                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


                            NUMBER 13-07-00529-CR

AMBER LOVILL,                                                               Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                            NUMBER 13-07-00668-CR

                           EX PARTE: AMBER LOVILL


   On appeal from the 28th District Court of Nueces County, Texas.


                                   OPINION

    Before Chief Justice Valdez and Justices Garza and Benavides
                    Opinion by Justice Benavides

      This case involves a claim of selective prosecution based on gender. Appellant,

Amber Lovill, argues that the Nueces County District Attorney’s Office selectively

prosecuted her, seeking to revoke her probation and to incarcerate her in a drug-treatment
facility because she was using drugs during her pregnancy. In cause number 13-07-529-

CR, Lovill appeals the trial court’s order modifying her probation and imposing sanctions

for violating the terms of her probation. In cause number 13-07-668-CR, Lovill appeals the

denial of her petition for writ of habeas corpus based on the same order. We have

consolidated the two appeals and consider them together. We dismiss Lovill’s direct

appeal from the order modifying her probation for lack of jurisdiction. We reverse the trial

court’s order denying her petition for writ of habeas corpus and remand for further

proceedings consistent with this opinion.

                                           I. BACKGROUND

A.      Underlying Offense and Probated Sentence

        On November 15, 2001, Lovill was indicted on two counts of felony forgery resulting

from checks she forged.1 See TEX . PENAL CODE ANN . § 32.21 (Vernon 2003 & Supp.

2008). On January 10, 2005, Lovill entered into a plea bargain with the State and pleaded

guilty. In accordance with the plea agreement, the trial court assessed a punishment of

two years in state jail, a $1,000 fine, $700 in restitution, and costs; however, the court

suspended the prison term and placed Lovill on community supervision for three years.

See TEX . CODE CRIM . PROC . ANN . art. 42.12, § 3 (Vernon 2006 & Supp. 2008). As one of

the conditions of Lovill’s probation, she was required to “[a]void injurious or vicious habits

and[/]or, avoid the use of alcoholic beverages, narcotics or any other controlled substances

and submit to testing/blood analysis/urinalysis as directed for alcohol or controlled

substances . . . .” See id. art. 42.12, § 11(a)(2), (14) (Vernon Supp. 2008). Lovill was also

ordered to participate in a substance abuse program, report weekly to her probation officer,


        1
       The indictm ent was entered as trial court cause num ber 01-CR-3725-A, in the 28th District Court of
Nueces County, Texas.
                                                    2
and to “satisfactorily participate in a screening/assessment for substance abuse and

submit to any counseling, urinalysis, and/or diversionary program as determine [sic] within

the [Community Supervision and Corrections Department (“CSCD”)] TREATMENT

ALTERNATIVE TO INCARCERATION PROGRAM . . . .” See id. art. 42.12, § 13(f)

(Vernon Supp.2008).

B.      First Motion to Revoke

        On September 16, 2005, the State filed a motion to revoke Lovill’s probation. CSCD

filed with an “Adult Probation Violation Report” with the district attorney’s office. The

reports alleges several violations of Lovill’s probation: (1) On April 15, 2005 and May 19,

2005, Lovill’s urinalysis tested positive for amphetamine; (2) Lovill did not report to her

CSCD officer weekly during months of May, June, July, and August 2005; (3) Lovill failed

to pay costs, fines, restitution, and fees; and (4) Lovill failed to participate in a screening

or assessment for substance abuse because on May 31, 2005, she was discharged from

Coastal Bend Outpatient Services due to non-attendance.

        On February 2, 2006, Lovill entered another plea bargain with the State and pleaded

true to several of the counts in the motion to revoke. The trial court found that Lovill

violated her probation on the counts she admitted, and on February 13, 2006, the trial court

issued an “Order Imposing Sanctions on Defendant And Continuing or Modifying

Probation.” This order required Lovill to serve a term of confinement and treatment in the

Nueces County Substance Abuse Treatment Facility (“SATF”) for an indeterminate term

of six to twelve months, and after release, to participate in drug or alcohol abuse continuum

of care treatment plan. Lovill then went to SATF and remained there until February 8,

2007.


                                              3
C.     Second Motion to Revoke

       On July 17, 2007, the State filed a second motion to revoke Lovill’s probation. The

motion alleged that Lovill:      (1) submitted a urine sample that was positive for

amphetamines on July 10, 2007; (2) failed to report for an office visit in June 2007; (3)

failed to attend her SATF after-care classes; and (4) failed to pay fines, restitution, costs,

and fees. On August 6 and 7, 2007, at a hearing on the motion to revoke, Lovill admitted

the violations alleged, and the court accepted her pleas of true.

       The State called Sandra Garza to testify. Garza is a CSCD officer for Nueces

County who was assigned to supervise Lovill a “couple of weeks” prior to the hearing.

Garza recommended to the court that Lovill be sanctioned to the Substance Abuse Felony

Punishment Facility (“SAFPF”) special needs unit. When asked why, Garza answered,

“Ms. Lovill has relapsed. She has continued using drugs. On her last [urinalysis], she was

positive. She is positive almost three times. The cutoff is a thousand, and she scored at

3,695 for amphetamine.” The following exchange then occurred between Garza and the

prosecutor:

       Q:     You say special needs. Special needs unit of S.A.F.P.F. Why special
              needs?

       A:     Ms. Lovill is pregnant.

       Q:     She is currently pregnant?

       A:     Yes.

       On cross-examination, Lovill’s counsel explored the reason that CSCD sought to

revoke Lovill’s probation:

       Q:     Ms. Garza, if Ms. Lovill wasn’t pregnant, would the probation, as a
              probation, would you have considered revoking her at all?


