The State of Texas v. Wilter Olivia Gomez

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00872-CR

The STATE of Texas,
Appellant

v.

Wilter Olivia GOMEZ,
Appellee

From the County Court, Kinney County, Texas
Trial Court No. 12051CR
Honorable Dennis Powell, Judge Presiding

PER CURIAM

Sitting: Lori I. Valenzuela, Justice
Adrian A. Spears II, Justice
H. Todd McCray, Justice

Delivered and Filed: October 10, 2025

REVERSED AND RENDERED

The State of Texas appeals the trial court’s order granting the appellee’s request for habeas

relief. On November 15, 2023, this court affirmed the trial court’s judgment and ordered the case

dismissed with prejudice. On December 11, 2024, the Court of Criminal Appeals vacated our

opinion and remanded the case to consider the merits of the appeal in light of its decision in Ex

parte Aparicio, 707 S.W.3d 189 (Tex. Crim. App. 2024), cert. denied sub nom. Aparicio v. Texas,

No. 24-6057, 2025 WL 1787753 (U.S. June 30, 2025). On August 27, 2025, we issued an opinion
04-22-00872-CR

and judgment reversing the trial court’s judgment and remanding for further proceedings

consistent with the opinion. We now sua sponte withdraw our August 27, 2025 opinion and

judgment in this case, in order to render judgment. See TEX. R. APP. P. 43.3 (appellate court should

render judgment trial court should have rendered, except when remand is necessary for further

proceedings or for another trial in the interests of justice); see also State v. Lopez-Miranda, No.

04-23-00153-CR, 2024 WL 3954213, at *3 (Tex. App.—San Antonio Aug. 28, 2024, no pet.)

(mem. op., not designated for publication) (reversing and rendering judgment dismissing habeas

application and reinstating information). For the following reasons, we reverse the trial court’s

order, render judgment denying Appellee’s application for pretrial habeas relief, and reinstate the

information charging Appellee with the misdemeanor offense of criminal trespass.

BACKGROUND

Appellee, Wilter Olivia Gomez, was arrested and charged with misdemeanor criminal

trespass as a part of Operation Lone Star (“OLS”). Appellee subsequently filed a pretrial

application for writ of habeas corpus, arguing that the State engaged in selective prosecution by

choosing to prosecute men for criminal trespass but not to prosecute similarly situated women for

the same offense, in violation of the Equal Protection clauses of the United States and Texas

constitutions. The trial court granted Appellee’s habeas application and ordered the case

dismissed. 1 The State appealed.

1
The trial court clerk filed Appellee’s habeas application as a document in the same cause number as the underlying
criminal proceeding, but “a habeas proceeding is a separate proceeding from a criminal prosecution.” Ex parte
Sheffield, 685 S.W.3d 86, 100 (Tex. Crim. App. 2023); see Ex parte Carter, 849 S.W.2d 410, 411 n.2 (Tex. App.—
San Antonio 1993, pet. ref’d). As a result, Appellee's habeas application should have been “docketed separately from
the substantive cause and given a different cause number.” Carter, 849 S.W.2d at 411 n.2. Nevertheless, it is clear
from the trial court’s order that it granted Appellee's request for habeas relief in the habeas proceeding—in which
Appellee had requested that the trial court dismiss the underlying criminal case with prejudice—and, in doing so,
effectively dismissed the criminal charges in the underlying criminal case.

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04-22-00872-CR

DISCUSSION

On appeal, the State argues that Appellee’s selective-prosecution claim is not cognizable

in a pretrial habeas proceeding and that the trial court erred by granting the application for writ of

habeas corpus.

A. Standard of Review

Generally, we review a trial court’s ruling on a pretrial application for a writ of habeas

corpus for an abuse of discretion. See Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006);

Ex parte Jarreau, 623 S.W.3d 468 (Tex. App.—San Antonio 2020, pet. ref’d). “However, when,

the resolution of the ultimate issue turns on the application of purely legal standards, we review

the trial court's ruling de novo.” Jarreau, 623 S.W.3d at 472. We will uphold the trial court’s ruling

“if that ruling was supported by the record and was correct under any theory of law applicable to

the case.” Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003) (citing State v. Ross,

32 S.W.3d 853, 856 (Tex. Crim. App. 2000)). “That rule holds true even if the trial court gave the

wrong reason for its ruling.” Armendariz, 123 S.W.3d at 404 (citing Romero v. State, 800 S.W.2d

539, 543 (Tex. Crim. App. 1990)).

B. Cognizability

The State, in it’s brief, argues that a pretrial application for writ of habeas corpus based on

a claim of selective prosecution is not cognizable on appeal. The Appellee, however, disputes this

argument.

From our review, the facts and arguments in this case are substantively the same as those

in Ex parte Aparicio, in which the Court of Criminal Appeals concluded that the appellee’s claim

of selective arrest and prosecution was cognizable under the facts of that case. 707 S.W.3d at 202.

Accordingly, we conclude that Appellee’s claim is cognizable.

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04-22-00872-CR

C. Selective Prosecution

To establish a prima facie case of “selective prosecution or selective enforcement, the

claimant must prove with ‘exceptionally clear evidence’ that: 1. The prosecutorial policy had a

discriminatory effect; and 2. it was motivated by a discriminatory purpose.” Id. at 204 (citations

omitted). The second prong requires the claimant “definitively show that an otherwise facially

neutral law is being administered in bad faith—that it was ‘directed so exclusively against a

particular class of persons . . . with a mind so unequal and oppressive’ that equal protection of the

law was denied.” Id. at 208 (emphasis in original) (quoting U.S. v. Armstrong, 517 U.S. 456, 464–

65 (1996)). In other words, the claimant must show by “‘exceptionally clear evidence’ that the

OLS mindset administering the facially neutral criminal trespass law was ‘so unequal and

oppressive’ against him because he is male.” Id. at 210 (emphasis in original) (citations omitted).

The evidence here is substantively the same as the evidence presented in Aparicio. Id. at

189. We therefore conclude, based on our review of the entire record and after considering the

parties’ arguments, that the evidence is insufficient to show that the State of Texas’ policy was

motivated by a discriminatory purpose. Id. at 204.

CONCLUSION

Because Appellee failed to establish the second prong of his selective prosecution claim,

the trial court erred in granting his application for writ of habeas corpus. Accordingly, we reverse

the trial court’s order granting Appellee’s pretrial application for writ of habeas corpus, render

judgment denying Appellee’s habeas application, and reinstate the information charging Appellee

with the misdemeanor offense of criminal trespass.

PER CURIAM
DO NOT PUBLISH

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