IN THE

TENTH COURT OF APPEALS

No. 10-13-00160-CR

ARACELI TELLO,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court No. 12-02891-CRF-272

MEMORANDUM OPINION

A jury found Appellant Araceli Tello guilty of aggravated robbery, and the trial 

court assessed her punishment, enhanced by prior felony convictions, at thirty-five 

years’ imprisonment. This appeal ensued.

The relevant facts are as follows: Leobardo Flores, the alleged victim, testified 

that he and his wife were together as a couple at the time of trial but that in May 2012, 

he “thought to cheat on her” because she had cheated on him. On May 4, he received 

several phone calls from Tello, whom he had known for about fifteen or twenty days as
Tello v. State Page 2

a prostitute named Juanita. He agreed to meet up with Tello so that he could get 

together with Tello’s friend. When he arrived at the store where they were supposed to 

meet, Tello came to his car and got inside. He asked where her friend was, and Tello 

told him that she had gone to take her child to the babysitter but that she would come 

and get together with them. He then asked Tello where to go, and she directed him to a 

place by the railroad tracks to wait. 

Flores stated that he had a feeling that something was wrong. A car approached 

and parked behind them. He told Tello that it was not her friend, but Tello assured him 

that it was. He started the car and tried to pull away, but Tello told him to wait. A man 

then approached Tello’s window, which was open, and pointed a gun at Flores. The 

man told him to give him his wallet and phone, which he did. He had gotten paid that 

day and had about $1,000 in his wallet. The man told him not to call the police or he 

would kill him. Tello left with the man. Flores then went back to the store where he 

had met Tello and called the police. 

During cross-examination, Tello’s counsel asked Flores what the name of his wife 

is. The State made a relevance objection that the trial court overruled. The following 

exchange then occurred outside the presence of the jury:

[Prosecutor]: ... So, I think he is uncomfortable giving the 

name of one of his loved ones in fear of retaliation.

[Defense Counsel]: ... But she could be a very key witness 

as to what he might have told her about this situation. So for that reason 

-- I mean, I don’t know who she is. I might need to subpoena her.

THE COURT: You want to subpoena her up here?
Tello v. State Page 3

[Defense Counsel]: Well, I’ll have to see how his testimony 

goes.

THE COURT: What has been said about her to this point?

[Defense Counsel]: Nothing.

THE COURT: Yeah, she’s been brought up.

[Defense Counsel]: Well, she’s been brought up that he’s 

married.

THE COURT: And I think somebody said that he almost 

broke up with her --

[Defense Counsel]: That she was cheating.

THE COURT: She was cheating; so, he decided to cheat on 

her; and now, he’s gone back with her.

[Prosecutor]: And I don’t care if he wants to get into the 

relationship or what -- anything like that. It’s just I think he’s concerned 

about giving up a family member’s name.

THE COURT: So, do you think he might have talked to her?

[Defense Counsel]: Well, Judge, that seems logical that they 

would discuss this. And this deal about her cheating on him is the reason 

for their broken up, that’s the first time I’ve ever heard that.

THE COURT: I’m just trying to think through it all. So, if he 

gives you the name, you’re going to subpoena her up here, right?

[Defense Counsel]: I’m going to have to ask the address 

after that, but I can do that off the record, I guess. I mean, there’s a good 

possibility.

....

[Defense Counsel]: I understand all that. But, I mean, 

getting ahold of a witness. That deal when he said something about, 

“Well, she had cheated on me,” I had never heard that before. Never 

heard that.
Tello v. State Page 4

[Prosecutor]: Well, the thing about cheating went to his 

motive to engage in prostitution. It has nothing to do with the robbery, 

other than that’s how he came to be there that night.

[Defense Counsel]: It potentially could.

[Prosecutor]: But, I mean, we’re talking about a witness that 

has absolutely no personal knowledge about the facts of what happened. 

