#

CMC Ko 10-13- C2.

ORIGINAL

:—— ——RECEIVED \U

' - COURT OF CRIMINAL. APPEALS

. JUL 27 2015

\£LL£l AbeSAcoste.Ctes

COURT OH CRIMINAL APPEALS

JUL 27 20iS

dL_£ ^ya-s Abel Acosta, Clerk
Craig M. Greaves

[ Attorney at Law

118B South Main Street

Bryan, Texas 77803 office: 979-779-9388

craig@greaveslaw.com " ' f< - Fax:979-779-9387

,; www.greaveslaw.com

Barbie Bohler - Legal Assistant ; !'

barbie@greaveslaw.com , Marion Blalock - Office Manager

' marion@greaveslaw.com

'April 28,2015

,. „,„ (LegalCorrespondence) AracehTello . ji

TDCJ# 01855166 II

Texas Department ofCorrections

Hobby Unit

742FM712 " " "" ' ' \ ••-•-- - ... _ _...._ . __

Marlin, TX 76661 i |:

RE: Opinion and Judgement \

Araceli,

thP »„JI/TenCIv°Sed aC°^y °fthC °pini°n a"d judgment issued ^ ^ ^ Co"rt ofAppeals in regards to XTiST g8raVated RObbCry C°nViCti0n- Unfortu»ate'y' ^e Tenth Court ofAppeals did noueverse

rrimina.YA°U T^r^ht l°u ^ aPr° SC Petiti&n for Discretionary Review asking the Texas Court of tZTtH PPh ^r.the dedsi°n reacHed» *the ^ Court ofAppeals. Ifthis is something that you are interested ,n doing your Petition for Discretionary Review must be filed with the Texas Court ofqST Appeals within thujr (30) days from the date that the 10* Court ofAppeals issued its ruhng byourTale in

AnlT ^Z^Z11 f°: DisCretionary **"« ^ filed with the Texas Court ofCr mSa. Appeals no later tha^^v^^is. Based on the fact that the 10* Court ofAppeals' decision to afZ

your conv.ct,on wasnof^nlo^(one ofthe appellate judges felt that the trial court did error in thfZit handled your case), Iwould recommend that you file apro se Petition for Discretionary Review. To aSyou

^toM^T^?TM*TM' steps to tiling a Petition for Discretionary Review. 68 °f^ ^^ RUI6S °fApP6llate Pr°Ce^re Which online mye

j; Sincerely,

Enc: Opinion and Judgement ofthe 10th Court ofAppeals (21 Pages) Rule 68,"Texas Rules ofAppellate Prdceduie (3 Pages) ""
^ CASE NO. 10-13-00160-CR

IN THE COURT OF APPEALS

FOR THE TENTH DISTRICT

AT WACO, TEXAS

ARACELI TELLO

VS.

STATE OF TEXAS

Appeal from the

272nd Judicial District ofBrazos County, Texas

Cause No. 12-02891-CRF-272

BRIEF OF APPELLANT

Attorney for Appellant:

Craig M. Greaves

LawOffice ofCraig M. Greaves

118 B South Main Street

Bryan, Texas 77803

979/779-9388 Telephone

979/779-9387 Facsimile

Attorney for Appellee:

Jarvis J. Parsons

Brazos County District Attorney

300 East 26th Street,Ste. 310

Bryan, Texas 77803

979/361-4320 Telephone

979/361-4368 Facsimile

ORAL ARGUMENTS REQUESTED
STATEMENT REGARDING ORAL ARGUMENT

Appellant requests oral argument as the factual issues as related in Point ofError Number

One and Point ofError Number Two have not previously been litigated in an Appellate Court in

Texas.
IDENTITY OF PARTIES

Appellant:

Appellant'sAppellate Counsel:

Appellant's Trial Counsel:

Appellee's Trial Counsel:

Appellee's Appellate Counsel:

Araceli Tello

TDCJ#: 01855166

William P. Hobby Unit

742 FM 712

Marlin, Texas 76661

Craig M. Greaves

State Bar #: 24025392

118 B South Main Street

Bryan, Texas 77803

979/779-9388 Telephone

979/779-9387 Facsimile

Craig M. Greaves

State Bar #: 24025392

118 B South Main Street

Bryan, Texas 77803

979/779-9388 Telephone

979/779-9387 Facsimile

Misty D. Swan,

Assistant Brazos County District Attorney

State Bar #: 24056399

Ryan C. Calvert,

Assistant Brazos County District Attorney

State Bar #.-24036308

Office ofthe Brazos County District Attorney

300 East 26,h Street, Ste. 310

Bryan, Texas 77803

979/361-4320 Telephone

979/361-4368 Facsimile

Jarvis J. Parsons,

Brazos County District Attorney

State Bar #: 24032934

Office ofthe Brazos County District Attorney

300East26Ih Street, Ste. 310

Bryan, Texas 77803

979/361-4320 Telephone

979/361-4368 Facsimile

u

k
Trial Court:

