State v. Daniel Villegas

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

§
THE STATE OF TEXAS, No. 08-15-00002-CR
§
Appellant, Appeal from the
§
v. 409th District Court
§
DANIEL VILLEGAS, of El Paso County, Texas
§
Appellee. (TC# 940D09328)
§

OPINION

In this interlocutory appeal, the State seeks to overturn the trial court’s pretrial order

suppressing thirty-seven statements made during recorded telephone conversations between a

prison inmate and his friends and family members while the inmate’s post-conviction writ of

habeas corpus attacking his capital murder conviction was pending in district court. The State

contends the calls should be admitted at the inmate’s retrial for capital murder because they show

he was conscious of his own guilt and that he conspired to tamper with witnesses and a judge

during the habeas proceedings in order to wrongfully gain his freedom. The inmate, now free,

counters that the State paints the calls in a false light and that his efforts to secure witnesses for

the writ hearing were simply done to vindicate his own innocence.

We do not decide which characterization is correct, nor do we pass on guilt or innocence
today. Instead, we are called on to answer one simple yet multifaceted question: Did the trial

court exceed its discretionary authority by blocking the State from using several hours of

recorded prison phone calls at the inmate’s retrial before trial even began? We conclude the trial

court did not abuse its discretion in determining admissibility before trial or in issuing a

preliminary order excluding the phone calls from any retrial. Accordingly, we affirm the trial

court’s order.

BACKGROUND

At the outset, we acknowledge that the controversial case underlying this State’s appeal

has received widespread media attention, both locally and nationally. We are not blind to it, but

we are also not swayed by it. Our fidelity—unmoved by sympathy, politics, or public opinion—

lies solely with the law, and as is our duty, we limit ourselves to the record before us, to the legal

arguments raised by the parties, and to the standard of review that defines the relationship

between this Court and the court below.

This interlocutory appeal arises from the State’s third attempt to try Daniel Villegas for

the capital murder of Robert England and Armando Lazo, who both died in a 1993 drive-by

shooting on Electric Street in Northeast El Paso. The State asserts that Villegas, then sixteen

years old, was the gunman. Villegas’ first trial in 1994 ended in a mistrial, with the jury hung

11-1 in favor of conviction. His second trial in 1995 ended in Villegas’ conviction for capital

murder and a life sentence. This Court affirmed his conviction on direct appeal. Villegas v.

State, No. 08-95-00272-CR (Tex.App. – El Paso July 10, 1997, no pet.) (not designated for

publication).1

In 2009, Villegas filed an application for a writ of habeas corpus, hoping to overturn his

conviction. Villegas contended that his counsel at the second trial had rendered ineffective
1
This opinion is not available through Westlaw.

2
assistance by failing to investigate other leads. Villegas later amended his petition to assert he

also had new evidence proving he was actually innocent of capital murder. The application was

initially assigned to Judge Mary Anne Bramblett, who had presided over Villegas’ second trial in

1995, but was later reassigned after she voluntarily recused herself. In 2012, Judge Sam

Medrano of the 409th District Court recommended granting Villegas a writ of habeas corpus and

overturned his conviction, finding that Villegas had received ineffective assistance of counsel

during his 1995 trial and that Villegas was actually innocent of capital murder. The Court of

Criminal Appeals affirmed the writ on ineffective assistance of counsel grounds, but did not find

that the new evidence clearly and convincingly showed that Villegas was actually innocent of the

crime. Accordingly, the 1995 conviction was overturned but no acquittal was rendered, clearing

the way for the State to try Villegas for a third time. See Ex parte Villegas, 415 S.W.3d 885, 886

(Tex.Crim.App. 2013) (per curiam). Retrial is currently pending in the 409th District Court with

Judge Medrano presiding.

John Mimbela, owner of Mimbela Construction and the stepfather of Villegas’ nieces,

spearheaded Villegas’ successful post-conviction efforts for relief. In the upcoming third trial,

the State seeks to use recordings of numerous telephone calls that Villegas made from prison to

Mimbela and Villegas’ mother, father, sister and friends, at or around the time Villegas’ habeas

corpus application was pending. The State generally alleges that these recordings show that

during the post-conviction proceedings, Villegas made several admissions of guilt, and that

Villegas and Mimbela conspired to tamper with multiple witnesses and attempted to initiate an

ex parte communication with Judge Bramblett while she was presiding over the habeas corpus

application. In the State’s view, these actions show Villegas’ consciousness of guilt and are

admissible as substantive evidence at trial during the State’s case-in-chief.

3
 Although Villegas successfully filed a motion to suppress a confession he gave in 1993 to

an El Paso Police Department detective,2 Villegas never technically moved to suppress the prison

recordings at issue in this appeal. Rather, an understanding that the trial court would rule on the

admissibility of the recordings appears to have grown organically from a series of hearings, off-

the-record discussions in chambers, and private conferences between Villegas and the State as

discovery in the case moved forward. The issue of a potential pretrial hearing on admissibility

arose after the State disclosed a second batch of CDs containing several hundred hours of prison

recordings, and Villegas moved for a continuance of further evidentiary hearings in order to

analyze the recordings. During a hearing on the motion for continuance, Villegas’ counsel

represented that the trial court had previously asked Villegas and the State to confer about the

first batch of prison telephone calls to determine if the parties could agree on what was actually

being said in the recordings. The trial court confirmed that this had been the court’s previous

request and clarified that it was primarily concerned with any disputes over exactly what was

said in the recordings. Villegas’ counsel then asked the trial court whether “it would like for the

district attorney’s office to try to narrow down the voluminous calls into what they actually think

might be relevant and material and they think is necessary?” The court responded that:

If both parties agree to those things, absolutely. If all parties are saying every CD
we have heard we believe you need to rule on, then the evidentiary hearing is
going to last, from what I can tell, twelve weeks without any other hearings this
court is going to have. So am I prepared to do that? The Court is always
prepared to do that. Does anybody in this room want to do that? I hope not, but I
am not the attorneys representing either side. And so if it can be worked out, this
Court will not only be grateful, but appreciative. If it can’t, it can’t.

Although the State objected to the granting of a continuance at this hearing, the evidentiary

arrangement proposed in this colloquy drew no on-the-record objection from the State.

2
In suppressing the confession, the trial court found Villegas credible and concluded his confession was the
constitutionally unreliable product of coercion. The State did not appeal that suppression order.

4
 Thereafter, Judge Medrano scheduled a pretrial hearing on a “Motion to Determine

Relevancy of Recorded Conversations” apparently raised on his own motion. At the initial

hearing, however, Judge Medrano learned that his name had been raised in certain recorded

discussions between Villegas and Mimbela, and he sua sponte suspended the proceedings and

referred the case to the presiding judge of the Sixth Administrative Judicial Region to determine

whether he needed to be recused due to any appearance of impropriety and to determine whether

the conversations between Villegas and Mimbela pertaining to him would be admissible at trial.

Following a hearing, Presiding Judge Stephen Ables ruled that Judge Medrano could continue to

preside over Villegas’ retrial and issued an order suppressing the telephone conversations

pertaining to Judge Medrano as irrelevant.3 Later, after holding a hearing, Judge Medrano issued

an “Order Regarding State’s Designated Phone Calls” that excluded a majority of the remaining

telephone call recordings from use at retrial.4

DISCUSSION

The State and Villegas have raised numerous arguments in this appeal. By our count, the

State alone has raised thirty-eight issues. For simplicity’s sake, we will address jurisdiction and

certain global objections first, before assessing the admissibility of the individual statements in

the recorded telephone calls.

I.
Jurisdiction

3
The State does not challenge the exclusion of the phone calls relating to Judge Medrano in this appeal, but does
reference material raised during Judge Ables’ hearing. Because an order sealing the record of that hearing is still in
effect, we will reference materials from that hearing only as necessary. While this interlocutory appeal was pending
and after we had issued a stay order, the trial court entered an order sealing the remainder of the telephone
recordings. We struck down that seal order as violating our stay. State v. Villegas, No. 08-15-00002-CR, 2015 WL
1477748, at *2 (Tex.App. – El Paso Mar. 23, 2015, no pet.) (op. on motion, not designated for publication). Judge
Ables’ sealed order remains in effect.
4
The trial court deferred ruling on a call between Villegas and his ex-girlfriend concerning potential witness Celia
Fierro. The State alleges this phone call corroborates an attempt by Mimbela to bribe Fierro to testify in a certain
way. That ruling is not at issue in this appeal.

5
 As a threshold matter, Villegas urges us to dismiss the State’s appeal for want of

jurisdiction, contending that the District Attorney for the 34th District, Jaime Esparza, failed to

personally certify that this interlocutory appeal was not made for purposes of delay and that the

evidence suppressed was of substantial importance to the case, as required by the interlocutory

appeal statute. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (West Supp. 2016) (setting

conditions for a State’s interlocutory appeal of a pretrial motion to suppress). The crux of

Villegas’ argument is that while Esparza personally signed the notice of appeal, the body of the

notice of appeal above his signature states “The State certifies” instead of “I, Jaime Esparza,

certify.” According to Villegas, we cannot reasonably infer the personal attestation by Mr.

Esparza, which is required for this Court to exercise its interlocutory appellate jurisdiction.

Villegas previously raised this same argument in a motion to dismiss he filed in this

appeal. In a published opinion, we denied the motion and concluded that we possess

interlocutory appellate jurisdiction, holding that the case law does not strictly require the District

Attorney to use the phrase “I certify” in the body of the notice of appeal so long as it is apparent

that “the elected prosecutor vouches for the two necessary facts.” State v. Villegas, 460 S.W.3d

168, 169-70 (Tex.App. – El Paso 2015, no pet.). Villegas asks us to reconsider our own previous

decision, citing several cases handed down after the Court of Criminal Appeals rendered its

decision in State v. Redus, 445 S.W.3d 151 (Tex.Crim.App. 2014), which this Court previously

interpreted and applied.5 We have reviewed the cited authority and see no compelling reason to

5
See, e.g., State v. Chapa, No. 01-13-01069-CR, 2014 WL 5573430, at *1 (Tex.App. – Houston [1st Dist.] Oct. 30,
2014, no pet.) (per curiam) (mem. op., not designated for publication); State v. Rodriguez, No. 14-13-00766-CR,
2014 WL 5309661, at *1 (Tex.App. – Houston [14th Dist.] Oct. 16, 2014, no pet.) (per curiam) (mem. op., not
designated for publication); State v. Moore, No. 14-13-01009-CR, 2014 WL 5309874, at *1 (Tex.App. – Houston
[14th Dist.] Oct. 16, 2014, no pet.) (per curiam) (mem. op., not designated for publication). In each of these cases,
the State voluntarily moved to dismiss its own appeal for failure to comply with the strict terms of the interlocutory
appeal statute. The First Court dismissed Chapa without comment. The Fourteenth Court in Rodriguez and Moore
confirmed that the State’s appellate certification was deficient without specifying why.

6
revisit our prior decision. We again conclude that jurisdiction is proper in this Court.

II.
Evidentiary Issues

We next turn to the heart of this case and assess whether the trial court abused its

discretion in excluding the prison phone call recordings.

A.
State’s Global Objection: Pretrial Exclusion Improper

We start with the State’s global argument for overturning the suppression order in its

entirety. In Issue One, the State maintains that the trial court abused its discretion ab initio by

forcing the State to prove the admissibility of the prison recordings at a pretrial hearing, arguing

that the true value of its evidence can be properly assessed only within the dynamic context of

trial. On this record, we cannot say that Judge Medrano abused his discretion by preliminarily

resolving the admissibility of the multiple hours of telephonic recordings before trial.6

The State recognizes that in general the trial court has the discretion to conduct a pretrial

hearing on preliminary matters, including the admissibility of evidence. See State v. Hill,

__S.W.3d__, 2016 WL 5113974, at **10, 12 (Tex.Crim.App. Sept. 21, 2016) (trial courts have

“discretionary authority to hold pretrial evidentiary hearings on preliminary matters that can, and

should be, resolved expeditiously”); TEX. CODE CRIM. PROC. ANN. art. 28.01(1)(6) (West 2006)

6
We operate under the assumption that the State properly preserved this point, although as Villegas points out, the
State did not object on the record to the hearing until after the trial court had already excluded all the evidence. See
Patterson v. State, 353 S.W.3d 203, 212 (Tex.App. – San Antonio 2011, pet. ref’d) (after-the-fact objections are
insufficient to preserve error). During the admissibility hearing, the prosecutor stated that the State had previously
informed the trial court in chambers several months before that it believed the hearing was “improper,” to which the
trial court made no response. However, the only formal objection on the record was the objection made after the
trial court had already made all its admissibility rulings. The State asserts that the challenge to the pretrial hearing
was preserved as shown in a reporter’s record, which is subject to Judge Ables’ seal order. However, the prosecutor
made this “objection” only in a soliloquy to the court reporter after Judge Medrano had already recused himself, had
left the courtroom, and had referred the case to Judge Ables for a recusal review. We fail to see how lodging an
objection to an empty bench preserves a point of error. See Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.
1992) (to avoid appellate forfeiture of complaint, party must let the trial judge know what he wants “at a time when
the trial court is in a proper position to do something about it”).

7
(permitting a trial court to hold a pretrial hearing on motions to suppress evidence); State v.

Medrano, 67 S.W.3d 892, 901 (Tex.Crim.App. 2002) (recognizing that a motion to suppress

under article 28.01 is one in which a party claims that certain evidence should not be admitted at

trial for a constitutional, statutory, evidentiary or procedural reason); see also Cox v. State, 843

S.W.2d 750, 752 (Tex.App. – El Paso 1992, pet. ref’d) (applying abuse of discretion standard in

reviewing challenge to propriety of pretrial hearing in which defendant had to prove the

existence of a conspiracy to obtain the admission of statements under hearsay exception). A trial

judge may also “use his discretion in deciding what type of information he considers appropriate

and reliable in making his pre-trial ruling.” Hill, 2016 WL 5113974, at *11 (quoting Ford v.

State, 305 S.W.3d 530, 539 (Tex.Crim.App. 2009)). An abuse of discretion does not occur

unless the trial court’s decision falls outside the zone of reasonable disagreement. Id. at *12, n.

34.

In challenging the trial court’s decision to decide the admissibility of the recordings

pretrial, the State relies chiefly on State v. Mechler, in which the Court of Criminal Appeals

indicated that in a pretrial Rule 403 exclusion case, “a trial court often will not have enough

information before it to adequately apply these factors and assess whether the contested

evidence’s probative value is substantially outweighed by its prejudicial effects.” 153 S.W.3d

435, 440 (Tex.Crim.App. 2005). While it is apparent that Mechler does not foreclose trial courts

from ruling on evidentiary issues pretrial, we agree with the State that Mechler contemplates

there may be situations in which a trial court cannot conduct a pretrial Rule 403 balancing test

because it does not have enough information before it. We disagree that this case represents one

of those situations.

The State relies heavily on Judge Cochran’s observation in her Mechler concurrence that

8
“it is rare that Rule 403 is an appropriate basis for the pretrial exclusion of evidence because the

trial judge cannot ascertain potential relevance or the impact of countervailing factors without ‘a

virtual surrogate for a trial record.’” Mechler, 153 S.W.3d at 442-43 (Cochran, J., concurring).

