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

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 in this Operation Lone Star (OLS) case, which denied his application for a writ of habeas corpus without an evidentiary hearing. In line with the precedent of the Fourth Court of Appeals, we previously determined that Gomez-Mercado’s claim was cognizable, a decision upheld by the Texas Court of Criminal Appeals in Ex parte Aparicio, No. PD-0461-23, 2024 WL 4446878, at *8 (Tex. Crim. App. Oct. 9, 2024). In this case, Gomez-Mercado was denied the benefit of an evidentiary hearing, while Ex parte Aparicio was decided after a full evidentiary hearing. Even so, the Texas Court of Criminal Appeals reversed our decision requiring the trial court to conduct any evidentiary hearing. Instead, they remanded this matter to us to decide whether Gomez-Mercado made a prima facie showing that he was arrested and prosecuted because of his gender.1 As part of 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 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 Ex parte Aparicio, the Texas Court of Criminal Appeals discussed evidence introduced at the evidentiary hearing in that case, which also pertained to the administration of OLS cases in

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.).

3

Kinney County. Ex parte Aparicio, 2024 WL 4446878, at *12–13. For the reasons discussed in Ex parte Aparicio, we find that Gomez-Mercado would be unable to make a prima facie showing that he was arrested and prosecuted because of his gender.

As a result, we affirm the trial court’s denial of Gomez-Mercado’s pretrial writ of habeas corpus.

Charles van Cleef

Justice

Date Submitted: December 11, 2024 Date Decided: December 19, 2024

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