in

Hon. Travis B. Bryan, III

272nd Judicial District ofBrazos County

300 East 26* Street, Ste. 204

Bryan, Texas 77803

979/361-4220 Telephone

979/361-4517 Facsimile
Statement Regarding Oral Argument

i

Identity of Parties , ii

ListofAuthorities v

Statement of theCase

vi

Issues Presented

vii

Statement of Facts

viii

Summary ofArgument

iv

Argument

1-11

Point of Error Number One:

THE TRIAL COURT ERRED IN RULING THAT APPELLANT COT IT F» not QUESTION THE VICTIM'S SPOUSE AS TO WI^S^SS^^T

THE VICTIM HAD PREVIOUSLY WITH HIS WIFE REGARMNG THE FAOT SURROUNDING THE ALLEGED AGGRAVATED ROBBERY 8

Point ofError Number Two:

THE TRIAL COURT VIOLATED APPELLANT'S STXTH AMENDMENT RIGHT RY DENYING THE APPELLANT THE ABILITY TO OBTAIN ^S^S^

INFORMATION OF AMATERIAL WITNESS IN ORDER TO COMPEL TON

WITNESS' ATTENDANCE TO TESTIFY AT TRIAL . 10

Conclusion and ReliefRequested

Certificate of Service

11

iv
CasesColeman v. State.

996 SW2d 525 (Tex. Crim. App. 1998) 10

Diehl v. State.

698 SW2d 712 (Tex. App. Houston- Is' Dist. 1985) 8

Irvan v. State.

2006 WL 1545484 (Tex. Crim. App. 2006) 9

United States v. Valenzuela-Bernal

458 US 858 (1998)

Weaver v. State.

855 SW2d 116 (Tex. App. Houston- 14* Dist. 1993) 8

Statues/RulesTEX.R.CRIM.EVID. 504 (a)
STATEMENT OF THE CASE

On or about May 4, 2012, Appellant allegedly committed the offense ofAggravated

Robbery. CR Vol 1Pg 1. On or about May 17, 2012, Appellant was arrested for said offense.

CR Vol 1Pg 2. On or about April 2, 2013, ajury trial commenced in Appellant's case. RR Vol

2Pg 1. On or about April 4, 2013, Appellant was found guilty ofthe offense ofAggravated

Robbery. RR Vol 4Pg 78 (18-24). On or about April 4, 2013, Appellant was sentenced to a

term ofthirty-five years confinement in the Texas Department ofCriminal Justice- Institutional

Division by the Trial Court. RR Vol 5Pg 39 (18-21). On or about May 3, 2013, aNotice of

Appeal was filed. CRVol 1 Pg 77-78.

vi
ISSUES PRESENTED

Point of Error Number One

THE TRIAL COURT ERRED IN RULING THAT APPELLANT COULD NOT QUESTION

THE VICTIM'S SPOUSE AS TO WHAT COMMUNICATIONS THAT THE VICTIM HAD

PREVIOUSLY WITH HIS WIFE REGARDING THE FACTS SURROUNDING THE

ALLEGEDAGGRAVATED ROBBERY.

Point ofError Number Two

THE TRIAL COURT VIOLATED APPELLANT'S SIXTH AMENDMENT RIGHT BY

DENYING THE APPELLANT THE ABILITY TO OBTAIN ANY IDENTIFYING

INFORMATION OF AMATERIAL WITNESS IN ORDER TO COMPEL THIS WITNESS'

ATTENDANCE TO TESTIFY AT TRIAL.

vu
The Statement ofFacts is deferred and included in the Point ofErrors urged.

vm
SUMMARY OF ARGUMENT

In Appellant's first Point ofError she complains in this Court that the Trial Court erred

finding that communications made by one spouse to another were still protected by the

"Confidential Communication Privilege" in spite ofthe fact that one spouse had previously

disclosed the contents ofthese communications while testifying on behalfofthe State.

In Appellant's second Point ofError she complains in this Court that the Trial Court

violated her Sixth Amendment right by preventing Appellant from being able to obtain any

identifying information necessary in order to compel awitness to testify at trial. The testimony

ofthis witness was material to Appellant's defense in that it would have seriously eroded the

credibility ofthe State's main witness against Appellant.