The State also directs us to the case law cited in the concurrence urging restraint in the use of

pretrial admissibility hearings absent such records.7 We find no Texas case law, however,

suggesting that a “virtual surrogate for the record” is necessarily required before a trial court may

rule on the admissibility of evidence pretrial. Regardless, this case has been tried twice before,

and extensive testimony was taken during the habeas proceedings. Consequently, even if a

virtual surrogate for the record were required, the trial court here had not one, but three virtual

surrogates in the form of the judicially-noticed records from Villegas’ last two trials, as well as

extensive testimony from the writ hearing over which Judge Medrano personally presided.8 The

facts of this case have been tread and retread several times over.

The State asserts that even with three predictive virtual surrogates for the record, the trial

court should not have ruled on admissibility pretrial because now that Villegas’ confession has

been suppressed, the upcoming retrial will involve different strategies from both the prosecution

and the defense, as well as new witnesses. Without the benefit of the anticipated new testimony,

the State argues, admissibility is impossible to determine. However, we note that the State never

moved for a continuance of the exclusion hearing to obtain any such evidence and provided the
7
See Spain v. Gallegos, 26 F.3d 439, 453 (3d Cir. 1994); Petruzzi’s IGA Supermarkets, Inc. v. Darling-Del. Co.,
998 F.2d 1224, 1240 (3d Cir. 1993); In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 747 (3d Cir. 1994); see also
State v. Crumb, 649 A.2d 879, 884 (N.J. Super. Ct. App. Div. 1994) (interpreting New Jersey’s version of Rule 403
and stating “[p]re-trial motions on evidence issues should be granted only sparingly”).
8
The State argues that the trial court improperly considered the records of the previous trials as virtual surrogates in
reaching its evidentiary rulings because the records are hearsay. The State did not object when the trial court took
judicial notice of those records, and in any event, the trial court is not bound by the Rules of Evidence, save for
those involving privilege, in making its threshold evidentiary determinations. See TEX. R. EVID. 104(a) (“the court
is not bound by evidence rules, except those on privilege” in deciding preliminary questions whether evidence is
admissible); Hubert v. State, 312 S.W.3d 554, 558 n.3 (Tex.Crim.App. 2010) (“we have held that the Rules of
Evidence do not apply in a pre-trial suppression hearing”); Granados v. State, 85 S.W.3d 217, 228 (Tex.Crim.App.
2002).

9
trial court with only general allusions to what this purported new testimony would entail. We

also note that with respect to the purported admissions of guilt in particular, the admissibility of

these standalone conversations can be largely determined without reference to other outside

evidence. Further, the purported inculpatory remarks and witness tampering statements the State

seeks to admit arose in a specific context during a discrete period of time—namely, between

Villegas and family members during jailhouse phone calls in and around the time of Villegas’

post-conviction habeas corpus writ application was pending, which we note is nearly two

decades removed from the events alleged in the indictment. And, as in the trial court, the State

never makes clear on appeal how any new witness testimony could arguably change the

admissibility analysis, particularly in light of an extensive record already thrice developed at trial

and in habeas.

We do not discount the possibility that the ultimate balance may change as trial goes on,

and of course, the trial court is always free to revise its rulings on a motion to suppress at any

time. As we have previously noted, the Court of Criminal Appeals in Black v. State, 362 S.W.3d

626 (Tex.Crim.App. 2012), and the case discussed approvingly therein—Montalvo v. State, 846

S.W.2d 133 (Tex.App.–Austin 1993, no pet.)—recognized that a pretrial motion to suppress

evidence is nothing more than a specialized objection to the admissibility of that evidence.

Davis v. State, No. 08-15-00033-CR, 2016 WL 4126020, at *5 (Tex.App. – El Paso Aug. 3,

2016, pet. ref’d) (not designated for publication); Black, 362 S.W.3d at 633; Montalvo, 846

S.W.2d at 137. Accordingly, a ruling on a motion to suppress is interlocutory in nature, which a

trial court can reconsider and revise in its discretion at any time. Davis, 2016 WL 4126020, at

*5; Black, 362 S.W.3d at 633; Montalvo, 846 S.W.2d at 138. Therefore, even mid-trial, a trial

court has the discretionary authority to reopen a hearing on a motion to suppress to allow the

10
State to present additional evidence addressing the trial court’s interlocutory ruling on the motion

to suppress. Davis, 2016 WL 4126020, at *5; Black, 362 S.W.3d at 635.

We conclude the trial court did not abuse its discretion in preliminarily ruling on

admissibility of this evidence pretrial, given the extensive development of previous records, and

given that the evidence in controversy largely speaks for itself. Simply put, while a pretrial

evidentiary ruling by its very nature will always be somewhat speculative, the record here does

not show that the trial court abused its discretion in rendering its pretrial rulings.

The State’s remaining argument against pretrial suppression rests primarily on fairness

grounds. The State complains that the pretrial hearing improperly required the State to put on a

“dress rehearsal” of its case-in-chief, and argues that under Woods v. State, the trial court is

forbidden from imposing a burdensome “mini-trial” admissibility hearing on the State. See 153

S.W.3d 413, 414-15 (Tex.Crim.App. 2005). Nothing in Woods, however, excuses the State from

complying with its obligation to establish the necessary predicates for admissibility simply

because the burden of compliance would turn the admissibility hearing into a “mini-trial.”

Rather, Woods deals with a specific subset of fact-specific, idiosyncratic suppression orders so

enmeshed with the merits of the case-in-chief that the suppression question could not be resolved

pretrial, either because it would require the trial court to make a finding that evidence

underpinning an element of the offense was legally insufficient (i.e., implicitly rule on guilt or

innocence), or because it would require the trial court to make a credibility determination that

necessarily renders an element of the crime legally insufficient. See id. at 415; see also State v.

Iduarte, 268 S.W.3d 544, 551-52 (Tex.Crim.App. 2008) (in aggravated assault of peace officer

case, suppression of officer’s testimony was improper where the evidentiary issue turned on the

trial court’s finding that police officer’s testimony that defendant pointed a gun at him was not

11
credible).

The State is correct that it cannot be forced to put on a “mini-trial” as to Villegas’

ultimate guilt or innocence at a suppression hearing. Woods, 153 S.W.3d at 415 (“We now

conclude that the statutes authorizing pre-trial proceedings do not contemplate a ‘mini-trial’ on

the sufficiency of the evidence to support an element of the offense.”) (emphasis added); see also

State v. Garcia, No. 08-10-00362-CR, 2012 WL 3025924, at **3-4 (Tex.App. – El Paso July 25,

2012, pet. ref’d) (not designated for publication) (trial court erred where it used suppression

hearing as pretext to rule on ultimate merits of the case instead of the limited issue of probable

cause). But Woods does not absolve the State from establishing the admissibility of evidence

pretrial simply because it could involve a burdensome process of establishing predicates at an

evidentiary hearing. See State v. Esparza, 413 S.W.3d 81, 86 (Tex.Crim.App. 2013) (noting in

scientific evidence context that upon objection, the State can “be made to satisfy” its evidentiary

burden of proving admissibility “[w]hether at trial or in a pretrial hearing”); accord Cox, 843

S.W.2d at 752 (hearsay proponent could be made to establish in pretrial proceeding the predicate

for admission under conspiracy exception to hearsay).

The State bears the burden of proof on admissibility, and the trial court wields substantial

discretion in how it chooses to run its docket, and nothing on this record prevented the trial court

from ruling pretrial on the admissibility of evidence, provided the trial court did not find an

element of the crime legally insufficient in its suppression order or otherwise made preclusive,

outcome-determinative, credibility determinations. And, as we explain below, there is no

indication the trial court made credibility determinations in weighing the evidence, or that it

made pretrial findings that would acquit Villegas by suppressing the evidence. Nor did the court

purport to resolve the entire case with its suppression order or make any findings that would go

12
to guilt or innocence. Rather, the trial court’s ruling was purely evidentiary and limited to a

certain, self-contained subset of evidence put into context by two trial records and a habeas

proceeding. As such, the ruling complies with Woods and is not barred by Mechler.

We also agree with Villegas’ point that, logistically, a piecemeal proffer of this evidence

would have potentially disrupted trial while the State, the defense, and the trial court sifted

through the extensive record to determine what was admissible and why. The State contends that

if the trial court was concerned about managing the admission of these voluminous records, the

proper course of action would have been to reserve a ruling on their admissibility and instead

issue a motion in limine requiring the State to approach the bench and seek an evidentiary ruling

once trial was underway. Given that the trial court can later revisit its interlocutory evidentiary

call as trial progresses, we fail to see a substantive difference between those two courses of

action.9 Again, we review the trial court’s actions in this case for abuse of discretion, and under

this standard of review, we cannot say that the trial court’s choice to expedite evidentiary rulings

on dozens of hours of prison recordings by ruling pretrial, instead of receiving and addressing

each recording ad hoc during trial, represents an arbitrary or unreasonable decision made without

reference to any guiding rules or principles. See Bosley v. State, 414 S.W.2d 468, 470

(Tex.Crim.App. 1967) (statute allowing pretrial determinations “was designed to enable the trial

judge to dispose of such matters sometime prior to trial to avoid delays after jurors and witnesses

have been summoned”). Where a pretrial ruling is not prohibited, we will not penalize the trial

court for running an efficient docket by resolving issues pretrial. Issue One is overruled.

B.
Villegas’ Global Objection: Authenticity of Pre-March 2011 Recordings

9
The one substantive difference is that by ruling on the merits of admissibility pretrial, the trial court effectively
gave the State the opportunity to seek interlocutory review of the evidentiary rulings. If the trial court had reserved
ruling on admissibility until trial, and had then ruled the evidence inadmissible at trial and if the jury had found
defendant not guilty, the State would not have had the opportunity for appellate review of these evidentiary rulings.

13
 We next deal with Villegas’ global contention that we may uphold the suppression order

in large part because at least some of the prison recordings were not properly authenticated. The

telephone recordings in the record are split across three separate compact discs. Each disc is

accompanied by affidavits, purportedly from the respective custodians of record, stating that the

recordings on the disc are true and accurate. Disc One contains recordings of telephone calls

Villegas made or received from July 2009 to March 2011, while he was incarcerated at the

Robertson Unit prison. Villegas maintains that the trial court’s suppression ruling may be upheld

in its entirety as to Disc One because the attesting affidavit submitted with Disc One is

insufficient to authenticate the disc as a business record. We disagree.

Records of regularly conduct activity are admissible if a custodian or other qualified

witness, by testimony or a writing compliant with TEX. R. EVID. 902(10), avers that (A) “the

record was made at or near the time by—or from information transmitted by—someone with

knowledge;” (B) “the record was kept in the course of a regularly conducted business activity;”

and (C) “making the record was a regular practice of that activity[.]” TEX. R. EVID. 803(6).

Although the predicate witness does not need to be the creator of the record or have personal

knowledge of its content, he must have personal knowledge of “the manner in which the records

were prepared.” Granbury Marina Hotel, L.P. v. Berkel & Co. Contractors, Inc., 473 S.W.3d

834, 842 (Tex.App. – El Paso 2015, no pet.).

The business record affidavit to authenticate Disc One was submitted by a Manuel

Fuentes and states, in relevant part:

I was employed by the Office of Inspector General for the Institutional Division -
Texas Department of Criminal Justice at the time the attached records were made.
As an employee of the Office of Inspector General for TDCJ-ID, I was requested
by the 34th Judicial District Attorney’s Office to record and copy all phone calls
stored in the Offender Telephone System placed between July 1, 2009 and March

14
 3, 2011 by Daniel Villegas, an offender in the Robertson Unit of the Texas
Department of Criminal Justice. Attached to this affidavit is a DVD compiled by
me of phone calls made by Offender Daniel Villegas TDCJ #00731893,
Robertson Unit, 07/01/2009 to 03/07/2011 on the Offender Telephone Service
contained in files marked as Daniel Villegas, consisting of 136 items, Daniel
Villegas 2, consisting of 136 items and Daniel Villegas 3, consisting of 97 items.
The attached records are kept by the Texas Department of Criminal Justice in the
regular course of business, and it was the regular course of business of the Texas
Department of Criminal Justice for an employee or representative of the Texas
Department of Criminal Justice, with knowledge of the act or event or filing
recorded, to make the record or to transmit information to be included in the
record. The records were made in the regular course of business at or near the
time or reasonably soon thereafter. These records are the original or a duplicate
of the original.

Villegas complains that Fuentes never avers in his affidavit that he was a records custodian for

TDCJ, and that although Fuentes attested that he was part of the Office of Inspector General for

TDCJ, he never made clear how that job gave him the personal knowledge of operations

necessary to make his affidavit self-authenticating under TEX. R. EVID. 902(10). We disagree.

Fuentes as an attesting witness need only show that had personal knowledge of the

process by which records were made. Granbury Marina Hotel, L.P., 473 S.W.3d at 842.

Fuentes in his affidavit sufficiently described that the disc contained all the phone calls stored in

the Offender Telephone System placed between July 1, 2009 and March 3, 2011 by Villegas,

whom he described as an offender in the Robertson Unit, and that the disc he compiled were of

phone calls on the Offender Telephone Service contained in files marked as Daniel Villegas

made by Villegas while at the Robertson Unit from July 1, 2009 to March 3, 2011. We are

satisfied that the affidavit, as written, is sufficient to meet the personal attestation requirement set

out in TEX. R. EVID. 902(10) and to show that Fuentes had personal knowledge of the process by

which the recordings were made. Accordingly, the trial court could not have suppressed Disc

One on authentication grounds.

C.

15
 Specific Objections

Having determined that we can neither summarily uphold nor overturn the trial court’s

decision with respect to the recordings on ripeness or authentication grounds, we must now

examine each statement individually to determine which, if any, were improperly excluded. The

State broadly groups the statements it seeks to admit into four categories: (1) Villegas’

purported admissions of guilt; (2) Villegas and Mimbela’s purported efforts to tamper with

specific witnesses; (3) statements purportedly showing Villegas and Rodney Williams were in

the car together during the Electric Street shooting and had a silence pact; and (4) Villegas and

Mimbela’s purported efforts to tamper with Judge Mary Anne Bramblett, who presided over

Villegas’ 1995 trial and who was initially the judge in charge of Villegas’ habeas corpus

application before Judge Medrano was assigned to the case.

Standard of Review

We review a trial judge’s decision to admit or exclude evidence under an abuse of

discretion standard. Henley v. State, 493 S.W.3d 77, 82-83 (Tex.Crim.App. 2016). A trial judge

abuses his discretion when his decision falls outside the zone of reasonable disagreement. Id. at

83. Before we may reverse the trial court’s decision, we “must find the trial court’s ruling was

so clearly wrong as to lie outside the zone within which reasonable people might disagree.” Id.

(quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex.Crim.App. 2008)).

Relevance and Its Limits

Finding a piece of evidence to be relevant is the first step in a trial court’s determination

whether the evidence should be admitted before the jury. Henley, 493 S.W.3d at 83. Evidence is

relevant if it has any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the evidence.

