Ex Parte Martin Marcos-Callejas v. the State of Texas ( 2024 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-23-00327-CR
EX PARTE Martin MARCOS-CALLEJAS
From the County Court, Jim Hogg County, Texas
Trial Court No. 1034C
Honorable Greg Perkes, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Luz Elena D. Chapa, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: May 15, 2024
REVERSED AND REMANDED
Appellant, Martin Marcos-Callejas, appeals the trial court’s order denying his request for
habeas relief. For the reasons stated below, we reverse the trial court’s order denying habeas relief
and remand the cause to the trial court with instructions to discharge Marcos-Callejas from bail
and dismiss the information in the underlying proceeding with prejudice.
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
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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, Marcos-Callejas, a noncitizen, was arrested on October 10, 2022, in Jim
Hogg County and charged by information with the misdemeanor offense of criminal trespass. See
TEX. PENAL CODE ANN. § 30.05(a). The case was filed in the County Court in Jim Hogg County
and assigned cause number 5875.
Marcos-Callejas then filed a pretrial application for writ of habeas corpus, seeking
dismissal of the criminal charge based on alleged violations of his state and federal rights to equal
protection. 1 Specifically, Marcos-Callejas argued the State of Texas had engaged in selective
prosecution by choosing, as part of OLS, to prosecute men for criminal trespass but not to
prosecute similarly-situated women for the same offense, thereby violating 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, § 3a.
On February 9, 2023, the trial court held a hearing on Marcos-Callejas’s habeas writ. In
support of his habeas application, Marcos-Callejas called Trace Segundo, an assignments
coordinator for the Lubbock Private Defenders’ Office, as a witness. Segundo testified that, as of
October 11, 2022, there had been 550 criminal trespassing cases in Jim Hogg County related to
OLS. She further testified that, although women had been found on private property with men who
were later charged with criminal trespass, no women had been arrested for or charged with criminal
trespass, and there were no “women defendants for criminal trespass.”
1
Marcos-Callejas also sought dismissal of the criminal charge based on the State’s alleged violation of his Sixth
Amendment rights to trial and to counsel. Marcos-Callejas does not, however, argue his Sixth Amendment claim in
his appeal and specifically states, in his appellate brief, that he “is not pursuing this claim on appeal,” so we will not
consider it.
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Marcos-Callejas also called DPS Trooper Saul Leal, Jr. as a witness in the hearing. The
trooper testified that, in OLS cases as of October 2022, women who were found in groups of
persons alleged to be trespassing were released to Border Patrol. He further testified that on
October 10, 2022, he encountered six persons on private property in Jim Hogg County, including
five males and one female. The five males were arrested and transported to the Jim Hogg Detention
Center, but the trooper did not get any contact or identifying information for the female, who “was
given to Border Patrol custody.” Finally, the trooper testified that, as of October 2022, it was DPS
policy as part of OLS to arrest men, but not women, for the offense of criminal trespass.
Upon the conclusion of Marcos-Callejas’s evidence, the trial court inquired whether the
State had any witnesses to call. The State did not call any witnesses at the hearing.
After the hearing, the trial court denied Marcos-Callejas’s request for relief. Specifically,
the trial court issued an order stating, “Having considered the application and the evidence
presented, this Court holds that Mr. Marcos-Callejas is not entitled to relief.” The trial court did
not make specific findings of fact.
Marcos-Callejas timely appealed.
DISCUSSION
On appeal, Marcos-Callejas argues the trial court erred in denying his requested relief
because (1) he properly raised his equal-protection challenge to his prosecution in a pretrial writ
of habeas corpus, (2) he established a prima facie claim of selective prosecution in violation of his
right to equal protection, and (3) the State failed to justify its discriminatory conduct.
A. Standard of Review
When reviewing a trial court’s decision to grant or deny a habeas applicant’s request for
pretrial habeas relief, we defer to the trial court’s assessment of the facts and will uphold the trial
court’s ruling absent an abuse of discretion. Ex parte Vazquez-Bautista, 683 S.W.3d 504, 510 (Tex.
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App.—San Antonio 2023, pet. filed) (citing Ex parte Perusquia, 336 S.W.3d 270, 274–75 (Tex.
