Opinion
Nos. 05-08-00100-CR, 05-08-00101-CR, 05-08-00102-CR
Opinion issued May 29, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 204th District Court Dallas County, Texas, Trial Court Cause Nos. F06-68795-RQ; F06-68809-RQ; F06-68865-RQ.
Before Justices BRIDGES, O'NEILL, and FITZGERALD. Opinion By Justice BRIDGES.
OPINION
Salvador Correas appeals his attempted aggravated sexual assault of a child convictions and his burglary of a habitation conviction. A jury convicted appellant and sentenced him to sixty and fifty years' confinement in the attempted sexual assault cases and thirty years' confinement in the burglary of a habitation case. In two issues, appellant argues the evidence is factually insufficient to support his convictions, and the trial court erred in denying his request for a Spanish-speaking attorney. We affirm the trial court's judgments. Melanie Akers, twelve years old at the time of trial, testified that, on the day of the offense, a man she identified as appellant knocked on the door of her apartment. Melanie and Melissa were sitting on the couch and watching cartoons, and their mother had gone to give some food to a neighbor. About three minutes after their mother left, Melanie heard the knock on the door. Melanie thought it was her mother at the door, and she opened the door. Melanie's mother always knocked on the door when she returned, and Melanie did not let other people into the apartment. Appellant put his hand in the doorway, and Melanie and Melissa tried but failed to close the door, so they went into the bedroom. Melanie looked back and saw appellant locking the door behind him. When Melanie got in the bedroom, appellant came in and pulled her pajama pants and her underwear down. Melanie was telling appellant "No," but appellant said he would kill Melanie if she screamed. Melanie started screaming, and Mariela woke up and asked appellant what he was doing. Melanie further testified appellant said he "wanted to kiss [her] down there." Mariela Akers, sixteen years old at the time of trial, testified her mother's name is Margarita, and she has twin sisters, Melanie and Melissa, who were twelve years old. Mariela testified she lived in a one-bedroom apartment with her sisters and her mother, who cleaned houses and sold food and sodas from her apartment. On a Sunday in June or July of 2006, Mariela woke up because she heard her sister screaming. Mariela could not see very clearly because she wore glasses, but she saw a man holding Melanie, who was not wearing pants or underwear. Mariela started yelling and asking who the man was and what he wanted. Mariela reached for a phone beside the bed, but the man came over to her, slapped her hand, and told her, "If you get the phone, I'm gonna kill you." Mariela asked the man what he wanted, and he pointed at Melanie and said, "All I want to do to her is kiss her down there in her pussy." Mariela was "yelling and screaming," and the man told everyone to shut up or he was going to kill them. The bedroom door was half open, and Mariela tried to crawl over to it so she could push Melanie out "so she could run out and get the phone or, like, go, just run out, look for my mom." The man grabbed Mariela by her hair and pulled her back and started hitting her with his fists. Melanie came from behind the man to help Mariela, and the man started hitting Melanie. Both Mariela and Melanie were screaming, and the man was telling them to shut up or he would kill them. The man went toward the bed and sat on the floor. Mariela went to the window to try to open it and scream for help. As she was going toward the window she crossed the bed and the man told her to pull down her pants. The man tried to pull down Mariela's pants, and she was holding on to her pajama pants, kicking at him, and screaming and telling him to leave her alone. The man grabbed Mariela and hit her again. After he hit her, the man got on his knees, took his wallet out, looked through it, and placed it on the floor. Mariela "just started screaming" and the man again threatened that he would kill her if she did not shut up. Melanie's pants were on the floor, and the man wrapped them around Mariela's face and kept telling her to shut up or he was going to kill her. Mariela managed to get the pants off her face and throw them away when she heard her mother knocking on the door and calling Mariela's name. The man "started panicking" and telling Mariela and Melanie to shut up. He asked Mariela, "where do I get out?" and Mariela told him he could jump out the window or walk out the front door. Mariela's mother and her uncle came in the bedroom door and hit the man and held him down. Mariela ran out of the room and called 911. Mariela's mother and uncle were able to hold the man down until police arrived. Mariela's mother, Margarita, testified appellant was the man she found in her apartment and held until police came. At the close of the evidence, the jury convicted appellant of two offenses of attempted sexual assault of a child and burglary of a habitation. These appeals followed. In his first issue, appellant argues the evidence is factually insufficient to support his burglary and attempted sexual assault of a child convictions. In a factual sufficiency review, we view the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). To reverse a case based on factual insufficiency, we look at the evidence objectively and find that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. As a reviewing court, we may substitute our judgment for the jury's determinations on the weight and credibility of the evidence only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006) (stating factual sufficiency review requires "due deference" to be afforded to jury's determinations). Absent a contradictory showing from the record, we should defer to the jury's determinations regarding the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). As the exclusive judge of the weight and credibility of the witnesses' testimony, the jury is free to believe or disbelieve evidence from either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). A person commits the offense of aggravated sexual assault if the person knowingly or intentionally causes the penetration of the anus or sexual organ of a child by any means or causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor, and the child is younger than fourteen years of age. Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (iii), (2)(B) (Vernon Supp. 2008). A person commits the offense of criminal attempt if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. Tex. Penal Code Ann. § 15.01(a) (Vernon 2003). If a person attempts an offense that may be aggravated, his conduct constitutes an attempt to commit the aggravated offense if an element that aggravates the offense accompanies the attempt. Tex. Penal Code Ann. § 15.01(b) (Vernon 2003). The element "with specific intent to commit an offense" has been interpreted to mean that the actor must have the intent to bring about the desired result. Giddings v. State, 816 S.W.2d 538, 540 (Tex.App.-Dallas 1991, writ ref'd). Appellant's intent to commit an offense may be inferred from his acts. Id. A person commits the offense of burglary if, without the effective consent of the owner, the person enters a habitation and commits or attempts to commit a felony, theft, or assault. Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 2003). Here, Melanie testified she opened her apartment door because she thought it was her mother knocking. Instead, appellant forced his way inside the apartment despite the efforts of Melanie and Melissa to keep him out. Melanie and Melissa fled to a bedroom and appellant followed. Appellant came in the bedroom, pulled Melanie's pajama pants and underwear down, threatened that he would kill Melanie if she screamed, and said he "wanted to kiss [Melanie] down there." Mariela testified she woke up in the bedroom and saw appellant struggling with Melanie, who was not wearing pants or underwear. At one point, appellant pointed at Melanie and said, "All I want to do to her is kiss her down there in her pussy." Appellant told Mariela to pull down her pants and tried to pull them down but Mariela held on to her pajama pants and kicked at appellant. Thus, the evidence showed appellant entered the apartment without consent and attempted to commit aggravated sexual assault on both Melanie and Mariela. See Tex. Penal Code Ann. §§ 15.01(a), (b), 30.02(a)(3) (Vernon 2003). Appellant complains inconsistencies in Melanie's and Mariela's testimony render the evidence against him so weak as to undermine confidence in the jury's determination that he was guilty of the charged offenses. Specifically, appellant points to Mariela's testimony that appellant "didn't ever, like, try to" when she was asked whether appellant was trying to take off her pants. Mariela testified appellant told her to take her pants off and "was just, like, getting close to me. And that's, like — I'm just kicking him." Appellant also points out that Mariela did not see how Melanie's underwear was taken off and Melanie testified the exact words appellant used were that he "wanted to kiss [her] down there" and he did not use a "gross word." Finally, the police officer who first responded to the scene testified affirmatively when asked "did either Mariela or Melanie tell you that they sold a soda to [appellant]?" Appellant also complains that photographs of Melanie and Mariela do not show sufficient physical injury if, as Mariela testified, appellant hit her several times with his fists. It was the jury's function to resolve any conflicts in the evidence. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 9. The jury was entitled to accept Melanie's and Mariela's testimony establishing appellant's guilt, and we will not substitute our own determination for that of the jury. See Marshall, 210 S.W.3d at 625. Viewing all of the evidence in a neutral light, we therefore conclude the evidence is factually sufficient to support appellant's convictions for aggravated sexual assault of a child and burglary of a habitation. See Watson, 204 S.W.3d at 415. We overrule appellant's first point of error. In his second point of error, appellant argues the trial court erred in denying his request for a Spanish speaking attorney, and he was thereby deprived of his due process rights, right to confrontation, and Sixth Amendment rights. The code of criminal procedure provides that, when a motion for appointment of an interpreter is filed by any party or on motion of the court, in any criminal proceeding, it is determined that a person charged or a witness does not understand and speak the English language, an interpreter must be sworn to interpret for him. Tex. Code Crim. Proc. Ann. art. 38.30(a) (Vernon 2005). The only basis for the trial court's providing an interpreter to an accused is the constitutional and statutory guarantees of confrontation under the state and federal constitutions. Nguyen v. State, 774 S.W.2d 348, 350 (Tex.App.-Houston [14th Dist.] 1989, pet. ref'd). The court of criminal appeals has agreed "with the many courts addressing foreign language and deaf interpretation, that decisions regarding interpretive services are within the sound discretion of the trial court." Linton v. State, 275 S.W.3d 493, 503 (Tex.Crim.App. 2009). The ultimate question is whether any inadequacy in the interpretation made the trial "fundamentally unfair." Id. Here, in a pretrial hearing, the trial judge stated it had "been brought to the court's attention that [appellant] needs the assistance of a Spanish-language interpreter." The trial judge swore in an interpreter, and the prosecutor read the indictments to appellant. Appellant answered in English when the trial judge asked if appellant's name was spelled correctly and asked for appellant's plea to each indictment. Appellant's counsel asked appellant on the record whether he and appellant had discussed the possibility of resolving the charges against him before going to trial. Appellant answered in English that he had discussed the State's plea bargain offer of "fifteen years to resolve all three