COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
§ No. 08-23-00285-CR
EX PARTE: § Appeal from the
WILMER RAMOS-MORALES, § County Court
Appellant. § of Kinney County, Texas
§ (TC# 10843CR)
OPINION
Appellant Wilmer Ramos-Morales (Ramos-Morales) is a noncitizen who was arrested
under Operation Lone Star (OLS) and charged with the misdemeanor offense of criminal trespass.
Following his arrest, Ramos-Morales 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. Shortly thereafter, the Fourth Court of Appeals addressed
the constitutionality of the State’s OLS policy in Ex parte Aparicio, 672 S.W.3d 696, 701
(Tex. App.—San Antonio 2023, pet. granted). Ramos-Morales then filed a second application for
a pretrial writ of habeas corpus, again seeking dismissal of the charge against him on the same
basis as his first application. This time, the trial court denied his application on the merits, and
1 Ramos-Morales appealed, contending the trial court erred in not granting his requested relief. 1
Based on the reasoning below, we reverse and remand to the trial court with instructions to enter
an order dismissing Ramos-Morales’s criminal case with prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
A. Ramos-Morales’s arrest and his first 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 at 701. As part of OLS, Ramos-Morales, a noncitizen,
was arrested for criminal trespass in Kinney County on September 29, 2021. On March 9, 2023,
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. Ramos-Morales 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. Among the exhibits was a Notice
of Stipulation the State filed in another OLS case in which it stipulated: “women are not prosecuted
for trespass as part of Operation Lone Star, even when they are found trespassing.” The State did
not file a response to the application.
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 On March 28, 2023, the trial court denied Ramos-Morales’s application, using a form order
stating that it was denying the application without issuing the writ. Ramos-Morales did not appeal
from that order.
B. Aparicio and its progeny
Less than three months later, 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 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 was engaging in selective prosecution. Id. at 701–06.
The trial court denied the writ on the 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
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).
3 708 (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
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)
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 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
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. 5 Id.
C. Ramos-Morales’s second request for habeas relief
Following the Fourth Court of Appeals’ opinion in Aparicio, Ramos-Morales filed a second
application for a pretrial writ of habeas corpus, again relying on several exhibits to support his
claim that the State had engaged in selective prosecution by only arresting males who were found
trespassing at the border. In his application, however, Ramos-Morales expressed his belief that
almost a year and half after his arrest, “Kinney County has attempted to cure its unconstitutional
OLS Criminal Trespass policy to selectively prosecute men for criminal trespass.” In particular,
he stated that he was aware of reports that “on February 27, 2023 . . . two woman [sic] were arrested
and magistrated for Criminal Trespass in Kinney County.” He argued, however, that “[w]hile this
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).
5 The Fourth Court of Appeals has reached the same decision in other cases. See, e.g., State v. Rodriguez Rodas, No. 04-22-00885-CR, 2023 WL 8103194, at *2 (Tex. App.—San Antonio Nov. 22, 2023, no pet. h.) (mem. op., not designated for publication); State v. Garcia Compean, No. 04-22-00886-CR, 2023 WL 8104870, at *2 (Tex. App.— San Antonio Nov. 22, 2023, no pet. h.) (mem. op., not designated for publication).
5 policy change may arguably cure future unconstitutional discrimination, Kinney County has
already treated [him] differently from ‘similarly situated’ women at the time of his arrest,” and
therefore, any such policy change did not cure the constitutional violation in his case.
Relying on Aparicio, Ramos-Morales then argued that the State’s policy of selectively
prosecuting only men—as it existed at the time of his arrest—violated his equal protection rights,
as it had both a discriminatory intent and a discriminatory effect. He further argued that the State
could not meet its burden of justifying its discriminatory conduct, pointing out the State’s claim
that it only prosecuted men due to financial constraints—as it asserted in other OLS cases—was
deemed insufficient to meet this burden. The State did not file a response to Ramos-Morales’s
second application.