16
Id.; TEX. R. EVID. 401. Relevance is not an inherent characteristic of a piece of evidence, but

rather describes the relationship, if any, between that evidence and the ultimate fact to be proved

at trial. Henley, 493 S.W.3d at 84. There must be a direct or logical connection between the

actual evidence and the proposition sought to be proved. Layton v. State, 280 S.W.3d 235, 240

(Tex.Crim.App. 2009). Only relevant evidence is admissible. Henley, 493 S.W.3d at 83; TEX.

R. EVID. 402 (“Irrelevant evidence is not admissible.”).

While our rules favor the admission of all relevant evidence, the trial court judge is still

in charge of making the threshold decision whether evidence is relevant, and the court’s decision

will not be disturbed on appeal unless it is clearly wrong. Henley, 493 S.W.3d at 83. Questions

of relevance are left largely to the trial court, relying on its own observations and experience.

Levario v. State, 964 S.W.2d 290, 296 (Tex.App. – El Paso 1997, no pet.). Whether particular

evidence meets the definition of relevance will not always be “cut and dried” because the

determination of relevance depends upon the trial judge’s perception of common experience.

Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh’g). The “process

cannot be wholly objectified” because “reasonable men may disagree whether in common

experience a particular inference is available.” Id. Thus, we cannot substitute our own

reasonable perception of common experience for that of the trial court.10 Id.

Even if evidence is relevant, under Rule 403, a “court may exclude relevant evidence if

its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the

issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” TEX. R.

EVID. 403. In conducting a Rule 403 analysis, the trial court should balance:

10
The State argues that the applicable standard of review requires admission of the evidence unless under “no
reasonable perception of common experience can it be concluded that proffered evidence has a tendency to make the
existence of a fact of consequence more or less probable[.]” Montgomery, 810 S.W.2d at 391. We disagree. That
language in Montgomery addresses how to determine if evidence was erroneously admitted as relevant. Because
this case deals with the exclusion of evidence, this standard is inapplicable.

17
  Any tendency of the evidence to suggest decision
on an improper basis
 The inherent probative  Any tendency of the evidence to confuse or
force of the proffered distract the jury from the main issues
item of evidence with  Any tendency of the evidence to be given undue
weight by a jury that has not been equipped to
+ evaluate the probative force of the evidence
 The likelihood that presentation of the evidence will
 The proponent’s need consume an inordinate amount of time or merely
for that evidence repeat evidence already admitted

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex.Crim.App. 2006).

Rule 403 favors the admission of relevant evidence and carries a presumption that

relevant evidence will be more probative than prejudicial. Gallo v. State, 239 S.W.3d 757, 762

(Tex.Crim.App. 2007). Still, a trial court is entitled to broad discretion in ruling on a Rule 403

objection, and great deference is given to the trial court’s decision to admit or exclude evidence

under Rule 403. See Powell v. State, 189 S.W.3d 285, 288 (Tex.Crim.App. 2006); Mechler, 153

S.W.3d at 439. As has been noted, “the specific result of the trial court’s conscientious balance

of unique facts and circumstances under Rule 403 ‘is not subject to scrutiny by an appellate

Bureau of Weights and Standards that balances the factors gram for gram.’” Mechler, 153

S.W.3d at 443 (Cochran, J., concurring) (quoting Caldarera v. Eastern Airlines, Inc., 705 F.2d

778, 782 (5th Cir.1983)). “The appellate court should not conduct a de novo review of the record

with a view to making a wholly independent judgment whether the probative value of evidence .

. . is substantially outweighed by the danger of unfair prejudice. It should reverse the judgment

of the trial court ‘rarely and only after a clear abuse of discretion.’” Montgomery, 810 S.W.2d at

392

1.
Purported Admissions of Guilt

The State’s second issue and its related sub-issues deal with prison phone calls in which

18
Villegas purportedly admits his guilt. The State contends these recordings are admissible

because they are relevant to and probative of the issue of guilt. Villegas argues the recordings

are not relevant, or in the alternative, that the trial court’s decision to exclude the relevant calls

did not fall outside the zone of reasonable disagreement because their prejudicial effect

substantially outweighed their minimal probative value and could have confused the jury or left

them with a false impression. We set out the relevant excerpts below.

a.
March 14, 2011 (Issue 2A):
“…you have to have actual innocence, man, and we don’t got that…”

On March 14, 2011, Villegas spoke with his mother Yolanda from the El Paso County

Jail Annex. Toward the end of the call, Villegas and his mother discussed what Villegas’ lawyer

had said about the upcoming habeas corpus proceedings. In Issue 2A, the State seeks to admit

the bolded portion of the excerpt below at trial:11

YOLANDA: I’m waiting for—I’m telling you, the stress is waiting for them to
end up doing what we need them to do—

VILLEGAS: Yeah.

YOLANDA: —find out what the lawyers going to talk—the lawyer will be in
Wednesday?

VILLEGAS: Yeah. I guess, yeah. I guess that’s what John said. Hopefully,
man, because this, this is a one-deal thing. It’s either this or I—
I’m screwed forever.

YOLANDA: You’re screwed forever? Are you sure?

VILLEGAS: Yup. Ain’t nothing else you can do after this. That’s a done deal.

YOLANDA: Are you sure?

VILLEGAS: Yup, I lost all the—only thing, you can go into the federal courts.

11
No official transcript of this conversation appears in the record. The transcription is the Court’s own, based on
(i) our review of the recording, (ii) an informal transcript provided by the State in its brief, and (iii) Villegas’ request
that we review certain contextual statements before and after the statement the State seeks to admit.

19
 You have to have actual innocence, man, and we don’t got that.

YOLANDA: Well, again, your lawyer said it looks good though, right?

VILLEGAS: Yeah, he said—

YOLANDA: —everybody I talk to says that. I mean, God, they’d have to be
morons not to.

VILLEGAS: Tch, watch, everybody—

AUTOMATED OPERATOR: The jail administration will disconnect your call in
one minute.

VILLEGAS: —they shouldn’t even, if they look at the evidence, they shouldn't
have even, never even convicted me. I mean, how retarded are
them people, you know what I’m saying?

The first question is whether this statement is relevant under Rule 401. Villegas asserts

the statement is irrelevant because when he used the phrase “actual innocence,” he was referring

to the legal standard of actual innocence necessary to obtain relief in a habeas corpus proceeding.

See Ex parte Fournier, 473 S.W.3d 789, 791-92 (Tex.Crim.App. 2015) (to prevail on an “actual

innocence” claim in habeas, a “petitioner must show by clear and convincing evidence that no

reasonable juror would have convicted him in light of the new evidence”). Villegas maintains

that the meaning of the phrase “actual innocence” as a legal term of art is obvious because it

occurred in a discussion of what his attorney said about habeas corpus proceedings, and that if he

had actually intended it as an admission of guilt, he would not have protested almost

immediately afterwards that “if they look at the evidence, they shouldn’t have . . . even convicted

me.” Villegas also points the Court to another phone conversation not at issue in this appeal in

which he uses the phrase “actual innocence” to refer to the habeas proceedings. Given these

facts, according to Villegas, the statement has no probative value and could have been properly

excluded on relevance grounds.

20
 The State conceded at the evidentiary hearing that actual innocence is a legal term of art,

but argued to the trial court and argues on appeal that the statement is nevertheless relevant and

probative, and that the jury should be allowed to decide whether Villegas used the phrase “actual

innocence” in the legal sense or as an admission of guilt. The State also contends the trial court

erred in excluding this statement, because it made an improper credibility determination in ruling

on evidence, since it sua sponte decided what Villegas meant.

Even if we assume that the statement meets the Rule 401 relevance test and that, as the

State maintains, the jury should decide what Villegas intended, relevant evidence may be

withheld from the jury if the probative value is substantially outweighed by prejudicial effects

and the risk the jury will decide an issue on impermissible grounds. TEX. R. EVID. 403. Thus,

we must look to countervailing prejudicial aspects of the evidence under Rule 403 before we can

determine admissibility.

As to Rule 403, Villegas argues that the “actual innocence” dispute has the potential to

confuse the jury and derail trial, and that the trial court could properly take into consideration the

length of time and amount of technical detail needed to provide the jury with the context

necessary to evaluate the statement. The trial court could have also determined that it would be

extremely difficult to present this evidence without alerting the jury to the highly prejudicial fact

that Villegas was previously found guilty and incarcerated for the same offense. Taking the

prejudicial factors in concert, and weighing them against the ambiguous probative value of the

statement and the State’s need for the statement, Villegas maintains that the State cannot

establish that the trial court abused its discretion by excluding this statement. We agree.

Confusion of the issues occurs when admission of relevant evidence nevertheless “raises

the possibility that a side issue may be created which will unduly distract the jury from the main

21
issues in the case.” Barajas v. State, No. 08-97-00405-CR, 2003 WL 21674201, at *5 (Tex.App.

– El Paso 2003, no pet.) (not designated for publication) (citing Smith v. State, 959 S.W.2d 1, 13

(Tex.App. – Waco 1997, pet. ref’d)). In conducting its Rule 403 balancing test, the trial court is

free to weigh the probative value of the statement against “any tendency of the evidence to be

given undue weight by a jury that has not been equipped to evaluate the probative force of the

evidence[.]” Gigliobianco, 210 S.W.3d at 641.

The State is correct that direct admissions of guilt are extremely probative. Zuliani v.

State, 903 S.W.2d 812, 824 (Tex.App. – Austin 1995, pet. ref’d). But the probative value of this

evidence is equivocal precisely because it is unclear whether this statement functions as an

admission of guilt. Even the State concedes it is not conclusive, given the ambiguity

surrounding the legal term of art “actual innocence” and its use amid a discussion of federal

court, attorney advice, and habeas proceedings. The State maintains that it nevertheless has great

need for this evidence, particularly in light of the suppression of Villegas’ confession on

coercion grounds. Still, the trial court was allowed to balance the State’s need for this evidence

against its murky probative value and the prejudice or confusion its use would entail.

As the State recognizes, the meaning of “actual innocence” requires context. Without

context, the jury will likely give this statement undue weight. Even without making a credibility

determination, the trial court could have decided that allowing this evidence would have

distracted the jury and created a side issue that the jury would not have been equipped to handle

absent legal context. Providing that context would necessarily expend time and resources, which

the trial court could also consider in its Rule 403 analysis. Providing context would also likely

involve some explanation of what habeas corpus proceedings are and what standards apply,

which in turn would necessarily risk exposing the jury to the highly prejudicial fact that Villegas

22
was previously found guilty and incarcerated for the same crime. See Barfield v. State, 464

S.W.3d 67, 75-76 (Tex.App. – Houston [14th Dist.] 2015, pet. ref’d) (reference to previous

“finding or verdict of guilt” is highly prejudicial); Casey v. State, 349 S.W.3d 825, 835

(Tex.App. – El Paso 2011, pet. ref’d) (reference to previous incarceration “certainly prejudicial

and inadmissible under Evidence Rule 403”); TEX. R. APP. P. 21.9(d) (prohibiting reference to

previous conviction for same offense on retrial). There is also great potential for prejudice,

confusion, and time expenditure for the rebuttal evidence that would be necessary to allow the

jury to weigh the probative value of the statement in context. Taken together, the trial court

could have reasonably determined that the prejudicial attributes of the evidence are substantial.

After balancing the Rule 403 factors, recognizing that we do not measure the factors

gram for gram, and viewing the trial court’s ruling through the highly deferential prism of abuse

of discretion, we cannot say that the scales here tipped outside the zone of reasonable

disagreement. Accordingly, we conclude the trial court’s decision to exclude this evidence fell

within its wide discretionary authority. Issue 2A is overruled.

b.
October 12, 2011 (Issue 2B):
Conflicting Transcripts of Villegas’ Prayer to God

In Issue 2B, the State contends the trial court erred in excluding Villegas’ October 12,

2011 phone call to his mother Yolanda because Villegas made another alleged admission of guilt

during that call. Villegas maintains that the State’s assertion that he made an admission of guilt

is demonstrably false. At issue here are two conflicting transcripts of the October 12, 2011

conversation, in which Villegas expressed frustration to his mother over unanswered prayers to

God.12 The State offers the following self-made transcript of the conversation in its brief, with

12
Save for this particular transcript, which Villegas specifically challenges as being inaccurate, Villegas assumes for
argument’s sake that the State’s unofficial transcripts as set out in its brief are correct. We likewise rely on the

23
the admission of guilt italicized:

VILLEGAS: [ . . . ] it’s not even like I’m praying no more. It’s just like I’m
doing a remote control. Doop, rewind, press play. That’s the same
prayer I’ve been doing forever, man. That type of prayer [ . . . ]
when I pray it, I don’t even feel it no more. It’s just like, oh, man,
yeah, something else. It’s a same old, same old day, you know.
It’s just – after you do something for so long, Mom, I don’t care
how much you think you can do it, you can’t do it no more. It’s
just – it’s just too much. You do it – you can do it, but –

YOLANDA: You get past that.

VILLEGAS: — you just – you don’t do it with emotion no more. It’ just like,
oh, well, whatever. Please, God, let me get out of here so – even
though I’m not innocent, woo, woo, woo, woo, woo, it’s the same
thing, the same prayer . . . (emphasis in original).

Villegas, by contrast, offers us a lengthier excerpt transcribed by a certified court reporter

for our consideration. In this transcript of the same conversation, Villegas never refers to guilt or

innocence:

VILLEGAS: (Inaudible) they’ll have it right there ready. Well, I hope they
hurry up and give me justice. It’s because (inaudible).

YOLANDA: All you have to ask is, How many years to you want from me,
God? It’s hard for me—

VILLEGAS: I’ve told him that a million times already. I’m tired of saying that;
it’s like a rerun.

YOLANDA: — I know you’re tired.

VILLEGAS: I might as well.

YOLANDA: You get to the point where you give up, that’s what Satan wants.

VILLEGAS: I’ve been saying the same prayer for 17 years. I’m tired. I’m tired
of that same prayer. It’s not even like I’m praying no more. It’s
like I’m doing remote control. That’s the same prayer I’ve been
doing forever, man. That same prayer, when I pray, I don’t even

State’s unofficial transcripts, noting that the Court has listened to the relevant recordings. Where Villegas has
requested that we consider other portions of the recordings to provide context, we append the requested portions to
the State’s transcripts.

24
 feel it anymore. It’s like, Oh, my God, something else, same ol’,
same old day, you know?

After you do something for so long, Mom, I don’t care how much
you think you can do it. You can’t do it. It’s just too much. You
can do it, but you can’t do it with emotion anymore. It’s like, Oh,
well, whatever. Please, God, let me get out of here – even though
I’m not here to tell you whoo, whoo, whoo. It’s the same thing, the
same prayer . . . (emphasis added).

We have reviewed the actual recording of this conversation, which appears in the record.

Although we review indisputable recorded evidence de novo, see Carmouche v. State, 10 S.W.3d

323, 332 (Tex.Crim.App. 2000), listening to the recording does not provide us with indisputable

evidence of what Villegas said. Accordingly, we defer to the trial court’s reasonable perception.

