Ex Parte Nelson Fabricio Vindel Sevilla v. the State of Texas

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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No. 08-24-00055-CR

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Ex Parte Nelson Fabrico Vindel Sevilla

On Appeal from the County Court
Kinney County, Texas
Trial Court No. 13764CR

M E MO RA N D UM O PI NI O N
Appellant, Nelson Fabrico Vindel Sevilla, appeals from the trial court’s order denying his

pretrial application for writ of habeas corpus. We affirm.

I. BACKGROUND

Vindel Sevilla, a noncitizen, was arrested for and charged with the misdemeanor offense

of criminal trespass in Kinney County, Texas in August 2022, as part of Operation Lone Star

(OLS), the State’s initiative to address the influx of illegal border crossings from Mexico to Texas. 1

1
See Tex. Penal Code Ann. § 30.05(a).
He subsequently filed a pretrial application for writ of habeas corpus in the county court, arguing

he was the subject of selective prosecution in violation of his equal protection rights because the

State was arresting and prosecuting men, but not women, for alleged trespassing in cases arising

out of OLS. The county court granted Vindel Sevilla’s habeas application and determined that the

merits would “be heard by submission of evidence.” Both parties submitted evidence to the court.

The court then denied Vindel Sevilla’s request for habeas relief.

Vindel Sevilla appealed to the Fourth Court of Appeals. The appeal was transferred to this

Court pursuant to a Texas Supreme Court docket equalization order. 2

II. STANDARD OF REVIEW

We generally review a trial court’s ruling on a pretrial application for writ of habeas corpus

under an abuse of discretion standard. See Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App.

2006); Ex parte Jarreau, 623 S.W.3d 468, 472 (Tex. App.—San Antonio 2020, pet. ref’d). But

“when, as here, 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. Further, we

must uphold the trial court’s ruling if it “was supported by the record and was correct under any

theory of law applicable to the case[,] . . . even if the trial court gave the wrong reason for its

ruling.” Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003) (en banc) (citing State

v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Romero v. State, 800 S.W.2d 539, 543

(Tex. Crim. App. 1990) (en banc)); see Ex parte Guerrero, No. 04-24-00583-CR, 2025 WL

2399174, at *1 (Tex. App.—San Antonio Aug. 19, 2025, no pet.) (per curiam) (mem. op., not

designated for publication).

2
See Tex. Gov’t Code Ann. §§ 73.001(a), 73.002(a). Because the case was transferred from the Fourth Court of
Appeals to this Court pursuant to a Texas Supreme Court order, we must decide this case in accordance with the Fourth
Court’s precedent. See Tex. R. App. P. 41.3.

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III. DISCUSSION

On appeal, Vindel Sevilla argues that his selective-prosecution claim is cognizable in a

pretrial habeas proceeding, that he established a prima facie case of selective prosecution, that the

State failed to justify the discriminatory treatment, and that we should therefore reverse the trial

court’s order and remand this case to the trial court with instructions to dismiss the underlying

proceeding against him. In response, the State contends that a selective-prosecution claim is not

cognizable in a pretrial habeas proceeding and that Vindel Sevilla failed to establish a prima facie

case of selective prosecution.

A. Cognizability

In Aparicio II, the Court of Criminal Appeals held that the appellant’s claim of selective

arrest and prosecution was cognizable in a pretrial habeas proceeding under the facts of the case.

Ex parte Aparicio, 707 S.W.3d 189, 202–03 (Tex. Crim. App. 2024). From our review, the facts

and arguments in this case are substantively the same as those in Aparicio. Accordingly, we

conclude that Vindel Sevilla’s claim is cognizable. See, e.g., Guerrero, 2025 WL 2399174, at *1.

B. 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.’” Guerrero, 2025 WL

2399174, at *1 (quoting Aparicio II, 707 S.W.3d at 204). To succeed “under the second prong, the

claimant must show ‘an intentional or purposeful discrimination in the enforcement of the statute

against him.’” Aparicio II, 707 S.W.3d at 206 (quoting Satterwhite v. State, 726 S.W.2d 81, 84

(Tex. Crim. App. 1986)). Thus, the claimant must “definitively show that an otherwise facially

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

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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 United States v. Armstrong, 517 U.S.

456, 464–65 (1996)); see Guerrero, 2025 WL 2399174, at *1.