App.—San Antonio 2010, pet. ref’d); Ex parte Quintana, 346 S.W.3d 681, 684 (Tex. App.—El
Paso 2009, pet. ref’d)). Specifically, we “defer to the trial court’s implied factual findings that are
supported by the record.” Ex parte Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006).
“We afford almost total deference to the trial court’s determination of historical facts that are
supported by the record, and to mixed questions of law and fact, when the resolution of those
questions turn[s] on evaluations of credibility and demeanor.” Perusquia, 336 S.W.3d at 275
(citing Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled in part on other
grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007)). But “[i]f the resolution
of the ultimate question turns on an application of the law, we review the determination de novo.”
Id. (citing Peterson, 117 S.W.3d at 819). Finally, “[w]e will uphold the trial court’s judgment as
long as it is correct on any theory of law applicable to the case.” Ex parte Evans, 410 S.W.3d 481,
484 (Tex. App.—Fort Worth 2013, pet. ref’d).
B. Marcos-Callejas Effectively Presented a Selective-Enforcement Claim
While courts—including, at times, this court—deploy the terms “selective prosecution”
and “selective enforcement” interchangeably, “selective prosecution” and “selective enforcement”
are distinct claims. United States v. Sellers, 906 F.3d 848, 852 (9th Cir. 2018) (“Selective
prosecution is not selective enforcement.”); United States v. Washington, 869 F.3d 193, 214 (3d
Cir. 2017) (stating that courts “sometimes deploy [these terms] interchangeably” and recognizing
they are distinct claims); Kuiken v. Cnty. of Hamilton, 669 F.Supp.3d 119, 126 n.3 (N.D.N.Y.
2023) (“A selective enforcement claim is also referred to as a selective prosecution claim.”).
“Selective prosecution occurs when, from among the pool of people referred by police, a
prosecutor pursues similar cases differently based on” an impermissible consideration. Conley v.
United States, 5 F.4th 781, 789 (7th Cir. 2021); see Washington, 869 F.3d at 214 (“‘Prosecution’
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refers to the actions of prosecutors (in their capacity as prosecutors).”). Selective enforcement
occurs when law enforcement officials make decisions regarding who to investigate, arrest, or refer
for potential prosecution based on an impermissible consideration such as race or gender. See
Conley, 5 F.4th at 789; Washington, 869 F.3d at 214; Reynolds v. Huddleston, No. CV 21-01925-
DMG (Ex), 2023 WL 8114834, at *11 n.17 (C.D. Cal. July 17, 2023). “Hence, with selective
enforcement, ‘the constitutional problem … precede[s] the prosecutor’s role.’” Conley, 5 F.4th at
789 (quoting United States v. Davis, 793 F.3d 712, 720 (7th Cir. 2015)).
Here, Marcos-Callejas referred to his claim as a selective-prosecution claim throughout his
habeas application and argued that the trial court should grant relief on “the Selective Prosecution
writ.” Marcos-Callejas also, however, argued that “the State has chosen to selectively enforce its
trespass prohibition based on the sex of the defendant”; provided evidence showing that DPS
troopers arrested and charged men for criminal trespass but did not arrest or charge women for that
offense, instead referring the women to the United States Border Patrol; and argued that,
“[b]ecause he is not a woman, he has been charged with criminal trespass as part of OLS.”
Moreover, Marcos-Callejas demonstrated, at the hearing on his habeas application, that women
were detained for criminal trespassing but were neither arrested nor charged with a criminal
offense; rather, women who were detained related to OLS operations for the offense of criminal
trespass were either directly taken into custody by federal law enforcement officials or released by
State law enforcement officials to federal custody. Thus, by showing that men were arrested and
charged with criminal trespass but women were not, Marcos-Callejas effectively presented a
selective-enforcement claim, not a selective-prosecution claim. E.g., Conley, 5 F.4th at 789;
Reynolds, 2023 WL 8114834, at *11 n.17 (construing claim as selective-enforcement claim, rather
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than selective-prosecution claim, because claim was based on referral of charges to district
attorney). We will therefore refer to the claim as a selective-enforcement claim. 2
C. Marcos-Callejas’s Selective-Enforcement Equal Protection Claim Is Cognizable in a
Pretrial Application for Writ of Habeas Corpus
Marcos-Callejas argues, in his appellate brief, that he “properly raised his as-applied equal
protection challenge in a pretrial writ of habeas corpus.” The State, however, argues that Marcos-
Callejas’s “claim is not cognizable in a pre-trial habeas corpus proceeding” and that “the appeal
should be dismissed.”