Cf. State v. Gobert, 275 S.W.3d 888, 891-92 (Tex.Crim.App. 2009) (where trial judge “viewed

the DVD with the State’s transcript in hand” and found that defendant made a particular

statement contrary to the State’s transcript, appellate court “will not second-guess the trial

court’s determination of the facts” even if the record supports conflicting conclusions of what

was actually said). Further, the trial court could have decided that the probative value of the

ambiguous recording was minimal, and that Villegas’ unintelligible fleeting statement did not

serve to alter the balance in making the fact of his guilt more or less probable. See Mechler, 153

S.W.3d at 440. The trial court did not abuse its discretion by excluding the statement on

relevance grounds. Issue 2B is overruled.

c.
November 10, 2011 (Issue 2C):
“…when I was saying that I wasn’t innocent . . . I wasn’t talking about the case”

We will consolidate our legal analysis of Issues 2C, 2D, and 2E, because the State’s

theory of admissibility for all these statements is the same. In these three sub-points, the State

argues that Villegas’ attempts to explain what he meant when he said he was “not innocent” are

25
admissible both as substantive evidence of guilt and as a way to bolster the probative value of the

statements in Issues 2A and 2B.

On November 10, 2011, Villegas spoke over the phone with a woman the State identifies

as “Jenny” about what happened at a court proceeding. In Issue 2C, the State seeks to admit the

following conversation:

VILLEGAS: Didn’t you see . . . what happened today at court? These people
get your words and twist them around and do things with them that
you don’t even—13

JENNY: (unintelligible)

VILLEGAS: —you don’t even mean. I mean, they get your words and totally
just flip them and . . . make their own meaning out of your words
and then—then it’s like . . . what the hell . . .

JENNY: . . . hit someone . . . .

VILLEGAS: . . . like when I was saying that I wasn’t innocent, I’m talking
about my innocence as far as a sinner . . . I wasn’t talking about the
case . . .

JENNY: I should’ve busted out my tattoo . . . (unintelligible)

VILLEGAS: I mean, that’s what I was talking about . . . that I’m a sinner . . .
I’m not a saint, a holier-than-thou type of person . . . . And this guy
sift through . . .

JENNY: (unintelligible)

VILLEGAS: . . . all of that and . . . made a whole different deal out of it . . . .
Made it seem like . . . . I was like what the hell is this guy . . . .
And then when he was talking about the –

JENNY: (unintelligible) . . . said fuck.

13
The ellipses in the following conversations appear in the informal transcripts the State lays out in its brief. The
State represents that the ellipses are an attempt “to omit unnecessary redundancies, colloquialisms, and slang. And
in an attempt to limit the factual recitations in this brief to those necessary to the resolution of the State’s issues, the
State has also omitted phrases that are not particularly critical to this Court’s analysis, while also including enough
so as to avoid changing the context of the excerpt.” As we previously mentioned, Villegas does not concede that the
State’s self-made transcripts are accurate, but in his brief he assumes for appellate purposes that they are accurate
and has crafted his analysis accordingly. Villegas also includes other portions of conversations where he feels they
are relevant. We note in this opinion when we cite to an excerpt that Villegas has identified in his brief.

26
 VILLEGAS: . . . this guy just did all kinds of work . . . . (Sighs) . . . stressed the
hell out now . . . .

d.
November 22, 2011 (Issue 2D):
Mimbela Preps Villegas for a Media Interview

On November 22, 2011, Villegas spoke with John Mimbela about an upcoming media

interview. Mimbela offered Villegas advice about what he should say if the reporter asked him

about purportedly denying his own innocence in the jail recordings. In Issue 2D, the State seeks

to admit the following conversation excerpt:

MIMBELA: . . . but I would touch on the fact that . . . they took your words out
of context . . . Cause she might ask you about that, you know,
about that conversation – all those places that they transcribed.
And you might tell them, you know what? . . . they took the words
out of context, but if you look into all the tapes . . . I’m constantly
proclaiming my innocence

VILLEGAS: Exactly.

* * *

MIMBELA: So, anyway, you can say stuff like that . . . if you look into all
those tapes, you can see where I’m constantly . . . proclaiming my
innocence, and yes, you know I pray as a sinner, and yes, I pray
that I’m not committed in person, but I’m not a killer . . . I didn’t
commit this crime.

VILLEGAS: Okay.

* * *

MIMBELA: . . . pretty much, like . . . you told me . . . you pray as a sinner . . .
you pray as not being innocent, but I’m not a killer, God . . . please
get me out of here . . . Like you said, they . . . tried to take . . . that
out of context . . . but . . . that’s the true explanation and that’s the
(unintelligible) explanation. . . . . But if you listen to all the
conversations I’ve had since I’ve been here . . . you can hear where
. . . I’m proclaiming my innocence and . . . that I don’t belong here
. . . you know what I’m saying?

27
 VILLEGAS: Yeah.

e.
November 27, 2011 (Issue 2E):
“ . . . they misconstrued my words”

In Issue 2E, the State seeks to admit the following excerpt of a conversation between

Villegas had and his sister Michelle on November 27, 2011:

VILLEGAS: . . . I was just talking about how . . . they misconstrued by words
...

MICHELLE: Yeah.

* * *

VILLEGAS: I’m not an innocent person as far as sin. Not about—

MICHELLE: Yeah.

VILLEGAS: —not about this crime . . . .

The relevance of these statements is largely contingent on the admission of a statement

from Villegas that he is not innocent. We have already held that the trial court did not abuse its

discretion by excluding those statements. Without that context, the statements are confusing and

lack probative value. Given that the predicate conversations making these conversations relevant

were properly excluded, we similarly conclude that the trial court did not abuse its discretion by

finding these conversations irrelevant and inadmissible. Issues 2C, 2D, and 2E are overruled.

f.
January 15, 2013 (Issue 2F):
“ . . . you wouldn’t be in here if you didn’t do something”

In Issue 2F, the State contends it should be allowed to admit an excerpt of a conversation

in which Villegas told his girlfriend that other inmates who complained about being in prison

would not be in jail if they did not commit a crime. Specifically, Villegas said he would tell

other inmates who complained about being in jail, “shut the fuck up, if you fucking stupid

28
motherfuckers wouldn’t be doing crime, then you get busted, then you come to jail, now all you

fucking talk about what’s going to happen . . . you should’ve thought of that before you did what

you had to do.” The State argues that by acknowledging that other inmates are in jail because

they are guilty, Villegas implicitly admits that he also knows that he is in jail because he is also

guilty.

Even in context, this statement lacks probative value. Villegas does not admit guilt in

this excerpt, and his observation that other inmates in prison are guilty does not serve to make

the fact of Villegas’ guilt more probable absent a chain of attenuated inferences. The link

between evidence and the purpose for which it is offered must be direct or logical. The trial

court could have reasonably determined that any link between Villegas’ statement about other

prisoners and the consciousness-of-guilt grounds the State advances is neither direct nor logical.

The trial court did not abuse its discretion in excluding the statement, because it does not support

any reasonable inference of any consciousness of guilt. Issue 2F is overruled.

2.
Efforts to Tamper with Witnesses

We next turn to Villegas’ purported efforts to influence witnesses in the lead-up to his

habeas corpus hearing. Broadly, the State contends in Issues 3 through 6 that Villegas and

Mimbela conspired to offer witnesses various incentives in an attempt to downplay previous

inculpatory statements he may have made and to “fabricate” evidence that Javier Flores or Rudy

Flores were the actual Electric Street shooters. The State seeks to admit in its case-in-chief

recordings of Villegas and Mimbela discussing outreach efforts to potential witnesses and

incentives offered to witnesses as substantive evidence of Villegas’ consciousness of guilt.14

14
We note that while the trial court denied the State’s request to use these calls as substantive evidence in its case-
in-chief, the trial court did not foreclose the possibility that at least some of these calls may be relevant as
impeachment evidence on cross-examination:

29
 a.
Statements as Hearsay

Villegas encourages us to affirm the suppression order as to all of the conversations

involving Mimbela’s efforts to contact witnesses based on the theory that everything Mimbela

and others told Villegas is either hearsay or double hearsay. The State contends the statements

are not hearsay and are admissible against Villegas as adoptive admissions, statements by an

agent, or statements by a co-conspirator in a felony witness tampering scheme.15 We conclude

the trial court did not abuse its discretion in suppressing the relevant statements, because the

State failed to establish the predicates necessary to admit those statements under an exclusion or

exception to the general hearsay rule.

Hearsay is a statement, other than one made by the declarant while testifying at trial,

offered in evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d); see also

Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002). Hearsay is not admissible except

as provided by statute or the rules of evidence. TEX. R. EVID. 802; Willover, 70 S.W.3d at 845

(“hearsay evidence is inadmissible unless if falls within one of the many exceptions” to the

THE COURT: . . . Please – the State, please don’t infer that by these conversations not coming in
that you can’t ask any witness that takes the stand whether they have been offered reward money
or any of those types of questions[.]

Because the State has limited its arguments on appeal to the use of the phone calls as direct evidence of Villegas’
consciousness of guilt, we focus solely on the calls as substantive evidence of guilt.
15
The State also argues the statements are not hearsay because they are not being offered to prove the truth of the
matters asserted. Villegas correctly notes that the State failed to raise this argument in the trial court. As we have
recognized, to preserve error, a “party must not only tell the judge that the evidence is admissible, but must also
explain why the evidence is admissible.” Perez v. State, No. 08-14-00050-CR, 2016 WL 4447566, at *5 (Tex.App.
– El Paso Aug. 24, 2016, no pet.) (not designated for publication). A party offering a statement that is challenged as
hearsay must “specify which exception to the hearsay rule he was relying upon or to specify how the evidence was
not hearsay” or else those grounds are waived. Id.; See Reyna v. State, 168 S.W.3d 173, 178 (Tex.Crim.App. 2005)
(“In order to have evidence admitted under a hearsay exception, the proponent of the evidence must specify which
exception he is relying upon.”). Further, even in cases in which the State is the appealing party, “the basic principle
of appellate jurisprudence that points not argued at trial are deemed to be waived applies equally to the State and the
defense.” State v. Mercado, 972 S.W.2d 75, 78 (Tex.Crim.App. 1998). Because the State never raised this
argument in the trial court, it is waived on appeal. We therefore assume the statements were being offered for the
truth of the matters asserted.

30
general rule). Whether an out-of-court statement is admissible under an exclusion or exception

to the general hearsay rule is a matter within the trial court’s discretion. Zuliani v. State, 97

S.W.3d 589, 595 (Tex.Crim.App. 2003). The trial court’s decision will be reversed only if it is

“outside the zone of reasonable disagreement.” Salazar v. State, 38 S.W.3d 141, 151

(Tex.Crim.App. 2001); see also Pena v. State, 353 S.W.3d 797, 814 (Tex.Crim.App. 2011).

The Rules of Evidence exclude numerous out-of-court statements from the hearsay rule by

deeming them as non-hearsay. TEX. R. EVID. 801(e). We discuss three types of these non-

hearsay statements below.

i.
Adoptive Admissions

The State first maintains that the statements of speakers other than Villegas are

admissible as non-hearsay because Villegas adopted the truth of those statements by not

explicitly refuting the statements when made. Villegas contends that the trial court could have

properly found that his silences and ambivalent responses were insufficient to impute statements

made by others to him as adoptive admissions. We agree with Villegas.

An out-of-court statement is not hearsay if it is an adoptive admission, i.e., if a party has

manifested an adoption or belief in its truth. TEX. R. EVID. 801(e)(2)(B). Statements made by

others in a defendant’s presence may be admissible as adoptive admissions if the defendant, “by

his actions and responses, showed agreement with the statements.” Paredes v. State, 129 S.W.3d

530, 534 (Tex.Crim.App. 2004). Occasionally, acquiescence may be inferred from silence.

Gibson v. State, 516 S.W.2d 406, 409 (Tex.Crim.App. 1974) (“[A]n accused’s acquiescence by

silence in a statement that he heard and understood, that was made by a third person while the

accused was not under arrest and that would call for a denial of guilt, may be used as evidence at

trial through a tacit admission exception to the hearsay rule.”). In this case, the “State, as the

31
proponent of the evidence, had the burden of proving to the trial court, by a preponderance of the

evidence, that . . . [the] testimony qualified as an adoptive admission[.]” Alvarado v. State, 912

S.W.2d 199, 215 (Tex.Crim.App. 1995). The trial court, by excluding the evidence, found the

State did not meet its burden. We review that ruling for abuse of discretion. Id.

While the subject matter of the conversations at issue varies, neither party disputes that in

every recorded conversation, Mimbela does the majority of the speaking, relaying details of his

efforts to track down and speak with witnesses, with Villegas responding generally with “yes” or

“yeah.” Villegas contends that the state of the record is too vague to support the inference that

he adopted the statements of other speakers. In support of his argument, Villegas directs us to an

unpublished case from the United States Court of Appeals for the Ninth Circuit interpreting the

adoptive admissions exemption from hearsay under the Federal Rules of Evidence. See United

State v. Sanchez-Soto, 617 Fed.App’x 695, 696-97 (9th Cir. 2015). In that case, counsel read an

excerpt of an English-language transcript of a Spanish conversation the defendant Sanchez had

with his wife after he was arrested on a drug trafficking charge:

Sanchez: Did Chui give you anything?

Marta: No. Just, uh, 1500 for the thing about the dogs, because he told
Mario to bring us some money.

Sanchez: Oh, okay. Well, so . . .

The Ninth Circuit observed that “[a] statement is only admissible as an adoptive admission if

there are ‘sufficient foundational facts’ that would allow the ‘jury reasonably to conclude that the

defendant did actually hear, understand and accede to the statement.’” Id. at 697. It then held

that, under the circumstances, the admission of the statement was erroneous, in part because

“[t]he four words he used reveal little of his intent to adopt” and “could have just as readily

indicated his mere acknowledgement that he heard the statement, not that he was acceding to its

32
truth.” Id.

While Sanchez-Soto is not precisely on point, the Texas Rules of Evidence are largely

structured like the Federal Rules of Evidence, and we believe that the Ninth Circuit’s

observations about the ambiguity of the statements weighs in our hearsay analysis, particularly

given that here, the trial court excluded the evidence and the trial court’s rulings are generally

entitled to deference on appeal. Given the equivocal state of the record, we cannot say that the

trial court abused its discretion in finding that Villegas did not adopt other speakers’ statements.

ii.
Agent

The State next argues that the statements are admissible as non-hearsay because Mimbela

was acting as Villegas’ agent. See TEX. R. EVID. 801(e)(2)(D). The State does not make clear in

what capacity Mimbela served as Villegas’ agent, nor does it define the scope of the purported

agency relationship. The trial court made an explicit oral finding that Mimbela was not Villegas’

agent. We review this exclusionary decision for abuse of discretion.

As an initial matter, the State and Villegas clash over what standard to measure agency

for purposes of Rule 801(e)(2)(D). The State proposes we follow the agency test the Court of

Criminal Appeals laid down in determining when a person not in law enforcement effectively

begins acting as an agent for law enforcement. See Wilkerson v. State, 173 S.W.3d 521, 530-31

(Tex.Crim.App. 2005) (framing the inquiry as whether the non-LEO party is “acting as an

‘instrumentality’ or ‘conduit’ for the police or prosecution”). Villegas insists the correct test for

determining agency under Rule 801(e)(2)(D) focuses on whether the purported principal

exercised actual control over the agent. See Farlow v. Harris Methodist Fort Worth Hosp., 284

S.W.3d 903, 927-28 (Tex.App. – Fort Worth 2009, pet. denied) (concluding statement is not

admissible under agency exception to hearsay rule absent testimony “as to any indicia of control

33
or agency relationship”); Vahlsing Christina Corp. v. Ryman Well Serv., Inc., 512 S.W.2d 803,

812 (Tex.Civ.App. – Corpus Christi 1974, writ ref’d n.r.e.) (“The basic test is the right to

control.”).

