Mark Aguirre, center, and his attorney, Terry Yates, left, leave after his appearance in the 482nd District Court at the Harris County Criminal Justice Center, 1201 Franklin, Thursday, April 21, 2022, in Houston. Aguirre and Steven Hotze were both indicted on charges related to their alleged involvement in an air conditioning repairman being held at gunpoint in 2020 during a bizarre search for fraudulent mail ballots.

Mark Aguirre, center, and his attorney, Terry Yates, left, leave after his appearance in the 482nd District Court at the Harris County Criminal Justice Center, 1201 Franklin, Thursday, April 21, 2022, in Houston. Aguirre and Steven Hotze were both indicted on charges related to their alleged involvement in an air conditioning repairman being held at gunpoint in 2020 during a bizarre search for fraudulent mail ballots.

Melissa Phillip/Staff Photographer

A former Houston police captain accused of attacking an AC repairman he thought was participating in an election conspiracy lost his latest bid to have assault charges against him thrown out.

Private investigator Mark Aguirre, 68, in 2020 was accused of crashing an SUV into the repairman’s van in southwest Houston and holding the man at gunpoint. Aguirre wrongly believed the repairman, David Lopez, was surreptitiously transporting illegal ballots that would be used to vote for then-President Joe Biden in the election.

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On Wednesday, Harris County District Judge Emily Detoto rejected Aguirre’s arguments that the charges against him should be dismissed because of alleged misconduct by the Harris County District Attorney’s Office.

During a two-hour hearing on Tuesday, Aguirre’s attorney, Terry Yates, argued that prosecutors violated a 2020 agreement protecting privileged phone data and lost or destroyed documents related to contacts between the DA’s office and Lopez’s civil lawyers.

“They didn’t produce documents they were required to produce,” Yates said after the hearing. “They breached an agreement they had not to look at the defendant’s cell phone until a taint team could be set up.”

A taint team is an independent group that reviews discovery material for privileged information. Yates said that Aguirre’s cell phone contained private messages between him and attorneys he worked for.

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During the hearing, Warren Diepraam, a prosecutor who led the Aguirre case under former District Attorney Kim Ogg, said he had reviewed information from a cell phone and admitted he wasn’t aware of the privacy agreement.

Prosecutors denied there had been any intentional misconduct, but also offered a solution to Yates’ complaints: Prosecutors said they wouldn’t use evidence from the cell phone. The DA’s office said it had provided Yates with as much material as it had access to.

While the charges against Aguirre are related to the October 2020 assault, Yates pointed to other, already dismissed charges against Aguirre and his employer, GOP activist Steven Hotze, as evidence of malfeasance by prosecutors.

Aguirre and Hotze in 2024 were charged with engaging in organized criminal activity and accused of working together to plan an attack on Lopez.

Prosecutors then pointed to a call that Hotze made to then-U.S. Attorney Ryan Patrick, the son of Texas Lt. Gov. Dan Patrick, prior to the attack. A recording of the call later made its way to prosecutors, undercutting Hotze’s claims that he knew nothing about the wreck. Prosecutors also accused Aguirre and Hotze of committing a hate crime by targeting members of the Hispanic community.

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Soon after District Attorney Sean Teare took office in January 2025, he ordered all of the charges against Hotze and the added charges against Aguirre to be dropped. 

Teare said the conspiracy and hate crime charges should never have been filed, citing a lack of evidence. He insinuated the charges were brought as part of a “reckless pursuit of headlines,” by Ogg’s office.

Hotze has sued Ogg for malicious prosecution in the case. The lawsuit is still pending in federal court.

In Tuesday’s hearing, Diepraam denied the prosecutions were political and said he disagreed with the Teare administration’s assessment of the case.

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“They were probably the strongest cases, among the strongest, top 5% of the cases I’ve seen in my life as a career prosecutor,” Diepraam said.

No trial date has been set in Aguirre’s criminal case.