                                              4
      A:     We would need to have staffed her had she not been pregnant, but
             her being pregnant was a very high concern of ours.

      Q:     So basically it wasn’t so much her doing drugs, it was the fact that
             since she was pregnant that you filed this motion to revoke, is that
             correct?

      A:     On some cases we have worked with individuals who have submitted
             positive UAs.

      Q:     How come you weren’t willing to work with Ms. Lovill?

      A:     She’s pregnant. . . .

      Q:     So basically, if she had been given the opportunity to make up those
             [after-care] classes, there wouldn’t have been a violation?

      A:     No. The main—I think what drove this violation report was the
             positive [urinalysis] and her being pregnant.

      The State then rested, and Lovill took the stand. She testified that she would like

to go to CASA, which is an outpatient drug treatment facility. She requested that the court

continue her on probation with a sanction of CASA or additional jail time added to the

probated sentence. She claimed that she wanted to go to outpatient treatment so she

could keep the baby with her. Her attorney then argued:

      It is obvious the probation would have worked with her, but for the fact that
      she was pregnant and they decide to revoke her and then send her off to
      SAFP without even giving Ms. Lovill an opportunity to maybe work with
      probation even though she is pregnant. She is willing to go to CASA or
      some other treatment facility that is local; so she can have her baby and not
      have to go to prison, Your Honor. She had like a year left or so on her
      probation, so she would like to try and finish out her probation and put this
      case behind her. She understands that that was poor judgment in her case
      with the testing positive for amphetamines. In the alternative, if the Court
      sees fit to revoke her, she would like to do one year and not have to go to
      SAFP at all.

      Counsel for the State argued that Lovill had a serious drug problem. Specifically,

the State argued that:


                                            5
        not only is her problem with drugs continuing to be a danger to her, now it is
        a danger to her unborn child. She needs proper drug treatment in a secure
        environment and S.A.F.P.F. is a program that will provide that for her. . . .
        And also to give her time to address her drug problem and ensure that she
        is not going to be using drugs during the term of her pregnancy.

Lovill’s counsel then argued that the State “would not even have revoked her, even with

the positive UA, but for the fact that she was pregnant; they would have continued to work

with her.” Lovill’s counsel asked that the probation department continue to work with her

and “give her a chance,” reiterating that “the probation would have worked with her, but for

the fact that she is pregnant, they would have kept her on probation.”2

        The trial court disagreed with Lovill’s counsel that the State sought to revoke her

probation because she was pregnant: “Well, I think the fact that she tested positive is the

reason we are all here, right, not for the fact that she is pregnant.” On August 13, 2007,

the trial court issued an “Order Imposing Sanctions on Defendant and Continuing or

Modifying Probation.” The court extended Lovill’s probation by one year so that it now

expires on January 10, 2009. The court further ordered Lovill to serve an indeterminate

term of three to twelve months confinement and treatment in SAFPF.

C.      Lovill’s Motion for New Trial

        On August 30, 2007, Lovill filed a motion for new trial, which she amended on

September 5, 2007. Lovill asserted that the motion to revoke probation should have been

dismissed because she was selectively prosecuted based on her gender and in violation

of her right to privacy. She argued that the prosecution of the motion to revoke violated

her rights under the Due Process and Equal Protection Clauses of the Fourteenth

Amendment of the United States Constitution; the Equal Rights Amendment of article I


        2
          In the reporter’s record, this statem ent is incorrectly attributed to the prosecutor. Both parties agree
that the statem ent was m ade by Lovill’s counsel, not the State.
                                                        6
section 3a of the Texas Constitution; and the Due Process Clause of article I section 19

of the Texas Constitution. See U.S. CONST . amend. XIV; TEX . CONST . art. I, §§ 3a, 19.

         On October 4, 2007, the trial court held a hearing on the motion for new trial. First,

Lovill called Sandra Garza back to the stand. Garza testified that when a violation of

probation occurs, the Nueces County CSCD determines whether to proceed with a

probation review or to file a “violation report” with the district attorney’s office. Garza

testified that in a probation review, CSCD schedules an appointment with the judge

overseeing the case to discuss the problems with a judge. In contrast, if CSCD sends a

“violation report” to the district attorney’s office, “it turns into a motion to revoke.” Garza

testified that the district attorney’s office typically relies on CSCD to report probation

violations—it does not conduct its own investigation.

         Garza stated that CSCD has discretion to send, or not to send, a violation report to

the district attorney’s office: “It is usually on a case-by-case basis. If a problem arises, we

staff the case with our supervisor. At that time, we determine whether to proceed with a

probation review or a violation report.” Garza admitted that the department has discretion

to refuse to send a violation report to the district attorney’s office even if the person on

probation fails a urinalysis. She testified that CSCD considers “how the person is currently

doing at the time that the problem is occurring; whether it is a positive [urinalysis] or failure

to report. We take into consideration how they have done in the past, any extenuating

circumstances like a pregnancy, stuff like that; whether there are any new arrests, stuff like

that.”

         Garza then discussed Lovill’s pregnancy:

         Q:     Why was her being pregnant a high concern?

         A:     Because of the positive urinalysis that she provided on July 10th. It
                                              7
              was three times over the—it was close to three times over the cutoff
              limit.

       Q:     In light of her pregnancy, what made the high urinalysis result a
              concern to you?

       A:     Well, we were concerned for the baby. We were concerned that she
              would continue using.