IX

m
CASE NO. 10-13-00160-CR

IN THE COURT OF APPEALS

FOR THE TENTH DISTRICT

AT WACO, TEXAS

ARACELI TELLO

VS.

STATE OF TEXAS

Appeal from the

272nd Judicial District ofBrazos County, Texas

Cause No. 12-02891-CRF-272

BRIEF OF APPELLANT

Appellant inthe above referenced cause number, files this Briefsetting forth herpoint of

error committed inthe Trial Court and would show the Court the following:

During the State'sdirect examination, Leobardo Flores (Flores) testified thatat the time he

was allegedly robbed at gunpoint that he and his wife were having martial problems. RRVol 3Pg

139 (9). He stated that these problems stemmed from his wife's infidelity. RR Vol3Pg139 (9-

-1-
10). In response to his wife's unfaithfulness, Flores decided that he would cheat on her. RRVol 3

Pg 139 (10-12). To accomplish his goal, Flores sought the services ofaprostitute and was

eventually introduced to Appellant. RR Vol 3Pg 142 (4-12). Flores and Appellant attempted to

have sex during their initial encounter, but Flores was unable to perform. RR Vol 3Pg 143 (9-

12).

Approximately two weeks after Flores' failed attempt to cheat, Appellant allegedly

contacted him to inform him that she wanted to introduce him to another prostitute that might

better serve his needs. RR Vol 3Pg 144. Flores was open to this idea and eventually met up with

Appellant and this other prostitute. RR Vol 3Pg 144 (11-13). There was not enough time for

Flores and this prostitute to have sexual intercourse during this meeting, but Flores paid this

prostitute $100.00 in the beliefthat he would see her again in the near future. RR Vol 3Pg 144

(18-25) & Pg 145 (1-12).

Approximately aweek later, Appellant allegedly contacted Flores to arrange asecond

meeting between him and this other prostitute. RR Vol 3Pg 146 (9-20). Flores agreed to do so

and plans were made for all three to meet at alocal convenience store. RR Vol 3Pg 146 (23-25)

&Pg 147 (1). But when Flores arrived at this store, only Appellant was present. RR Vol 3Pg

147 (2-4) When Flores asked where the other prostitute was, Appellant allegedly replied that the

other prostitute had left todrop offher child and that they would meet her atanother location

shortly. RRVol 3 Pg147 (5-7) Appellant then got into Flores' vehicle and directed him to the

location that they were to meet the other prostitute. RR Vol 3Pg 147 (8-9) Upon arriving at this

location, Appellant and amale accomplice allegedly robbed Flores, taking Flores' wallet

containing $1000.00 and his cell phone. RRVol 3Pg 155 (16-25) &Pg 156 (1-23)
During cross examination, Flores was asked for the name ofhis wife. RR Vol 3Pg 163

(15). The State objected on the grounds ofrelevance; however, said objection was overruled by

the Trial Court. RR Vol 3Pg 163 (16-18). In response, the State then asked to approach the

bench where the following exchange occurred:

Ms. Swan:

Mr. Greaves:

The Court:

Judge, Ithink the concern is that Mr. Flores is concerned about

retaliation because his wife works at agas station; and he is

informed that the co-defendant, Robert Sierra, might actually

come to that gas station. So, Ithink he is uncomfortable giving the name ofone ofhis loved ones in fear ofretaliation RR Vol

3 Pg 164 (8-13)

Judge, Idon't know anything about Robert Sierra going to agas station, Number 1.1 don't know ifhe stopped there to get gas But she could be avery key witness as to what he might have

told her about this situation. So, for that reason-1 mean, Idon't

know who she is. Imight need to subpoena her RR Vol 3Pe

164 (14-19) 8

You want to subpoena her up here? RR Vol 3Pg 164 (20-21)

Mr. Greaves: Well, I'll have to see how his testimony goes. RR Vol 3Pe 164

(22-23)

The Court: What has been said about her to this point? RR Vol 3Pg 164

(24-25) B

Mr. Greaves: Well, she's been brought up that he's married. RR Vol 3Ps

165 (3-4) 8

The Court: And Ithink somebody said that he almost broke up with herRR Vol3 Pg 165(5-6)

Mr. Greaves: That she was cheating. RR Vol 3Pg 165 (7)

The Court: She was cheating; so, he decided to cheat on her; and now, he'

gone back with her. RR Vol 3Pg 165 (8-9)

-3-
The Court:

Mr. Greaves:

The Court:

Mr. Greaves:

Mr. Calvert:

Mr. Calvert:

The Court:

Mr. Greaves:

So, do you think that he might have talked to her"? RRVol 3 Pp 165 (14-15) B

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 RRVol 3Pe

165 (16-19) s

Imjust trying to think through it all. So, ifhe gives you the

name, you're going tosubpoena her up here, right'? RR Vol 3

Pg 165 (20-22)

I'm going to have to ask the address after that, but Ican do that

offthe record, Iguess. Imean, there's agood possibility RR

Vol 3 Pg 165 (23-25)

But, Imean, we're talking about awitness that has absolutely no

personal knowledge about the facts ofwhat happened. The only potential knowledge she could have is, you know, ifhe relayed

to her what happened. But he's talked to - now, we've already

gotinwhat he told the9-1-1 operator, what he told the

detective. We're going to play the recording ofwhat he told the

detective. He talked to two more detectives at alater 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 - .... RR Vol 3Pe 167

(7-18) *

I guess, the basis ofour 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 ofafact ofconsequence 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 ofconsequence in this

aggravated robbery prosecution ofthis Defendant more or

less likely. RRVol 3 Pg168 (15-23)

What can you articulate for the record as to why you need this

name? RR Vol 3 Pg 170 (14-15)

Well, Judge, Imean, ithas been mentioned by the State and

brought forth the fact that he has - in the initial tapes of

-4-
The Court:

Mr. Greaves:

The Court:

Mr. Greaves:

Mr. Calvert:

Fleming and during their conversation, Fleming testified, about

his being married and in the process ofdivorce, 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 Ms. Swan as to she had cheated onhim.

He had cheated on her now, doing this cheat on her, that they're back together and these kind ofthings. And, Judge, the part about her cheating on him, Ihad never heard that. It's not in any other statements, anything like that. Iwant to potentially talk to

her atleast - be able to talk to her and - RR Vol 3 Pg 170 (16-

25) & Pg 171 (1-6)

Do you have any other way offinding her and talking to her*?

RRVol3Pgl71(7-8)

No, sir. Imean, Idon't know her name. Ithink everything I

received from the State did nothave anaddress forhim RR

Vol 3 Pg 171 (9-11)

So, you don't know where she's living? RRVol3 Pg171 (12-

13)

No, sir, never have. Ifthey want to bring her up here, Idon't

have toserve herorwhatever; and I can sitdown and talk to

her. That's fine. RR Vol3 Pg 171 (14-17)

We're talking about a completely collateral issue thathas

nothing to do with this case,.... The only other way that - kind

ofgetting to what hewas taking about earlier, that the wife

could even potentially play arole in this, is ifthere were any

kind ofprior inconsistent statements. But in order to get in

anything that he told her about this offense as aprior

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

to give the witness an opportunity to explain or deny making

that statement before wecanbring inthewife and have

extrinsic evidence ofit. No such impeachment has happened,

nor willthere be anybecause there's no evidence whatsoever

that any such prior inconsistent statement was made.... 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 anypriorinconsistent

statements, it didn't come inthere either. And so, now, we're

back to the relevance issue; and that's the basis ofour objection

RRVol 3Pg 171 (20-25) &Pg 172 (1-25) &Pg 173 (1-9)

-5-
Mr. Greaves: Judge, look, Idon't want to tell my defense; but, Iguess, I'm

forced to. I'm going to have to do that. Imean, my defense

basically here is aguy, according to everything Ihad up to this

point, was that isheis...My deal basically isthere's some talk

about this cash, large amount ofcash. 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 Iwas getting at before, ifyou sit there and say, "Look, I

couldn't perform or whatever. Ilost my money," the cop's not

going to get itback for you. Ifyou say, "Somebody stole itfrom

me," he's going to get itback for you. And explaining to the

wife as to why Idon't have this money, and that's -1 want to

see what this discussion goes on with her. RRVol 3 Pg 173

(10-25) & Pg 174 (3-14)

The Court: So, what is your response to that argument, impeachment on a

collateral matter? RR Vol3 Pg175 (5-6)

Mr. Greaves: Imean, as to that, that's not my main concern orwhat Itried to

do. I want to get to what - how did he explain this to his wife.

Because there is -1 mean, defensive theory that he called the

cops and yelled robbery because he wanted his money back

RRVol3Pgl75(7-ll)

Has anyone on the behalfofthe State, to your knowledge, received any inkling ofinformation about what this wife might

say that could be considered exculpatory by any argument?

RRVol3Pgl78(8-ll)

The Court:

Mr. Calvert: 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 inthis investigation orin

this case whatsoever. RRVol 3Pg 178 (12-18)

After further debate, the Trial Court eventually ruled:

"I'm going to interview the witness in-camera, and I'm

going totake a list ofquestions from you. And itwill 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:; Ifshe has exculpatory

information, I'm going to grant your request to talk to her."

