The State of Texas v. Jose Efrain De Los Santos Gonzalez

• Court: Court of Appeals of Texas
• Decided: July 24, 2024
• Docket: 04-22-00881-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-22-00881-CR

The STATE of Texas, Appellant

v.

Jose Efrain de Los Santos GONZALEZ, Appellee

From the County Court, Kinney County, Texas Trial Court No. 13925CR Honorable Dennis Powell, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Luz Elena D. Chapa, Justice Irene Rios, Justice Lori I. Valenzuela, Justice

Delivered and Filed: July 24, 2024

AFFIRMED

The State of Texas appeals the trial court’s order granting Jose Efrain de Los Santos

Gonzalez’s requested habeas relief and dismissing his criminal case with prejudice. We affirm.

BACKGROUND

On March 6, 2021, Governor Greg Abbott directed the Texas Department of Public Safety

(“DPS”) to initiate Operation Lone Star (“OLS”) and “devote additional law enforcement

resources toward deterring illegal border crossing and protecting [] border communities.” He

further directed “DPS to use available resources to enforce all applicable federal and state laws to 04-22-00881-CR

prevent criminal activity along the border, including criminal trespassing, smuggling, and human

trafficking, and to assist Texas counties in their efforts to address those criminal activities.”

As part of OLS, Gonzalez, a noncitizen, was arrested for criminal trespass on October 10,

2022, in Kinney County. On October 18, 2022, Gonzalez filed an application for writ of habeas

corpus seeking dismissal of the criminal charge, arguing his rights had been violated under the

Constitution’s Equal Protection Clause and the Texas Constitution’s Equal Rights Amendment.

See U.S. CONST. amend. XIV; TEX. CONST. art. I, § 3(a). Specifically, Gonzalez argued that the

State’s selective enforcement 1 of criminal trespass against men, and not similarly situated women,

as part of OLS violated his constitutional rights. The trial court granted the writ and set the matter

for an evidentiary hearing on November 18, 2022.

At the hearing, the trial court heard the merits of Gonzalez’s pretrial habeas claim, along

with twenty-one other cases, all filed on selective enforcement grounds. We described the evidence

presented at this hearing in a previous opinion, State v. Gomez, — S.W.3d —, No. 04-22-00872-

CR, 2023 WL 7552682, at *1–4 (Tex. App.—San Antonio Nov. 15, 2023, pet. filed), as both the

habeas claim in Gomez and the habeas claim in the instant case were heard at the same time. After

considering the evidence presented at the hearing, on December 21, 2022, the trial court found that

Gonzalez had presented a prima facie selective-enforcement claim on the basis of equal protection

and further found that the State had not met its burden of justifying the discriminatory treatment.

1 The terms “selective prosecution” and “selective enforcement” are sometimes used interchangeably, although they are distinct claims. See Ex parte Marcos-Callejas, — S.W.3d —, No. 04-23-00327-CR, 2024 WL 2164653, at *2 (Tex. App.—San Antonio May 15, 2024, no pet. h.) (citations omitted). Here, while Gonzalez’s pretrial habeas application sought dismissal on “selective-prosecution” grounds, the evidence Gonzalez presented in his application and at the hearing shows that under OLS, law enforcement officers arrested and charged men, but not women, for criminal trespass—evidence that indicates Gonzalez was asserting a selective-enforcement claim. See id. at *2–3 & n.2. Moreover, the trial court, in its order granting Gonzalez habeas relief, found that Gonzalez was “the target of selective enforcement” and that “the unconstitutional prosecution is fully implemented at the level of arrest of only male suspects.” We therefore conclude that Gonzalez effectively presented a selective-enforcement claim and that the trial court construed his claim as one for selective enforcement, and we will refer to his claim as a selective- enforcement claim. See id. at *3.

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Consequently, the trial court granted Gonzalez’s requested relief and “order[ed] the criminal

prosecution against Applicant be dismissed with prejudice.” The State appealed.

DISCUSSION

In its brief, the State argues the trial court erred in granting relief on Gonzalez’s selective-

enforcement equal protection claim for the following three reasons: (1) his claim is not cognizable

in a pretrial habeas proceeding; (2) he did not present a prima facie case of selective-enforcement

on the basis of a violation of his equal protection rights; and (3) the State met its burden of showing

its policy passes “the strictest of scrutiny.” These are the same arguments brought by the State in

Gomez, 2023 WL 7552682, at *4. For the reasons enunciated in Gomez, we hold that Gonzalez’s

claim is cognizable in a pretrial habeas proceeding, that the trial court did not abuse its discretion

in determining that Gonzalez met his burden of showing a prima facie claim for selective

enforcement on the basis of gender discrimination, and that the trial court did not abuse its

discretion in determining that the State had not met its burden to justify its discriminatory conduct

under either strict scrutiny (Gonzalez’s state claim) or intermediate scrutiny (Gonzalez’s federal

claim). See id. at *4–6; Ex parte Marcos-Callejas, — S.W.3d —, No. 04-23-00327-CR, 2024 WL

2164653, at *3–4 (Tex. App.—San Antonio May 15, 2024, no pet. h.); Ex parte Aparicio, 672

S.W.3d 696, 716 (Tex. App.—San Antonio 2023, pet. granted). Therefore, we affirm the trial

court’s order granting Gonzalez habeas relief and dismissing his criminal case with prejudice.

Luz Elena D. Chapa, Justice

DO NOT PUBLISH

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