When questioned further about the reasons for seeking to revoke Lovill’s probation, Garza

testified as follows:

       Q:     And what was said during that discussion about reasons for
              terminating or requesting revocation of probation?

       A:     [Garza’s supervisors] took into consideration the levels on your
              positive urinalysis. It was more than three times the cutoff and that
              she was pregnant.

       Q:     Would that, according to what [the supervisors] said to you, would that
              violation report have been sent to the DA’s office if she were not
              pregnant?

       A:     I don’t know. We would have to take into consideration how she was
              doing. If she wasn’t pregnant, it is probable that a review would have
              been scheduled, I’m not certain.

       Q:     From your review of the case file on August 6th, do you belive [sic]
              that her pregnancy was a factor that caused a motion to revoke to be
              filed?

       A:     Yes.

       Q:     Do you belive [sic], based on the review that you did in preparation for
              the August 6th hearing, that a motion to revoke would have been filed
              if she had not been pregnant?

       A:     I can’t—I don’t know whether a violation report would have been filed;
              in all likelihood maybe we would have proceeded with a review.

       J.D. Vargas, a probation officer at Nueces County CSCD, also testified. He was

assigned to Lovill’s case from May 29, 2007 until the violation report was filed. He testified

that he worked on the case with his supervisor, Tom Lavers. Vargas testified that when

                                              8
he met with Lovill, she told him she was pregnant and was very upset. Vargas claimed that

Lovill was so upset that he could not calm her down himself, so he recruited Garza to work

on the case. He claimed that he was concerned that she was emotionally unstable.

       Vargas admitted that Lovill’s pregnancy was a factor that entered into the decision

to revoke Lovill’s probation:

       Q:     Was pregnancy a factor that entered into the termination here?

       A:     First and foremost the concern was her use of methamphetamine. It
              was a very high level. Secondly, yes, there is a concern, coupled with
              that, there is a concern for the overall health of herself, as well as the
              unborn child.

       Q:     What options did you have at your disposal, other than sending a
              violation report to the DA’s office?

       A:     I didn’t feel I had any other options.

       Q:     Why?

       A:     Because of her overall well being, as well as the health and well being
              of her unborn child.

       Q:     If she were not pregnant, what options would you have had?

       A:     If she was not pregnant, there is the possibility that we would have
              allowed the warrant to either go through the normal channels. There
              is a possibility that we may have conducted a review before the Court
              to discuss where to go from there.

              ....

       Q:     When somebody has a positive urinalysis for methamphetamine, is
              that something that automatically results in a violation report going to
              the D.A.’s office?

       A:     Every case differs from case to case. Methamphetamine, from what
              I understand, is a very powerful drug. It is a strong addiction. There
              is definitely a need to get assistance for that person immediately. The
              cases vary from case to case. So I can’t speak—you know, I can’t
              specifically state that everything is going to be the same with what we
              would do. We may have a person report, in my case, the following
              week to see how that [urinalysis] comes out, see if the levels are
                                               9
                    coming down. If not, then it is very apparent that this person is not
                    going to stop using, so we definitely have to file a violation report.

         Defense counsel questioned Vargas about a document created by CSCD entitled,

“Chronological Record of Contacts for Lovill, Amber.” On July 17, 2007, there is an entry

that reads: “Phoned and spoke to Lieutenant Ashley at Warrants and asked to see if he

may be able to have an officer attempt to have defendant arrested since she is consuming

methamphetamines and is 5 months pregnant. J.D. Vargas.” Vargas admitted that he

wrote the entry. Defense counsel asked Vargas if he would have called Lieutenant Ashley

had Lovill not been pregnant. Vargas stated, “In all likely, no.”

         The trial court denied Lovill’s motion for new trial on October 4, 2007. On October

11, 2007, Lovill filed a motion to amend the conditions of Lovill’s probation. The trial court

denied this motion on October 12, 2007. Lovill then appealed the order revoking her

probation and imposing sanctions for violating the terms of her probation. That appeal has

been docketed as appellate cause number 13-07-529-CR.

D.       Lovill’s Petition for Habeas Corpus

         Lovill then filed a petition for writ of habeas corpus with the trial court seeking relief

from the trial court’s order increasing the term of probation and sentencing Lovill to a term

of confinement in SAFPF.3 Lovill asked the court to take judicial notice of the prior

hearings, and she argued that she was selectively prosecuted. On October 18, 2007,

without holding a hearing, the trial court denied the petition. The trial court made a single

finding of fact: “The prosecution of the motion to revoke probation that was filed on or

about July 17, 2007, in Cause No. 01-CR-3725-A did not occur because of Amber Lovill’s



         3
             This petition was filed as trial court cause no. 07-5690-A in the 28th District Court of Nueces County,
Texas.
                                                         10
pregnancy.” The trial court also made a single conclusion of law: “Amber Lovill’s selective

prosecution defense required proof that the prosecution of the motion to revoke probation

occurred because of her pregnancy.” Lovill appealed the denial of her petition for writ of

habeas corpus, which has been docketed as appellate cause number 13-07-668-CR. We

have consolidated the two appeals and decide them both herein.

