                                                    ORIGINAL
    CMC K o      10-13-                    C2.




                     :——       ——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 of Corrections
          Hobby Unit
          742 FM 712              " "          "" ' ' \        ••-•--            -                ...     _ _...._                  . __
          Marlin, TX 76661                          i |:

                    RE:       Opinion and Judgement       \
         Araceli,


         thP »„JI/T enCIv°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 ,nPPhdoing your
         interested        ^r.the
                               Petitiondedsi°n  reacHed»*the
                                        for Discretionary Review^ must
                                                                   Courtbe ofAppeals.
                                                                           filed with theIfthis
                                                                                          TexasisCourt
                                                                                                 something that you are
                                                                                                       ofqST
        Appeals within thujr (30) days from the date that the 10* Court ofAppeals issued its ruhng byourTale in
        AnlT
        Appeals no^Z^Z11           f°: DisCretionary
                    later tha^^v^^is.                 **"
                                               Based on  the fact«that^thefiled
                                                                            10*with
                                                                                CourttheofAppeals'
                                                                                          Texas Court  ofCrtomSa.
                                                                                                   decision  afZ
        your conv.ct,on wasnof^nlo^(one ofthe appellatejudges felt that the trial court did error in thfZ it
        handled your case), Iwould recommend that you file apro se Petition for Discretionary Review. To aSyou
        ^toM^T^?™*™'68                                   °f^ ^^ RUI6S °fApP6llate Pr°Ce^re Which online mye
        steps to tiling a Petition for Discretionary Review.


                                                          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:                           Attorney for Appellee:
Craig M. Greaves
                                                 Jarvis J. Parsons
LawOffice of Craig M. Greaves                    Brazos County District Attorney
118 B South Main Street
                                                 300 East 26th Street, Ste. 310
Bryan, Texas 77803
                                                 Bryan, Texas 77803
979/779-9388 Telephone                           979/361-4320 Telephone
979/779-9387 Facsimile
                                                 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:                                Araceli Tello
                                           TDCJ#: 01855166
                                           William P. Hobby Unit
                                           742 FM 712
                                           Marlin, Texas 76661
 Appellant's Appellate Counsel:           Craig M. Greaves
                                          State Bar #: 24025392
                                          118 B South Main Street
                                          Bryan, Texas 77803
                                          979/779-9388 Telephone
                                          979/779-9387 Facsimile
 Appellant's Trial Counsel:               Craig M. Greaves
                                          State Bar #: 24025392
                                          118 B South Main Street
                                          Bryan, Texas 77803
                                          979/779-9388 Telephone
                                          979/779-9387 Facsimile
Appellee's Trial Counsel:                 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
Appellee's Appellate Counsel:            Jarvis J. Parsons,
                                         Brazos County District Attorney
                                         State Bar #: 24032934
                                         Office ofthe Brazos County District Attorney
                                         300East 26Ih Street, Ste. 310
                                         Bryan, Texas 77803
                                         979/361-4320 Telephone
                                         979/361-4368 Facsimile


                                     u




                                                                                        k
Trial Court:        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




               in
  Statement Regarding Oral Argument
                                                                               i

  Identity of Parties
                                                              ,              ii
  Listof Authorities
                                                                             v
 Statement of the Case
                                                                            vi
 Issues Presented
                                                                         vii
 Statement of Facts
                                                                        viii
 Summary of Argument
                                                                         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 of Error 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 Relief Requested
Certificate of Service
                                                                       11




                                      iv
Cases-


Coleman 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/Rules-


TEX.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. CR Vol 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
                  ALLEGED AGGRAVATED ROBBERY.


                      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 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   m



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 behalf ofthe 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
                                   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 in the above referenced cause number, files this Briefsetting forth herpoint of
error committed in the Trial Court and would show the Court the following:

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

was allegedly robbed at gunpoint that he and his wife were having martial problems. RRVol 3 Pg
139 (9). He stated that these problems stemmed from his wife's infidelity. RR Vol 3 Pg 139 (9-

                                               -1-
 10). In response to his wife's unfaithfulness, Flores decided that he would cheat on her. RR Vol 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 at another location
shortly. RRVol 3 Pg 147 (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 3 Pg 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:
                              Judge, I think 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)

             Mr. Greaves:
                             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. I might need to subpoena her RR Vol 3 Pe
                             164 (14-19)                                                     8

            The Court:
                             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 I think somebody said that he almost broke up with her-
                            RR Vol 3 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:
                    So, do you think that he might have talked to her"? RR Vol 3 Pp
                    165 (14-15)                                                   B

  Mr. Greaves:     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 3 Pe
                   165 (16-19)                                                         s

  The Court:       I mjust 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)

 Mr. Greaves:      I'm going to have to ask the address after that, but Ican do that
                   off the record, Iguess. Imean, there's agood possibility RR
                  Vol 3 Pg 165 (23-25)

