Daniel Villegas will spend his 18th Christmas behind bars while his supporters wait for a vital document from the Texas Court of Criminal Appeals.
Judge Sam Medrano of the 409th District Court on Friday said he did not have the authority to let Villegas out on bond because the Court of Criminal Appeals has not issued an official mandate.
The higher court on Wednesday issued an opinion saying Villegas deserved a new trial. But the case is still in the jurisdiction of the Court of Criminal Appeals until it issues a mandate, the official order that puts the case back in the jurisdiction of Medrano.
"They're very frustrated, but you have to go through the process. As long as we've got a light at the end of the tunnel, we're fine," said Villegas' mother, Yolanda Villegas when she spoke about her family's disappointment.
That light is expected January 13, when the higher court is slated to issue the mandate and at which point, Villegas' attorneys will set up another bond hearing in front of Medrano.
"We expect Daniel home on the 14th," said John Mimbela, the local businessman and family friend who's been funding Daniel's defense and fighting for years to get him out of prison.
Medrano issued a recommendation last year to the Court of Criminal Appeals after an evidentiary hearing saying Villegas is actually innocent. His supporters are hopeful Medrano will let Villegas out on bond pending his new trial, if there is one.
District Attorney Jaime Esparza said he is still evaluating whether his office will retry Villegas.
Joe Spencer, Villegas' attorney also blamed the District Attorney for Villegas staying at the County Jail.
"I think it's a combination of both. The judge doesn't have the authority to do it without the mandate...The District Attorney could have agreed to the bond. They had the ability to do that. They certainly know the mandate is just a formality that's now coming," he said.
Spencer referred to a procedure that would have allowed a joint motion with both the District Attorney and Villegas' attorneys asking for a bond and for a mandate to be issued immediately.
Esparza on Friday said Villegas' attorneys did not approach the District Attorney's office about filing a joint motion to the Court of Criminal Appeals asking for a speedy mandate.
He also said the District Attorney's office currently cannot do anything to let Villegas out of jail.
"We don't have the ability to deal with the issue of bond because no one in El Paso has jurisdiction over this case until that mandate comes in," Esparza said.
Spencer insists Esparza could have agreed to let Villegas out on bond more than a year ago when Medrano initially filed his recommendation that Villegas was innocent.
"I think you have to look into the window of the soul of the second floor (where D.A.'s office is located in the Courthouse) and ask them what their position is. I think it's been very clear what the evidence is," Spencer said.
Esparza said Spencer's characterization that the D.A. has refused to let Villegas out on bond is false.
He said under state law, Villegas could not have been released on bond after Medrano's recommendation because at that point, he was still convicted of capital murder and sentenced to life in prison.
Texas law does not allow a trial judge to set a bond hearing for a person who's been sentenced to more than ten years in prison.
Esparza also points out that Spencer did not file a motion for a bond hearing for Villegas at that time.
Villegas' sister, Michelle Pena, was hoping to spend the holiday season with her brother. "It's just frustrating that we're going to have another Christmas without him and another New Years and another birthday. It's just so disappointing."