The STATE of Texas, Appellant, v. Daniel VILLEGAS, Appellee, 506 S.W.3d 717

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). 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 Bram-blett, 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 Vil-legas 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 Bram-blett 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, 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 eviden-tiary 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 Abies 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. 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. 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 Es-parza, 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 Orim.

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 Espar-za, 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. We have reviewed the cited authority and see no compelling-reason to 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. 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, 499 S.W.3d 853, 865-867 (Tex.Crim.App. 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) (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. refd) (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, 499 S.W.3d at 866 (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 867, 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 evi-dentiary 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 “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.

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.

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 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 extensivé 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 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 (ie., 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 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 “[wjhether 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 ease with its suppression order or make any findings that would go to guilt or innocence. Rather, the trial court’s ruling was purely evi-dentiary 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 thé 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 evidentia-ry call as trial progresses, we fail to see a substantive difference between, those two courses of action. Again, wó 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 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 Motel, 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 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. 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 Mimbe-la’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 rnay 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. 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. 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: 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 Villegas purportedly admits his guilt.

The State contends these recordings are admissible because they are relevant to and probative of the issue of guilt. Ville-gas 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 jpry 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: 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. 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 Ville-gas, the statement has no probative value and could have been properly excluded on relevance grounds. 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 thé 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 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 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. refd) (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 wé 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.

The State offers the following self-made transcript of the conversation in its brief, with 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—eren 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, Ville-gas 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 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 %ohoo, 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’ aat-tempts to explain what he meant when he said he was “not innocent” are 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 peo-pie get your words and twist them around and do things with them that you don’t even— 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 some’one .... 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. 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? VILLEGAS: Yeah. e.

November 27, 2011 (Issue 2E): “ they misconstt'ued 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. ⅜ ⅜ 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 thé trial court did not abuse its discretion by finding these conversations irrelevant and inadmissible.

Issues 2C, 2D, and 2E are overruled. t January IS, 2013 (Issye 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 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 Ville-gas’ consciousness of guilt. 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.

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 un-less if falls within one of the many exceptions” to the 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 Vil-legas 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 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 Ville-gas 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.Appx. 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 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 Ville-gas 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 indi-cia of control 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 Vahls-ing, 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 Mimbe-la 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 Ville-gas are “in cahoots,” and asks us to infer an agency relationship, despite the trial court’s explicit finding, because

(1) Mimbe-la was clearly performing certain actions on Villegas’ behalf, and the only person to benefit from Mimbela’s actions was Ville-gas, and

(2) Villegas did not repudiate Mimbela’s efforts and instead provided him with information to track down witnesses, thereby.leading to a ratification 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. “[WJithout 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 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 eviden-tiary 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 á 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, 50, 6D, 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 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 Ville-gas 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 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, Ara-sally 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 TexPenal Code Ann. § 36.05(a)(1) (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 Ville-gas 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. I. July 6, 2009 Recording (Issue 3A) On July 6, 2009, Mimbela and Villegas began their discussions about tracking down Williams: . MIMBELA: ... this Williams guy ... 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) 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. * ⅜ ⅜ 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]. ⅜ ⅜ ⅜ 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 .., .1 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? 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, Mim-bela 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 habe-as corpus decision, Mimbela told Villegas that he had again 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 Ville-gas 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 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 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 Medra no, 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 towa

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