We will follow the approach outlined by Villegas. Wilkerson does not reference the

Texas Rules of Evidence, but instead centers on whether CPS investigators essentially became

agents of the police in a particular case for purposes of Miranda. By contrast, Farlow and

Vahlsing, although civil cases, directly interpret Rule 801(e)(2)(D). We conclude that the test for

determining whether a person is an agent for purposes of Rule 801(e)(2)(D) is whether the party

had a right to control the agent-declarant.

“The burden of proving agency rests upon the party affirming such agency, and it cannot

be established by a mere assertion that such is known to be true without divulging the duties of

the agent and character of his representation.” Norton v. Martin, 703 S.W.2d 267, 272

(Tex.App. – San Antonio 1985, writ ref’d n.r.e.). The State concedes that establishing the factual

predicate of a statement made in an agency relationship “would require testimony outside the

recordings, from either Mimbela or another individual with personal knowledge, establishing

that Mimbela was in fact acting as Villegas’s agent.” No such testimony was offered at the

admissibility hearing.

Despite this concession, the State maintains that the conversations alone are sufficient to

establish that Mimbela and Villegas are “in cahoots,” and asks us to infer an agency relationship,

despite the trial court’s explicit finding, because (1) Mimbela was clearly performing certain

actions on Villegas’ behalf, and the only person to benefit from Mimbela’s actions was Villegas,

and (2) Villegas did not repudiate Mimbela’s efforts and instead provided him with information

34
to track down witnesses, thereby leading to a ratification16 of any actions done without Villegas’

prior knowledge. Even if the recordings standing alone could show that Mimbela was acting at

Villegas’ behest either directly or through ratification as an agent, the State must also show the

statements pertained to a matter within the scope of that relationship and that the statement was

made while the relationship existed, to be admissible as non-hearsay under Rule 801(e)(2)(D).

See Norton, 703 S.W.2d at 272. “[W]ithout divulging the duties of the agent and character of his

representation[,]” the State cannot show that it is entitled to use Mimbela’s statements at trial.

Id. at 272. The State fails to point to any evidence suggesting the nature or scope of Villegas’

and Mimbela’s purported agency relationship, or how wide a scope Mimbela had in acting on

Villegas’ behalf. Given the paucity of evidence on this point, the trial court did not abuse its

discretion in rejecting the State’s agency-as-non-hearsay argument based on the record

presented.

iii.
Co-Conspirator

The State also argues that the statements are admissible as non-hearsay as the statements

of a co-conspirator. We disagree. Rule 801(e)(2)(E) allows for the admission of out-of-court

statements “made by the party’s coconspirator during and in furtherance of the conspiracy.”

TEX. R. EVID. 801(e)(2)(E). To gain admission of statements made by a co-conspirator, the State

must prove the existence of a conspiracy. Wilkerson v. State, 933 S.W.2d 276, 279 (Tex.App. –

Houston [1st Dist.] 1996, pet. ref’d). The existence of the conspiracy “may be established by

direct or circumstantial facts and may be inferred from the evidence[,]” Id. The State, however,

must “establish a prima facie case of conspiracy” using evidence “separate and apart from the

16
Ratification “occurs when a principal supports, accepts, or follows through on the efforts of a purported agent.”
Lozada v. Farrall & Blackwell Agency, Inc., 323 S.W.3d 278, 292 (Tex.App. – El Paso 2010, no pet.).

35
otherwise hearsay statement.” P. McGregor Enterps., Inc. v. Hicks Const. Group, L.L.C., 420

S.W.3d 45, 54 (Tex.App. – Amarillo 2012, no pet.) (interpreting TEX. R. EVID. 801(e)(2)(E) in

civil case); see also Deeb v. State, 815 S.W.2d 692, 696 (Tex.Crim.App. 1991) (hearsay

statements of co-conspirator are admissible “[w]here there is sufficient independence evidence to

establish a conspiracy”). Here, the State made no evidentiary showing beyond the calls

themselves to prove that a witness tampering conspiracy existed between Villegas and Mimbela.

Absent independent evidence showing a prima facie case for conspiracy, the statements could

not be admitted under a co-conspirator non-hearsay theory.

iv.
Double Hearsay

Villegas identifies the statements the State contends are admissible in Issues 3C, 3E, 3F,

4B, 4D, 4E, 5C, 5D, 5G, 7B, 8A, 8B, and 9C as all containing double hearsay. The record

confirms that these issues all involve statements in which one out-of-court speaker is conveying

the statements of at least one other out-of-court speaker. When double hearsay is involved, to be

properly admissible, each level of hearsay must fall under an exception. See Sanchez v. State,

354 S.W.3d 476, 485-86 (Tex.Crim.App. 2011) (“When hearsay contains hearsay, the Rules of

Evidence require that each part of the combined statements be within an exception to the hearsay

rule.”); Crane v. State, 786 S.W.2d 338, 354 (Tex.Crim.App. 1990); see also TEX. R. EVID. 805

(“[h]earsay within hearsay is not excluded by the rule against hearsay if each part of the

combined statements conforms with an exception to the rule”). And, for the State to overcome a

double hearsay objection, “each separate identifiable increment of hearsay must be distinctly

justified under some recognized exception to the hearsay rule.” Davis v. State, 696 S.W.2d 494,

498 (Tex.App. – El Paso 1985, no pet.). The State has not addressed double hearsay in its brief,

nor has it provided any explanation that would allow these statements to pass through two or

36
more layers of hearsay. The failure to adequately brief an issue, either by failing to specifically

argue and analyze one’s position or to provide authorities and record citations, waives any error

on appeal. See Swearingen v. State, 101 S.W.3d 89, 100 (Tex.Crim.App. 2003). As such, we

affirm the trial court’s rulings as to the double hearsay statements.

v.
Conclusion

Because we must affirm the trial court’s evidentiary ruling if there is any legally valid

theory to support the ruling, and because the State has waived any argument that the statements

were being offered for a purpose other than the truth of the matter asserted, and because the State

failed to proffer any evidence necessary to establish the statements as non-hearsay or otherwise

establish that a hearsay exception exists to admit these statements, the trial court did not abuse its

discretion in barring the admission of statements from speakers other than Villegas himself.

b.
Specific Allegations of Witness Tampering

We pause before proceeding to note the effect of our previous rulings. As the following

excerpts reveal, Mimbela was the primary speaker in the remaining recordings. But, as we have

concluded, the trial court did not abuse its discretion in excluding all the statements made by

Mimbela and others in these recordings on hearsay grounds. The relevance of the remaining

excerpts on the whole is largely contingent on Mimbela’s excluded testimony because without

the context of Mimbela’s statements, the excerpts are confusing and lack probative value. Given

that Mimbela’s side of these conversations, which the trial court properly excluded, is necessary

to make these conversations relevant, we similarly conclude that the trial court did not abuse its

discretion by finding the remainder of these conversations irrelevant and inadmissible.

However, given the possibility that the trial court could re-examine its rulings at trial and

37
that the State could provide the missing predicates at trial to overcome the hearsay hurdles, we

proceed to address, in the interest of judicial efficiency, whether, considering the following

excerpts as a whole including Mimbela’s statements, the trial court abused its discretion in

excluding the following recordings on relevance or Rule 403 substantial-prejudice grounds.

In Issues Three through Seven and the related sub-issues therein, the State seeks to admit

recordings recounting Villegas’ and Mimbela’s efforts to contact prospective witnesses Wayne

Williams, Jesse Hernandez, Juan Medina, Rudy Flores, Arasally Flores, and Jose Juarez in the

lead-up to the habeas corpus proceedings. The State theorizes that the conversations between

Mimbela and Villegas regarding outreach to these witnesses are admissible because they evince

Villegas’ consciousness of guilt by showing the existence of a concerted plan to tamper with

witnesses. Essentially, the State argues that all the actions described in the conversations are

admissible as evidence of guilt because they show that Villegas did not behave like an innocent

man. Villegas contends his actions, and those of Mimbela, are consistent with his claims of

innocence, and that in any event, the recorded calls mostly involve the actions of Mimbela over

whom Villegas had no control. As such, any inference of consciousness of guilt is unreasonable.

Any conduct on the part of a person accused of a crime subsequent to its commission that

indicates a consciousness of guilt may be received as a circumstance tending to prove that he

committed the act with which he is charged. Torres v. State, 794 S.W.2d 596, 598 (Tex.App. –

Austin 1990, no pet.). An attempt to tamper with a witness is evidence of consciousness of guilt.

Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). A person completes the offense of

tampering with a witness once the person offers, confers, or agrees to confer a benefit to the

witness “in a manner calculated to cause false testimony.” Navarro v. State, 810 S.W.2d 432,

437 (Tex.App. – San Antonio 1991, pet. ref’d); see also TEX.PENAL CODE ANN. § 36.05(a)(1)

38
(West Supp. 2016). The efforts of third parties who attempt to tamper with witnesses at the

defendant’s behest may be admissible as evidence of consciousness of guilt. See Gonzalez v.

State, 117 S.W.3d 831, 842 (Tex.Crim.App. 2003) (defendant’s attempt to use attorney to bribe a

witness to give favorable testimony “would support an inference that such conduct demonstrated

defendant’s consciousness of guilt”); cf. Agbogwe v. State, 414 S.W.3d 820, 826 (Tex.App. –

Houston [1st Dist.] 2013, no pet.) (counsel’s failure to object to evidence that defendant’s friends

asked assault victim to drop charges and refuse to comply with subpoena and offered to pay fines

for subpoena noncompliance was not ineffective assistance of counsel because that evidence was

admissible as proof of defendant’s consciousness of guilt). We address the admissibility of the

relevant conversations witness by witness.

i.
Wayne Robert Williams

Prospective witness Wayne Robert Williams was detained in jail with Villegas in 1993

following the Electric Street shooting. The State alleges that while in jail, Villegas told Williams

he shot Lazo and England. Villegas, on the other hand, maintains that he never made that

statement. In Issues 3A through 3F, the State seeks to admit six statements detailing Villegas

and Mimbela’s efforts to track Williams down and determine what he remembered Villegas

saying that night in 1993. Mimbela and Villegas also wanted to learn if Williams knew anything

about the potential involvement of Rudy Flores in the Electric Street shooting. The State

maintains these statements show Mimbela and Villegas conspired to attempt to get Williams to

change his potential testimony implicating Villegas in the Electric Street shooting.

1.
July 6, 2009 Recording (Issue 3A)

On July 6, 2009, Mimbela and Villegas began their discussions about tracking down

39
Williams:

MIMBELA: . . . this Williams guy . . .17

VILLEGAS: . . . the one that uh

MIMBELA: We – the one that was in the can with you . . . .

VILLEGAS: Yeah.

* * *

MIMBELA: And he’s about . . your guys’ age. . . . He was born in ’76, so that’s
only what a year older than you?

VILLEGAS: Yeah.

MIMBELA: And he lived – the addresses that we had for him was Salem and
Blossom, which are right there, right around Northeast . . . that
area where [Flores] lives.

VILLEGAS: Exactly, huh? Think it’s Salem, wasn’t it Salem?

* * *

MIMBELA: . . . this guy is the Robert Williams guy – this is the guy that you
said that told you that it was [Flores], right?

VILLEGAS: Yeah, that’s the one right there.

* * *

VILLEGAS: That’s the one – pretty sure, that’s the guy right there.

* * *

VILLEGAS: . . . and I hope . . . this Robert Hall guy . . . remembers . . . and . . .
helps us out . . . .

MIMBELA: Who’s that?

VILLEGAS: That . . . Williams . . . .

2.
July 13, 2009 Recording (Issue 3B)
17
All alterations are those made by the State in its informal transcript in its brief.

40
 On July 13, 2009, the discussion over Williams continued:

MIMBELA: . . . This is what we’re gonna do now. We’re gonna look for him,
now, okay?

VILLEGAS: Okay . . . he’s going to know me as Danny – Danny Boy.

* * *

MIMBELA: Now, we’re gonna start looking for him and see if he can lead us to
Rudy Flores or whoever he . . . might be able to lead us to . . . .

3.
July 22, 2009 (Issue 3C)

On July 22, 2009, Mimbela told Villegas during a phone conversation that he had

successfully located Williams. He then relayed the conversation he had with Williams to

Villegas:

MIMBELA: . . . we did get a hold of that Robert Williams guy.

VILLEGAS: Yeah, I was reading about him . . . he was lying like a mug . . . .

MIMBELA: . . . We’re just trying to get some leads . . . He didn’t really seem to
have any personal knowledge about [Flores] . . . .

* * *

MIMBELA: . . . he said that he doesn’t have any personal knowledge of . . . that
[Flores] had done it, and he says that the last conversation he
remembers with you was that . . . you were kind of bragging about
that you had done it.

VILLEGAS: . . . that’s what I’m saying . . . I was like, man, come on . . . I don’t
even got a tattoo on my back that says “Diana.”

MIMBELA: No? He . . . couldn’t remember the name . . . do you have a girl’s
tattoo . . . on your back of anything?

VILLEGAS: I’ve got a girl’s tattoo on my back, but it don’t say no name. It
says “El Paso” on it.

MIMBELA: Really? But did you have it way back then?

41
 VILLEGAS: Yeah.

* * *

MIMBELA: . . . we didn’t want to get him upset because . . . you could tell . . .
he got upset real easy.

VILLEGAS: Yeah.

MIMBELA: . . . cause I told him . . . you know what Daniel says that you
pointed out [Flores] to him. “I never pointed out no [Flores] . . . .”

4.
July 27, 2009 Recording (Issue 3D)

Five days after relaying Williams’ comments to Villegas, on July 27, 2009, Mimbela told

Villegas about his plan to offer Williams a job at Mimbela Construction:

MIMBELA: . . . I got a hold of that Robert Williams again, and . . . I’m going to
interview him for a job tomorrow.

VILLEGAS: Ah-hah.

MIMBELA: . . . I’m going to hire him so I can have him close to me and I get
all kinds of information from him.

VILLEGAS: Okay. (Laughs)

MIMBELA: Okay? (Laughs) I already have Juan Medina on payroll.

VILLEGAS: (Laughs) Alright.

MIMBELA: Okay, so . . . he’s gonna go tomorrow for an interview at 9:00 . . .
he gave us some good information. . . . I just want to be able to
have him close to us. . . .

VILLEGAS: Alright. . . .

5.
May 10, 2011 Recording (Issue 3E)

Nearly two years after offering Williams a job interview with Mimbela Construction, in

the months leading up to the habeas corpus decision, Mimbela told Villegas that he had again

42
asked Williams about what happened when he was in jail with Villegas. Mimbela related that

Williams still denied knowing anything about Flores’ involvement in the Electric Street shooting

and insisted that Villegas had admitted to the shooting. Mimbela and Villegas then discussed

whether Williams would be called at the habeas hearing:

MIMBELA: What Roberts remembers . . . before he met you . . . he said they’re
always accusing him of . . . this crime . . . and I remember when
Danny came in . . . and this is what he remembers . . . and . . . I
told him your version . . . Daniel says that you told him . . . when
you asked him why he was in there, he said, nah . . . he goes . . .
[Flores] is the one who did it . . . isn’t that what you told me?

