Ex Parte: Juan Miguel Rodriguez-Cerda v. the State of Texas

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

§ No. 08-23-00325-CR

EX PARTE: § Appeal from the

JUAN MIGUEL RODRIGUEZ-CERDA, § the County Court

Appellant. § of Kinney County, Texas

§ (TC# 10868CR)

MEMORANDUM OPINION ON REHEARING 1 0F

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

(DPS) in collaboration with the Texas National Guard to initiate Operation Lone Star (OLS) to

address the influx of illegal border crossings from Mexico to Texas. Ex parte Aparicio, No. PD-

0461-23, 2024 WL 4446878, at *1 (Tex. Crim. App. Oct. 9, 2024) (cert. filed). Among other

things, “OLS authorized the detention and arrest of individuals crossing the border illegally for

state level offenses committed on or near the border.” Id.

Pursuant to the State’s OLS policy, Appellant Juan Miguel Rodriguez-Cerda (Rodriguez-

Cerda), a noncitizen, was arrested and charged with the State misdemeanor offense of criminal

trespass in Kinney County near the U.S.-Mexico border. Contending that under OLS policy, the

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We grant the State’s motion for rehearing, withdraw our opinion and judgment of August 16, 2024, and substitute
this opinion on rehearing and the corresponding judgment in their place.
State only arrested men who were caught trespassing at the border, Rodriguez-Cerda filed two

applications seeking a pretrial writ of habeas corpus in district court in Kinney County.

Rodriguez-Cerda argued he was the subject of selective prosecution in violation of state and

federal constitutional equal protection principles. Without holding a hearing, the trial court

denied his application, and Rodriguez-Cerda filed an appeal with the Fourth Court of Appeals.

The appeal was transferred to this Court pursuant to a Texas Supreme Court docket equalization

order.

I. OUR ORIGINAL OPINION

In accordance with Texas Rule of Appellate Procedure 41.3, we originally resolved

Rodriguez-Cerda’s appeal by applying the Fourth Court of Appeals’ precedent as set forth in Ex

Parte Aparicio and its progeny. See Tex. R. App. P. 41.3; 2 Ex parte Rodriguez-Cerda, No. 08-
1F

23-00325-CR, 2024 WL 3848550, at *1 (Tex. App.—El Paso Aug. 16, 2024, no pet.) (mem. op.,

not designated for publication) (citing Ex parte Aparicio, 672 S.W.3d 696, 701 (Tex. App.—

San Antonio 2023) rev'd, No. PD-0461-23, 2024 WL 4446878 (Tex. Crim. App. Oct. 9, 2024)).

In Aparicio, the Fourth Court of Appeals faced a similar selective prosecution argument in an

application for a pretrial writ of habeas corpus brought by Luis Aparicio, a noncitizen who was

arrested for trespassing on private property in Maverick County pursuant to the State’s OLS

policy. Ex parte Aparicio, 672 S.W.3d at 701. The trial court held a full evidentiary hearing on

Aparicio’s application and ultimately denied the application. Id. at 701. The Fourth Court of

Appeals reversed, concluding that Aparicio was entitled to habeas relief. Id.

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Rule 41.3 provides: “In cases transferred by the Supreme Court from one court of appeals to another, the court of
appeals to which the case is transferred must decide the case in accordance with the precedent of the transferor court
under principles of stare decisis if the transferee court's decision otherwise would have been inconsistent with the
precedent of the transferor court. The court's opinion may state whether the outcome would have been different had
the transferee court not been required to decide the case in accordance with the transferor court's precedent.” Tex. R.
App. P. 41.3.

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In reversing, the court first held that Aparicio’s claim of selective prosecution was

cognizable in a pretrial habeas setting. Id. at 713. It then found that Aparicio presented sufficient

evidence to establish that the State had only arrested men at the border for criminal trespass under

OLS. Id. In turn, it found that Aparicio met his burden of establishing a prima facie case that the

State’s OLS policy had a discriminatory effect, and further, that it was motivated by a

discriminatory purpose. Id. at 713, 715–16. In a subsequent case, the Fourth Court of Appeals

held that the State was unable to justify its discriminatory OLS policy, despite the State’s

argument that the policy was necessary in light of the governor’s proclamation “declaring an

emergency regarding border security” and “testimony that the counties implementing OLS do

not have sufficient facilities to hold women detainees.” State v. Gomez, 692 S.W.3d 710, 719

(Tex. App.—San Antonio 2023) judgment vacated sub nom. Ex parte Rodriguez-Rodas, No. PD-

0073-24, 2024 WL 5074593 (Tex. Crim. App. Dec. 11, 2024).