                                II. APPELLATE JURISDICTION

       The State urges the Court to dismiss Lovill’s appeal from the order modifying the

conditions of her community supervision. The State argues that there is no legislative

authority for entertaining a direct appeal from an order modifying the conditions of

community supervision. See Davis v. State, 195 S.W.3d 708, 710 (Tex. Crim. App. 2006);

Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1997); see also Hernandez v. State,

No. 13-07-263-CR, 2007 WL 1775809, at *1 (Tex. App.–Corpus Christi June 21, 2007, no

pet.) (mem. op., not designated for publication). Lovill recognizes that ordinarily, an order

modifying conditions of probation is not a separately appealable order. However, Lovill

states that she filed the appeal out of an abundance of caution because habeas corpus

relief under Texas Code of Criminal Procedure article 11.072 is available only in the

absence of a direct remedy by appeal. See TEX . CODE CRIM . PROC . ANN . art. 11.072, § 3(a)

(Vernon 2005). We agree that we lack jurisdiction over Lovill’s direct appeal from the order

modifying the conditions of her community supervision. See Davis, 195 S.W.3d at 710;

Basaldua, 558 S.W.2d at 5. Accordingly, we dismiss appellate cause number 13-07-529-

CR for lack of jurisdiction. We will address Lovill’s arguments in the context of her request

for habeas corpus relief.    See Basaldua, 558 S.W.2d at 5 (“We conclude that the

imposition of conditions of probation that contain unconstitutional infringements of freedom

of action constitutes a ‘restraint’ within the scope of habeas corpus relief.”).
                                               11
                                III. WAIVER OF COMPLAINTS

       Before we reach the merits, we must address two waiver arguments raised by the

State. First, the State argues that by pleading true to the allegations in the motion to

revoke, Lovill waived her selective prosecution claim. Second, the State argues that Lovill

waived her selective prosecution claim by failing to timely object at the August 6, 2007

hearing on the State’s motion to revoke. We disagree with both arguments.

A.     No Waiver by Plea of True

       The State argues that a plea of “true” to a motion to revoke probation waives any

non-jurisdictional defects that occurred before the plea was entered, when “the judgment

of guilt was rendered independent of, and is not supported by, the error.” See Young v.

State, 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000); Jordan v. State, 112 S.W.3d 345,

347 (Tex. App.–Corpus Christi 2003, pet. ref’d). The State argues that we must analyze

whether the error has a “direct nexus” with Lovill’s guilt or innocence and base our finding

of waiver solely on the outcome of this analysis. The State reasons that because selective

prosecution is not a defense to the merits of the charged conduct, Lovill’s claim of selective

prosecution has no connection to her guilt. Thus, according to the State, the order

modifying Lovill’s probation was rendered independently of any error by the State in

selectively prosecuting Lovill, and her plea of true waives any error.

       The State misunderstands the meaning of Young and its application in the present

context. In Young, the defendant pleaded guilty after the trial court denied a motion to

suppress evidence. 8 S.W.3d at 657. The court of appeals applied the Helms rule and

held that the defendant waived her right to complain of the trial court’s ruling by pleading

guilty. Id. At the time, the Helms rule applied as follows: “Where a plea of guilty is

voluntarily and understandingly made, all non-jurisdictional defects including claimed
                                         12
deprivation of federal due process are waived.” Id. at 660 (citing Helms v. State, 484

S.W.2d 925, 926 (Tex. Crim. App. 1972)).

       The court of criminal appeals reviewed the history of the Helms rule, and it

determined that over time, the rule had been distorted from its original justifications. Id. at

657, 666. The court explained that the original basis for the Helms rule was that a

defendant’s guilty plea is conclusive as to a defendant’s guilt. Id. at 660-61. As the court

explained, given this rationale for the rule, “the rule would not justify forfeiture of claims of

error that do not go to the question of guilt, such as denials of motions to dismiss because

the penal statute was invalid or the period of limitation had expired.” Id.

       After reviewing the rule’s history, the court concluded that in order to remain true to

the rule’s original justification, a plea of guilty should only waive errors that are independent

of the guilty plea—“[w]hether entered with or without an agreed recommendation of

punishment by the State, a valid plea of guilty or nolo contendere ‘waives’ or forfeits the

right to appeal a claim of error only when the judgment of guilt was rendered independent

of, and is not supported by, the error.” Id. at 666-67.

        As in Young, the suppression of evidence can relate directly to the defendant’s

guilt, and a guilty plea may not be independent of a trial court’s ruling on the motion to

suppress depending on the type of evidence and the crime alleged. See id. at 667 (“In this

case the judgment of guilt is not independent of the trial court's ruling on the motion to

suppress the evidence of the offense, and the judgment would not be supported without

that evidence.”); Jordan, 112 S.W.3d at 347. Thus, in suppression cases, the court must

determine if the evidence suppressed would have been required to establish the

defendant’s guilt. See Kennedy v. State, 262 S.W.3d 454, 457-59 (Tex. App.–Austin 2008,

no pet. h.). In other words, if a direct nexus exists between the evidence and the
                                          13
defendant’s guilt, a guilty plea will not waive error in failing to suppress the evidence. See

id. at 458. If the evidence to be suppressed would not be required to establish the

defendant’s guilt, then it can be said that the error in refusing to suppress the evidence is

independent of a the defendant’s subsequent guilty plea. See id.

       However, contrary to the State’s argument, the fact that a selective prosecution

claim does not involve the defendant’s guilt or innocence does not end the inquiry and

require a finding of waiver in the State’s favor. A selective prosecution claim is more akin

to a denial of a motion to dismiss because the penal statue is invalid or the period of

limitation had expired, which as the court of criminal appeals recognized, would not be

waived by a guilty plea even though the claimed error does not go to the question of guilt.

Young, 8 S.W.3d at 660. Thus, we must focus on the actual inquiry required by Young,

which is whether the judgment was rendered independent of the claimed error. Id. at 667;

see Jordan, 112 S.W.3d at 347.