On September 21, 2023, the trial court denied Ramos-Morales’s application, using a form
order similar to the one it used to deny his first application, but adding: “[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 and
requested relief is denied.” This appeal followed.
D. The issues before us
In this case, the State does not deny Ramos-Morales 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 Ramos-Morales’s application, contending
that a claim of selective prosecution is not cognizable in a pretrial writ of habeas corpus. As
explained below, we reject that argument in light of Aparicio and turn to the question of whether
we have jurisdiction to hear Ramos-Morales’s appeal, and if so, how we resolve the merits of his
appeal.
6 RAMOS-MORALES’S CLAIMS ARE COGNIZABLE IN A PRETRIAL WRIT OF HABEAS CORPUS We start with the State’s argument that Ramos-Morales’s claim of selective prosecution is
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 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 Ramos-Morales’s claim of selective prosecution is
cognizable in a pretrial writ of habeas corpus.
THE TRIAL COURT’S ORDER IS APPEALABLE We must next consider whether Ramos-Morales has a right to appeal the trial court’s order
denying his application for a writ of habeas corpus. We conclude he does.
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
7 391, 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.”)).
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.”). 6 Despite the usual process, with limited
exceptions in cases challenging placement on community supervision, a court is not required to
formally issue a writ or hold a hearing before making a merits-based decision on an application
for a writ of habeas corpus, which is appealable. Ex parte Hargett, 819 S.W.2d 866, 869
(Tex. Crim. App. 1991) (superseded by statute as stated in Ex parte Villanueva, 252 S.W.3d at
397) (clarifying that an appellate court has jurisdiction over an appeal of a trial court’s denial of
6 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.
8 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”). 7
Ramos-Morales argues that in deciding his application, the trial court made a merits-based
ruling on his habeas claims, despite not formally issuing the writ or holding an evidentiary hearing,
thereby making the trial court’s order appealable. We agree.
In determining whether a trial court’s order denying an application for a writ of habeas
corpus was merits-based, we review not only the order itself, but the “entire record.” 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); 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”). A key distinction in
determining whether a trial court’s order is appealable is whether the record reflects that the trial
court denied a defendant’s writ application because it did not find sufficient cause to issue the writ,
or whether it reviewed the allegations in the writ and found there was not sufficient cause to grant
the relief requested therein. See Ex parte Martell, 901 S.W.2d 754, 755 (Tex. App.—San Antonio
1995, no writ) (a court’s “determination that there is not even sufficient cause to issue the writ []
must be distinguished from a determination that there is not sufficient cause to grant the relief
requested”) (citing Ex parte Hargett, 819 S.W.2d at 868); see also Maddox v. State, No. 08-01-
7 In Villanueva, the court recognized that the Texas Legislature enacted Article 11.072 of the Texas Code of Criminal Procedure, which altered the rules governing appellate review of a trial court’s order disposing of an application for a writ of habeas corpus challenging an order or judgment of conviction placing a defendant on community supervision. Ex parte Villanueva, 252 S.W.3d 391, 397 (Tex. Crim. App. 2008)). The court held that Hargett’s discussion of the rules governing the appealability of orders disposing of habeas applications no longer applies to appeals from such orders or judgments of conviction to the extent those rules conflict with Article 11.072. Id. However, the court did not abrogate the appealability rules expressed in Hargett with respect to habeas applications, such as the one here, that are not governed by Article 11.072. Id. at 395. 9 00490-CR, 2002 WL 504971, at *2 (Tex. App.—El Paso Apr. 4, 2002, no pet.) (not designated
for publication) (recognizing that if a “trial court rules on the merits of the applicant’s claim but
denies the requested relief, that is appealable; conversely, if the trial court dismisses the writ
application for some other reasons, such as lack of jurisdiction, without reaching the merits, that
order is not appealable”); Ex parte Bowers, 36 S.W.3d at 927 (recognizing “distinction between
the issuance of a writ of habeas corpus and the granting of relief on the claims set forth in an
application for that writ”).