 Mr. Calvert:     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, ifhe relayed
                  to her what happened. But he's talked to - now, we've already
                  gotin what 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 3 Pe 167
                  (7-18)                                                *

Mr. Calvert:     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 ofa fact 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 of this Defendant more or
                 less likely. RRVol 3 Pg 168 (15-23)

The Court:
                 What can you articulate for the record as to why you need this
                 name? RR Vol 3 Pg 170 (14-15)

Mr. Greaves:     Well, Judge, I mean, ithas been mentioned by the State and
                 brought forth the fact that he has - in the initial tapes of

                                    -4-
                 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)

The Court:      Do you have any other way offinding her and talking to her*?
                RRVol3Pgl71(7-8)

Mr. Greaves:    No, sir. Imean, Idon't know her name. I think everything I
                received from the State did nothave an address for him RR
                Vol 3 Pg 171 (9-11)


The Court:      So, you don't know where she's living? RRVol3 Pg 171 (12-
                13)


Mr. Greaves:    No, sir, never have. Ifthey want to bring her up here, I don't
               have to serve herorwhatever; and I can sitdown and talk to
               her. That's fine. RR Vol 3 Pg 171 (14-17)

Mr. Calvert:   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 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 wecanbring in thewife and have
               extrinsic evidence ofit. 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 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 3 Pg 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 is heis...My deal basically is there'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. I lost 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 I don't have this money, and that's -1 want to
                                    see what this discussion goes on with her. RR Vol 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 Pg 175 (5-6)

               Mr. Greaves:        I mean, as to that, that's not my main concern orwhat I tried 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)
               The Court:          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)

               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. RR Vol 3 Pg 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 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:; 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 of research
                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'of the
                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
                that testimony. 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 of the 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's jury 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 this woman'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^
ofrecord               *ate-mail
         listed below via   atmeonandthisCOrTect COpydayofthe
                                           the 19*            foregoing 2014.
                                                         of September;  was served upon the counsel
       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,
                                                            Appellant
  v.




 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, 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
         -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
                          [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 —              !
                                           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 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'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. I mean, 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, 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 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 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.


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 at least 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 I respond to his 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
         was looking 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 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 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 basis of 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 to fixj.it. And, I mean, I think -

                         THE COURT: He's going through adivorce 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. 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!                                         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 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. 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 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 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?          \
                                         'I


                  A.    That is right.

                 Q.     Okay. Did you tell your wife you were going to do
          something else or going to be f you wouldn'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 my hair done - cut.

                 Q.    (By [Defense Counsel]) And so, had you told your wife your
         whereabouts, where you were going to beat thattime?

Tello v. State                            r                                            n    Q
                                          i                        .                   Page 8
                  A.      Regularly, I come out from 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       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 aboutyou getting robbed?
                                           i




                 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.        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.      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.      Whatstory did you tellher?

                 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                                 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.     j-

                  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 - 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's right. His picture was there; and so, that's the reason
         why she knows that he goes to the store whereshe works.

                 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 you wererobbed; or what part did you tell her was
          a lie?                           !:


                   A.     That I was 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's the onlypart 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 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 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 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 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                            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 is there's notan attachment
          ofthe newspaper article on thi£ that I sent 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't askher what article it was. I don't
          know what part he's saying 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,
         if Iallowed 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 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 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.
          I was ~ 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 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 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
          after the testimony has beenout there.

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


                       [Defense Counsel]: And I need to read in 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 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 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, when the manisaid he madea 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                           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 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 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 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 thatthat 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) 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 was your husband's response?

          2. Have you at anytime readik newspaper article, Facebook post, etc. that
          you believe described anincident 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.?                          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?

         In herfirst issue, Tello contends thatthe 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
                                           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 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 byFlores's wife about what Rores told her about the
alleged aggravated robbery would not have been admissible for impeachment purposes
as aprior inconsistent statement under Rule of Evidence 613(a). Rule 613(a) provides:
         In examining awitness concerning aprior 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                                                                         „
                                            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
         (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 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,
   effectively"T
               askedif?!"1
                     to believe^"^     *l0r6Swhat
                               Flores about    WaSliesWlUin§
                                                       Flores t0hadadmit
                                                                    told his^wifedefendant  was
                                                                                  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 School sPractice 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 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 Rores's wife.)
       *< OF „^fe




          "Wfli'fSjttV.VP'




Tello v. State
                                                                                      Page 20
                     OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS
                     - PO BOX 12308 CAPIIOL STATION AUSTIN TEXAS 78711 ..
                                                           it




'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!?™XtenC,ed t0 Fr|day;julv24.2015. NO FURTHER EXTENSIONS
     ht^ ^ NIE^AINED" NOTE: Petition For Discretionary Review must be filed
  with The Court of Criminal Appeals.
                                                                        Abel Acosta, Clerk

                                 ARACELI TELLO
                                 TDC# 1855166
                                 HOBBY UNIT
                                 742 FM 712
                                 MARLIN.TX 76661
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