       The State has not cited any Texas case that has refused to consider a selective

prosecution claim because of a guilty plea or a plea of “true” in a revocation proceeding.

There are none. However, logic requires the conclusion that Lovill’s plea of true was not

independent of the State’s alleged selective prosecution. Obviously, there would have

been no reason for Lovill to plead “true” if the motion to revoke had never been filed. And

according to Lovill, if it were not for the CSCD’s selective prosecution of her based on her

pregnancy, no motion to revoke would have been filed. Thus, her plea of “true” was not

independent of the alleged selective prosecution, and the plea of “true” did not waive the

error. Cf. Jordan, 112 S.W.3d at 347 (finding error waived because there was no evidence

that defendant would not have pleaded guilty absent counsel’s deficient performance).


                                             14
B.     Timeliness of objection

       Second, the State argues that Lovill did not timely present her selective prosecution

claim because she did not object during the August 6, 2007 revocation hearing. We

disagree.

       At the August 6 hearing, Lovill’s counsel repeatedly told the court that the State was

prosecuting Lovill because she was pregnant and asked that Lovill be treated the same as

a non-pregnant offender. The State responded to this argument. The court understood

the argument and stated on the record its disagreement: “Well, I think the fact that she

tested positive is the reason we are all here, right, not for the fact that she is pregnant.”

Because everyone at the hearing understood the substance of Lovill’s complaint, including

the trial court, we conclude that the issue was preserved. Winkfield v. State, 792 S.W.2d

727, 731 n.1 (Tex. App.–Corpus Christi 1990, pet. ref’d) (“To the extent that an appellate

record adequately shows that the trial judge and opposing counsel were aware of the

substance of a defendant's objection, thereby meeting the purpose of an objection, an

objection preserves the complaint for appellate review.”).

       Moreover, a selective prosecution claim can be raised at various times during a

criminal proceeding. For example, it may be raised in a motion to quash the indictment.

See Covalt v. State, 877 S.W.2d 445, 446 (Tex. App.–Houston [1st Dist.] 1994, no pet.).

It can also be raised in a motion for new trial. Satterwhite v. State, 726 S.W.2d 81, 84

(Tex. Crim. App.1986) (reviewing selective prosecution claim raised in motion for new trial),

rev'd on other grounds, 486 U.S. 249 (1988); see also Galvan v. State, 988 S.W.2d 291,

295 (Tex. App.–Texarkana 1999, pet. ref’d).

       After the trial court sanctioned Lovill to SAFPF, Lovill moved for a new trial, alleging

selective prosecution. The trial court held a hearing, and the issue was extensively
                                          15
litigated. Moreover, Lovill moved to modify the conditions of her probation and then filed

her petition for writ of habeas corpus, making the same arguments. See TEX . CODE CRIM .

PROC . ANN . art. 11.072, § 3(b). Lovill took every opportunity to make her complaints known

to the trial court, and the court clearly understood and ruled on the issue. Lovill’s issue is

preserved for our review. Satterwhite, 726 S.W.2d at 84; see also Galvan, 988 S.W.2d at

295.

       As a corollary, and without citing any authority, the State argues that Lovill waived

her complaints because she asked to be sanctioned by being placed in the CASA program

or by additional jail time. The State reasons that “at best, Lovill simply failed to object, and,

at worst, she affirmatively asked to be sanctioned and her conditions to be modified,

though she was not ultimately sanctioned in the exact manner she desired.” We disagree

that Lovill’s request to be sent to an outpatient treatment facility or to add time to the

probated sentence affirmatively waived her right to assert a claim of selective prosecution.

“A waiver is ordinarily an intentional relinquishment or abandonment of a known right or

privilege.” Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (quoting Johnson

v. Zerbst, 304 U.S. 458, 464 (1938)). When constitutional rights are at stake, we must

indulge every reasonable presumption against a waiver of those rights. Stringer v. State,

241 S.W.3d 52, 56 (Tex. Crim. App. 2007). Because her goal was to keep her baby after

its birth, Lovill requested these options as an alternative to the State’s proposal to send her

to a lockdown facility because her goal was to remain with her baby after its birth. Her

requests were not inconsistent with her request to dismiss the prosecution, which would

have also achieved the same goal of keeping Lovill with her baby after birth. Accordingly,

Lovill did not affirmatively waive her selective prosecution claim.


                                               16
                                   IV. EQUAL PROTECTION

       Lovill argues that the State selectively prosecuted her based on her gender in

violation of the Equal Protection Clause of the United States Constitution and the Equal

Rights Amendment to the Texas Constitution (“ERA”). See U.S. CONST . amend. V, XIV;

TEX . CONST . art. I, § 3a (“Equality under the law shall not be denied or abridged because

of sex, race, color, creed, or national origin. This amendment is self-operative.”). The State

disputes nearly every facet of Lovill’s claims. First, the State argues that Lovill failed to

demonstrate that the violation report was filed and that the conditions of Lovill’s probation

were modified because of her pregnancy. Second, the State argues that even if pregnancy

was a factor, it did not amount to gender-based discrimination.             Finally, even if it

discriminated based on gender, the State argues that such discrimination was justified.

The parties agree that Lovill’s federal constitutional claim is subject to intermediate

scrutiny, which requires that the State demonstrate that the discriminatory classification is

substantially related to an important governmental interest. Casarez v. State, 913 S.W.2d

468, 473 (Tex. Crim. App. 1994). However, the parties dispute the type of review that

applies to gender-based distinctions under the Texas Equal Rights Amendment (“ERA”).

TEX . CONST . art. I, § 3a.

