Ex Parte Candido Antonio Gomez-Mercado v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 1, 2023
• Docket: 06-23-00213-CR
• Status: Published

Opinion

In the Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-23-00213-CR

EX PARTE CANDIDO ANTONIO GOMEZ-MERCADO

On Appeal from the County Court Kinney County, Texas Trial Court No. 12024CR

Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Justice van Cleef MEMORANDUM OPINION

Candido Antonio Gomez-Mercado appeals the trial court’s order denying his application

for a writ of habeas corpus. Because we are bound to follow the precedent of the Fourth Court of

Appeals in this transfer case, we must reverse the trial court’s order and remand the cause for

further proceedings.1

I. Factual and Procedural Background

As part of Operation Lone Star (OLS), Gomez-Mercado, a noncitizen, was arrested for

trespassing on private property in Kinney County, Texas. He filed an application for a writ of

habeas corpus seeking dismissal of the criminal charge based on a violation of his rights under

the United States Constitution’s Equal Protection Clause and the Texas Constitution’s Equal

Rights Amendment. See U.S. CONST. amend. XIV; TEX. CONST. art. 1, § 3(a). Specifically,

Gomez-Mercado argued that the State’s selective prosecution of men, and not similarly situated

women, for criminal trespass as part of OLS violated his state and federal equal protection rights.

In response, “[t]he State stipulate[d] that women are not prosecuted for trespass as part of

Operation Lone Star, even when they are found trespassing.” Gomez-Mercado’s application

included the affidavit of Tom Schmerber, the Sheriff of Maverick County, Texas, who swore that

he “was told by [the Department of Public Safety] that only men would be arrested on criminal

trespass charges” and that “no women would be arrested for criminal trespass.” Schmerber

1 Originally appealed to the Fourth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). We follow the precedent of the Fourth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3. 2 added, “I was told by [the Department of Public Safety] it was their policy that women would not

be arrested for criminal trespass.”

Without conducting an evidentiary hearing, on September 16, 2023, the trial court denied

Gomez-Mercado’s application for a writ of habeas corpus stating, “[U]pon review of the

Application allegations and the Court taking Judicial Knowledge of the filings in this cause, the

application for Writ to bring the defendant to the Court is denied without further hearing[2] and

requested relief is denied.”3

II. The Order Denying Habeas Relief Must Be Reversed Pursuant to the Precedent of the Fourth Court of Appeals

Gomez-Mercado argues that the trial court erred in denying his relief on his selective-

prosecution equal protection claim, emphasizing that his claim is cognizable. See Ex parte

Antonio-Santiago, No. 04-22-00628-CR, 2023 WL 5603201, at *3 (Tex. App.—San Antonio

Aug. 30, 2023, no pet.) (mem. op., not designated for publication) (citing Ex parte Aparicio, 672

S.W.3d 696, 707, 713 (Tex. App.—San Antonio 2023, pet. granted) (en banc)). This is “the

same controlling issue” reviewed by the San Antonio Court of Appeals in prior cases. Ex parte

2 Although the order denied the matter “without further hearing,” the record establishes, and the State concedes, that there was no evidentiary hearing. 3 As a preliminary matter, we address our jurisdiction. The trial court’s order in this case specifies that it “(1) heard and considered [Gomez-Mercado’s] habeas application, (2) based its ruling on its [review] of the application” and its allegations, “(3) denied it without an evidentiary hearing, and (4) explained its reasoning.” Ex parte Barahona- Gomez, No. 04-23-00230-CR, 2023 WL 6285324, at *1 (Tex. App.—San Antonio Sept. 27, 2023, no pet.) (mem. op., not designated for publication). As did the Fourth Court of Appeals in Ex parte Barahona-Gomez, we conclude that the trial court ruled on the merits and that, as a result, we have jurisdiction over this appeal. Id. (citing Ex parte Hargett, 819 S.W.2d 866, 869 (Tex. Crim. App. 1991), superseded in part by statute as discussed in Ex parte Villanueva, 252 S.W.3d 391, 395–96 (Tex. Crim. App. 2008), (“clarifying an appellate court has jurisdiction over an appeal of a trial court’s denial of an application for writ of habeas corpus regardless of whether the trial court refuses to issue the writ or conduct an evidentiary hearing if the trial court ‘under[takes] to rule on the merits of the application’” (alteration in original))). 3 Barahona-Gomez, 2023 WL 6285324, at *2 (citing Ex parte Aparicio, 672 S.W.3d at 708–09);

see Ex parte Antonio-Santiago, 2023 WL 5603201, at *2. Even so, “[w]ithout conducting an

evidentiary hearing, the trial court denied [Gomez-Mercado’s] application for writ of habeas

corpus asserting his equal protection rights.”4 Ex parte Barahona-Gomez, 2023 WL 6285324, at

*2.

Following the decisions of the Fourth Court of Appeals, “we reverse and remand this

habeas proceeding for an evidentiary hearing to allow [Gomez-Mercado] to present a prima facia

[sic] case of a selective-prosecution equal protection claim.” Id. “If [Gomez-Mercado] satisfies

his burden, the State should then be allowed to present its evidence supporting why the State’s

discriminatory classification was justified . . . .” Id. (citing Ex parte Aparicio, 672 S.W.3d 696).

“On remand, the trial court should make specific findings of fact and conclusions of law

setting out its rulings on whether [Gomez-Mercado] met his prima facia [sic] case of a selective-

prosecution equal protection claim.” Id. at *3. “If [Gomez-Mercado] satisfies his burden, the

trial court should make further findings of fact and conclusions of law whether the State met its

burden of proof to justify its discriminatory treatment of [Gomez-Mercado] at the time of his

arrest.” Id.

4 According to the precedent of the Fourth Court of Appeals, the trial court’s conclusion was incorrect. See id. (citing Ex parte Aparicio, 672 S.W.3d at 716). 4 III. Disposition

We reverse the trial court’s order denying Gomez-Mercado’s requested relief on his

application for a writ of habeas corpus and remand the cause for further proceedings consistent

with the precedent of the Fourth Court of Appeals.

Charles van Cleef Justice

Date Submitted: November 30, 2023 Date Decided: December 1, 2023

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