Ex parte Aparicio
| Docket Number | 04-22-00623-CR |
| Decision Date | 21 June 2023 |
| Parties | EX PARTE Luis Alfredo APARICIO |
| Court | Texas Court of Appeals |
From the County Court, Maverick County, Texas Trial Court No. 3976 Honorable Mark R. Luitjen, Judge Presiding [1]
OPINION
As part of Operation Lone Star, Luis Alfredo Aparicio, a noncitizen was arrested for trespassing on private property in Maverick County.[2] He filed an application for writ of habeas corpus seeking dismissal of the criminal charge, arguing the State's selective prosecution of him violated the Constitution's Equal Protection Clause and the Texas Constitution's Equal Rights Amendment. See U.S Const. amend. XIV; Tex. Const. art. 1, § 3(a). After holding an evidentiary hearing on the merits, the trial court denied his requested relief. Aparicio appeals, arguing the trial court erred in denying his relief because the State's practice of prosecuting men, and not women, for criminal trespass as part of Operation Lone Star violated his federal and state constitutional rights to equal protection. We reverse the trial court's order and remand for further proceedings consistent with this opinion.
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 crossings and protecting [] border communities." He directed "DPS to use available resources to enforce all applicable federal and state laws to prevent the 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, Aparicio was arrested for criminal trespass. See Tex. Penal Code § 30.05(a). He then filed a pretrial application for writ of habeas corpus, arguing the State was selectively prosecuting him in violation of his equal protection rights.
At the habeas corpus hearing, Aparicio testified that on May 3, 2022, he was with a group of people when he was arrested in Maverick County for criminal trespass. According to Aparicio, there were six people in his group: two females and four males (one of whom was seventeen years old). The two females and the minor male were separated from his group. Aparicio and the remaining men were arrested and transported to a detention facility in Val Verde County.
Also at the hearing, several witnesses testified about OLS and its implementation. Claudia Molina of the Lubbock Private Defender's Office discussed the process through which an individual who is arrested for criminal trespass under OLS obtains appointment of counsel. According to Molina's testimony, the Lubbock Private Defender's Office ("LPDO"), in conjunction with OLS, was awarded a grant by the Texas Indigent Defense Commission to appoint counsel to represent individuals who have been brought before a magistrate or are being held at detention facilities. That is, when an individual is arrested and brought before a magistrate, his paperwork is sent to an OLS inbox at LPDO, which then reviews the paperwork and assigns appointed counsel. Molina testified that all individuals arrested under OLS in Webb, Jim Hogg, Maverick, Kinney, and Val Verde counties receive appointed counsel through LPDO. According to Molina, "the primary misdemeanor arrest" in conjunction with OLS is criminal trespass, while "the primary felony arrest" is "smuggling of persons." As part of OLS, LPDO first began appointing counsel to defendants arrested in Maverick County on March 22, 2021.
In preparation for her testimony, Molina ran reports through LPDO's case management system, which she does as part of her regular duties. Molina testified that three days before the habeas hearing, she ran reports on LPDO's case management system and determined that as part of OLS, 470 people had been arrested in Maverick County for misdemeanor offenses. None of the 470 individuals arrested were female.
With regard to the five counties that are part of OLS (Webb, Kinney, Maverick, Jim Hogg, and Val Verde), Molina testified that 4,076 people had been arrested for misdemeanor offenses as part of OLS. Again, none of the 4,076 people arrested for misdemeanor offenses were female.
Molina further testified she ran a report to determine how many women were appointed counsel for misdemeanor offenses during the week of May 3, 2022 (i.e., the week Aparicio was arrested). Again, none of the individuals arrested were female. Molina was then asked:
Molina testified that when a person is arrested under OLS, part of the paperwork forwarded to LPDO includes a probable cause statement, which LPDO reviews "in order to determine how to assign counsel." Molina testified that based on her review of those probable cause statements, it was not uncommon for both women and men to be found on the same private property; however, the women were not prosecuted for criminal trespass.
DPS Captain Joel Betancourt "oversee[s] a district which encompasses nine counties for DPS." Since the inception of OLS in March 2021, Captain Betancourt has been involved in meetings with prosecutors and local officials to plan how to implement and execute OLS. With regard to Maverick County, Captain Betancourt testified he met with Maverick County officials, including the sheriff, the county judge, and members of the prosecutor's office to discuss implementation of OLS. During his testimony, Captain Betancourt agreed with the following facts:
Captain Betancourt further authenticated an August 12, 2021 email he sent to his "two lieutenants" and an assistant. The subject of the email was "Guidance on Arrests for Criminal Trespass." According to Captain Betancourt, the purpose of the email was "to provide guidance to people about who to arrest for purposes of" OLS and who should instead be sent to immigration authorities. The email, which was admitted in evidence without objection, states the following:
(emphasis in original).
Captain Betancourt explained that this email expanded a former policy to include "the rest of the majority of single adult males." He further agreed the policy as stated in the email did not include arresting any women for criminal trespass. With regard to the felony offense of human trafficking, Captain Betancourt testified that both men and women are arrested and prosecuted for human trafficking.
On cross-examination, the State pointed out that Captain Betancourt's email was titled "guidance" and asked Captain Betancourt to explain what "guidance" meant to him. Captain Betancourt testified that guidance meant "a set of rules or set of expectations that should be adhered to or that need to be adhered to." Captain Betancourt then again confirmed that when women are found in a group of individuals who are trespassing, the women are not arrested, but released to the custody of border patrol, while the "men go to the processing center in Val Verde County." Captain Betancourt described the processing center in Val Verde as being a large tent with flooring and air conditioning. Like a county jail, there is a "booking process, a medical process, mental health screening," and "holding cells." Because there is no segregation at the facility, no women are held there.
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