The only potential knowledge she could have is, you know, if he relayed 

to her what happened. But he’s talked to -- now, we’ve already got in 

what he told the 9-1-1 operator, what he told the detective. We’re going to 

play the recording of what he told the detective. He talked to two more 

detectives at a later date; and now, he’s testified here in court; and, you 

know, we’re going to go fishing for -- he’s always told the same story but 

maybe he told his wife something different on ....

....

[Prosecutor]: I guess, the basis of our objection, Judge, the 

test under 401 is does the evidence -- does the question that’s on the table 

have a tendency to make the existence of a fact of consequence in the case 

more or less likely. And applying that standard, which is the 401 

standard, to what’s your wife’s name, I don’t see where that makes any 

fact of consequence in this aggravated robbery prosecution of this 

Defendant more or less likely.

....

THE COURT: What can you articulate for the record as to 

why you need this name?

[Defense Counsel]: Well, Judge, I mean, it has been 

mentioned by the State and brought forth the fact that he has -- in the 

initial tapes of [Detective] Fleming and during their conversation, Fleming 

testified, about his being married and in the process of divorce, not 

wanting her to find out about this -- I’m trying to recall everything he said 

to Fleming.

At that point, there was also testimony brought through Mr. 

Flores by [Prosecutor] as to she had cheated on him. He had cheated on 

her now, doing this cheat on her, that they’re back together and these kind 

of things.
Tello v. State Page 5

And, Judge, the part about her cheating on him, I had never 

heard that. It’s not in any other statements, anything like that. I want to 

potentially talk to her at least -- be able to talk to her and --

THE COURT: Do you have any other way of finding her 

and talking to her?

[Defense Counsel]: No, sir. I mean, I don’t know her name. 

I think everything I received from the State did not have an address for 

him.

THE COURT: So, you don’t know where he’s living?

[Defense Counsel]: No, sir, never have. If they want to

bring her up here, I don’t have to serve her or whatever; and I can sit 

down and talk to her. That’s fine.

[Prosecutor]: May I respond to his argument?

THE COURT: Yes, sir.

[Prosecutor]: We’re talking about a completely collateral 

issue that has nothing to do with this case, other than that was why he 

was looking to get with a prostitute, was because of the situation with his 

wife. But as far as the offense that’s alleged, whether -- what he’s wanting 

to go into is whether or not, in fact, his wife cheated on him. That is -- I 

mean, that’s what you’ve said several times now. That issue is completely 

collateral to this case.

And so, that would be my response as to our relevance 

objection, is you’re talking about testimony on an issue that is completely 

collateral to and has no bearing on the facts of this case.

The only other way that -- kind of getting to what he was 

taking [sic] about earlier, that the wife could even potentially play a role in 

this, is if there were any kind of prior inconsistent statements. But in 

order to get in anything that he told her about this offense as a prior 

inconsistent statement, two things have to happen. He first has to give the 

witness an opportunity to explain or deny making that statement before 

we can bring in the wife and have extrinsic evidence of it. No such 

impeachment has happened, nor will there be any because there’s no 

evidence whatsoever that any such prior inconsistent statement was 

made.

And the prior inconsistent statement rules are not a license --

are not a fishing license. You cannot go, “Well, I now want -- I now, in 
Tello v. State Page 6

trial, want the information, the names and addresses of every person that 

you may have ever talked to ever to see if there is a prior inconsistent 

statement.” That’s not what that’s for.

And so, absent any evidence that he ever made any prior 

inconsistent statements and absent any questions to the witness offering 

him an opportunity to explain or deny any prior inconsistent statements, 

it didn’t come in there either.

And so, now, we’re back to the relevance issue; and that’s 

the basis of our objection.

....

[Defense Counsel]: Up to this point, you’ve listened to 

Fleming’s tape as well as their testimony. He says that he’s going through 

a divorce, but he’s trying to fix it. And, I mean, I think --

THE COURT: He’s going through a divorce and trying to fix 

it?

[Defense Counsel]: He’s told Fleming they’re trying -- he’s 

trying to fix it, trying to get back with her when this happens.

THE COURT: Okay.