Because Rodriguez-Cerda’s claim of selective prosecution was based on the same OLS

policy that the Fourth Court of Appeals found had both a discriminatory effect and purpose—and

was not constitutionally justifiable—we concluded that Rodriguez-Cerda was entitled to habeas

relief based on his claim of selective prosecution. Ex parte Rodriguez-Cerda, 2024 WL 3848550,

at *6–7. We therefore reversed the trial court’s order denying his habeas application. Id. at *7.

II. LEGAL DEVELOPMENTS FOLLOWING OUR OPINION

In October 2024, the Court of Criminal Appeals reversed the Fourth Court of Appeals’

holding in Aparicio. See Ex parte Aparicio, 2024 WL 4446878, at *14. In its opinion, the court

first agreed with the Fourth Court of Appeals’ conclusion that Aparicio’s claim of selective

prosecution was cognizable in a pretrial habeas setting. Id. at *8. (finding “Appellant’s claim, at

least under these circumstances, to be cognizable for pretrial habeas purposes”). But it concluded

that Aparicio had not met his burden of establishing that he was subjected to selective

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prosecution. Id. at *12–14.

In reaching this conclusion, the court observed that to succeed on a claim of selective

prosecution or selective enforcement, a claimant must prove with “exceptionally clear evidence”

both that the State’s prosecutorial policy had a discriminatory effect and was motivated by a

discriminatory purpose. Id. at 9. The court recognized that Aparicio arguably met the first prong

of this test by presenting evidence that, in a five-county region, 3 the State had only arrested males
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(and non-elderly adult males in particular) for criminal trespass under its OLS policy during the

applicable time period in which Aparicio was arrested. Id. at *2, *12. And although the court

noted that the State arrested women for other offenses under its OLS policy, such as human

smuggling, it assumed “for the sake of argument” that Aparicio had nevertheless satisfied his

burden of showing that the OLS policy had a “discriminatory effect.” Id. at *12.

However, the court concluded that Aparicio failed to present clear evidence establishing

that the OLS policy of arresting only men for criminal trespass at the border was motivated by a

discriminatory purpose. Id. at *12–14. To the contrary, the court held that Aparicio’s own

evidence supported a finding that the State’s motivation was one of practical necessity, stemming

from the fact that there was a massive influx of immigrants crossing over the border in the five-

county region, the majority of which were male. Id. at *13. Noting the limited jail facilities in

that region, the court determined that the OLS policy of arresting only men for trespass (and

transporting them to a large male-only processing center constructed for the purpose of housing

such OLS arrestees) was “more likely” motivated by the “limited resources” the State had to

address the “ongoing emergency” at the border “rather than gender discrimination.” Id. at *13.

Accordingly, the court concluded that Aparicio failed to meet his burden of

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The five counties included Webb, Jim Hogg, Maverick, Kinney, and Valverde.

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“demonstrating a prima facie case that he [was] arrested and prosecuted because of his gender,”

and as such, he did not meet the “‘demanding’ standard required for judicial interference in the

State’s discretion in administering criminal justice policy and priorities (emphasis in original).”

Id. at *14. The court therefore reversed the Fourth Court of Appeals and held that the trial court

properly denied Aparicio’s application for a writ of habeas corpus. Id.

III. OUR REVISED RULING

Applying the Court of Criminal Appeals’ opinion in Aparicio, we reach a similar

conclusion with respect to Rodriguez-Cerda’s habeas application. Rodriguez-Cerda was arrested

for criminal trespass under the same OLS policy or “mindset” that was in effect in the same five-

county region in which Aparicio was arrested and detained. And Rodriguez-Cerda relied on

virtually the same evidence that Aparicio did in attempting to establish that the OLS policy of

only arresting males for criminal trespass in that region was motivated by gender discrimination.

We therefore conclude that, like Aparicio, Rodriguez-Cerda has failed to establish a

prima facie case that he was arrested because of his gender. Id. at *14. Accordingly, we conclude

that the trial court properly denied his application for a pretrial writ of habeas corpus.

IV. CONCLUSION

The trial court’s judgment is affirmed.

LISA J. SOTO, Justice

December 30, 2024

Before Alley, CJ, Palafox and Soto, JJ.

(Do Not Publish)

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