-6-
RR Vol 3 Pg 180 (19-25).

The Appellant was then allowed to continue with her cross-examination ofFlores. RR

Vol 3Pg 183 (10). During said cross-examination, Flores admitted that the $1,000.00 allegedly

stolen from him was money which would have been used to support his household. RR Vol 3

Pg 221. He further admitted that if, for any reason, he was not able to provide his paycheck to

support his household that it would have caused further problems in his already strained

marriage. RR Vol 3Pg 222 (3-6). But when asked about what he told his wife as to the

whereabouts ofthe missing $1,000.00, Flores initially testified that he has never told his wife

about the allegedly robbery. RR Vol 3Pg 222 (14-22). However, Flores's later testified that his

wife learned ofthe facts surrounding the alleged robbery from anewspaper article that had been

posted on Facebook. RR Vol 3Pg 233 (1-5). Upon being confronted by his wife about the facts

contained in the newspaper article, Flores claimed that the article was alie and that he was never

in avehicle with Appellant. RR Vol 3Pg 234 (13-22).

At the conclusion ofFlores' testimony, the State re-urged its argument against the Trial

Court's previous decision to conduct an in-camera interview ofFlores' wife. RR Vol 3Pg 236

(20-25) &Pg 237 (1-3). The Trial Court informed the parties that it still planned on proceeding

with the in-camera interview ofFlores' wife and then recessed court for the day. RR Vol 3Pg

238 (8-11).

The following morning, the State urged anew objection to the Trial Court conducting an

in-camera interview ofFlores' wife. RR Vol 4Pg 7(19-25). The State claimed that any

discussions Flores had with his wife regarding the facts surrounding the alleged robbery were

marital communications and were therefore privileged from disclosure. RR Vol 4Pg 8(2-25) &

-7-
Pg 9(1-7). The Trial Court sustained the State's objection, but allowed Appellant to read into

the record the contents ofanewspaper article which Appellant believed was the same article

that the wife had previously confronted Flores with. RR Vol 4Pg 33 (8-9) &Pg 38 (1-25) &Pg

39 (1-14). Appellant also submitted for purposes ofthe record acopy ofthe questions that the

Trial Court had previously asked her to prepare in anticipation ofthe in-camera interview of

Flores' wife. See Court's Ex 1.

POINT OF ERROR NIIMRFR OTtfF

THE TRIAL COURT ERRED IN RULING THAT APPELLANT COULD NOT

QUESTION THE VICTIM'S SPOUSE AS TO WHAT COMMUNICATIONS THE

VICTIM HAD PREVIOUSLY HAD WITH HIS WIFE REGARDING THE FACTS

SURROUNDING THE ALLEGED AGGRAVATED ROBBERY.

The "Confidential Communication Privilege" as set out in TEX.R.CRIM.EVH). 504(a)

is not absolute. In Weaver, the 14* Court ofAppeals held that any confidential communication

privilege that might exist at the time the declaring spouse initially communicates with his/her

spouse is waived when the declaring spouse, "informed third parties ofthe contents ofthose

communications." See Weaver v. State, 855 SW2d 116, 121 (Tex. App. Houston- 14* Dist.

1993); see al^ DJehlKState, 698 SW2d 712, 719 (Tex. App. Houston- 1st Dist. 1985) ("A

party who acquiesces in the admission oftestimony concerning these communications waives

his privilege to exclude them.)

During cross examination by Appellant, Flores was questioned about what

communications he had with his wife about the facts surrounding the alleged robbery. At no

time during this questioning did the State object that contents ofthese communications were

privileged. Furthermore, Appellant sought and was granted the expressed approval ofthe Trial

-8-
Court prior to question Flores regarding these communications. RR Vol 3Pg 181 (18-20). It

was not until after Flores had finished testifying, that the State finally claimed that any further

attempt at questioning Flores or his wife about their discussions would be improper under the

theory that these communications were in some way protected. RR Vol 4Pg 8(2-4). In doing

so, the State brought to the Trial Court's attention,

"And Ididn't have awhole lot oftime to do awhole bunch ofresearch

on this specific issue, but there is acase - it's Irvan, I-R-V-A-N v

State. It's out of- what is this out of? Oh, this is Court of

Criminal Appeals from 2006. And this was amurder case where the

spouse was actually the defendant. Butthis case outlines and

delineates the fact that 504 does create two separate privileges the

communication privilege and the testimony privilege. And one'ofthe

things that was asked ofthe spouse in this case over the - actually the proper action in this case, was what the - what the husband had

told his wife about his whereabouts and what he was doing at the time

ofthe offense - in this case, itwas amurder. And the Court of

Criminal Appeals in that case said that absolutely that was covered

under 504(a), under marital communication. That was error to admit

thattestimony. And that'sIrvan v. State"

However, the State failed to mention to the Trial Court that Irvan is an unpublished opinion.