[Defense Counsel]: All right. My deal basically is there’s 

some talk about this cash, large amount of cash. He’s got that. He loses 

his cash somehow that night, be it paying prostitutes or somebody steals 

it, don’t know. But then, you know, it’s something to it. Like I was 

getting at before, if you sit there and say, “Look, I couldn’t perform or 

whatever. I lost my money,” the cop’s not going to get it back for you.

If you say, “Somebody stole it from me,” he’s going to get it 

back for you. And explaining to the wife as to why I don’t have this 

money, and that’s -- I want to see what this discussion goes on with her.

....

THE COURT: So, he’s trying to make himself look better by 

saying “she’s cheating on me;” so, you could interrogate her and find out, 

you know, if that’s true or not. Bring her up to say, “No, I wasn’t cheating 

on him. He’s lying about that.” But as the Prosecutor said, that appears to 

be a collateral matter and you’re not entitled to impeach on a collateral 

matter.
Tello v. State Page 7

So, what is your response to that argument, impeachment on 

a collateral matter?

[Defense Counsel]: I mean, as to that, that’s not my main 

concern or what I tried to do. I want to get to what -- how did he explain 

this to his wife. Because there is -- I mean, defensive theory that he called 

the cops and yelled robbery because he wanted his money back.

....

THE COURT: Has anyone on the behalf of the State, to your 

knowledge, received any inkling of information about what this wife 

might say that could be considered exculpatory by any argument?

[Prosecutor]: No, sir. We have never spoken to her. I don’t 

believe that law enforcement ever spoke to her. Our investigator has not 

spoken to her. Our victim coordinator has not spoken to her. She -- from 

the State’s perspective, law enforcement perspective, the wife has 

absolutely no role in this investigation or in this case whatsoever.

....

THE COURT: I’m going to interview the witness in-camera, 

and I’m going to take a list of questions from you. And it will be on the 

record, sealed in the record; and I’m going to find out what you want to 

know without you knowing who she is or her address or phone number. 

If she has exculpatory information, I’m going to grant your request to talk 

to her.

....

THE COURT: So, for now, I’m denying -- I’m taking your 

request under advisement until I interview the witness. So, right now, 

you can’t ask what her name is.

[Defense Counsel]: Or address or --

THE COURT: Not yet.

[Defense Counsel]: But I can ask as to what he told his wife 

about this and all.

THE COURT: Yeah, you can ask him that.
Tello v. State Page 8

Tello’s counsel then continued his cross-examination of Flores, which included 

the following exchange:

Q. [(By Defense Counsel] And you’re still living with your wife 

at this time, correct?

A. That is right.

Q. Okay. Did you tell your wife you were going to do 

something else or going to be -- you wouldn’t be home for awhile?

A. That’s right.

....

Q. Okay. And you had told your wife that you had -- you were 

just going to leave your home and go step out some[ ]place for awhile, 

correct?

A. No.

Q. What did you -- I think you testified earlier that’s what you 

did. You left your home?

A. No.

Q. Okay.

A. No.

Q. Okay. So, where were you coming from?

THE INTERPRETER: I’m sorry?

[Defense Counsel]: Where were you coming from?

THE WITNESS: From having my hair done -- cut.

Q. (By [Defense Counsel]) And so, had you told your wife your 

whereabouts, where you were going to be at that time?
Tello v. State Page 9

A. Regularly, I come out from work. I come out late from work. 

When I call my wife that I was going to come back late from work, but not 

too late.

Q. Okay. So, you’re telling her that you’re still at work?

A. That’s right.

Q. You don’t recall earlier in your testimony where you told me 

that you told her you just had to go run an errand basically?

A. No.

Q. Okay. So, she thinks you’re still at work; and you’re out 

trying to meet this prostitute?

A. That’s right.

Q. Okay. And, I mean, she knows -- your wife knows you got 

paid that day, on Friday?

A. That’s right.

....

Q. No, I guess my question is: Did you tell your wife -- yes or 

no -- tell her about you getting robbed?