VILLEGAS: Yeah . . . exactly.

MIMBELA: . . . he goes, nah, I never said that. He goes, what I remember . . .
asking him what he was in there for, and he tells me, well, I’m the
one who . . . blew away those guys with a shotgun.

* * *

MIMBELA: . . . I’m not sure how we’re going to be able to use this guy. I
know he’s helpful as far as . . . saying that . . . Marquez was
harassing him too . . . He says that . . . you told him that . . . a
shotgun , which, you know, I mean . . . I didn’t tell him anything
about that shotgun part . . .

VILLEGAS: Uh-huh.

MIMBELA: . . . about what David said, so . . . he’s pretty accurate there.

VILLEGAS: . . . what did he say, that I told him what?

MIMBELA: That you told him that . . . you had . . . blown those guys away
with a shotgun.

VILLEGAS: (Laughs) Nah, I never told him that.

MIMBELA: No?

VILLEGAS: Huh-uh.

MIMBELA: . . . I don’t know . . . this is what he told me . . . John . . . when he
came up to me that day, I always thought that . . . Daniel had done

43
 it because that’s what he told me. . . .

VILLEGAS: I think he’s lying . . .

MIMBELA: . . . but, now that you’ve shown me all this stuff . . . and you tell
me exactly how it happened . . . yeah, he goes . . . I don’t believe
it. But he goes, that was my . . . understanding back then because I
never really knew what happened . . .

* * *

VILLEGAS: . . . the only thing I can think of, if I told him anything, I had to tell
him that . . . I told my cousin that . . . that I told David that . . .

MIMBELA: . . . you see . . . maybe that’s what he . . . what you told him, but
that’s what I’m saying . . . that’s the thing about it is that . . . it’s
been so long that . . it’s hard to . . . get everything . . . perfectly
straight. . . .

6.
June 20, 2011 Recording (Issue 3F)

In another jail recording on June 20, 2011, Mimbela told Villegas that Williams stood by

his story that Villegas had admitted being the shooter, and they were not going to use him as a

witness:

MIMBELA: ...we tried talking to...Robert Williams today again. But, nah, he
keeps saying that you were still bragging about it.

VILLEGAS: ...he’s lying...

MIMBELA: ...we’re not gonna use him.

Mimbela’s job offer to Williams is a textbook example of impeachment evidence, as it

would tend to establish a bias that could be explored during cross-examination. Carpenter v.

State, 979 S.W.2d 633, 634 (Tex.Crim.App. 1998) (noting that parties have “great latitude”

under the rules to cross-examine witnesses on facts tending to “establish ill feeling, bias, motive

and animus”). However, the State does not seek to admit these statements in order to impeach

Williams, nor did the trial court foreclose this possibility. Rather, the State alleges that these

44
conversations are admissible as substantive evidence of Villegas’ consciousness of guilt. The

State believes these statements demonstrate an attempt by Villegas to have Mimbela offer

Williams a job in an effort to corrupt Williams’ potential testimony. In the State’s eyes, the fact

that Williams’ testimony remained the same over a period of two years is irrelevant; the attempt

is enough to render these conversations admissible during the State’s case-in-chief. As such, the

State urges us to reverse the trial court’s order excluding this evidence from being offered to

establish consciousness of guilt.

Complicating our efforts is the fact that the Texas Court of Criminal Appeals only

recently allowed the State to seek review of evidence suppressed pretrial based on the Rules of

Evidence, as opposed to orders suppressing evidence based on constitutional or statutory

violations. See Medrano, 67 S.W.3d at 903. Consequently, most appellate decisions discussing

evidentiary abuse-of-discretion calls in the criminal context involve aggrieved defendants

complaining that the State’s evidence was improperly admitted at trial, with the appellate courts

properly and deferentially blessing the admission of evidence on relevance grounds, even if the

evidence only “provides a small nudge toward proving or disproving some fact of consequence.”

Levario, 964 S.W.2d at 297. Indeed, the State cites numerous examples of these cases as proof

that this particular evidence can meet the relevancy threshold on a witness-tampering theory.18

But few, if any, cases involve complaints by the State that the trial court improperly excluded

evidence on evidentiary grounds. Those cases that do often deal with evidentiary issues that are

more straightforward than relevance or Rule 403 prejudice, such as the application of a hearsay

18
See Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999); Garza v. State, 358 S.W.2d 622, 623
(Tex.Crim.App. 1962); Pizano v. State, No. 01-12-00994-CR, 2013 WL 3155954 at *1 (Tex.App. – Houston [1st
Dist.], June 20, 2013, no pet.) (mem. op., not designated for publication); Edwards v. State, No. 14-05-00634-CR,
2006 WL 3270829, at *6 (Tex.App. – Houston [14th Dist.], Nov. 14, 2006, pet. ref’d) (mem. op., not designated for
publication); see also Gonzalez v. State, 117 S.W.3d 831, 842 (Tex.Crim.App. 2003); Agbogwe v. State, 414 S.W.3d
820, 835 (Tex.App. – Houston [1st Dist.] 2013, no pet.).

45
exception, see, e.g, Cox, 843 S.W.2d at 752, or the admission of scientific evidence. See, e.g.,

Esparza, 413 S.W.3d at 86.

In any event, the standard of review for the admission or exclusion of evidence is

ultimately the same: abuse of discretion. To avoid the distorting effects that come with using

admission-heavy case law to determine an exclusion case, we must firmly anchor ourselves to

the well-worn abuse of discretion standard and use Montgomery as our lodestar in determining

relevancy. Montgomery recognizes that a trial judge’s relevance determination will largely hinge

upon that “judge’s perception of common experience” while also cautioning appellate courts to

stay their hand if “[r]easonable men may disagree whether in common experience a particular

inference is available” so as to avoid substituting one reasonable inference for another and

thereby “commandeering a function institutionally assigned elsewhere.” Montgomery, 810

S.W.2d at 391. Synthesized to a core statement, Montgomery stands for the proposition that we

will not intervene if the trial court’s relevancy call falls within the zone of reasonable

disagreement. Id.

Further, we believe that the State’s discussion of Mimbela and Villegas’ relationship in

its argument of an agency exception to hearsay also frames the trial court’s relevancy inquiry.

Mimbela’s statements and actions are only relevant to show Villegas’ consciousness of guilt if it

can be reasonably inferred that Villegas directed or controlled Mimbela’s actions beforehand or

ratified Mimbela’s actions afterward. But, because we review this question under the deferential

abuse of discretion standard—mindful of our duty not to usurp the trial court’s reasonable

inferences and replace them with our own—our inquiry becomes even more refined.

Accordingly, the ultimate question as guided by Montgomery is this: viewing the statements

from the position of common experience, is there room for reasonable disagreement as to

46
whether it can be inferred Mimbela was acting with corrupt intent at Villegas’ behest? “As long

as the trial court’s ruling was at least within the zone of reasonable disagreement, we will not

intercede.” Levario, 964 S.W.2d at 297.

We must decide whether the inference underpinning the judge’s evidentiary decision is so

unreasonable that it falls outside the zone of reasonable disagreement. When measuring the

ruling in light of this standard, the ambiguity of the evidence makes our decision clear. We

agree with Villegas that the trial court, in viewing the evidence that Mimbela offered Williams a

job, could, in a reasonable perception of common experience, reasonably reject the inference of

an insidious explanation for the phone calls, given the lack of an explicit quid pro quo proposal

aimed at changing Williams’ testimony, the ambiguity surrounding how much control Villegas

asserted over Mimbela, and the fact that interviewing witnesses while conducting a post-

conviction habeas investigation is not, in and of itself, suspect. Indeed, the trial court explicitly

rejected the idea that Mimbela was acting as Villegas’ agent based on the record presented.

Because the evidence as presented is inconclusive and subject to the trial court’s reasonable

perception of common experience, we will not disturb the trial court’s ruling. Issues 3A through

3F are overruled.

ii.
Jesse Hernandez and Juan Medina (Eyewitnesses)

Jesse Hernandez and Juan Medina were eyewitnesses to, and the only survivors of, the

Electric Street shooting. Hernandez and Medina testified at both of Villegas’ trials, with their

testimony remaining largely consistent between trials. Neither identified Villegas as the shooter.

Hernandez later submitted an affidavit as part of Villegas’ habeas corpus application. In the

affidavit, Hernandez attested that the investigating detective had initially accused him of

murdering England, that the detective yelled at Hernandez until he began crying uncontrollably,

47
and that if the detective had not stopped yelling, Hernandez believed that he “would have

confessed to something [he] didn’t do.” In Issues 4A through 4E, the State maintains that the

trial court should have admitted several conversations in which Mimbela describes his outreach

efforts to these witnesses. Mimbela also admits that he hired Medina at Mimbela Construction

and took him to see a boxing match. The conversations appear below.

1.
July 27, 2009 Recording (Issue 4A)

This statement, which also forms the basis of State’s Issue 3D, consists of John Mimbela

acknowledging to Villegas that he has Juan Medina on Mimbela Construction’s payroll.

2.
January 11, 2010 Recording (Issue 4B)

On January 11, 2010, Mimbela informed Villegas that he had taken Jesse Hernandez to

see the Sun Bowl football game:

MIMBELA: . . . and then Jesse . . . told you about . . . we took Jesse . . . to the
football game?

VILLEGAS: Did he go?

MIMBELA: Yeah, he went. Yeah, I took a picture of him too. . . .

* * *
MIMBELA: . . . I’m going to send you the picture of Jesse . . . at the football
game. . . . He sat there with us and we talked a lot and . . . he never
been to a football game.

VILLEGAS: Oh, no?

MIMBELA: No, and . . . to the Sun Bowl . . . a big game like that . . . he was all
excited. . . . Same thing with him, “John, I’m ready. Whenever
you need me to go testify, I’m ready.”

3.
July 26, 2010 Recording (Issue 4C)

48
 On July 26, 2010, Mimbela asked Villegas to write a letter to Juan Medina, thanking him

for his help with Villegas’ post-conviction efforts. Mimbela also explained to Villegas that

Medina had financial issues related to medical expenses:

MIMBELA: . . . I need you to do one more letter, and this one you got to make
it good, okay?

VILLEGAS: Alright.

MIMBELA: . . . Juan Medina’s really been helping us a lot okay? . . . I had
lunch with him today again.

* * *

MIMBELA: . . . but like I said . . . he is going out of his way . . . of course, I’ve
been helping him a lot in his financial situation too, but . . . like I
told him, we’re here to help each other . . . and I know that . . . he’s
got this little boy too – I don’t know if I told you that he’s . . . got a
bad illness . . . . I’ll explain it to you, we’re gonna go see you this
weekend, okay?

VILLEGAS: Okay.

4.
August 7, 2010 Recording (Issue 4D)

On August 7, 2010, Mimbela related the following conversation he had with Jesse

Hernandez to Villegas, which the State alleges occurred when Mimbela took Hernandez to sit

ringside at a high-profile boxing match involving boxer Antonio Escalante in Los Angeles:

MIMBELA: . . . did you get that letter out to Jesse?

VILLEGAS: Yeah, I sent one out to Jesse, Medina, and to the reporter.

MIMBELA: Okay, great, great. Yeah, Jesse was there, he sat with us there at
ringside too . . . and . . . he was telling me that . . . “John, I’m
really glad . . . that you’re doing this . . . I really want to thank you
too,” and I go, “why? I want to thank you for supporting this. . . .”
He goes . . . “I just . . . see everything that you’re bringing out and
I’m just glad that . . . you brought this up to us because I didn’t
want to continue to live this lie . . . ” . . . he was like, anything else
you need . . . just . . . whenever you have something, just call me . .

49
 . and he’s like, you know what, you don’t have to be like buying
me stuff. . . .

5.
September 20, 2010 Recording (Issue 4E)

On September 20, 2010, Mimbela told Villegas that he had made contact with potential

witness Rocio Gutierrez, and that he had also taken her to the boxing match. He then related

details about the match:

MIMBELA: . . . we also met that girl I told you – Rocio over there in L.A.?

VILLEGAS: Yeah.

MIMBELA: Yeah, she’s also very much on board too. . . . We showed her a
great time . . . we went to that . . . boxing match, remember?

VILLEGAS: Yeah . . .

* * *

MIMBELA: . . . we had a great time . . . we . . . sat on the floor of course . . .
and . . . I took Jesse, Mr. Bonilla, my two sons, and then I took . . .
Rocio and her husband right?

VILLEGAS: Ah.

MIMBELA: They were like . . . babies in a candy store. . . .

VILLEGAS: (Laughs).

MIMBELA: (Laughs). . . . Cause all kinds of celebrities were sitting right next
to us, like Magic Johnson was there . . .

VILLEGAS: Ah, man, are you serious?

MIMBELA: Yeah, this was at the L.A. Coliseum . . . in L.A. . . . Ron Artest . . .
Sugar Ray Leonard . . .

VILLEGAS: Ah man (laughs).

MIMBELA: . . . and of course . . . Oscar de la Hoya. So . . . they were like
taking pictures galore . . . and afterwards we went and had a little
celebration with our boxer Escalante . . . we took him out for some

50
 drinks and dinner. . . . They were with us . . . and they were having
the time of their lives . . . and they said . . . “John, you gave us the
ultimate experience.” . . . he goes, “anything we can do for you . . .
we’re here for you . . . we’re here with you . . . with Daniel, we’re
gonna stay with this until he’s out of prison.”

VILLEGAS: (Laughs).

Again, as with the Williams conversations, we have no doubt that this evidence would be

admissible as impeachment evidence on cross-examination if Hernandez and Medina are called

to the stand, and the trial court did not foreclose that avenue of admissibility. However, purpose

and the ultimate fact to be proven control our relevance analysis. Layton, 280 S.W.3d at 240.

Here, the State wants to admit this evidence not to show that the witnesses have a bias, but

substantively, during its case-in-chief, to establish Villegas’ consciousness of guilt. As with the

Williams conversations, we conclude the trial court, in a reasonable perception of common

experience, could reasonably reject the inference of an insidious explanation for the phone calls,

given the ambiguity surrounding how much control Villegas asserted over Mimbela, and the fact

that interviewing witnesses while conducting a post-conviction habeas investigation is not, in

and of itself, suspect. As noted, the trial court explicitly rejected the idea that Mimbela was

acting as Villegas’ agent based on the record presented. We overturn evidentiary rulings only

when they fall outside the zone of reasonable disagreement. Because the evidence as presented

is inconclusive and subject to the trial court’s reasonable perception of common experience, we

will not disturb the trial court’s ruling. Issues 4A through 4E are overruled.

iii.
Rudy Flores

Writ hearing witness Rudy Flores was fifteen years old at the time of the Electric Street

Shooting. He and his brother Javier were part of the Los Midnight Locos (LML) gang in

Northeast El Paso. Two weeks before the Electric Street shooting that resulted in England and

51
Lazo’s deaths, Rudy Flores allegedly threatened to kill England and Lazo at a party. And, Javier

Flores had fought with Lazo at school. At the writ hearing, Villegas called several witnesses in

an attempt to show that Rudy Flores was the actual perpetrator of the Electric Street shooting.