In Ex parte Aparicio, 672 S.W.3d 696 (Tex. App.—San Antonio 2023, pet. granted), we
determined that a “selective-prosecution claim on the basis of equal protection is the type of claim
‘in which the protection of the applicant’s substantive rights or the conservation of judicial
resources would be better served by interlocutory review.’” Aparicio, 672 S.W.3d at 713 (quoting
Ex parte Ingram, 533 S.W.3d 887, 891–92 (Tex. Crim. App. 2017)). We therefore held that a
selective-prosecution equal protection claim is cognizable in a pretrial habeas proceeding. Id.Marcos-Callejas’s claim is virtually identical to the appellant’s claim in Aparicio. Id. at
701–06, 714–15. Moreover, both selective-prosecution claims and selective-enforcement claims
assert that the State has instituted criminal proceedings against a defendant for an impermissible
purpose, “[s]ubstantive claims of selective prosecution and selective enforcement are generally
evaluated under the same two-part test,” and there is no practical difference between selective-
prosecution and selective-enforcement claims for purposes of cognizability in a pretrial habeas
2
We note that the parties’ use of the term selective prosecution has engendered some confusion in this case. For
example, the State attempted to elicit testimony at the hearing, during its cross-examinations of Trace Segundo and
Trooper Leal, to show that the county attorney’s office had a policy of prosecuting both females and males and that
the prosecutor’s office had never informed law enforcement officials that it would not prosecute females. While this
evidence may have been relevant to a selective-prosecution claim, it is not relevant to a selective-enforcement claim.
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proceeding. United States v. Washington, 869 F.3d 193, 214 (3d Cir. 2017). 3 Thus, for the reasons
described in Aparicio, we hold Marcos-Callejas’s selective-enforcement equal protection claim is
cognizable in a pretrial habeas proceeding.
D. Marcos-Callejas Established a Prima Facie Case of Selective Enforcement
Marcos-Callejas next contends that he established a prima facie claim of selective
enforcement.
The defendant in a criminal case bears the burden of establishing a prima facie claim of
selective enforcement, by showing the law enforcement “policy ‘had a discriminatory effect and
that it was motivated by a discriminatory purpose.’” United States v. Armstrong, 517 U.S. 456,
465 (1996) (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)); see Aparicio, 672 S.W.3d
at 708 (quoting Armstrong, 517 U.S. at 465); Washington, 869 F.3d at 214; United States v. Eshetu,
— F.Supp.3d —, 2023 WL 7384996, at *12 (D.D.C. Nov. 8, 2023); Long v. Tanner, 170 S.W.3d
752, 754–55 (Tex. App.—Waco 2005, pet. denied) (quoting Beeler v. Rounsavall, 328 F.3d 813,
817 (5th Cir.), cert. denied, 540 U.S. 1048 (2003)). In the context of a selective-enforcement claim
based on alleged gender discrimination, the defendant must show that similarly-situated
3
Federal courts agree that selective-prosecution and selective-enforcement claims require the same substantive
showing from the defendant. See Conley, 5 F.4th at 789; Washington, 869 F.3d at 214, 216; United States v. Eshetu,
— F.Supp.3d —, 2023 WL 7384996, at *12 (D.D.C. Nov. 8, 2023). The federal courts disagree regarding the standard
of proof to be applied in selective-enforcement cases, however—some courts apply the same standard of proof as in
selective-prosecution cases, that being “clear evidence” of discriminatory intent and effect; some courts apply a lesser
standard for obtaining discovery in selective-enforcement cases but the same standard for the substantive claim; and
at least one court applies a “preponderance of the evidence” standard for substantive claims of selective enforcement.