A. No.

Q. She knows nothing of this?

A. After the time she began getting to know it.

Q. So, how -- did you tell her about it; or did somebody else tell 

her about it?

A. The letters that I received at home, they say that I was 

involved in a robbery; so, she started asking me questions about what 

happened that day.

Q. Okay. And you told her that someone held you up at 

gunpoint?
Tello v. State Page 10

A. No.

Q. Okay. You told her that you were there waiting to meet a 

prostitute?

A. No.

Q. Okay. But she has asked you on other occasions about what 

these letters are and all that, correct?

A. That’s right.

....

Q. Okay. Okay. ... I’m going to ask you this question: You 

stated that you had not told your wife about what happened, the facts of 

this case, correct, the facts of this case?

A. Correct, not the details.

Q. She came to you and said, “What are these letters about you 

being robbed,” correct?

A. That’s right.

Q. What did you tell her?

A. I told her a story.

Q. Well, tell us what story you told her.

A. Yes, I tried to get away from telling her that I was going to 

go meet with a prostitute.

Q. What story did you tell her?

A. I told her that since I had been robbed earlier or before I was 

working with the police officer to try to catch the people that had robbed 

me.

Q. So, you had been robbed before this?
Tello v. State Page 11

A. That’s right.

....

Q. You said you were working with the police to -- based on an 

incident that happened before this, right? Is that what you told us?

A. That’s right.

Q. So, you told her that this was about the cell phone?

A. That’s right.

Q. And that’s all you have ever told her about this case is that 

this case -- the reason why you’re getting the letters is because of this 

about the cell phone that was stolen from you prior to this incident?

A. No.

Q. Okay. What else have you told her?

A. She found -- she found out about what had happened on 

Facebook.

Q. On Facebook?

A. That’s right.

Q. Someone put on Facebook about this incident? Are you 

talking about like a newspaper article she read?

A. That’s right. His picture was there; and so, that’s the reason 

why she knows that he goes to the store where she works.

Q. No, my question is this: I mean, did you describe to her any 

of the events of that night?

A. In time she started learning about it, and I had to start telling 

her.

Q. So, yes, you have told her details of events of that night?

A. She asked me, and I look at her --
Tello v. State Page 12

THE INTERPRETER: Oh, correction. She asked me, and I 

deny it.

Q. (By [Defense Counsel]) ... [T]his is a simple question. Have 

you at any point in time discussed with your wife the incident and the 

details of the incident?

A. No.

Q. And when she finds it on the newspaper article about it and 

confronts you about it, you told her that’s a lie?

A. That’s right.

Q. What part? I mean, that it was a lie that it’s in the 

newspaper or a lie that you were robbed; or what part did you tell her was 

a lie?

A. That I was going to go meet with two prostitutes.

Q. You just -- you deny that part to her, and you said that part’s 

a lie? That’s the only part that’s a lie?

A. That’s right.

Q. But if I recall that newspaper article, it described you as 

being in the vehicle with another woman, correct?

A. I didn’t read the newspaper article. My wife explained that 

to me, and I believe so.

Q. All right. So, you have denied that you were anywhere 

around that -- that part of this story that has been in the newspaper, you 

told your wife -- denied the fact that you were around any women that 

night?

A. That’s right.

Q. So, you told your wife it’s a lie when it comes to the fact that 

there’s women involved in this case?

A. That’s right.
Tello v. State Page 13

At the conclusion of Flores’s testimony, Tello’s counsel again brought up 

questioning Flores’s wife, and the State re-urged its relevance complaint. At that point, 

the trial court informed the parties that it planned to proceed with the in-camera 

hearing and adjourned for the day.

The next morning, the State objected to any further questions by anybody 

regarding what communication was made between Flores and his wife, arguing that 

such communication was protected by the marital-communications privilege. The trial 

court sustained the State’s objection. The trial court then told defense counsel to put his

objection on the record, which he did as follows:

[Defense Counsel]: Well, I mean, as to this case, just for the 

purpose of the record, that the victim -- alleged victim has testified that he 

at first did not tell his wife about this occurrence. Then, when some 

paperwork came from the D.A.’s office and she questioned him about 

that, he told her something, which I kind of followed yesterday about 

some cell phone that was stolen by somebody else prior to that. Then she 

confronted him with a newspaper article, which according to him, it was a 

Facebook or newspaper article that described this incident.