See Irvan v. State, 2006 WL 1545484 (Tex. Crim. App. 2006). Additionally, Irvan in no way

addresses the issue ofwaiving the confidential communications privilege.

It is apparent that when Flores volunteered the contents ofthe communications that he

had with his spouse about the alleged robbery he waived any possible privilege that he held in

regards to these communications. Furthermore, ifthe State held any ability to preserve this

privilege on behalfofFlores it failed to timely object to the disclosure ofthese communications.

Therefore, the Trial Court erred in not allowing Flores' wife to answer the questions that had

been prepared byAppellant.

-9-
POINT OF ERROR NUMBER TWO

THE TRIAL COURT VIOLATED APPELLANT'S SIXTH AMENDMENT RIGHT BY

DENYING THE APPELLANT THE ABILITY TO OBTAIN ANY IDENTIFYING

INFORMATION OF AMATERIAL WITNESS IN ORDER TO COMPEL THIS

WITNESS' ATTENDANCE TO TESTIFY ATTRIAL.

The Sixth Amendment right to compulsory process, "is in plain terms the right to present

adefense, the right to present the defendant's version ofthe facts as well as the prosecution's to

the jury so it may decide where the truth lies." Coleman v. Stato 996 SW2d 525, 527 (Tex.

Crim. App. 1998). To be able to exercise one's right to compulsory process, "the defendant must

make aplausible showing to the trial court, "that the witness' testimony would be both material

and favorable to the defense." Coleman, 996 SW 2d at 527. In asituation where adefendant has

not had aprevious opportunity to interview awitness, "it is ofcourse not possible to make any

avowal ofhow awitness may testify. But the events to which awitness might testify, and the

relevance ofthose events to the crime charged, may well demonstrate either the presence of

absence ofthe required materiality." United States v. Valenzuela-TWn.i 458 US 858, 871

(1998).

Prior to trial, Appellant had access to no identifying information as it related to Flores'

wife. Without such information, there was not any way to interview this woman before the

commencement ofAppellant'sjury trial. At trial, Appellant attempted to illicit from Flores the

name and physical location ofhis wife. This information was sought by Appellant where a

subpoena could be issued to compel the wife's attendance to testify before the jury about Flores'

previous statements to her that he was never in the company ofAppellant at the time ofthe

alleged robbery. Despite the apparent favorable and material nature ofthe wife's predicted

-10-
testimony, the Trial Court denied Appellant's ability to obtain any ofthe necessary information

to compel thiswoman's presence at trial.

CONCLUSION AND RELIEF RFOTTFSTFTi

Appellant requests this Court to reverse the jury verdict in present case and remand for a

new trial.

Respectfully Submitted,

Craig M. Greaves

118 B South Main Street

Bryan, Texas 77803

979/779-9388 Telephone

979/779-9380 Facsimile

craig@greaveslaw.com

SBN: 24025392

CERTIFICATE OF SFRVTrir

«f ^fJuf^*at atme and COrTect COpy ofthe foregoing was served upon the counsel ofrecord listed below via e-mail on this the 19* day ofSeptember; 2014.

Doug Howell,

Assistant Brazos County District Attorney

Dhowell@brazoscountytx.gov

Jessica Escue

Assistant Brazos County District Attorney

JEscue@brazoscountytx.gov

Craig M. Greaves

-11-
i IN THE

TENTH COURT OF APPEALS

No.j 10-13-00160-CR

ARACELI TELLO,

v.

Appellant

THE STATE OF TEXAS, i

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court No. 12-02891-CRF-272

MEMORANDUM OPINION

Ajury 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 ensfied.

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

that he and his wife were together as acouple 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
aprostitute named Juanita. He agreed to meet up with Tello so that he could get

together with Tello's friend. When ije 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 thenpked Tello where to go, and she directed him to a

place bythe railroad tracks to wait. |j

Flores stated that he had afeeling that something was wrong. Acar 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. Aman

then approached Tello's window, wnich was open, and pointed agun 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 rnan. 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 arelevance objection that the trial court overruled. The following

exchange then occurred outside the presence of the jury:

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

name of one of his loved onesin fear ofretaliation.