A.     Standard of Review in Habeas Corpus Appeals

       In this case, the trial court ruled on the merits of Lovill’s petition for writ of habeas

corpus. See TEX . CODE CRIM . PROC . art. 11.072, § 7(a). We review the trial court’s

decision to grant or deny habeas relief for abuse of discretion. Ex parte Wilson, 171

S.W.3d 925, 928 (Tex. App.–Dallas 2005, no pet.). “[W]e view the facts in the light most

favorable to the trial court’s ruling.” Id. (citing Ex parte Peterson, 117 S.W.3d 804, 819

(Tex. Crim. App. 2003) (per curiam), overruled in part on other grounds, Ex parte Lewis,
                                          17
219 S.W.3d 335, 371 (Tex. Crim. App. 2007)). We must afford almost total deference to

the judge’s determination of the historical facts that are supported by the record,

particularly if the fact findings are based on an evaluation of credibility and demeanor. Id.

If the resolution of the ultimate questions of law turns on an evaluation of credibility and

demeanor, we will likewise defer to the trial court’s resolution of the legal issue. Id. “If the

resolution of the ultimate questions turns on an application of legal standards, we review

the determination de novo.” Id.

B.     Selective Prosecution Generally

       Prosecutors enjoy significant discretion in their prosecutorial decisions. United

States v. Armstrong, 517 U.S. 456, 464 (1996); Neal v. State, 150 S.W.3d 169, 173 (Tex.

Crim. App. 2004); County v. State, 812 S.W.2d 303, 308 (Tex. Crim. App. 1989); Carreras

v. State, 936 S.W.2d 727, 730 (Tex. App.–Houston [14th Dist.] 1996, pet. ref’d). Generally,

“‘[i]f the prosecutor has probable cause to believe that the accused committed an offense

defined by statute, the decision whether to prosecute and what charge to file generally

rests entirely within his or her discretion.’” Neal, 150 S.W.3d at 173 (quoting State v.

Malone Serv. Co., 829 S.W.2d 763, 769 (Tex.1992)); see Armstrong, 517 U.S. at 464.

Because of this discretion, there is a presumption that a prosecutor has acted within his

or her duties and in good faith. Armstrong, 517 U.S. at 464; Roise v. State, 7 S.W.3d 225,

243 (Tex. App.–Austin 1999, pet. ref’d).

       Prosecutorial discretion, however, is not absolute—prosecutors are constrained by

the constitution. Armstrong, 517 U.S. at 464; County, 812 S.W.3d at 308; Roise, 7 S.W.3d

at 243. For example, the Equal Protection Clause prohibits prosecutorial decisions based

on “an unjustifiable standard such as race, religion, or other arbitrary classification.”

Armstrong, 517 U.S. at 464 (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)); Green v.
                                          18
State, 934 S.W.2d 92, 103 (Tex. Crim. App. 1996). To overcome the presumption of

regularity that attaches to prosecutorial decisions, a criminal defendant must make an

“exceptionally clear” showing of an Equal Protection violation. Armstrong, 517 U.S. at 464;

Green, 934 S.W.2d at 103.

         Ordinary standards for equal protection claims apply in the context of selective

prosecution.4 Armstrong, 517 U.S. at 465; Carreras, 936 S.W.2d at 730. The defendant

must show that the prosecutorial policy had a discriminatory effect and that it was

motivated by a discriminatory purpose. Armstrong, 517 U.S. at 465; Carreras, 936 S.W.2d

at 730. First, to show discriminatory effect, the defendant must demonstrate that although

others that are not part of the protected class have not been prosecuted for the same

conduct, he or she was singled out for prosecution. See Armstrong, 517 U.S. at 465 (“To

establish a discriminatory effect in a race case, the claimant must show that similarly

situated individuals of a different race were not prosecuted.”); Carreras, 936 S.W.2d at

730. Second, to demonstrate that the prosecution was motivated by a discriminatory

purpose, the defendant must show that the government’s selection of the defendant for

prosecution was based on an impermissible consideration, such as race, religion, or the

desire to prevent the exercise of constitutional rights. Wayte v. United States, 470 U.S.

598, 610 (1985). Once the defendant makes a clear showing of an Equal Protection

violation, the burden shifts to the State to justify the discriminatory treatment. See Johnson



        4
          The State argues that Lovill’s claim is really one for “selective enforcem ent,” rather than for “selective
prosecution,” because Lovill was prosecuted and found guilty long before the present revocation proceeding.
It argues that a com m unity supervision revocation proceeding is neither a crim inal nor a civil trial, but rather,
an adm inistrative proceeding, citing Cobb v. State, 851 S.W .2d 871, 873 (Tex. Crim . App. 1993). However,
the State does not assert that the standards applicable to a “selective enforcem ent” claim are any different
than those applicable to a “selective prosecution” claim , and the State relies on selective prosecution cases
throughout its brief. W e see no difference between the two, and we will analyze Lovill’s argum ents under the
case law applicable to selective prosecution claim s.
                                                        19
v. California, 543 U.S. 499, 505 (2005) (holding that the State had burden to show that

race-based classifications satisfied strict scrutiny analysis).

C.     Discriminatory Effect and Purpose

       Lovill contends that the trial court erred by finding that the prosecution of the motion

to revoke “did not occur because of Amber Lovill’s pregnancy.” Lovill argues that the

probation officers’ testimony established that CSCD initiates the prosecution of pregnant

women for probation violations in situations where the CSCD would not make the same

recommendation if the defendant were male or a nonpregnant female. Lovill also asserts

that the CSCD officers admitted that her pregnancy was a motivating factor in the decision

to prosecute her.