Conley, 5 F.4th at 789 (holding that “selective-enforcement claims must be proven by a preponderance of the
evidence”); Washington, 869 F.3d at 216, 220 (holding that the substantive claims are both subject to clear evidence
standard of proof but discovery requests in selective-enforcement claims are subject to a less stringent standard than
discovery requests in selective-prosecution cases); Eshetu, 2023 WL 7384996, at *12 (recognizing that “some
jurisdictions … have lowered the standard for discovery in selective-enforcement cases” but that “ultimate success on
a selective-enforcement claim still requires proving that the challenged law enforcement action had both
discriminatory effect and discriminatory purpose”); Thompson v. Badgujar, Civ. No. DLB-20-1272, 2023 WL
6381509, at *3 (D. Md. Sept. 29, 2023) (“The standard for proving selective prosecution claims against prosecutors
also applies to selective enforcement claims against police officers.”). We need not consider the proper standard,
however, because (1) the elements of the two claims are identical, regardless of the standard of proof, and (2) the
result of this case is the same regardless of the standard of proof applied. We will therefore not consider whether the
appropriate standard of proof is by “clear evidence” or by a preponderance of the evidence.
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individuals of the opposite sex could have been arrested or referred for prosecution but were not
and that the decision to arrest the defendant or to refer the defendant for prosecution was based on
the defendant’s sex. See Aparicio, 672 S.W.3d at 708; United States v. James, 257 F.3d 1173, 1179
(10th Cir. 2001); Eshetu, 2023 WL 7384996, at *12. “Parties are ‘similarly situated’ for purposes
of a selective-enforcement claim when there are no legitimate factors that might justify making
different law-enforcement decisions with respect to them.” Eshetu, 2023 WL 7384996, at *12.
Here, the evidence Marcos-Callejas presented at the habeas hearing was similar to the
evidence presented in Aparicio. See Aparicio, 672 S.W.3d at 701–06. Specifically, the evidence
shows that although there had been 550 criminal trespassing cases related to OLS in Jim Hogg
County and women had been found with men who were arrested and referred for prosecution, no
women had been arrested for or charged with criminal trespass. Moreover, Trooper Leal testified
that it was DPS policy to arrest men, but not women, for the offense of criminal trespass; that the
sole woman found in the group of six individuals that included Marcos-Callejas was not arrested
or charged with criminal trespass while all of the men, including Marcos-Callejas, were arrested
and charged; and that DPS had not even recorded any information pertaining to the sole woman
who was part of the group.
This evidence demonstrates that women who were found allegedly trespassing with men
who were charged with criminal trespass could have been arrested and charged with criminal
trespass but were not. We therefore hold, as we did in Aparicio, that Marcos-Callejas “has shown
a discriminatory effect.” Aparicio, 672 S.W.3d at 713.
This evidence also shows that law enforcement decided, based on DPS policy, not to arrest
women for, or charge women with, criminal trespass based exclusively on their gender, without
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consideration of any other factors. 4 The evidence therefore shows that the decision to arrest
Marcos-Callejas, to charge him with criminal trespass, and to refer him to state prosecutors for
prosecution was motivated by his sex, because, under DPS policy, he would not have been arrested
or charged if he were a female. We therefore hold that Marcos-Callejas has shown that the decision
to arrest and charge him was motivated by a discriminatory purpose.
We further find the arguments made by the State in its appellate brief unpersuasive. First,
the State contends that it did not discriminate because all persons found with Marcos-Callejas
“were taken into custody by law enforcement officials in this case.” The State concedes that all
females alleged to have committed criminal trespass “were released by Texas law enforcement”
but contends that this does not constitute discrimination because the females “were handed over
to federal authorities … and … were retained in the custody of” federal law enforcement. This
argument, however, misses the point of a selective-enforcement claim—that Marcos-Callejas was
arrested by State law enforcement officers and referred to State prosecutors for prosecution, when
similarly-situated women were neither arrested nor referred for prosecution. In fact, by conceding
that women were released, regardless of where or to whom they were released, the State has
admitted that it treated similarly-situated persons differently, because the men were not released
and, as we stated in Aparacio, “[t]he men charged face time served in jail under state law; the
women do not.” Aparicio, 672 S.W.3d at 714. Thus, we find that the State’s first argument actually
supports our conclusion that the State treated similarly-situated persons differently.
