COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ———————————— No. 08-23-00301-CR ———————————— Ex Parte Miguel Angel Melo-Sanchez, Appellant

On Appeal from the County Court Kinney County, Texas Trial Court No. 11676CR

MEMORANDUM OPINION This matter comes before us on remand from the Texas Court of Criminal Appeals to determine whether Appellant Miguel Angel Melo-Sanchez, who sought a pretrial writ of habeas corpus based on his claim that he was the subject of selective prosecution, made a prima facie showing that he was unlawfully arrested and prosecuted for criminal trespass because of his gender. We conclude that he did not, and we therefore affirm the trial court’s order denying his pretrial application for a writ of habeas corpus.

I. BACKGROUND Melo-Sanchez, a noncitizen, was arrested for allegedly trespassing on private property in Kinney County, Texas in November 2021 as part of the State’s Operation Lonestar (OLS) policy to address the influx of illegal border crossings from Mexico to Texas. 1 He filed a pretrial application for a writ of habeas corpus in the county court, arguiprng the State was selectively prosecuting him in violation of his equal protection rights because the State was only arresting male noncitizens for alleged trespassing in a five-county area near the border during the same timeframe pursuant to the OLS policy. The county court denied relief, and Melo-Sanchez appealed to the Fourth Court of Appeals. The appeal was transferred to this Court pursuant to a Texas Supreme Court docket equalization order.2 This Court reversed the county court’s judgment and remanded the matter to the county court with instructions to grant Melo-Sanchez’s habeas petition and dismiss his case, relying on the Fourth Court of Appeals’ opinion in Ex parte Aparicio.3 In Aparicio, the Fourth Court of Appeals held that Aparicio, another male noncitizen who was arrested for allegedly trespassing pursuant to the OLS policy, was the subject of selective prosecution and was therefore entitled to habeas relief. 4 We concluded that because Melo-Sanchez relied on substantially the same evidence and the same arguments in bringing his selective prosecution claim, he was also entitled to habeas relief in accordance with the court’s opinion in Aparicio.5 The State filed a petition for discretionary review of our decision with the Court of Criminal Appeals, contending Melo-Sanchez’s claim was not cognizable in a pretrial writ of habeas corpus proceeding without addressing the merits of Melo-Sanchez’s gender discrimination claim. While

See Tex. Penal Code Ann. § 30.05(a).

See Tex. R. App. P. 41.3 (requiring a transferee court to apply the precedent of the transferor court).

Ex parte Melo-Sanchez, No. 08-23-00301-CR, 2024 WL 150234, at *6 (Tex. App.—El Paso Jan. 12, 2024), petition for discretionary review granted, judgment vacated sub nom. Ex parte Ramos-Morales, No. PD-0413-24, 2024 WL 5074598 (Tex. Crim. App. Dec. 11, 2024) (not designated for publication) (citing Ex parte Aparicio, 672 S.W.3d 696, (Tex. App.—San Antonio 2023) rev’d, 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)).

Ex parte Aparicio, 672 S.W.3d at 701.

Ex parte Melo-Sanchez, 2024 WL 150234, at *6.

the State’s petition was pending in Melo-Sanchez’s case, the Court of Criminal Appeals reversed the Fourth Court of Appeals’ decision in Aparicio, holding that, although Aparicio’s claim was cognizable in a pretrial habeas petition, he did not meet his burden of establishing a prima facie case that he was unlawfully arrested and prosecuted because of his gender, and he was therefore not entitled to habeas relief.6 Specifically, it held that Aparicio failed to present clear evidence to establish that the OLS policy of arresting only men for criminal trespass at the border was motivated by a discriminatory purpose.7 Instead, the high court held, the State’s motivation was one of practical necessity stemming from the unprecedented influx of immigrants crossing the border in the five-county region, the majority of which were male, and the limited jail facilities in the region.8 The court therefore determined that the OLS policy or “mindset” of arresting only men for trespass was “more likely” motivated by the “limited resources” the State had to address the “ongoing emergency” at the border “rather than gender discrimination.”9 Accordingly, the court concluded that Aparicio failed to meet his burden of “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).”10 Aparicio thereafter filed a petition for writ of certiorari with the Supreme Court of the United States. After the Supreme Court denied review in Aparicio, the Court of Criminal Appeals issued its opinion in Melo-Sanchez’s case, in which the court refused review of the State’s petition

Ex parte Aparicio, 707 S.W.3d 189, 210 (Tex. Crim. App. 2024), cert. denied sub nom. Aparicio v. Texas, No. 24- 6057, 2025 WL 1787753 (U.S. June 30, 2025). Id. at 208–10. Id. at 209–10. Id. at 210. Id.

on the issue of cognizability but granted review on its own motion on the issue of whether Melo- Sanchez “ma[d]e a prima facie showing that he was arrested and prosecuted because of his gender.”11 The court then vacated our judgment in Melo-Sanchez’s case and remanded his case to this Court for resolution of his appeal from the trial court’s denial of his pretrial habeas petition “in light of [its] opinion in Aparicio.”12 II. DECISION ON REMAND On remand, the State filed a supplemental brief asserting that Melo-Sanchez’s claim for habeas relief was identical to Aparicio’s, and that there are no factual distinctions that would warrant a different finding.13 We agree.14 As we recognized in our first opinion in this matter, Melo-Sanchez was arrested for criminal trespass under the same OLS policy that was in effect in the same five-county region in which Aparicio was arrested and detained.15 And Melo-Sanchez relied on substantially the same evidence and arguments 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. 16 In fact, Melo-Sanchez relied heavily on the Fourth Court of Appeals’ opinion in Aparicio, in which the court found that the OLS policy at issue was constitutionally unlawful, in making his claim for relief.17

See Ex parte Ramos-Morales, et al., Nos. PD-0107-24, PD-0411-24, PD-0412-24 & PD-0413-24, 2024 WL 5074598 (Tex. Crim. App. Dec. 11, 2024) (not designated for publication). The opinion also addressed three other cases in a similar procedural posture that were still pending in our Court at the time. Id. Melo-Sanchez has not filed a supplemental brief.

Because we agree with the State that Melo-Sanchez did not meet his burden of establishing a prima facie case of gender discrimination, we do not address the State’s alternative argument that Melo-Sanchez’s claim was not cognizable in an application for a pretrial writ of habeas corpus.

Ex parte Melo-Sanchez, 2024 WL 150234, at *6. Id. at *1, *6. Id.

Accordingly, because the Court of Criminal Appeals found in Aparicio’s case that this same OLS policy or “mindset” was justified in light of the emergency situation at the border, and because there are no facts that would distinguish Melo-Sanchez’s situation from Aparicio’s, we conclude that, like Aparicio, Melo-Sanchez has failed to establish a prima facie case that he was unlawfully arrested and prosecuted with criminal trespass because of his gender. We therefore conclude that the trial court acted properly in denying Melo-Sanchez’s application for a pretrial writ of habeas corpus.

III. CONCLUSION We affirm the trial court’s judgment denying Melo-Sanchez’s application for a pretrial writ of habeas corpus, and we remand this matter to the trial court for further proceedings in accordance with our opinion.

LISA J. SOTO, Justice September 29, 2025 Before Salas Mendoza C.J., Palafox and Soto, JJ. (Do Not Publish)