       The State argues that Lovill was prosecuted because she violated the terms of her

probation and because she appeared emotionally unstable when she reported to her

probation officers, not because she was pregnant. In other words, the State argues that

Lovill’s claim must fail because she was guilty of violating her probation. However, the

guilt or innocence of the defendant is irrelevant to the claim of selective prosecution.

Armstrong, 517 U.S. at 463; Galvan, 988 S.W.2d at 295. Thus, the fact that the State

could have prosecuted Lovill for violating her probation does not matter—the relevant

inquiry is whether the State would have prosecuted her absent the impermissible

consideration of her pregnancy.

       The trial court’s sole conclusion of law was that Lovill’s selective prosecution claim

required proof that she was prosecuted “because of” her pregnancy. It found as a matter

of fact that Lovill was not prosecuted “because of” her pregnancy. It appears that the trial

court failed to recognize that in a selective prosecution claim, the discriminatory purpose

need not be the only purpose for the prosecution. Rather, the discriminatory purpose must
                                           20
merely be a “motivating factor” for the decision to prosecute. See Wayte, 470 U.S. at 610

(“‘[D]iscriminatory purpose’ . . . implies that the decisionmaker . . . selected or reaffirmed

a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse

effects upon an identifiable group.”); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. 252, 265-66 (1977);5 Marshall v. Columbia Lea Reg’l Hosp., 345 F.3d 1157, 1168

(10th Cir. 2003); United States v. Alameh, 341 F.3d 167, 173 (2d Cir. 2003).

        The State argues that the CSCD officers’ testimony at the hearing was purely

speculative and merely showed a possibility that the department would not have filed a

violation report if Lovill had not been pregnant. As Lovill points out, we must defer to the

trial court’s findings of historical facts when they are supported by the record and when

they depend on determinations of credibility and demeanor. Ex parte Wilson, 171 S.W.3d

at 928. However, if the trial court’s fact finding is not supported by the record, we may

make contrary findings. See Ex parte Peterson, 117 S.W.3d at 819 n. 67; Ex parte Adams,

768 S.W.2d 281, 288 (Tex. Crim. App. 1989).

        The only evidence came from the State’s witnesses, who admitted that they were

not “willing to work with” Lovill to try alternative measures because of her pregnancy.

Garza explained that CSCD has discretion whether to file a violation report with the district

attorney’s office. As she stated, once CSCD makes that decision and sends the report,


        5
            As the Suprem e Court recognized,

        [r]arely can it be said that a legislature or adm inistrative body operating under a broad
        m andate m ade a decision m otivated solely by a single concern, or even that a particular
        purpose was the “dom inant” or “prim ary” one. In fact, it is because legislators and
        adm inistrators are properly concerned with balancing num erous com peting considerations
        that courts refrain from reviewing the m erits of their decisions, absent a showing of
        arbitrariness or irrationality. But racial discrim ination is not just another com peting
        consideration. W hen there is a proof that a discrim inatory purpose has been a m otivating
        factor in the decision, this judicial deference is no longer justified.

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977).
                                                    21
it “turns into a motion to revoke.”              The district attorney’s office relies on CSCD’s

determination and does not typically conduct its own investigation. She explained that

there are alternatives to filing a violation report, such as proceeding with a probation review

before a judge.

        Garza testified that a violation report is not automatic when a person tests positive

for drugs—she admitted that the department has discretion to refuse to send a violation

report to the district attorney’s office even if the probationer fails a urinalysis. She testified

that the department considers the probationer’s past and extenuating circumstances, such

as pregnancy.

        Garza testified that on some cases, CSCD has worked with individuals who tested

positive for drugs. But CSCD was not willing to work with Lovill because she was pregnant.

Garza testified that “what drove this violation report was the positive [urinalysis] and her

being pregnant.” Garza explained that her supervisors made the decision to revoke Lovill’s

probation, and that the supervisors “took into consideration the levels on your positive

urinalysis. It was more than three times the cutoff and that she was pregnant.”6 From her

review of the case file, she testified that pregnancy was a factor that caused the motion to

revoke to be filed.

        Garza stated that had Lovill not been pregnant, a probation review may have been

scheduled instead of a violation report being filed. Vargas admitted that absent the

pregnancy, he “might have attempted a review and scheduled weekly visits to see how she

is doing” and “more random [urinalysis] to see if the levels are coming down to see if she



        6
          The State argues that this testim ony is speculative because the defense never called Lavers,
Garza’s and Vargas’s supervisor, to testify. The State does not cite any legal authority to support its argum ent
that Lavers’s testim ony was required. Moreover, the State did not object to Garza’s testim ony at the hearing
as speculative, as not based on her own personal knowledge, or as hearsay.
                                                      22
can do it on her own.” Vargas admitted that the pregnancy “eliminated any doubt” about

the decision he had to make. Contrary to the State’s arguments, there is nothing

speculative about any of this testimony.

       Although a trial court has discretion to disregard uncontradicted testimony that it

finds incredible and unworthy of belief, see Ex parte Patterson, 117 S.W.3d at 819 n.68,

we believe that to reach the finding it did, the trial court must have disregarded all of the

evidence presented. In this case, the trial court was not free to disregard the overwhelming

evidence presented at the hearing showing a discriminatory effect and purpose, which

allowed only a single conclusion. We hold that the fact finding is not supported by the

record. See id.; Ex parte Adams, 768 S.W.2d at 288. The evidence shows (1) that Lovill

was treated differently than others who violated the terms of their probation but were not

pregnant, and (2) that her pregnancy was a motivating factor in the decision to prosecute.