....

[Defense Counsel]: Per the Court’s ruling yesterday that 

was going to allow the in-camera questioning of her, I was asked to 

submit some -- the questions that I wanted, which --

THE COURT: I’ve changed my mind. I’m not going to do 

that.

[Defense Counsel]: I understand that; but for purposes of 

the record, I’m going to read them into it.

THE COURT: Yes, sir. Go right ahead.
Tello v. State Page 14

[Defense Counsel]: I sent an e-mail to the Court as well as 

[Prosecutors] at --

THE COURT: Why don’t you just introduce a copy of them, 

and that will be marked Court’s Exhibit Number 1 for purposes of appeal, 

copies of your --

[Defense Counsel]: My problem is there’s not an attachment 

of the newspaper article on this that I sent the Court. I’ll have to read that 

into the record.

THE COURT: You can read that.

[Defense Counsel]: But he testified up here on the stand that 

he was -- she confronted him about some newspaper article, which I 

searched and searched; and the only one I could find does not have his 

name on it. So, I don’t know how she ever came to that conclusion that 

was him.

But he stated that at that point that -- mentioned about 

prostitutes and stuff, he said -- told her it was a lie.

And I had him -- of course, I don’t know what newspaper 

article she’s referring to because I can’t ask her what article it was. I don’t 

know what part he’s saying is a lie and not a lie.

And, Judge, I mean, as to his credibility, as to basically his 

word stating that this happened, he is flimflamming around up here about 

what he told his wife about it, trying to explain it. I think that he has 

waived his -- any kind of marital privilege that the State asserts he has by 

making the statement.

The State did not object to it. It’s not the Court’s duty to 

object to it. It’s the State’s. They’re the ones -- I mean, same as, you know, 

if I allowed hearsay in, I mean, by some witness that’s not my client. Well, 

it’s not the Court’s duty to say, ‘Well, you can’t say that because it’s 

hearsay.”

I think this is a violation of my Defendant’s right to due 

process and compulsory process. The witness -- as outlined in Coleman, 

966 S.W.2d, the Defendant’s entitled to the Sixth Amendment to present a 

defense, the right to present the Defendant’s version of the facts and as 

well as the Prosecutor has that right so the jury may decide where the 

truth lies.

And if the Defendant can make a plausible showing to the 

trial court, even though if he’s not had the opportunity to interview the 

witness, which I have not. I’m being denied that because I can’t get a 

telephone number, location, anything.
Tello v. State Page 15

You know, I’m going to establish matters that that witness 

might testify to. She might testify that he told me it was all a farce. He 

told me, “Nothing ever happened,” which obviously would be -- hold 

great weight with the jury.

He might have told her, “Well, yeah, I did. I was unfaithful. 

I was -- you know, I had consensual sex with these people. They didn’t 

rob me.” I don’t know what he’s going to say.

But I, also, on one thing, the spousal communication protects 

communications, if it does apply in this situation. It doesn’t protect acts. 

And as to her testifying if she was unfaithful to him, that’s not a 

communication. That’s an act.

And his testimony up here was the first time I heard it, that, 

“Well, I was dealing with her being unfaithful to me.” It sheds a light on 

him that it’s okay what he’s doing; and I think that that has -- the 

Defendant has a right to go into that; and the Court is denying me that as 

well.

And so, under due process, Sixth Amendment, as well as I 

believe the Court is wrong as to Rule 505 [sic]. I believe the State has 

waived that and this case -- the Bruni case that I presented to the Court 

clearly states that that’s not something you can go back and later claim 

after the testimony has been out there.

THE COURT: All right. That will be your objection for the 

record.

[Defense Counsel]: And I need to read in the article.