In the present case, the trial court stated in its order denying Ramos-Morales’s second writ
application that it had reviewed the “allegations” in the writ application, and that it was taking
“Judicial Knowledge of the filings in this cause[.]” The court further stated that it was not only
denying Ramos-Morales’s request for the issuance of a writ and a hearing, but that it was also
denying his “requested relief.” We find this language sufficient to demonstrate that the trial court
considered the merits of Ramos-Morales’s habeas claims and denied his application on its merits,
which in turn, makes the denial of his application an appealable order. 8 See Ex parte Jagneaux,
315 S.W.3d 155, 156 (Tex. App.—Beaumont 2010, no pet.) (not designated for publication) (order
stating that the trial court denied the relief requested in the defendant’s application was merits-
based and therefore appealable); see also Ex parte Brooks, 97 S.W.3d 639, 640 (Tex. App.—Waco
2002, no pet.) (mem. op., not designated for publication) (finding order denying writ application
appealable where trial court stated it had reviewed the defendant’s claims and found them to be
without merit, and the defendant was therefore not entitled to the relief requested); Ex Parte
8 We distinguish this case from Ex parte Garcia, No. 04-22-00473-CR, 2023 WL 8102426, at *3 (Tex. App.— San Antonio Nov. 22, 2023, no pet. h.) (not designated for publication), in which the Fourth Court of Appeals found that the trial court did not reach the merits of an applicant’s habeas claims despite its order finding that the applicant was “not entitled to the relief requested,” because the trial court issued the order after holding a hearing solely on the question of whether to issue the writ in the first instance and determining not to do so. Id. at *2–3.
10 Gerardo Reyes Urbina Suarez, No. 06-23-00214-CR, 2023 WL 8287582, at *1–2 (Tex. App.—
Texarkana Dec. 1, 2023, no pet. h.) (mem. op., not designated for publication) (finding trial court’s
use of similar language in order denying OLS defendant’s application for a pretrial writ of habeas
corpus to be merits-based, making the order appealable).
Accordingly, we conclude that we have jurisdiction to consider Ramos-Morales’s appeal
and turn to the merits of his habeas claims.
STANDARD OF REVIEW
In reviewing the merits of a trial court’s decision to grant or deny habeas corpus relief, we
defer to the trial court’s assessment of the facts when those facts turn on an evaluation of credibility
and demeanor. Gomez, 2023 WL 7552682, at *4 (citing Ex parte Perusquia, 336 S.W.3d 270,
274–75 (Tex. App.—San Antonio 2010, pet. ref’d) (not designated for publication); Ex parte
Quintana, 346 S.W.3d 681, 684 (Tex. App.—El Paso 2009, pet. ref’d) (not designated for
publication)). And we view the facts in the light most favorable to the trial court’s ruling and will
uphold it absent an abuse of discretion. Id.; see also Ex parte Trevino, 648 S.W.3d 435, 439
(Tex. App.—San Antonio 2021, no pet.) (not designated for publication) (recognizing that
appellate court views the facts in the light most favorable to the trial court’s ruling). Reviewing
courts must also grant deference to implicit findings of fact that support the trial court’s ultimate
ruling. Ex parte Perusquia, 336 S.W.3d 270, 275 (Tex. App.—San Antonio 2010, pet. ref’d)
(citing Ex parte Wheeler, 203 S.W.3d 317, 324 n.23 (Tex. Crim. App. 2006)). However, “[i]f the
resolution of the ultimate question turns on an application of the law, we review the determination
de novo.” Id.; see also Ex parte Vazquez-Bautista, No. 04-22-00630-CR, 2023 WL 8440339, at
*3 (Tex. App.—San Antonio Dec. 6, 2023, no pet. h.) (not designated for publication) (recognizing
same in context of an appeal from a trial court’s decision granting an OLS applicant’s pretrial
petition for a writ of habeas corpus). Here, we are able to resolve the appeal as a matter of law. 11 WE REVERSE AND REMAND FOR DISMISSAL OF THE CHARGE The State’s judiciary has been inundated with appeals from various trial courts’ rulings on
applications for pretrial writs of habeas corpus from OLS defendants. And the Fourth Court of
Appeals has already determined, as a matter of law, that the State engaged in gender discrimination
by only prosecuting males for criminal trespass at the border under OLS at the time Ramos-
Morales was arrested. Ex parte Aparicio, 672 S.W.3d at 715. There is nothing in the record before
us to suggest that the State’s discriminatory policy was not in effect at the time Ramos-Morales
was arrested. And while the record reflects that the State (or at least Kinney County) may have
changed its discriminatory OLS policy in February of 2023—almost a year and a half after Ramos-
Morales was arrested—the Fourth Court of Appeals has already recognized, as a matter of law,
that any such change has no bearing on a defendant’s selective prosecution claim, as the only
evidence relevant to an “applicant’s selective-prosecution claim is that which existed at the time
of the applicant’s arrest.” Ex parte Barahona-Gomez, No. 04-23-00230-CR, 2023 WL 6285324,
at *2 (Tex. App.—San Antonio Sept. 27, 2023, no pet. h.).