Additionally, the trial court’s conclusion that Lovill was required to show that she was

prosecuted “because of” her pregnancy ignores the actual test for an Equal Protection

claim—all that is required is that the impermissible consideration be a motivating factor.

See Wayte, 470 U.S. at 610; Vill. of Arlington Heights, 429 U.S. at 265-66; Marshall, 345

F.3d at 1168; Alameh, 341 F.3d at 173. The evidence clearly establishes that it was.

       Nevertheless, the State argues that the evidence showed that even if Lovill had not

been pregnant, the State probably would have filed a probation review and taken her

before a judge, which could have produced the same result. We disagree that this is a

proper consideration. Courts cannot speculate whether the same outcome would have

occurred absent the selective prosecution. See Vasquez v. Hillary, 474 U.S. 254, 264

(1986). As the Supreme Court said in Vasquez,


                                             23
       [j]ust as a conviction is void under the Equal Protection Clause if the
       prosecutor deliberately charged the defendant on account of his race, a
       conviction cannot be understood to cure the taint attributable to a charging
       body selected on the basis of race. Once having found discrimination in the
       selection of a grand jury, we simply cannot know that the need to indict
       would have been assessed in the same way by a grand jury properly
       constituted.

Id.

       Finally, the State argues that even if pregnancy was a factor in the decision to

prosecute, it did not discriminate against Lovill based on her gender. It argues that

pregnancy causes added stress, anxiety, and physical sickness to the expectant mother,

which makes it difficult to comply with conditions of probation and to maintain the willpower

necessary to overcome a drug addiction. The State argues that Lovill asks the State to do

the impossible—to disregard the biological and psychological symptoms of pregnancy even

though those symptoms may effect her rehabilitation. The State cites no authority for its

argument, which we believe is based on archaic and outdated views of pregnancy and of

women. Even if the State acts with the intent of protecting a pregnant woman’s health, it

still may overstep the boundaries of the constitution when its actions result in discriminatory

treatment based on pregnancy. See, e.g., Cleveland Bd. of Educ. v. LaFleur, 414 U.S.

632, 641-48 (1974) (holding that a maternity leave policy was unconstitutional even though

designed to protect pregnant woman’s health). Accordingly, we sustain Lovill’s first issue.

C.     Justification

       Lovill and the State both concede that under the United States Constitution, gender-

based discrimination claims are evaluated under an intermediate scrutiny analysis. See

Clark v. Jeter, 486 U.S. 456, 461 (1988). Lovill argues, however, that the ERA elevated

gender to the same level of protection as race, color, creed, or national origin; therefore,

according to Lovill, we must apply a strict scrutiny analysis to her state constitutional claim,
                                              24
rather than an intermediate scrutiny analysis. The State argues that the less restrictive

“rational basis” test applies to gender-based claims.

       Our analysis of these arguments is hindered by the fact that the trial court never

reached this issue. The trial court, in a habeas corpus proceeding, may review the

applicant’s petition without requesting a response from the State. TEX . CODE CRIM . PROC .

art. 11.072, § 5(b). If the State does not file an answer, all allegations in the application

are deemed denied. Id. art. 11.072, § 5(e). As is apparent from its finding of fact and

conclusion of law, the trial court determined that Lovill did not meet her burden to establish

an Equal Protection violation. Had the trial court correctly determined that Lovill met her

burden, the burden would have then shifted to the State to justify its conduct under the

appropriate level of scrutiny. See Johnson, 543 U.S. at 505.

       The record on this issue is wholly undeveloped and requires a hearing by the trial

court. We are not in the position to decide these issues in the first instance. Accordingly,

we reverse the trial court’s denial of Lovill’s petition for writ of habeas corpus and remand

to the trial court. See Ex parte Cherry, 232 S.W.3d 305, 308 (Tex. App.–Beaumont 2007,

pet. ref’d) (reversing and remanding denial of petition for writ of habeas corpus so that

appropriate record could be developed); see also Ex parte Headrick, Nos. WR-65676-01,

WR-65676-02, 2006 WL 2848147, at *1 (Tex. Crim. App. 2006) (order) (holding that an

appellate court is not equipped to make factual findings on review of denial of petition for

writ of habeas corpus). On remand, the trial court should require the State to respond to

Lovill’s Equal Protection claim. It should determine the appropriate level of scrutiny that

applies and take evidence on the application of that level of scrutiny in this case.

Furthermore, the trial court is instructed to make specific findings of fact and conclusions

of law setting out its rulings on whether the State meets its burden of proof to justify its
                                            25
discriminatory treatment of Lovill.

                                              V. CONCLUSION

        We dismiss Lovill’s appeal from the order modifying the conditions of her probation

for lack of jurisdiction. Because the trial court erred in finding that Lovill did not sustain her

burden of showing an Equal Protection violation, we reverse the trial court’s order denying

Lovill’s petition for writ of habeas corpus and remand to the trial court for further

proceedings consistent with this opinion.7




                                                             GINA M. BENAVIDES,
                                                             Justice

Publish.
TEX . R. APP. P. 47.2(b).

Opinion delivered and filed this
the 22nd day of December, 2008.




        7
            W e do not reach Lovill’s argum ent that the State’s selective prosecution of her based on her
pregnancy also im pinged on her right to privacy in m aking child-bearing decisions. T EX . R. A PP . P. 47.1. The
trial court did not reach this issue and should consider it on rem and.
                                                       26
