Ex Parte David Iturbides-Lslas v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 31, 2025
• Docket: 07-23-00234-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00234-CR

EX PARTE DAVID ITURBIDES-ISLAS

On Appeal from the County Court Kinney County, Texas Trial Court No. 13767CR, Honorable Susan D. Reed, Presiding

January 31, 2025 MEMORANDUM OPINION 1 Before QUINN, C.J., and PARKER and DOSS, JJ.

David Iturbides-Islas, an alleged non-citizen who crossed into the United States

illegally, was arrested and charged with criminal trespass. The arrest and charge

ostensibly transpired as part of the State’s Operation Lone Star (OLS). Thereafter,

appellant applied for a pretrial writ of habeas corpus and sought the dismissal of the

prosecution. His proffered justification for such relief consisted of the argument that the

State selectively prosecuted him for criminal trespass due to his male gender. Immigrant

females who similarly crossed into this country illegally and were caught trespassing

1 The appeal was originally filed in the Fourth Court of Appeals. The appeal was transferred to this Court pursuant to a Texas Supreme Court docket equalization order. See TEX. GOV’T CODE ANN. § 73.001. underwent neither arrest nor prosecution for the same crime, so argued appellant. Yet,

the trial court denied his application “without issuing writ” or convening an evidentiary

hearing on the matter. Appellant asks us to reverse that decision and remand the

proceeding for an evidentiary hearing. We affirm.

Background

In March 2021, Governor Greg Abbott directed the Texas Department of Public

Safety (DPS), in collaboration with the Texas National Guard, to initiate OLS. The

program arose to address the influx of illegal border crossings from Mexico to Texas.

Through the program, Texas or county law enforcement officials detained

individuals crossing the border illegally. Of those detained, only males were arrested,

placed in a local county jail facility, and ultimately charged with criminal trespass.

Purportedly, female detainees would be released into federal custody. Having been a

male illegal alien so caught, arrested, and charged, appellant deemed his prosecution for

criminal trespass to be constitutionally discriminatory and infirm. In short, he was denied

his constitutional right to equal protection, or so he urged through the aforementioned

application for pretrial writ of habeas corpus. The trial court disagreed, which ruling

spawned this appeal.

Analysis

Appellant urges us to reverse the trial court’s decision on the basis of Ex parte

Aparicio, 672 S.W.3d 696 (Tex. App.—San Antonio 2023), rev’d, 2024 Tex. Crim. App.

LEXIS 739 (Tex. Crim. App. October 9, 2024) (Aparicio I). That is, he argues:

This exact equal protection claim was just evaluated by this Court in Ex parte Aparicio, 04-22-00623-CR (Tex. Crim. App.––San Antonio Jun. 21, 2023). In Aparicio, [the Fourth Court of Appeals] found 1) that an equal protection pretrial habeas claim was cognizable; 2) that the OLS applicant

2 had made out a prima facie case of gender discrimination; and 3) that the case should be remanded so that trial court could address the state’s justification. Id.

At a minimum, Aparicio stands for the proposition that Appellant’s writ should be issued and he should be given the opportunity to establish his burden, as Aparicio was able to.

In Aparicio I, the Fourth Court of Appeals did have occasion to address a legal

contention 1) identical to that urged at bar and 2) based on circumstances rather identical

to those before us. Apparently, Aparicio (a male) was a non-citizen whom the State

arrested after illegally crossing into Texas from Mexico. Other non-citizens were with him

at the time. They included adult and juvenile males and two females. However, the State

jailed only the adult males; so too were only the adult males accused of criminal trespass.

The females and juvenile male were released to the custody of the U.S. Border Patrol.

We have no quarrel with appellant’s interpretation of the Fourth Court’s opinion in

Aparicio I. It did hold as cognizable via a pretrial writ of habeas corpus Aparicio’s selective

prosecution claim. Id. at 713. Our sister appellate court further determined that Aparicio

had satisfied his burden to make a prima facie showing of impermissible discrimination.

Id. As said by that court:

[T]o establish a prima facie case of selective prosecution, Aparicio must show the prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose. . . . To establish a discriminatory effect in a case based on gender discrimination, Aparicio had to show similarly situated individuals of the opposite sex were not prosecuted for the same conduct. . . . Aparicio met this burden.

Id. (Internal quotations omitted; emphasis added). So, given that the general

circumstances at bar reflect those in Aparicio I, appellant believes the Fourth Court’s

holding entitled him to a writ of habeas corpus. We disagree for the simple reason that

the opinion underwent review and rejection in a most critical aspect.

3 That is, the Court of Criminal Appeals reversed the Fourth Court of Appeals. Ex

parte Aparicio, No. PD-0461-23, 2024 Tex. Crim. App. LEXIS 739, at *1 (Tex. Crim. App.

October 9, 2024) (Aparicio II). It concluded that “Appellant’s case is cognizable, but he

has failed to meet his burden in demonstrating a prima facie case that he is being arrested

and prosecuted because of his gender.” Id. at *30. (Emphasis in original). In short, the

circumstances upon which both Aparicio and appellant rely neither evinced impermissible

selective prosecution or the denial of equal protection, according to the Texas Court of

Criminal Appeals.

We afforded the parties opportunity to supplement their earlier briefing to address

the impact Aparicio II had on the appeal at bar. The State accepted the invitation.

Appellant did not. The latter omission is fatally problematic.

Simply put, success cannot arise from a missing foundation. Aparicio II vitiated

the foundation upon which appellant stood. Aparicio I no longer entitled appellant to relief.

And, his having provided no alternative basis for his claim, we cannot say he carried his

burden to prove entitlement to reversal. See Jetall Cos., Inc. v. JPG Waco Heritage, LLC,

No. 07-20-00126-CV, 2020 Tex. App. LEXIS 4860, at *2 (Tex. App.—Amarillo June 30,

2020, pet. denied) (mem. op.) (stating that the “[o]ne seeking reversal has the burden to

illustrate its entitlement to same”). Thus, we affirm the decision of the trial court. See Ex

parte Rodriguez-Cerda, No. 08-23-00325-CR, 2024 Tex. App. LEXIS 9153, at *6-7 (Tex.

App.—El Paso Dec. 30, 2024, no pet) (mem. op., not designated for publication) (relying

on Aparicio II and the similarity in circumstances to hold that Rodriguez-Cerda failed to

establish a prima facie case of selective prosecution); In re Batista-Garcia, No. 06-23-

00209-CR, 2024 Tex. App. LEXIS 8881, at *2 (Tex. App.—Texarkana Dec. 19, 2024, no

4 pet.) (mem. op., not designated for publication) (citing on Aparicio II and holding that “[f]or

the reasons discussed [therein], we find that Batista-Garcia would be unable to make a

prima facie showing that he was arrested and prosecuted because of his gender,” despite

the lack of an evidentiary hearing).

Brian Quinn Chief Justice

Do not publish.