Second, the State contends that Marcos-Callejas failed to show a State policy that was
motivated by a discriminatory purpose, because some male offenders were released into federal
4
We note the DPS trooper did not obtain contact or identifying information for the female who was discovered with
Marcos-Callejas. It is therefore clear that law enforcement possessed no information that could have provided a basis
for a legitimate factor to justify making a different law enforcement decision with respect to the female. See Eshetu,
2023 WL 7384996, at *12.
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law enforcement custody. Specifically, the State argues that “[t]he record shows that some males
in the same age range as [Marcos-Callejas] were released by Texas law enforcement officers to
the custody of the U.S. Border Patrol” and that the record “reflects there were exceptions for 60-
plus year old males, injured males, and males who were accompanied by family members.”
Contrary to the State’s arguments, the record in this case does not show that any males were
released by Texas law enforcement, to federal custody or otherwise. Moreover, even if the record
did reflect the existence of these exceptions, persons to whom the exceptions applied would not
be “similarly situated” to Marcos-Callejas, because none of these exceptions applied to him. And,
considering only the persons similarly situated to Marcos-Callejas—the persons, whether male or
female, found trespassing under OLS to whom the exceptions did not apply—the evidence shows
that similarly-situated women were neither arrested for nor charged with criminal trespass, while
men, including Marcos-Callejas, were arrested and charged. Thus, even if the evidence showed
that the exceptions existed, the evidence would still show that the decision to arrest Marcos-
Callejas was based on his sex, because he would not have been arrested or charged if he were a
female. Accordingly, “regardless of whether the State also discriminated on the basis of age,
minority, or family unit, [Marcos-Callejas] has shown that the State expressly discriminated on
the basis of sex.” Aparicio, 672 S.W.3d at 714.
The evidence in this case, like the evidence in Aparicio, was undisputed that the decision
to arrest Marcos-Callejas and refer him to the Jim Hogg County Attorney for prosecution was
motivated by his sex. See Aparicio, 672 S.W.3d at 714. In fact, the State admitted, in its response
in the trial court, that men were prosecuted under state trespass law but women were not and
conceded, in its appellate brief, that, “while [Marcos-Callejas] was arrested and taken into custody
for criminal trespass solely based upon his gender, all female offenders at the time of his arrest
were released by Texas law enforcement officials.” Accordingly, we hold that Marcos-Callejas
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sustained his burden of establishing a prima facie case of selective enforcement. See id. at 714;
Vazquez-Bautista, 683 S.W.3d at 511; State v. Gomez, — S.W.3d —, No. 04-22-00872-CR, 2023
WL 7552682, at *4–5 (Tex. App—San Antonio Nov. 15, 2023, pet. filed); see also Najar v. State,
618 S.W.3d 366, 372 (Tex. Crim. App. 2021) (discussing “undisputed” facts and stating a trial
court is bound to believe a fact that is conclusively established); Colyer v. State, 428 S.W.3d 117,
122 (Tex. Crim. App. 2014) (noting an “undisputed fact” is a fact both parties agree to); Robinson
v. State, 377 S.W.3d 712, 719–20 (Tex. Crim. App. 2012); Evans v. State, 202 S.W.3d 158, 162-63
& n.16 (Tex. Crim. App. 2006) (discussing concept of “undisputed facts” and recognizing that the
Texas Supreme Court had stated evidence becomes conclusive “when a party admits it is true”)
(quoting City of Keller v. Wilson, 168 S.W.3d 802, 815 (Tex. 2005)). Thus, to the extent that the
trial court found that Marcos-Callejas failed to establish a prima facie case of selective
enforcement, we conclude that any such finding would not be supported by the record and would
be an abuse of the trial court’s discretion. 5
E. The State Failed to Justify Its Discriminatory Conduct
Finally, Marcos-Callejas argues that the State failed to justify its decision to discriminate
based on sex. Because the trial court held a full hearing on Marcos-Callejas’s selective-
enforcement claim and provided the State with an opportunity to present any evidence and
argument it had related to the selective-enforcement claim, we conclude we must determine
“whether the State met its burden of justifying its discriminatory treatment of” Marcos-Callejas.
Vazquez-Bautista, 683 S.W.3d at 512.
5
Because the trial court did not enter findings of fact or conclusions of law or otherwise indicate whether it found that
Marcos-Callejas failed to establish a prima facie case of selective enforcement and/or that the State justified its
discriminatory treatment of Marcos-Callejas, we must determine whether either such finding would be supported by
the record in order to determine whether the trial court abused its discretion by denying Marcos-Callejas’s request for
habeas relief. See, e.g., Ex parte Evans, 410 S.W.3d 481, 484 (Tex. App.—Fort Worth 2013, pet. ref’d) (“We will
uphold the trial court’s judgment as long as it is correct on any theory of law applicable to the case.”).
