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The decision in the Sanchez Tristen case (No. 05-24-00217-CR) has some interesting holdings, essentially granting a "get out of jail free card" to the accused based on his sex. While I am guessing that the owners of property along the "border" like to see trespassers removed therefrom without regard to their sex, I can see how using a blanket exclusion in how a law is enforced is problematic.
The more interesting aspect of the decision may lie in the idea that the Dallas Court did not need to decide anything on the merits for itself, but rather had to follow (in accord with Tex. R. App. P. 41.3) precedents supposedly established in earlier cases by the San Antonio Court (since Sanchez Tristen's case had arrived in Dallas by virtue of a transfer order from the Fourth Court). Many of cases cited by the Fifth Court as precedent were designated not to be published. It would not seem those were "binding" in any sense. Three of the decisions (in Vasquez-Bautista, Aparicio, and Gomez) are published opinions. But a PDR has been filed or granted in those cases. I believe that means they lack precedential value at this point. While it may be argued that the CCA has impliedly approved of the holding in Aparicio that an equal protection claim is cognizable on habeas, if the CCA ultimately remands the case to San Antonio because Aparicio failed to establish a prima facie case of selective prosecution, the San Antonio Court would be free to reassess any part of its earlier decision. Moreover, the CCA is not limited to deciding only the issue upon which it granted review. So, it seems questionable that the Dallas Court has cited Tex. R. App. P. 41.3 as part of the rationale for its decision. It is enough for it to say that it independently agrees with the "guidance" provided by the Fourth Court.
The Dallas Court said as much in Tiller v. State, No. 05-21-00653-CR, 2022 Tex. App. LEXIS 3977 at *6 (Tex. App.—Dallas June 10, 2022, no pet.) (mem. op., not designated for publication).
This issue does not arise very often, but it deserves close attention.
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