As explained above, in other similar cases, while the State conceded it had only arrested
males for criminal trespass under OLS during the relevant time, it attempted to justify its selective-
prosecution policy by pointing to security issues at the border and the lack of facilities to hold
women detainees. See, e.g., Gomez, 2023 WL 7552682 at *5. In those cases, the Fourth Court of
Appeals found that although security at the border may be considered a compelling interest, the
State failed to demonstrate that its actions were narrowly tailored to serve that interest, and it
therefore affirmed trial court orders granting habeas relief to OLS defendants on selective
prosecution claims. Id.; see also State v. Rodriguez Rodas, No. 04-22-00885-CR, 2023 WL
8103194, at *2 (Tex. App.—San Antonio Nov. 22, 2023, no pet. h.) (mem. op., not designated for
publication) (same); State v. Garcia Compean, No. 04-22-00886-CR, 2023 WL 8104870, at *2
12 (Tex. App.—San Antonio Nov. 22, 2023, no pet. h.) (mem. op., not designated for publication)
(same).
This appeal presents a fork in the road. One path is to reverse the trial court’s denial of
Ramos-Morales’s habeas application and remand the case to the trial court to hold an evidentiary
hearing, make findings of fact and conclusions of law on the relevant issues, or both. Another path
is to reverse the trial court’s decision and remand to the trial court with instructions to grant the
writ and dismiss the misdemeanor criminal trespass charge. To avoid needlessly driving this case
from pillar to post at the sacrifice of judicial economy, we choose the latter path.
REMANDING FOR FURTHER PROCEEDINGS IS UNNECESSARY AND WOULD NOT DO SUBSTANTIAL JUSTICE
The sole purpose of an appeal from a trial court’s habeas corpus ruling is to “do substantial
justice to the parties,” and in resolving such an appeal, we may “render whatever judgment . . . the
nature of the case require[s].” TEX. R. APP. P. 31.3 (in habeas appeals, an “appellate court will
render whatever judgment and make whatever orders the law and the nature of the case require”);
TEX. R. APP. P. 31.2 (in habeas appeals, “the sole purpose of the appeal is to do substantial justice
to the parties”); see also Ex Parte Salazar, 510 S.W.3d 619, 628 (Tex. App.—El Paso 2016, pet.
ref’d) (recognizing appellate court’s broad power under Rule 31.3 to render judgment in habeas
appeals as the nature of the case requires); Ex parte Evans, 410 S.W.3d 481, 483–84 (Tex. App.–
Fort Worth 2013, pet. ref’d) (recognizing same); Ex parte Arjona, 402 S.W.3d 312, 314
(Tex. App.—Beaumont 2013, no pet.) (not designated for publication) (same); Ex parte Williams,
No. 05-21-00482-CR, 2021 WL 3941713, at *1 (Tex. App.—Dallas Sept. 2, 2021, no pet.)
(mem. op., not designated for publication) (“The sole purpose of the appeal [in habeas cases] is to
do substantial justice to the parties.”).