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

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

-1 mean, Idon't know who she is. Imight need to subpoena her.

THE COURT: You want to subpoena her up here?

Tello v. State

Page 2
goes.

married.

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

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

THE COURT: And I think somebody said that he almost

broke up with her — !

i

[Defense Counsel]: That she was cheating.

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

her; and now,he's gonebackwith her.

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

relationship or what - anything like that. It's just Ithink 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'sthefirst time I'veever heard that.

THE COURT: I'mjust trying to think through it all. So, ifhe

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 Ican do that off the record, Iguess. Imean, there's agood 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 3
[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, Imean, we're talking about awitness 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 whathe told the detective. He talked to twomore

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 hetold 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 onthe 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 orless 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.

Tellov. State !' „

Page 4
And, Judge, thejpart 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 toher atleast f be able totalk to her and -

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

and talking to her? r

[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 Irespond tohis argument?

THE COURT: Y4,sir.

[Prosecutor]: We're talking about a completely coUateral

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

waslooking to get with a prostitute, was because of the situationwith 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 ofthis case.

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

taking [sic] about earlier, that the wife could even potentially play arole 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 „ _ I Page 5
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 basisof our objection.

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

Fleming's tape as well as theirItestimony. He says that he's going through

a divorce, buthe'strying tofixj.it. And, Imean, Ithink -

it?

THE COURT: He's going through adivorce and trying to fix

[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. Ilost 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 -1 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, Iwasn'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 r

i! Page6
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 Itried to do. !l want to get to what - how did he explain this to his wife. Because there;;is ~Imean, 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. Idon'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 inthis investigation orinthis case whatsoever.

THE COURT: I'm going to interview the witness in-camera, and I'm going to take alist of Questions from you. And it will be on the

record, sealed in the record; arid 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. i-

[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 canask him that.

Tello v. State •• Page 7
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? \

'I

A. That is right.

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

something else or going tobe f youwouldn'tbe 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 - 1think 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 myhair done- cut.

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

whereabouts, where you were going tobeat thattime?

Tello v. State r n Q i . Page 8
A. Regularly, I come outfrom work. I come out latefrom work.

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

too late.

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

A. That's right.

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

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

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, Imean, she knows - your wife knows you got paid that day,onFriday?

A. That's right.

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

no - tell her aboutyou getting robbed?

i

A. No.

Q. She knows nothing ofthis?

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 9
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. ji

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. Whatdid you tellher?

A. I told her a story.

Q. Well, tell uswhat story you told her.

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

go meet with a prostitute.

Q. Whatstorydid you tellher?

A. I told her thatsince 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 beforethis?

Tello v. State i

i; Page 10
A. That's right. ;

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

incident that happened befofeithis, right? Is that what you told us?

A. That's right. jQ. 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 isthat

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 - sher 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 sheread?

A. That'sright. His picture wasthere; and so, that's the reason

whyshe knows that he goes to the storewheresheworks.

Q. No, my question is this: Imean, did you describe to her any ofthe events ofthat night?

A. In time she started learning about it, and Ihad 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 11
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 liethat youwererobbed; or whatpart did youtell her was a lie? !:

A. That Iwas going to go meet with two prostitutes. J;

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

a lie? That'sthe onlypart that's a lie?

A. That's right.

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

beingin the vehicle with anotherwoman, 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 liewhen it comes to the fact that

there's women involved in this case?

A. That's right.

Tello v. State Page 12
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 partie? 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 wasjmade between Flores and his wife, arguing that

such communication was protected %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, whichhe did asfollows:

[Defense Counsel]: Well, Imean, 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 anewspaper article, which according to him, it was a

Facebook or newspaper article thatdescribed 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 ~ thequestions thatI 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 theminto it.

THE COURT: Yes, sir. Go right ahead.

Tello v. State li

;i Page 13

/
[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 1for purposes of appeal, copies of your —

[Defense Counsel]: My problem isthere's notan attachment

ofthe newspaper article on thi£ that Isent the Court. I'll have to read that

into the record. !

THE COURT: You can read that.

[Defense Counsel]: But hetestified up here onthe 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'taskher what article it was. I don't

know whatpart he'ssaying is a!lieand 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 ~Imean, same as, you know,

ifIallowed hearsay in, Imean, 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 ofthe facts and as

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

truth lies.

And ifthe Defendant can make a plausible showing to the

trial court, even though if he's hot 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 14
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. j;

Hemight have tc?ld her, "Well, yeah, I did. I was unfaithful.

Iwas ~ you know, I had consensual sex with these people. They didn't

rob me." Idon't know what he's going to say.