In the context of this case, to establish a prima facie case of selective enforcement or

selective prosecution based on his arrest and prosecution for the offense of criminal trespass,

Vindel Sevilla had “to show that he is being ‘invidiously’ punished for criminal trespass because

he is male.” Aparicio II, 707 S.W.3d at 208 (emphasis in original). Stated differently, Vindel Sevilla

had to “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); Guerrero, 2025 WL 2399174, at *1.

“The evidence here is substantively the same as the evidence presented in Aparicio.” 3

Guerrero, 2025 WL 2399174, at *2; see Aparicio II, 707 S.W.3d at 194–97. In that case, however,

the Court of Criminal Appeals held that the appellant had “failed to meet his burden in

demonstrating a prima facie case that he [was] arrested and [was being] prosecuted because of his

3
We note that Vindel Sevilla attempts to differentiate his case from Aparicio based on (1) an affidavit of Victor
Escalon, the South Texas Regional Director for the Texas Department of Public Safety, which was admitted into
evidence in this case by the State, and (2) evidence allegedly showing that a woman was arrested for criminal trespass
related to OLS in February 2023. This evidence, however, is substantively similar to the evidence in Aparicio and is
insufficient to establish a prima facie claim of selective arrest and prosecution based on gender. See, e.g., Ex parte
Sanchez Dubon, No. 04-24-00584-CR, 2025 WL 2399175, at *1–2 (Tex. App.—San Antonio Aug. 19, 2025, no pet.)
(per curiam) (mem. op., not designated for publication) (affirming trial court’s order denying habeas relief in case
involving identical arguments, as set forth in Appellant’s Opening Brief, at 29–38, Sanchez Dubon, 2025 WL 2399175
(No. 04-24-00584-CR), https://search.txcourts.gov/Case.aspx?cn=04-24-00584-CR&coa=coa04, brief filed
November 14, 2024); Ex parte Guerrero, No. 04-24-00583-CR, 2025 WL 2399174, at *1–2 (Tex. App.—San Antonio
Aug. 19, 2025, no pet.) (per curiam) (mem. op., not designated for publication) (affirming trial court’s order denying
habeas relief in case involving identical arguments, as set forth in Appellant’s Opening Brief, at 29–38, Guerrero,
2025 WL 2399174 (No. 04-24-00583-CR), https://search.txcourts.gov/Case.aspx?cn=04-24-00583-CR&coa=coa04,
brief filed November 18, 2024); Ex parte Lopez, No. 05-24-00082-CR, 2025 WL 2880829, at *2–4 (Tex. App.—
Dallas Oct. 9, 2025, no pet. h.) (mem. op., not designated for publication); Ex parte Vallesteros, No. 06-24-00040-CR,
2024 WL 5161900, at *1 (Tex. App.—Texarkana Dec. 19, 2024, pet. ref’d) (mem. op., not designated for publication)
(determining that evidence, as set forth in Ex parte Vallesteros, No. 06-24-00040-CR, 2024 WL 1632070, at *2
(Tex. App.—Texarkana April 16, 2024) (mem. op., not designated for publication), judgment vacated by Ex parte
Campos, Nos. PD-0434-24 & PD-0435-24, 2024 WL 5074600 (Tex. Crim. App. Dec. 11, 2024), was insufficient to
establish a prima facie case of selective arrest and prosecution); cf. Tex. R. App. P. 41.3 (requiring, in cases transferred
from one appellate court to another, transferee appellate court to apply precedent from transferor appellate court).

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gender.” Aparicio II, 707 S.W.3d at 210 (emphasis in original). We therefore conclude, based on

our review of the entire record and after considering the parties’ arguments, that Vindel Sevilla

failed to prove, and the evidence is insufficient to show, that the State of Texas’ policy was

motivated by a discriminatory purpose. See Guerrero, 2025 WL 2399174, at *2 (citing Aparicio

II, 707 S.W.3d at 204).

We further conclude that, because Vindel Sevilla failed to establish the second prong of his

selective prosecution claim, he failed to establish a prima facie case of selective prosecution or

selective enforcement, and the trial court did not err in denying his pretrial application for writ of

habeas corpus.

VI. CONCLUSION

We affirm the trial court’s order denying Vindel Sevilla’s pretrial application for writ of

habeas corpus. We dismiss any pending motions as moot.

MARIA SALAS MENDOZA, Chief Justice

November 24, 2025

Before Salas Mendoza, C.J., Palafox and Soto, JJ.

(Do not publish)

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