13 In reaching the judgment that would best do “substantial justice” to the parties, we turn to
the Fourth Court of Appeals’ recent opinion in Ex parte Vazquez-Bautista. In that case, Vazquez-
Bautista brought an application for a pretrial writ of habeas corpus alleging he was the subject of
selective prosecution under the State’s OLS policy. Vazquez-Bautista, 2023 WL 8440339 at *1.
Following an evidentiary hearing, the trial court denied his application on the merits without
making specific findings of fact, and Vazquez-Bautista appealed. Id. In its original opinion, citing
Aparicio, the Fourth Court of Appeals found Vazquez-Bautista had made a prima facie showing
that his equal protection rights had been violated under the OLS policy, as he had presented nearly
identical evidence as was presented in Aparicio. Id. at *4 (citing Ex parte Vazquez-Bautista,
No. 04-22-00630-CR, 2023 WL 5089004, at *2 (Tex. App.—San Antonio Aug. 9, 2023)
(mem. op., not designated for publication)). The court reversed and remanded the matter to the
trial court to provide the State an opportunity to attempt to justify its gender discrimination. Id.
However, the Fourth Court of Appeals subsequently issued another opinion on en banc
reconsideration of its Vazquez-Bautista decision wherein, rather than send the case back to the trial
court, the court found it proper to make its own determination of whether, based on the record
before it, the State met its burden of justifying its actions. Id. at *6. The court’s decision was
prompted in part by the fact that the trial court had given the State the opportunity to address the
issue of justification, and the parties briefed the issue before the trial court denied Vazquez-
Bautista’s habeas application. Id. at *5–6. Thus, the Fourth Court of Appeals concluded that, unlike
the situation in Aparicio, where the trial court addressed only whether the State had engaged in
gender discrimination and not whether it was justified in doing so, the trial court in Vazquez-
Bautista’s case had the opportunity to rule on both prongs of his selective prosecution claim. Id.
The Fourth Court of Appeals further noted that the State expressly briefed the justification prong
in its appellate briefing and made identical arguments to the arguments it made in Gomez, seeking
14 to justify its gender discrimination based on the “emergency situation” at the border. Id. (citing
Gomez, 2023 WL 7552682 at *5). And, as in Gomez, the State in its briefing did not present any
argument to support a finding that its discriminatory actions were narrowly tailored to serve that
interest, or in other words, why the State could not have directed funds to enable it to prosecute
both men and women for criminal trespass at the border. Id. Accordingly, the Fourth Court of
Appeals found the State failed to meet its burden of justifying its actions, and the trial court
therefore abused its discretion in denying Vazquez-Bautista his requested habeas relief. Id. The
court found that the proper disposition of the appeal was to reverse the trial court’s order and
remand the matter to the trial court with instructions to discharge Vazquez-Bautista from bail and
dismiss the information in the underlying proceeding with prejudice. Id. at *6 (citing Aparicio,
672 S.W.3d at 711 (explaining that if applicant’s “selective-prosecution claim on the basis of equal
protection has merit, any conviction resulting from a trial would be void, and he would be entitled
to release”); In re Aiken Cnty., 725 F.3d 255, 264 n.7 (D.C. Cir. 2013) (“If the Executive selectively
prosecutes someone based on impermissible considerations, the equal protection remedy is to
dismiss the prosecution[.]”) (Kavanaugh, J.)).
We recognize that, unlike the situation in Vazquez-Bautista, the trial court in Ramos-
Morales’s case did not hold an evidentiary hearing or request briefing on the issue of whether the
State could justify its actions. And in at least one instance, the Fourth Court of Appeals has
reversed a trial court’s decision to deny an OLS applicant’s writ of habeas corpus when it failed to
hold an evidentiary hearing, and remanded the matter to the trial court with instructions to do so.
