Ex Parte Alvaro Orduna-Arellano v. the State of Texas
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Opinion
COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ————————————
No. 08-23-00233-CR ————————————
Ex Parte Alvaro Orduna-Arellano, Appellant
On Appeal from the County Court Kinney County, Texas Trial Court No. 12576CR
MEMORANDUM OPINION This matter comes before us on remand from the Texas Court of Criminal Appeals to
determine whether Appellant Alvaro Orduna-Arellano, who sought a pretrial writ of habeas corpus
based on his claim that he was the subject of selective prosecution, made a prima facie showing
that he was unlawfully arrested and prosecuted for criminal trespass because of his gender. We
conclude that he did not, and we therefore affirm the trial court’s order denying his pretrial
application for a writ of habeas corpus.
I. BACKGROUND
Orduna-Arellano, a noncitizen, was arrested for allegedly trespassing on private property
in Kinney County, Texas in December 2021 as part of the State’s Operation Lonestar (OLS) policy to address the influx of illegal border crossings from Mexico to Texas. 1 He filed a pretrial
application for a writ of habeas corpus in the county court, arguing the State was selectively
prosecuting him in violation of his equal protection rights because the State was only arresting
male noncitizens for alleged trespassing in a five-county area near the border during the same
timeframe pursuant to the OLS policy. The county court denied relief, and Orduna-Arellano
appealed to the Fourth Court of Appeals. The appeal was transferred to this Court pursuant to a
Texas Supreme Court docket equalization order.2
This Court reversed the county court’s judgment and remanded the matter to the county
court with instructions to grant Orduna-Arellano’s habeas petition and dismiss his case, relying on
the Fourth Court of Appeals’ opinion in Ex parte Aparicio.3 In Aparicio, the Fourth Court of
Appeals held that Aparicio, another male noncitizen who was arrested for allegedly trespassing
pursuant to the OLS policy, was the subject of selective prosecution and was therefore entitled to
habeas relief. 4 We concluded that because Orduna-Arellano relied on substantially the same
evidence and the same arguments in bringing his selective prosecution claim, he was also entitled
to habeas relief in accordance with the court’s opinion in Aparicio.5
The State filed a petition for discretionary review of our decision with the Court of Criminal
Appeals, contending Orduna-Arellano’s claim was not cognizable in a pretrial writ of habeas
corpus proceeding without addressing the merits of Orduna-Arellano’s gender discrimination
1 See Tex. Penal Code Ann. § 30.05(a). 2 See Tex. R. App. P. 41.3 (requiring a transferee court to apply the precedent of the transferor court). 3 See Ex parte Orduna-Arellano, No. 08-23-00233-CR, 2024 WL 150237, *5–7 (Tex. App.—El Paso Jan. 12, 2024), petition for discretionary review granted, judgment vacated sub nom. Ex parte Ramos-Morales, No. PD-0411-24, 2024 WL 5074598 (Tex. Crim. App. Dec. 11, 2024) (not designated for publication) (citing Ex parte Aparicio, 672 S.W.3d 696, 701 (Tex. App.—San Antonio 2023) rev’d, 707 S.W.3d 189 (Tex. Crim. App. 2024), cert. denied sub nom. Aparicio v. Texas, No. 24-6057, 2025 WL 1787753 (U.S. June 30, 2025)). 4 Ex parte Aparicio, 672 S.W.3d at 701. 5 Ex parte Orduna-Arellano, 2024 WL 150237 at *5–7.
2 claim. While the State’s petition was pending in Orduna-Arellano’s case, the Court of Criminal
Appeals reversed the Fourth Court of Appeals’ decision in Aparicio, holding that, although
Aparicio’s claim was cognizable in a pretrial habeas petition, he did not meet his burden of
establishing a prima facie case that he was unlawfully arrested and prosecuted because of his
gender, and he was therefore not entitled to habeas relief.6 Specifically, it held that Aparicio failed
to present clear evidence to establish that the OLS policy of arresting only men for criminal
trespass at the border was motivated by a discriminatory purpose.7 Instead, the high court held,
the State’s motivation was one of practical necessity stemming from the unprecedented influx of
immigrants crossing the border in the five-county region, the majority of which were male, and
the limited jail facilities in the region.8 The court therefore determined that the OLS policy or
“mindset” of arresting only men for trespass was “more likely” motivated by the “limited
resources” the State had to address the “ongoing emergency” at the border “rather than gender
discrimination.”9 Accordingly, the court concluded that Aparicio failed to meet his burden of
“demonstrating a prima facie case that he [was] arrested and prosecuted because of his gender,”
and as such, he did not meet the “‘demanding’ standard required for judicial interference in the
State’s discretion in administering criminal justice policy and priorities (emphasis in original).”10
Aparicio thereafter filed a petition for writ of certiorari with the Supreme Court of the
United States. After the Supreme Court denied review in Aparicio, the Court of Criminal Appeals
issued its opinion in Orduna-Arellano’s case, in which the court refused review of the State’s
6 Ex parte Aparicio, 707 S.W.3d 189, 210 (Tex. Crim. App. 2024), cert. denied sub nom. Aparicio v. Texas, No. 24- 6057, 2025 WL 1787753 (U.S. June 30, 2025). 7 Id. at 208–10. 8 Id. at 209–10. 9 Id. at 210. 10 Id.
3 petition on the issue of cognizability but granted review on its own motion on the issue of whether
Orduna-Arellano “ma[d]e a prima facie showing that he was arrested and prosecuted because of
his gender.”11 The court then vacated our judgment in Orduna-Arellano’s case and remanded his
case to this Court for resolution of his appeal from the trial court’s denial of his pretrial habeas
petition “in light of [its] opinion in Aparicio.”12
II. DECISION ON REMAND
On remand, the State filed a supplemental brief asserting that Orduna-Arellano’s claim for
habeas relief was identical to Aparicio’s, and that there are no factual distinctions that would
warrant a different finding.13 We agree.14
As we recognized in our first opinion in this matter, Orduna-Arellano was arrested for
criminal trespass under the same OLS policy that was in effect in the same five-county region in
which Aparicio was arrested and detained. 15 And Orduna-Arellano relied on substantially the
same evidence and arguments that Aparicio did in attempting to establish that the OLS policy of
only arresting males for criminal trespass in that region was motivated by gender discrimination.16
In fact, Orduna-Arellano relied heavily on the Fourth Court of Appeals’ opinion in Aparicio, in
which the court found that the OLS policy at issue was constitutionally unlawful, in making his
claim for relief.17
11 See Ex parte Ramos-Morales, et al., Nos. PD-0107-24, PD-0411-24, PD-0412-24 & PD-0413-24, 2024 WL 5074598 (Tex. Crim. App. Dec. 11, 2024) (not designated for publication). The opinion also addressed three other cases in a similar procedural posture that were still pending in our Court at the time. 12 Id. 13 Orduna-Arellano has not filed a supplemental brief.
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