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
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 2
[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 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, 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 4
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 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 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 6
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 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?
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 8
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 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.
….
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 10
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 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 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 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 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 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 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 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.
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 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 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 16
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 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
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 18
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 19
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.)
Tello v. State Page 20