See Ex parte Barahona-Gomez, 2023 WL 6285324 at *3 (remanding for an evidentiary hearing
and to allow the trial court to make specific findings of fact and conclusions of law on OLS
applicant’s habeas claims). However, there is an important distinction between the present case
and the situation in Barahona-Gomez. In Barahona-Gomez, as in Vazquez-Bautista, the State
15 expressly addressed the merits of the applicant’s habeas claims in its appellate briefing, denying
that it had engaged in gender discrimination, and arguing that even if it did, it was justified in
doing so. 9
In contrast, here the State in its appellate briefing does not argue or even address the merits
of Ramos-Morales’s habeas claims and makes no attempt to counter his claim that the State had a
policy of gender discrimination or that its policy was not justified. Nor does the State request on
appeal that it be given the opportunity to address the merits of Ramos-Morales’s claims on remand.
Instead, the State only argues that Ramos-Morales’s habeas claims were not cognizable in a pretrial
writ application—an argument we have already rejected. And in its prayer for relief, the State
requests that we affirm the trial court’s order solely on that basis.
We recognize that in general, an appellee is not required to address every point raised by
an appellant, and in fact it need not file an appellee’s brief at all, as it is the appellant who must
shoulder the burden of establishing grounds for reversal. See generally Richardson-Eagle, Inc. v.
William M. Mercer, Inc., 213 S.W.3d 469, 479 n.6 (Tex. App.—Houston [1st Dist.] 2006, pet.
denied) (citing Sullivan v. Booker, 877 S.W.2d 370, 373 (Tex. App.—Houston [1st Dist.] 1994,
writ denied)). However, the Texas Rules of Appellate Procedure provide that an appellee’s brief,
when filed, must conform in most respects to the rules governing an appellant’s brief, including
9 This was also the situation in Ex Parte Antonio-Santiago, where the trial court denied an OLS applicant’s writ of habeas corpus following an evidentiary hearing. Ex parte Antonio-Santiago, No. 04-22-00628-CR, 2023 WL 5603201 (Tex. App.—San Antonio Aug. 30, 2023, no pet.) (mem. op., not designated for publication). In that case, the Fourth Court of Appeals remanded to the trial court for further proceedings to allow the trial court to make findings of fact and conclusions of law on the merits of the applicant’s habeas claims but did so after the State addressed the merits of those claims in its appellate briefing. Id. at *3. As well, in both Antonio-Santiago and Barahona-Gomez, the trial courts denied the OLS defendants’ writ applications before the Fourth Court of Appeals issued its opinion in Aparicio, and those courts therefore did not have the benefit of the opinion in rendering their decisions. Id. at *1 (trial court held two evidentiary hearings, one in August 2022 and the second in September 2022); 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) (trial court issued its decision on March 8, 2023). Here, however, Ramos-Morales expressly brought the Aparicio opinion to the trial court’s attention in his second writ application, which is the subject of this appeal.
16 the requirement of a “prayer” that “contain[s] a short conclusion that clearly states the nature of
the relief sought.” See TEX. R. APP. P. 38.1(j) (setting forth rules for appellant’s brief); 38.2(a)
(providing that, with exceptions not relevant here, an appellee’s brief “must conform to the
requirements of Rule 38.1”). Here, the State has neither requested that we remand the matter to
the trial court for further proceedings nor has it provided us with any reason why a remand is
necessary. And we do not believe that it is.
Rule 43.3 provides that when reversing a trial court’s judgment, an appellate court “must
render the judgment that the trial court should have rendered except when: (a) a remand is
necessary for further proceedings; or (b) the interests of justice require a remand for another trial.”
TEX. R. APP. P. 43.3 (a), (b). And it is proper for an appellate court to remand for further
proceedings when the record before it is not fully developed. See, e.g., Jackson v. Hall, 214 S.W.2d
458, 459 (Tex. 1948) (“[i]t is the general rule” that “when it does not appear that the facts have
been fully developed, the judgement of the appellate court should be one of remand and not one
of rendition”); Ex Parte Garcia, No. 13-14-00501-CR, 2016 WL 454997, at *3 (Tex. App.—
Corpus Christi Feb. 4, 2016, no pet.) (mem. op., not designated for publication) (remanding to
allow the trial court to hear evidence on the question of whether a plea was voluntarily entered
where record was not fully developed); Ex parte August, 552 S.W.2d 169, 170 (Tex. Crim. App.
