The State of Texas v. David Jimenez Perez ( 2024 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00888-CR
The STATE of Texas,
Appellant
v.
David Jimenez PEREZ,
Appellee
From the County Court, Kinney County, Texas
Trial Court No. 13940CR
Honorable Dennis Powell, Judge Presiding
Opinion by: Lori I. Valenzuela, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Beth Watkins, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: July 24, 2024
AFFIRMED
The State of Texas appeals the trial court’s order granting David Jimenez Perez’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
04-22-00888-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, Perez, a noncitizen, was arrested for criminal trespass on October 12, 2022,
in Kinney County. On October 18, 2022, Perez 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, Perez 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 Perez’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
Perez 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 Perez’s pretrial habeas application
sought dismissal on “selective-prosecution” grounds, the evidence Perez 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 Perez was asserting a selective-enforcement claim. See id. at *2–3 & n.2. Moreover, the trial
court, in its order granting Perez habeas relief, found that Perez 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 Perez 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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04-22-00888-CR
Consequently, the trial court granted Perez’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 Perez’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 Perez’s claim
is cognizable in a pretrial habeas proceeding, that the trial court did not abuse its discretion in
determining that Perez 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 (Perez’s state claim) or intermediate scrutiny (Perez’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
Perez habeas relief and dismissing his criminal case with prejudice.
Lori I. Valenzuela, Justice
DO NOT PUBLISH
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