00230-CR,
2023 WL 6285324
, at *2 (Tex. App.—San Antonio Sept. 27, 2023, no pet. h.). An applicant who was arrested and charged
with criminal trespass while the discriminatory policy was in effect has already been treated “differently from similarly
situated women on the basis of his sex by arresting and charging him” with trespass. See Ex parte Aparicio,
672 S.W.3d 696
, 715 (Tex. App.—San Antonio 2023, pet. granted) (citing Gonzales v. Police Dep’t,
901 F.2d 758, 762
(9th Cir. 1990) (“Curative measures simply do not tend to prove that a prior violation did not occur.”); Rich v. Martin


                                                          13
          We deny the petition for writ of mandamus without prejudice to Cayetano-Vazquez’s

ability to seek relief, if necessary, after the trial court has had an opportunity to reconsider its

ruling.


                                                       LISA J. SOTO, Justice

December 12, 2023

Before Palafox, and Soto, JJ., and Marion, C.J. (Ret.)
Marion, C.J. (Ret.), sitting by assignment

(Do Not Publish)




Marietta Corp.,
522 F.2d 333
, 346 (10th Cir. 1975) (explaining that conduct after the filing of charges “does not
constitute cogent evidence of lack of prefiling discrimination” and if “taken into account at all, it might tend to show
the existence of prior discrimination and an effort to repair the harm after discovery”)).


                                                          14