1977) (remanding to trial court for an evidentiary hearing to consider defendant’s habeas claim
that the amount of bail set was unreasonable). Moreover, to fail to remand when the record is not
fully developed would not “do substantial justice to the parties” as required by Rule 31.2 of the
Texas Rules of Appellate Procedure.
But as set forth above, the Aparicio opinion made it clear that the State was engaging in
gender discrimination under OLS at the time Ramos-Morales was arrested, and the trial court had
the benefit of that opinion in rendering its decision. And the Fourth Court of Appeals has since
17 held, in a variety of other OLS cases, that the State did not meet its burden of presenting sufficient
evidence to justify its gender discrimination. See, e.g., Gomez, 2023 WL 7552682. Here, the State
has not presented merits arguments on appeal; it has not and does not suggest it has any additional
evidence to submit, or any additional arguments to make, to justify its gender discrimination in
Ramos-Morales’s case.
We therefore conclude that a remand for further proceedings to develop the record or allow
the trial court to make specific findings of fact and conclusions of law is neither necessary under
these circumstances, nor would it do the parties substantial justice. Moreover, it would not be in
the interest of judicial economy to do so; to the contrary, it would be an exercise in futility to
remand for further proceedings, where neither the law nor the facts are in dispute. See N. Cypress
Med. Ctr. Operating Co., Ltd. v. Aetna Life Ins. Co., 898 F.3d 461, 479–80 (5th Cir. 2018) (where
facts and law were well-settled, court recognized that it would be an “exercise in futility” and
“diminish judicial economy” to remand to the trial court for further proceedings, where there was
a “high likelihood” that the same issue would return to the court in a subsequent appeal, thereby
further prolonging the litigation unnecessarily); see also Aetna Life Ins. Co. v. Behar, No. H-15-
491, 2019 WL 4195355, at *6 (S.D. Tex. Aug. 5, 2019), report and recommendation adopted,
No. H-15-0491, 2019 WL 4194024 (S.D. Tex. Sept. 4, 2019) (holding same); Conn v. Rhodes, No.
2-08-420-CV, 2009 WL 2579577, at *4 (Tex. App.—Fort Worth Aug. 20, 2009, no pet.) (mem.
op., not designated for publication) (where father testified that he did not intend to exercise his
visitation rights, court found that it would be “a meaningless exercise in futility” to remand to the
trial court to reconsider nature of the parties’ visitation schedule).
Finally, we note that remanding to the trial court to hold an evidentiary hearing or otherwise
reconsider its decision would unnecessarily cause further delays in resolving Ramos-Morales’s
habeas claims, which cuts against the principle that habeas proceedings should be handled in an
18 expedited manner. See generally Ex parte Johnson, 876 S.W.2d 340, 343 (Tex. Crim. App. 1994)
(finding it appropriate to issue a writ of habeas corpus, without remanding to the trial court, by
utilizing its habeas corpus jurisdiction and power to “expedite a fair resolution of the
unconstitutional situation the courts below have created for this applicant”); see also TEX. R. APP.
P. 31.2 (b) (providing that an appeal in a habeas corpus proceeding other than one challenging a
defendant’s conviction or placement on community supervision, “shall be submitted and heard at
the earliest practicable time”).
CONCLUSION
The trial court erred, as a matter of law, in denying Ramos-Morales’s application for a
pretrial writ of habeas corpus on the merits. Accordingly, we reverse the trial court’s order and
remand to the trial court to grant the writ and dismiss with prejudice the misdemeanor criminal
trespass charge against Ramos-Morales.
LISA J. SOTO, Justice
December 20, 2023
Before, Palafox, and Soto, JJ., and Marion, C.J. (Ret.) Marion, C.J. (Ret.), sitting by assignment