Rudy Flores had previously given the District Attorney an affidavit denying any involvement in

the Electric Street shooting.19 When called to testify at the writ hearing, Rudy Flores attempted

to invoke his right against self-incrimination and was held in contempt when the trial court held

that Flores had waived his Fifth Amendment right by providing his affidavit to the District

Attorney’s Office, but Flores still persisted in refusing to answer questions.

In Issues 5A through 5G, the State seeks to admit conversations between Mimbela and

Villegas related to Rudy Flores. The State asserts the actions Mimbela proposes in these

conversations were an attempt to offer Rudy Flores cash in order to “pin” the Electric Street

Shooting on his dead brother Javier. As with the other conversations, the State maintains that

this was another attempt to tamper with a potential witness, which in turn showed Villegas’

consciousness of guilt. Villegas insists that Mimbela only reached out to Rudy Flores as part of

the habeas investigation, and that any mention of reward money for information was not

intended to influence Flores’ testimony.

1.
October 28, 2010 Recording (Issue 5A)

On October 28, 2010, Mimbela and Villegas began discussions about reaching out to

Rudy Flores:

MIMBELA: . . . remember that I told you that he knows [Flores]?

19
Rudy Flores was summoned from the prison to El Paso on a bench warrant as part of the District Attorney’s post-
conviction investigation. Then, with counsel present, Flores was personally interviewed by District Attorney Jaime
Esparza in Esparza’s office. According to testimony from Flores’ attorney, Flores agreed to give an affidavit
denying involvement in the Electric Street shooting. In exchange, the District Attorney’s Office promised not to use
the affidavit if it became apparent that offering the affidavit would result in the waiver of Vasquez’s privilege
against self-incrimination.

52
 VILLEGAS: Yeah.

MIMBELA: . . . I told him. . . why don’t you write [Flores] . . . you know
there’s a $50,000 reward, right? Well, write [Flores] . . . let him
know that we’ve got a $50,000 reward and that . . . we don’t think
it was him because . . . the new word that we’re getting around . . .
everybody kinda tells us the same thing, that [Flores] wasn’t that
kind of person. He was a bragger . . . he really never furnish . . .or
had a gun or anything like that, but . . . they’re almost positive that
. . . [Flores] knows something, he knows who it was . . .whether it
was his brother, whether it was the LML gang . . . and like a lot of
other people, he was bragging about it, but nobody believes that it
was him. . . .

2.
November 1, 2010 Recording (Issue 5B)

On November 1, 2010, Mimbela and Villegas discussed what would be the best way to

approach Flores:

MIMBELA: . . . I already told you about . . . this guy . . . Chris Martinez . . .
that . . . is related to Armando’s mom . . . we’re supposed to have
lunch this week and we wanna discuss how . . . what’s gonna be
the best way to approach . . . [Flores] on this.

VILLEGAS: Hmm.

MIMBELA: . . . remember how I told you about that . . . that we’re gonna try to
approach [Flores] . . . and see if . . . like I said, from everybody I
talked . . everybody seems to think that . . . [Flores] definitely
knows something about it, but he wasn’t the trigger guy . . . what’s
your thought?

VILLEGAS: I don’t know, if he wasn’t the triggerman, hopefully he’ll come out
with it. He looks like a shiesty dude.

MIMBELA: Yeah.

VILLEGAS: That’s how he came up to me back when we were kids, being real
shiesty, so . . . he probably would give somebody up for $50,000
grand, and right now he’s in prison, and he’s probably doing bad.

MIMBELA: Yeah, yeah . . . .

53
 3.
February 2, 2011 Recordings (Issue 5C)

On February 2, 2011, Mimbela and Villegas discussed Villegas’ attorney’s upcoming

visit to Flores in prison:

MIMBELA: . . . Joe Spencer’s gonna go visit [Flores] in prison.

VILLEGAS: Oh, yeah? (Laughs)

MIMBELA: Yeah, and he’s gonna talk to him and deal with him.

VILLEGAS: Alright . . . that’ll be real good. (Laughs)

* * *

MIMBELA: . . . he wants to go see [Flores], and see if [Flores] is willing to cut
some kind of a deal. In fact, if he does know who did it or if he
was involved.

VILLEGAS: That sounds good. I just hope he can get [Flores] to say it.
(Laughs)

MIMBELA: You what?

VILLEGAS: I said I hope they can get [Flores] to talk. (Laughs).

4.
February 4, 2011 Recordings (Issue 5D)

On February 4, 2011, Villegas told his mother Yolanda Villegas about his attorney Joe

Spencer’s plan to meet with Flores to see what he knew about the Electric Street shootings:

VILLEGAS: Spencer’s going to go . . . visit [Flores].

* * *

YOLANDA: (unintelligible)

VILLEGAS: . . . they talked about, they’re going to go talk to [Flores].

YOLANDA: They talked to [Flores], or they’re going to?

VILLEGAS: They’re going to . . . they’re going to try to see if they can work a

54
 deal out with him, maybe[.]

YOLANDA: Oh, okay . . . he had mentioned something like that to me then . . .
that they were going to talk to him, tell him they knew it was
“Dirt” and see if they (inaudible) the $50,000.

VILLEGAS: I don’t know how they’re going to bring it to him. They didn’t tell
me how. They just said they were going to try to holler at him, see
what happens.

YOLANDA: . . . they told me that whoever . . . (inaudible) . . . that they knew
that it was Dirt and that if they . . . (inaudible) . . . the gun or
something, they were going to offer him the money. (Inaudible) . .
. they still think that they have a good case without the – but I
guess it’s better for you to come out innocent. . . .

VILLEGAS: That would be the best thing because that’ll clear my name.

YOLANDA: If John wants his money back, you’re going to make sure he finds
you innocent?

VILLEGAS: I don’t know, but I better have innocence anyway. That would
mean that I would have a clear record, no felony charges, no
nothing. Clean –

YOLANDA: . . . we’ll pay for the pardon.

5.
February 6, 2011 Recordings (Issues 5E and 5F)

On February 6, 2011, Villegas spoke with his mother again about Flores:

YOLANDA: . . . I really feel that he’s the one that did it. I don’t feel it was his
brother. I don’t like the thought of paying someone for . . . killing
people.

VILLEGAS: . . . the deal was, he really didn’t have anything on him. He didn’t
seem like that. He seemed like a big coward to me.

That same day, Villegas and his father discussed Flores:

VILLEGAS: . . . [Flores] goes ahead and ‘fesses up. (Both talking over each
other).

FATHER: I don’t see why he wouldn’t agree to . . . what we’re propositioning
him with . . . Hell . . . be stupid for him not to . . . his brother’s

55
 dead anyway.

6.
February 28, 2011 Recordings (Issue 5G)

In this recording, Villegas told his mother that Flores had refused to meet with Villegas’

attorney.

These conversations are similar to the conversations we have previously discussed.

Again, we conclude the trial court, in a reasonable perception of common experience, could

reasonably reject the inference of an insidious explanation, given the ambiguity surrounding how

much control Villegas asserted over Mimbela, and the fact that interviewing witnesses while

conducting a post-conviction habeas investigation is not, in and of itself, suspect. Accordingly,

we conclude that the trial court did not abuse its discretion in excluding these conversations,

since their ultimate relevance for the purpose offered fell within the zone of reasonable

disagreement. Issues 5A through 5G are overruled.

iv.
Arasally Flores and Jose Juarez

Arasally Flores is the sister of Rudy and Javier Flores. Jose Juarez is Arasally’s

boyfriend. Both are prospective witnesses. In Issues 6A through 6C, the State seeks to admit

three conversations between Mimbela and Villegas in which Mimbela mentions reaching out to

Juarez and Arasally Flores and informing them of the $50,000 reward for information. As with

the previous statements, the State alleges these statements prove Villegas’ consciousness of guilt

and show a concerted effort to tamper with witnesses.

1.
January 28, 2010 Recording (Issue 6A)

On January 28, 2010, Mimbela told Villegas that he had made contact with Arasally and

Juarez:

56
MIMBELA: . . . we talked to . . . Sally Flores. You know who that is, right?

VILLEGAS: That’s . . . [Flores’s] sister.

MIMBELA: Yeah . . . we talked to her.

VILLEGAS: Huh, what did she say?

MIMBELA: . . . she was in a real bad motorcycle accident.

VILLEGAS: I didn’t know that.

MIMBELA: Yeah . . . she’s got . . . brain damage.

VILLEGAS: Oh.

MIMBELA: . . . the only thing is . . . she . . . doesn’t remember a lot . . . she
seems to be okay. . . .

* * *

MIMBELA: . . . we went talking to her and . . . we told her about the $50,000
reward. . . . And her boyfriend was there, right?

VILLEGAS: Yeah.

MIMBELA: . . . she lives where [Flores] and them used to live, that’s where she
lives.

VILLEGAS: Okay.

MIMBELA: . . . we went and talked to her and we talked to her boyfriend and
we told them . . . there’s a $50,000 reward out there. We’re after .
. . the guy that killed these two kids. . . . the guy that they’ve got in
prison isn’t the guy, he’s not the one that did it . . . we wanna . . .
prove that it wasn’t him, so we’re offering a $50,000 reward.

* * *

MIMBELA: . . . what I’m thinking is this . . . these people need the money . . .
you can tell, they’ve lived in a – that house is all run-down, and . . .
their cars . . . are all beat up . . . so . . . if she knows something, and
if her boyfriend is . . . hating on her ex . . .

VILLEGAS: (inaudible).

57
 2.
February 22, 2010 Recording (Issue 6B)

On February 22, 2010, Mimbela relayed his second attempt to talk to Arasally Flores

about the case:

MIMBELA: . . . Lucy and I went on Saturday, we went to go visit that girl Sally
Flores again.

VILLEGAS: Yeah.

* * *

MIMBELA: . . . we talked to Sally . . . to see if there’s anything she remembers,
and . . . we talked to her boyfriend . . . to remind him . . . hey,
there’s $50,000 out there, just so you know, in Daniel’s case. . . .
nobody that was in that car or supposedly in that car got prosecuted
so . . . don’t be afraid that if somebody was in there to talk and
pick up that reward, you know? . . . we’re just throwing stuff out
there, you know?

VILLEGAS: Hell, yeah. (Laughs).

MIMBELA: (Laughs). Yeah, I mean, who knows, somebody might be afraid to
talk, that I was in the car and I’m going to be prosecuted, well . . .
that didn’t happen in Daniel’s case, so don’t be afraid. . . .

VILLEGAS: Yeah – yep.

MIMBELA: . . . if you were in the car and . . . you want to pick up some money,
here it is. . . .

3.
April 27, 2010 Recording (Issue 6C)

On April 27, 2010, Mimbela told Villegas that he had gone to Juarez’s house and spoken

with his family about the $50,000 in reward money:

MIMBELA: . . . that [Jose] Juarez guy . . . we . . . found his parents and we
went to his parents’ house, right?

VILLEGAS: Uh-huh.

58
 MIMBELA: . . . telling them . . . we have reason to believe your son might have
some information . . . and I don’t know if you guys read the article,
but we are offering a $50,000 reward for anybody with
information. . . .

* * *

MIMBELA: . . . so if your son knows anything about it, or even if he was in the
car, of he knows something about it . . . nothing’s happening to
him, they’re just after the guy that pulled the trigger . . . look what
happened to Daniel . . . we reassured him that . . . if the person was
in the car, they can’t prove that they knew anything was going to
go down. . . .

VILLEGAS: Yeah. (Laughs).

MIMBELA: . . . the father seemed real convinced . . . a younger daughter was
there with him, kinda listening in, and she seemed real interested in
it. I showed them the paper, I showed them where the $50,000
reward is being offered.

* * *

MIMBELA: . . . we are offering this $50,000 reward . . . this Rudy Flores, of
course they know him real well because . . . remember that Juarez
guy was married or had a baby with Rudy Flores’ sister . . . you
remember that part, right?

VILLEGAS: Yeah . . . the other part . . . he was supposed to be one of the cats in
the car too . . .

MIMBELA: . . . yeah, exactly, but . . . that’s why we’re trying – brought in that
other angle . . . we think we know . . . that he knows something . . .
he might know who pulled the trigger, and there’s that $50,000
reward. . . .

The State alleges these conversations show that Mimbela and Villegas offered these

witnesses $50,000 in an attempt to have them fabricate favorable evidence—namely, that the

deceased Javier Flores was the actual Electric Street shooter. As with the other conversations at

issue in this case, we conclude the trial court, in a reasonable perception of common experience,

could reasonably reject the inference of an insidious explanation, given the ambiguity

59
surrounding how much control Villegas asserted over Mimbela, and the fact that interviewing

witnesses while conducting a post-conviction habeas investigation is not, in and of itself, suspect.

The trial court could have also properly determined, in a reasonable perception of common

experience, that Mimbela mentioned the $50,000 reward in order to genuinely see if they had

exculpatory information. As the State conceded at the evidentiary hearing, offering a monetary

award for information is not per se improper, and the State itself often offers reward money for

information. Such reward money is a proper subject of examination on impeachment, but based

on this record, the trial court could have properly determined that Mimbela’s offer of reward

money for purposes of the habeas proceeding was too attenuated to be relevant to Villegas’

consciousness of guilt for a crime committed in 1993. Again, we will defer to the trial court’s

resolution of reasonable inferences here under the abuse of discretion standard. Issues 6A

through 6C are overruled.

v.
David Rangel

David Rangel is the cousin of Daniel Villegas. During his interview with police, Rangel

told the investigating detective that Villegas had told him he shot England and Lazo with a

shotgun. However, Rangel also testified that he believed from his tone that Villegas was

obviously joking. Rangel later testified at the writ hearing that he told the detective that he

believed that Villegas’ “confession” was just a joke, but that when he said that, the detective

stopped taking his statement, threw away the statement he had been typing for Rangel, and

threatened him. The State insists that this testimony regarding the detective’s threats is false, and

that Rangel did not mention Villegas joking about the shooting in his official statement.

In Issues 8A through 8D, the State seeks to admit the following statements Villegas made

concerning conversations he had with Mimbela and his mother Yolanda concerning Rangel. The

60
State believes that these recordings show that Villegas was not joking or bragging when he told

Rangel that he had shot Lazo and England, and that contrary to his statements to police, Rangel

did not believe Villegas was joking, either.

1.
September 13, 2010 Recording (Issue 8A)

In this recording, Mimbela relayed a conversation he had with Rangel to Villegas:

MIMBELA: . . . “a lot of people blame me (Rangel) for it . . . once in a while . .
. [Yolanda] would blame me for it . . . I just told the truth . . . the
truth is, Daniel did tell me this . . . and I told the truth, but they did
not write what I told them. They threw that one away, and they
wrote whatever they wanted to write, and then they scared me into
signing it.”

VILLEGAS: Yeah.

2.
September 17, 2010 Recording (Issue 8B)

In this recording, Villegas told his mother Yolanda:

“ . . . they said that little David [Rangel] was crying on the phone . . . that he was
telling him . . . that he was glad this almost gonna be over with . . . he feels bad
about it, he says . . . we all blame him for it . . . he said you blamed him a couple
of times.”