THE COURT: All right.

....

[Defense Counsel]: ....

The attachment which I need -- I’ll put the e-mail in here. 

The attachment to the e-mail -- there was two attachments. One of them

being an article from “The Eagle” on May 18th, 2012, entitled “Man 

Duped by Prostitute and her Friend Report States.”

It says: Bryan man recently told police that he wondered if 

he was set up by a possible prostitute trying to find him a, quote, unquote, 

date led him to a parking lot where he was robbed at gunpoint. The 

incident happened just before 9:00 p.m., May 4th, in the 2900 block of 

West 28th Street, when the man said he made a deal with the woman after 

rejecting her offer for services, the court document states. She climbed 

into his car and told him she could set him up with another woman, but 
Tello v. State Page 16

once a few blocks away, all the driver saw was a car with another man 

approaching, the document states.

“Later the driver told police that he thought something was 

strange, but it wasn’t until he was waiting for the police that it occurred to 

him that he was likely setup. The woman, who twice put the car in park 

when the driver tried to leave the lot, rolled down her window as the 

second man approached and ordered the driver to give his wallet with 

$1,000 in it and his cell phone, the police report states.

“The driver complied and the man, along with the 

prostitute, jumped into the car and sped away, the police said. The victim 

quickly called police from a nearby store.

“It was at the convenience store that detectives reviewed 

surveillance video and through a brief investigation learned the identity of 

the woman and the man. Warrants were issued for the arrest of Robert 

Guzman Sierra, 26, and Araceli Tello, 36. Both were taken into custody 

Wednesday on charges of aggravated robbery which is a first degree 

felony.”

Which as that article -- there’s a lack of any Leobardo Flores, 

even though Mr. Flores said that that was -- his wife confronted him about 

an article, and my understanding was he said a newspaper article, so --

THE COURT: All right. Are you going to introduce a copy 

of your questions?

[Defense Counsel]: Yes, sir.

THE COURT: And that will be marked Court’s Exhibit 1 for 

purposes of appeal.

(Court’s Exhibit No. 1 offered and admitted.)

Court’s Exhibit No. 1 provided the following questions to be propounded to Flores’s 

wife:

1. Do you recall ever receiving in the mail any documents in which your 

husband was referenced as being an alleged victim of Aggravated 

Robbery?

a) If so, when do you recall receiving such documents in the mail?

b) If so, did you at anytime question your husband as to why he was 

receiving such documents in the mail?
Tello v. State Page 17

c) If so, what was your husband’s response?

2. Have you at anytime read a newspaper article, Facebook post, etc. that 

you believe described an incident in which your husband was the alleged 

victim of Aggravated Robbery?

a) If so, when do you recall reading this newspaper article, Facebook post, 

etc.?

b) If so, did this newspaper article, Facebook post, etc. specifically identify 

your husband by name as being an alleged victim of Aggravated 

Robbery?

c) If so, was what you read the same or similar to the article that was 

published on May 18, 2012 in the Bryan/College Station Eagle 

Newspaper? See “Police: Man Likely Duped By Prostitute” attached hereto.

d) If so, did you at anytime confront your husband concerning the 

information you had read in this newspaper article, Facebook post, etc.?

e) If so, what was his response to your questioning of him about the 

information you had read in this newspaper article, Facebook post, etc.[?]

d) [sic] In responding, did your husband specifically deny having contact 

with any female (prostitute or otherwise), as described in the newspaper 

article, Facebook post you read?

e) [sic] In responding, what amount of money did your husband claim 

was stolen from him?

3. Prior to May 4, 2012, had your husband ever accused you/discussed 

with you allegations that you had been unfaithful to him?

In her first issue, Tello contends that the trial court erred in ruling that she could 

not question Flores’s wife as to what communications he had with his wife regarding 

the facts surrounding the alleged aggravated robbery. Tello argues that Flores waived 

any possible privilege that he held regarding these communications when he testified 

about what communications he had with his wife regarding the facts surrounding the 
Tello v. State Page 18

alleged aggravated robbery without objecting that the communications were privileged. 