cases" with counsel, and counsel explained the offer to appellant. Appellant rejected the State's offer because he "wanted to see if we could perhaps negotiate less than the fifteen years and — less than fifteen — less than fifteen years because it is not fair for them to accuse me and — for something that I have not done." Appellant answered in English that he had made a counter offer of two years as punishment for all of the cases, but the State rejected his counter offer, and the plea bargain remained at fifteen years. Appellant stated in English that he did "not accept that offer of fifteen years" and understood that the cases would proceed to trial. At the conclusion of the hearing, the trial judge asked appellant if he had any "questions for the Court, anything about your rights?" Appellant responded, "I will let my attorney know." On the day of trial, the trial judge again stated it had come to the court's attention that appellant needed the services of a Spanish-language interpreter and swore in the interpreter. The trial judge discussed with the parties whether the cases against appellant would be tried separately or together and determined they would be tried together. Appellant's counsel stated he wanted to "get a few things on the record" regarding appellant, and appellant was sworn in. Through a series of questions and answers in English, appellant testified he understood his jury trial was about to begin, and he again testified he did not accept the State's plea bargain offer. Appellant testified he was aware the minimum sentence on the burglary charge, in the event the State proved appellant was a convicted felon, would be fifteen years and that he could be sentenced "all the way up to 99 years and/or life." The trial judge asked appellant if he was ready to proceed with his jury trial, and appellant asked, "Could I have a chance to explain — to tell you a reason — what I'm not ready for?" Appellant stated he had asked his attorney for "certain documents, proof that I can go ahead with my trial." When the trial judge asked appellant what documents he wanted, appellant responded, "Like the private investigator documents." The trial judge asked if there were any witnesses appellant needed for trial that were not available to him, and appellant asked if the trial judge meant witnesses in his favor. Appellant stated he did not have any witnesses in his favor, and the trial judge asked "what the need [was] for any more documents regarding a private investigator or anything." The trial judge asked why appellant was not ready to go to trial. Appellant stated, "For the reason — the reason is that I feel that — well, the attorney that has been appointed to me, the English, and I have not — never felt that I have explained well to him or have understood him, what questions he asked of me." The trial judge asked appellant's counsel if he spoke Spanish, and counsel answered that he did not. In response to further questioning, counsel stated he had communicated with appellant in three ways: with an interpreter discussing the facts of the case and potential outcomes of the case, in English conversations which they were able to carry on "without any detriment," and in English by mail. The trial judge asked appellant whether he denied his counsel's statements, and appellant stated, "the letters that I have sent to him have been in English because I've asked somebody to translate them for me because my main language is Spanish." The trial judge asked appellant what information he had been unable to give his counsel. Appellant said he had "something here" and clarified that it was "a letter that I did not have the opportunity to give to [counsel] because there wasn't any time for me to mail it to [counsel]." In response to the trial judge's questioning, appellant confirmed he had been in jail since July 2006, and the trial judge asked why, "today, January 2008, you're telling me you haven't had enough time to send information to your lawyer when you've just got through telling me you've been able to send him correspondence by mail." Appellant answered he was "referring to that because I then found out that it was necessary for me to have mailed those letters to [counsel] on the last visit that he paid to me." Counsel stated he had received a letter from appellant "as recently as this week," but said appellant might "have that letter he just wrote." The trial judge asked why appellant did not tell counsel about the letter, and appellant said the letter was for the trial judge. The trial judge declined to accept appellant's letter, and appellant said he "would like an attorney who will speak Spanish, my language." The trial judge denied appellant's request and proceeded with trial with the interpreter present. Thus, the record shows appellant was able to communicate extensively with the trial judge in English. Nevertheless, an interpreter was present at trial, and appellant does not complain about the interpreter at trial. Instead, appellant argues he should have had a Spanish-speaking attorney with whom he could communicate and share his defense plan prior to trial, and he was entitled to an interpreter or Spanish-speaking attorney at all meetings prior to trial. The record shows appellant was able to communicate with his counsel through an interpreter and in English verbally and in writing. However, article 38.30 did not require the appointment of an interpreter to act as an intermediary between appellant and his counsel. Nguyen, 774 S.W.2d at 350. Further, the record shows appellant effectively communicated in English, and an interpreter was present at trial in accordance with article 38.30. Under these circumstances, we cannot conclude the trial court abused its discretion in denying appellant's request for the appointment of a Spanish-speaking attorney. See Linton, 275 S.W.3d at 503. We overrule appellant's second point of error. We affirm the trial court's judgments.
"Melanie Akers" is a pseudonym used at trial. Throughout this opinion, we will use the pseudonyms used at trial for persons under eighteen.