3.
September 17, 2010 Recording (Issue 8C)

Later on in the day on September 17, 2010, Villegas told his mother that he had written

Rangel a letter forgiving him for what happened:

VILLEGAS: I wrote him – I wrote him a letter though. I let him know . . . he
ain’t about nothing . . . ain’t nothing to apologize about either
cause we were all a bunch of kids back then . . . it’s a done deal.

YOLANDA: Done deal? Okay.

4.
September 9, 2013 Recording (Issue 8D)

61
 In a phone call on September 9, 2013, Villegas expressed frustration with his cousin

Rangel:

VILLEGAS: It’s just like, somebody can always prove themselves that they
aren’t going to fuck you over and then one day they just they they
[sic] fucking turn on you. . . . Who ever thought my fucking cousin
David and all these people, I trusted them with my life?

The State maintains that these statements corroborate the original statement Rangel gave

police and show he did not believe Villegas was bragging or joking about the Electric Street

shooting. To the contrary, we find that these statements do little if anything to illuminate

Rangel’s state of mind or to corroborate the State’s claim that Rangel believed Villegas was not

joking when he said he shot Lazo and England with a shotgun. Simply put, the State asked the

trial court to draw too attenuated an inference between these statements and the purpose for

which they are offered. To meet the relevancy threshold, the link between the evidence and its

ultimate purpose must be direct or logical. Layton, 280 S.W.3d at 240. We do not see the direct

or logical link from these conversations. Given this lack of nexus, we cannot say the trial court

abused its discretion by excluding these conversations from trial. Issues 8A through 8D are

overruled.

3.
Evidence of a Silence Pact

In Issues 7A through 7C, the State maintains that the trial court erred by excluding certain

calls in which Villegas allegedly suggests that Rodney Williams was in the car with him the

night of the shooting, and that the two had a silence pact to protect each other. The State also

argues that the calls show Mimbela attempted to tamper with Rodney Williams as a potential

witness by offering him gifts. Because the individual statements are offered for differing

purposes, we will break up our discussion accordingly and examine each statement individually.

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 a.
February 25, 2011 Recording (Issue 7A)

In Issue 7A, the State seeks to admit the following excerpt of a conversation Villegas had

with his mother regarding Rodney Williams:

VILLEGAS: [H]e made an oath. That’s not a favor, that’s a oath he made. You
gotta fulfill the oath.

YOLANDA: . . . what did you tell him in the letter?

VILLEGAS: I told him he gotta get on the ball. . . . Shit, man, the whole time
I’ve been away rotting and shit in the damn penitentiary, I never
asked them for a damn thing. Them over there, you and Marcos
have been living it up . . . with your family. I’ve been stuck in
here, you all forgot about me. (Inaudible) . . . memory. I wanna
get out there too like you all. . . . I tell them . . . the victims are on
our side, they’re willing to go to court and everything. . . and we
don’t even know these guys. . . . You’re somebody I grew up with.
And you’re catching that shit. . . . I won’t accept it. . . I said we
made an oath, and you’re going to keep it. This shit ain’t over with
yet. . . . You were there when . . . all the odds were against us . . .
now you want to cash out on me. . . . I’m not buying that, that’s not
going to happen. I didn’t mean to bitch him out too bad, I just
kinda snapped him back to it.

In Issue 7A, the State argues that this conversation is proof that Villegas and Rodney

Williams were not only in the car together during the Electric Street shooting, but that they had

some sort of silence pact or mutual agreement to not abandon each other, which Villegas was

upset with Williams for violating. We believe this to be an overstatement of what may be

logically inferred from this evidence. Read in isolation, this conversation and Villegas’

statements are equivocal, and even when we consider this statement in the context of the case,

we struggle to see how the trial court abused its discretion by determining this conversation was

irrelevant. Pieces of the logical chain between this conversation and its ultimate evidentiary

purpose appear to be missing, and we cannot fault the trial court for excluding this evidence.

Issue 7A is overruled.

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 b.
February 28, 2011 Recording (Issue 7B)

In this recording, Yolanda told Villegas that Mimbela had burned a “tough-love” letter

Villegas attempted to send to Williams. Villegas replied that she did not understand the “guys

from the street” and the “philosophy of trying to get people from the street to do what you want. .

. .” The State insinuates that Mimbela burned the letter because it contained inculpatory

statements and he was trying to destroy evidence to protect Villegas. Because the conversation

at issue in this recording is so brief, there is little information supporting the State’s contention,

rendering its argument speculative. Considered in conjunction with the conversation in Issue 7B,

this information could arguably support some sort of spoliation inference, but not the one State

advances. The evidence is so weak that we cannot say the trial court abused its discretion by

excluding it. Issue 7B is overruled.

c.
December 13, 2011 Recording (Issue 7C)

On December 13, 2011, Mimbela recounted taking Rodney Williams to a Dallas

Cowboys game:

MIMBELA: . . . we had a great time at the game. . . . I told you invited Rodney,
right?

VILLEGAS: No, but my mom was telling me the other day . . . that you guys
had invited them.

* * *

MIMBELA: . . . they met up with us in the hotel – five of them. . . .

VILLEGAS: Ah.

MIMBELA: . . . they had a blast, they were like two kids in a candy store.

VILLEGAS: (Laughs).

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 This conversation presents the same problem we have analyzed with respect to other

witnesses. The State may explore the impeachment value of the gifts Mimbela gave on cross-

examination, and certainly, a reasonable person could view the type, amount, and monetary

value of incentives Mimbela offered to various witnesses with a healthy degree of skepticism.

Yet, the trial court, in a reasonable perception of common experience, could have rejected any

nefarious inference and instead viewed this evidence as Mimbela’s bona fide attempts to help

Villegas vindicate his innocence, or evidence that Mimbela acted of his own accord and not

according to Villegas’ control. We discern no abuse of discretion in the trial court excluding this

evidence as irrelevant. Issue 7C is overruled.

4.
Efforts to Tamper with Judge

Finally, we address the State’s argument that Villegas attempted to compromise judicial

officers in a concerted effort to manipulate his chances of success in his habeas corpus

proceedings. In Issues 9A, 9B, and 9C, the State asserts that the trial court abused its discretion

in excluding conversations related to Mimbela’s attempt to initiate ex parte communications with

Judge Mary Anne Bramblett, who presided over Villegas’ 1995 trial and who was initially

assigned to Villegas’ habeas case. In brief, during the lead-up to his habeas corpus petition,

Villegas received a letter of support from then-Congressman Silvestre Reyes. The three

conversations at issue involve Mimbela informing Villegas about his attempts to bring the Reyes

Letter to Judge Bramblett’s attention.

a.
February 8, 2010 Recording (Issue 9A)

On February 8, 2010, Mimbela first informed Villegas of his plan to get Judge Bramblett

to read the letter of support authored by Congressman Reyes:

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 MIMBELA: . . . we’re gonna introduce it to [Judge Mary Anne Bramblett] in a
different way – we’re gonna see if we can get somebody . . . a
good friend of hers or somebody to show it to her, or I talked to my
buddy, that probation officer, that one that got me in contact with .
. . Detective Marquez . . . and talking to him . . . he suggested that
we . . . give that letter to her husband. Because we can’t give like
directly to her because then it would be like we are trying to
influence her.

VILLEGAS: Yeah.

MIMBELA: . . . we go to be diplomatic about it . . . like I say . . . give it to
somebody she knows and they can show it to her because they
know they’re . . . doing it like off the record. You know what I’m
saying?

VILLEGAS: Yeah.

MIMBELA: . . . cause we don’t want nobody to try to say that – accuse us of
buy-out the judge . . .

VILLEGAS: Like bribing her.

MIMBELA: Yeah, exactly, like bribing her or whatever so what we’re gonna do
is like I said, we’re gonna go ahead . . . and this guy knows – her
husband’s a lawyer, I don’t know if you knew that . . . Anne
Bramblett’s husband.

VILLEGAS: Yeah, you were telling me.

* * *

MIMBELA: . . . we’re gonna try to . . . go play some golf and then we’re going
to give him the letter so that he can give it to Anne Bramblett.

b.
February 22, 2010 Recording (Issue 9B)

On February 22, 2010, Mimbela updated Villegas about his attempt to reach out to Judge

Bramblett’s husband:

MIMBELA: . . . to give you an update . . . we got a hold of . . . remember I told
you we were trying to get a hold of Anne Bramblett’s husband?

VILLEGAS: Yeah.

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 MIMBELA: . . . well my buddy got a hold of him . . . last week but he was out
of town. But anyway, he’s gonna be back in town about
Wednesday.

VILLEGAS: Uh-huh.

MIMBELA: And he’s supposed to give him a call and . . . see if we can get
together. . . .

* * *

MIMBELA: . . . what I did is I . . . gave my friend there, I gave him a little bit
of the writ . . .

VILLEGAS: Uh-huh.

MIMBELA: . . . like the first few pages where it explains . . . all the witnesses
that Gates didn’t call up . . . I gave him a copy of that so when he
gets to town . . . he’s going to go over that with him on the phone .
. . and then see . . . show him that letter from [Congressman]
Silvestre Reyes . . . and see . . . if he agrees with what we’re doing
and see if he will give that letter to his wife to see if she’s gonna be
interested in trying . . . to help us with this stuff . . . that’s where
we’re at with that. . . . we’re either gonna just meet or maybe go do
the golf thing, or maybe just him. Anyway, he’s supposed to do
that probably this Wednesday or Thursday when he gets back into
tow.

VILLEGAS: Hell, yeah . . . sounds good.

The State notes that three days after this jail recording, Judge Bramblett voluntarily recused

herself from the case, stating that she had “received information” that would create a perception

that she could not be impartial. Villegas denies that Judge Bramblett’s self-recusal is related to

the events recounted in this phone call.

c.
May 3, 2010 Recording (Issue 9C)

In this recording, made after Judge Bramblett recused herself, Mimbela told Villegas

about a conversation he had with a probation officer who allegedly had originally suggested

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reaching out to Judge Bramblett indirectly. According to Mimbela, the attorney who had

represented Villegas in his original trial had approached the probation officer, asked how

Villegas and his team managed to have Judge Bramblett removed from the case, and then stated

that having Judge Bramblett off the case was the best thing that could have happened to

Villegas.20 When Mimbela relayed this information to Villegas, both he and Mimbela laughed,

and then Mimbela stated: “Anne Bramblett—it don’t matter how fair she wanted to be, or how

fair she is, I think she already had her mind set on this. . . . ” Villegas agreed.

We do not condone Mimbela’s attempts to communicate with Judge Bramblett ex parte.

It is clear from these conversations that at the very least, Mimbela and Villegas knew Mimbela

was skirting a line by attempting to bring the Reyes Letter to Judge Bramblett’s attention.

Whether Mimbela’s actions were proper, ethical, or strictly legal is not the question before the

Court. The question we must answer is whether the trial court abused its discretion in excluding

these conversations from the jury’s consideration in Villegas’ upcoming trial.

Judge Ables, who considered this particular evidentiary issue, stated that he believed the

evidence did not support an inference that Mimbela and Villegas were attempting to “tamper”

with Judge Bramblett. He noted that while ex parte communications are prohibited, he

personally nevertheless had experienced litigants or other people unrelated to the case attempting

to contact him and express their earnest opinions, without realizing such outreach attempts are

improper. He opined that he did not believe the record supported an inference that Mimbela and

Villegas had the intent to tamper with Judge Bramblett, or that the outreach attempt supported an

inference that Villegas knew he was guilty of the Electric Street shooting. We agree with Judge

Ables that such an inference may not be supported by the evidence. In light of the equivocal

20
We note that this statement involves triple hearsay—Mimbela (first level) relays a story from the probation officer
(second level) about comments made by Attorney Olivas (the third level).

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nature of this evidence and its relative attenuation from the ultimate question of Villegas’ guilt,

we will defer to the trial court’s relevancy determination. We do not believe the trial court

abused its discretion in determining that the conversations and the events they recount are

irrelevant.

But even if we are incorrect in our assessment, and the conversations meet the Rule 401

relevance standard as a matter of law, from a Rule 403 balancing perspective, this conversation

is equally as problematic as Villegas’ purported admission of guilt addressed in Issue 2A. The

probative value of these actions as a basis for an inference of guilt is limited at best. Further,

although the confession Villegas gave the investigating detective is no longer in play, the State’s

need for this evidence is not as great as the other statements the State has sought to admit. And,

as with Issue 2A, substantial prejudice factors are present. Without context, the jury would not

understand why Mimbela’s attempt to get Judge Bramblett to read the Reyes Letter would be

relevant, and could possible lead the jury to speculate and decide the case on improper grounds.

Further, placing the actions in context would require an explanation of post-conviction habeas

proceedings, which would expend time and resources and would potentially confuse jurors.

Additionally, explaining what habeas corpus proceeding involve would necessarily risk exposing

the jury to the highly prejudicial fact that Villegas had been found guilty and was incarcerated

for the same crime. Indeed, under these circumstances, admission of these statements may be

even more prejudicial given that Judge Bramblett presided over both the habeas corpus

proceedings and the original trial.

Our opinion today should not be read as foreclosing the use of prison recordings like

these by the prosecution. In other cases, the probative value of the statements and the State’s

need for them may very well outweigh the potential prejudice that comes with explaining post-

69
conviction proceedings to a jury. But that is not the case with the evidence before us. The State

seeks to admit this evidence for a specific purpose, and we must tie our analysis directly to the

State’s specific purpose. Our fidelity to the standard of review, and our concomitant reluctance

to supplant the trial court’s judgment with our own under that standard when it comes to

questions of relevance and prejudice, counsels the result today. The trial court’s balancing of

Rule 403 factors is entitled to our deference. In light of the arguments and evidence presented,

we cannot say that the trial court abused its discretion in excluding this information from the

jury. Issues 9A through 9C are overruled.

III.
One Final Note

We close with a brief coda. Our opinion in this interlocutory appeal, as with any case on

interlocutory review, is based on a snapshot of the record taken at a particular period of time

before trial begins. We affirm the order of the trial court today because, based on our review, the

trial court had the discretionary authority to rule on these issues pretrial, and because the trial

court did not act arbitrarily or without reference to guiding principles in rendering its substantive

decisions.

That being said, evidentiary rulings are protean, and the calculus can always change. A

trial court can reconsider or revise its ruling on a pretrial motion to suppress any time before the

close of trial. See Davis, 2016 WL 4126020, at *5. We also note that while the trial court

excluded this evidence for the particular offered purposes, it did not rule on other possible bases

for admission. Further development of the record at trial may furnish missing predicates, fill in

inferential gaps, or render otherwise inadmissible evidence relevant or admissible for another

purpose. However, the trial court’s evidentiary rulings will stand for now, because we are

powerless to intervene absent an abuse of discretion. How the State moves forward in light of

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our decision, and how the trial court will come to view these evidentiary rulings in the dynamic

context of trial, are matters beyond our purview.

CONCLUSION

The State has not demonstrated the trial court abused its discretion. Accordingly, we

affirm the trial court’s “Order Regarding State’s Designated Phone Calls.”

STEVEN L. HUGHES, Justice
December 21, 2016

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Publish)

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