Similarly, in her second issue, Tello contends that the trial court violated her Sixth 

Amendment right by denying her the ability to obtain any identifying information of a 

material witness (Flores’s wife) in order to compel the witness’s attendance to testify at 

trial. Even if the trial court erred, however, Tello was not harmed by such error. See 

TEX. R. APP. P. 44.2.

Based on Court’s Exhibit No. 1, Tello first wanted to ask Flores’s wife to what 

extent she had confronted Flores about the alleged aggravated robbery and about what 

he had told her in response. Before introducing Court’s Exhibit No. 1, Tello explained:

You know, I’m going to establish matters that that witness 

might testify to. She might testify that he told me it was all a farce. He 

told me, “Nothing ever happened,” which obviously would be -- hold 

great weight with the jury.

He might have told her, “Well, yeah, I did. I was unfaithful. 

I was -- you know, I had consensual sex with these people. They didn’t 

rob me.” 

Any testimony by Flores’s wife about what Flores told her about the robbery would, 

however, have been inadmissible hearsay. See TEX. R. EVID. 801, 802. 

Furthermore, any testimony by Flores’s wife about what Flores told her about the 

alleged aggravated robbery would not have been admissible for impeachment purposes 

as a prior inconsistent statement under Rule of Evidence 613(a). Rule 613(a) provides: 

In examining a witness concerning a prior inconsistent statement made by 

the witness, whether oral or written, and before further cross-examination 

concerning, or extrinsic evidence of, such statement may be allowed, the 

witness must be told the contents of such statement and the time and 

place and the person to whom it was made, and must be afforded an 

opportunity to explain or deny such statement.... If the witness 
Tello v. State Page 19

unequivocally admits having made such statement, extrinsic evidence of 

same shall not be admitted.

TEX. R. EVID. 613(a). Here, Flores readily admitted that what he told his wife was 

inconsistent with his testimony of what happened during the alleged aggravated 

robbery. Flores testified that he lied to his wife about the alleged aggravated robbery to 

hide the fact that he was soliciting a prostitute at the time he was robbed.

Finally, based on Court’s Exhibit No. 1, Tello also wanted to ask Flores’s wife if 

Flores had accused her or discussed with her allegations that she had been unfaithful to 

him. But any testimony by Flores’s wife about such communication would have been 

irrelevant. See TEX. R. EVID. 401, 402. 

Therefore, as stated above, even if the trial court erred, Tello was not harmed by 

such error. See TEX. R. APP. P. 44.2. Both of her issues are overruled, and the trial court’s 

judgment is affirmed.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

(Chief Justice Gray dissenting with a note)*

Affirmed

Opinion delivered and filed April 23, 2015

Do not publish

[CRPM]

* (Chief Justice Gray dissents. A separate opinion will not issue. He notes 

however that this case turned on the credibility of Flores, the alleged victim. While 

testifying on cross examination Flores admitted he had lied to his wife about the events 
Tello v. State Page 20

resulting in the defendant’s arrest and trial. The extent and scope of what Flores told 

his wife were restricted to what Flores was willing to admit. The defendant was 

effectively asked to believe Flores about what lies Flores had told his wife and to believe 

what he was testifying to was the whole truth at trial including what he had previously 

lied about when telling his wife. This calls to mind Professor Matt Dawson’s (Baylor 

Law School’s Practice Court Professor) famous cross examination question: Were you 

lying then or are you lying now? As argued by the defendant, for all we know Flores 

could have made up the story he was telling the police to continue to cover the lies he 

was telling his wife. Without the ability of the defendant to interview and possibly 

subpoena Flores’s wife, the defendant was denied the ability to effectively investigate 

and pursue a defense directly involving Flores’s credibility about the events at 

issue. What could be a more relevant source of material information to impeach the 

testimony of the State’s star witness, the alleged victim, than the person to whom he 

told an entirely different story about the events. The trial court erred in refusing to 

require disclosure of the identifying information for Flores’s wife.)