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“Once the defendant establishes a prima facie case of selective [enforcement] in violation
of equal protection rights, the burden shifts to the State to justify the discriminatory treatment.”
Aparicio, 672 S.W.3d at 708; see Vazquez-Bautista, 683 S.W.3d at 513. “Because a federal
constitutional equal protection claim on the basis of gender discrimination is subject to
intermediate scrutiny, the State must demonstrate that the discriminatory classification is
substantially related to an important governmental interest.” Aparicio, 672 S.W.3d at 708. A claim
based on the Texas Equal Rights Amendment, however, is subject to strict scrutiny, meaning “the
State must show that its discriminatory classification ‘is narrowly tailored to serve a compelling
governmental interest.’” Vazquez-Bautista, 683 S.W.3d at 512 (quoting Aparicio, 672 S.W.3d at
716); see Gomez, 2023 WL 7552682, at *5.
Here, the State did not call any witnesses or introduce any evidence at the habeas hearing
in the trial court. In its response to Marcos-Callejas’s habeas application in the trial court, the State
argued that it had a legitimate interest in protecting its citizens “through the enforcement of the
criminal trespass statute.” The State further contended “both males and females are being
prosecuted under different laws for the same acts and limited state facilities to house both males
and females is the basis behind the state predominantly prosecuting males.” Similarly, in its
appellate brief, the State argues,
In this case, it should be beyond debate that the State’s actions serve important
governmental objectives. The massive influx of undocumented migrants from all
over the world, arriving without any screening involving their criminal
backgrounds, health backgrounds, and security risk backgrounds creates a real
danger to both public health and public safety. Further, the massive logistical effort
and monetary cost associated with this influx of individuals from other countries
necessitates that certain individuals be processed through the federal system and
the policies which [Marcos-Callejas] now complains are substantially related to
achievement of the legitimate goals of the State of Texas.
The State does not, however, cite to any evidence to support any of these assertions. Nor
does the State explain, let alone provide evidence to show, how DPS’s policy, pursuant to OLS,
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of arresting and referring men, but not similarly-situated women, for prosecution by State
prosecutors for the offense of criminal trespass is narrowly tailored to serve, or even substantially
related to, its interest in protecting its citizens. Further, we have previously rejected the State’s
reliance on limited housing facilities as a justification for its discriminatory conduct. See Gomez,
2023 WL 7552682, at *5; Ex parte Gonzalez-Morales, No. 04-22-00629-CR, 2023 WL 8793121,
at *3 (Tex. App.—San Antonio Dec. 20, 2023, no pet.) (mem. op., not designated for publication).
And we have previously rejected the other justifications the State offers in this case, on the basis
that the State failed to explain or show how its discriminatory classification was narrowly tailored
to address, or was substantially related to, its interests. Gonzalez-Morales, 2023 WL 8793121, at
*3; see Gomez, 2023 WL 7552682, at *5–6; Vazquez-Bautista, 683 S.W.3d at 513–14.
Accordingly, because the State has failed to explain or provide evidence to show that its
discriminatory conduct—arresting and referring men for prosecution for the offense of criminal
trespass, while detaining and then releasing women found in the exact same circumstances as the
men—is narrowly tailored to serve, or even substantially related to, the State’s legitimate interests,
we hold that the trial court abused its discretion in denying Marcos-Callejas relief on both his
selective-enforcement claim under the Texas Equal Rights Amendment and his federal equal
protection selective-enforcement claim. Vazquez-Bautista, 683 S.W.3d at 513–14; see Gonzalez-
Morales, 2023 WL 8793121, at *3; Gomez, 2023 WL 7552682, at *5–6.
CONCLUSION
Based on the foregoing, we reverse the trial court’s order denying Marcos-Callejas’s
requested relief on his application for writ of habeas corpus and remand the case to the trial court
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with instructions to discharge Marcos-Callejas from bail and dismiss with prejudice the
information charging him with misdemeanor criminal trespass.
Liza A. Rodriguez, Justice
PUBLISH
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