But I, also, on one thing, the spousal communication protects communications, if it does ap|>ly 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, Iwas dealing with her being unfaithful to me." It sheds alight 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 asj to Rule 505 [sic]. I believe the State has

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

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

afterthe testimony has beenout there.

record.

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

[Defense Counsel]: And I need to readin thearticle.

THECOURT: All right.

[DefenseCounsel]: ....

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

The attachment to the e-mail -I;there was two attachments. One ofthem

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

Duped byProstitute andherFriend Report States."

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

he was set up by apossible 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, whenthemanisaid he madea dealwith 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 I n 1C Page 15
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 itwasn't until he was waiting for the police that itoccurred 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 initand his cell phone,Jthe 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 abrief investigation learned the identity of . the woman and the man. Warrants were issued for the arrest ofRobert

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 thatthatwas ~ his wife confronted him about

an article, and my understanding was he said anewspaper article, so -

THE COURT: All right. Are you going to introduce a copy of your questions? :

[DefenseCounsel]: Yes, sir.

THECOURT: 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. 1provided 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) Ifso, when doyou recall receiving such documents inthe 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 16
c) Ifso, what wasyourhusband's response?

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

you believe described anincident inwhich your husband was the alleged

victim ofAggravated Robbery?

a) If so, when do you recall reading this newspaper article, Facebook post, etc.? i;

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

your husband by name as«: being an alleged victim of Aggravated

Robbery? f

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: Maripkely Duped By Prostitute" attached hereto.

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

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

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

information you had read in trtis 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?

Inherfirst issue, Tello contends thatthe trial court erred in ruling thatshe 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 17
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 i.

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

Tex. R. App. P. 44.2. i

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

extent she had confronted Flores abcjut 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 weightwith 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 byFlores's wife about what Rores told her about the

alleged aggravated robbery would not have been admissible for impeachment purposes

as aprior inconsistentstatement under Rule of Evidence 613(a). Rule 613(a) provides:

In examining awitness concerning aprior inconsistent statement made by

thewitness, whether oral orwritten, 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 „ i; Page 18
tmequivocally admits having;:made such statement, extrinsic evidence of

same shall not be admitted. ?

Tex. R. Evid. 613(a). Here, Rores padily admitted that what he told his wife was

inconsistent with his testimony off what happened during the alleged aggravated

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

hide the fact that he was soliciting aprostitute at the time he was robbed.

Rnally, 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 Rores's jtvife about such communication would have been

irrelevant. See Tex. R. Evid. 401,402. [

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

such error. See Tex. R. App. P. 44.2. B(|th of her issues are overruled, and the trial court's

judgment is affirmed.

REX D. DAVIS

Justice

Before ChiefJustice Gray,

Justice Davis, and

Justice Scoggins

(ChiefJustice 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 Rores admitted he had lied to his wife about the events

Tello v. State '

j. Page 19
resulting in the defendant's arrest and trial. The extent and scope of what Flores told

eTLtivp, "Tif?!"1 ^"^ *l0r6S WaS WlUin§ t0 admit ^ 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 hed about when telling his wife. This calls to mind Professor Matt Dawson's (Baylor Law SchoolsPractice Court Professor) famous cross examination question: Were you lying then or are you lying now? As argued by the defendant, for all we know Rores

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

subpoena Flores swife, the defendant was denied the ability to effectively investigate and pursue a defense directly involving Rores's credibility about the events at

ssue. What could be amore relevant source of material information to impeach the

testimony of the State sstar 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 Rores's wife.)

*< OF „^fe

"Wfli'fSjttV.VP'

Tello v. State

Page 20
'VTPun^Arir.. T ~ " - COACaseNo.10:i3:00160:CR X 'T Tr. Ct. No. 12-02891-CRF-272 PD-0610-15 OnJhjsjJay this Court has granted the Appellant's Pro Se motion for an extension

of time in which to file the Petition for Discretionary Review. The time toltethe*

S. .'°ScacSK!?TMXtenC,ed t0 Fr|day;julv24.2015. NO FURTHER EXTENSIONS

ht^ ^ NIE^AINED" NOTE: Petition For Discretionary Review must be filed with The Court ofCriminal Appeals.

Abel Acosta, Clerk

ARACELI TELLO

TDC# 1855166

HOBBY UNIT

742 FM 712

MARLIN.TX 76661

ll,M,lf'Ml'lllhlllllf!|»'HH'hHMhlrMlWlHl •1fc.BH3B ,'o££i

OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS - PO BOX 12308 CAPIIOL STATION AUSTIN TEXAS 78711 ..

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