State v. Villegas

• Decision Date: 21 December 2016
• Docket Number: No. 08–15–00002–CR,08–15–00002–CR
• Parties: The STATE of Texas, Appellant, v. Daniel VILLEGAS, Appellee.
• Court: Texas Court of Appeals

506 S.W.3d 717

The STATE of Texas, Appellant,

v.Daniel VILLEGAS, Appellee.

No. 08–15–00002–CR

Court of Appeals of Texas, El Paso.

December 21, 2016

Jaime E. Esparza, District Attorney, El Paso, TX, Attorney for State.

Joe A. Spencer, Jr., El Paso, TX, Attorney for Appellee.

Before McClure, C.J., Rodriguez, and Hughes, JJ.

OPINION

STEVEN L. HUGHES, Justice

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 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.

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.

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

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...