Opinion
No. 05-07-01519-CR
Opinion issued January 22, 2009. DO NOT PUBLISH TEX. R. App. P. 47.
On Appeal from the County Criminal Court No. 5, Dallas County, Texas, Trial Court Cause No. MB05-16956-F.
OPINION
This is an appeal of a misdemeanor driving while intoxicated (DWI) case. Rejecting appellant's plea of not guilty, a jury found her guilty of DWI. Thereafter, the trial judge assessed appellant's punishment at a fine of $800 and confinement for 135 days in the county jail; however, the judge suspended imposition of appellant's sentence and placed her on community supervision for eighteen months. Appellant now appeals, contending in a sole "point of error" the trial court committed reversible error by using, over her objection, an uncertified, unlicensed interpreter at her trial. Concluding no reversible error is shown, we affirm the judgment. Appellant was charged with DWI. Outside the jury's presence, the following occurred just before the trial began. [The Court]:
Cause Number MB05-16956-F, State of Texas versus Jee Hyun Woo. What says the State?[Prosecutor]:
Ready.[The Court]:
What says the Defense?[Counsel]:
Ready, Your Honor.[The Court]:
Client states that her name is properly stated in the Information?[Counsel]:
Jee Hyun Woo.[The Court]:
Okay. She understands what she's charged with?[Counsel]:
Yes, Your Honor.[The Court]:
She waives reading of the Information?[Counsel]:
Yes, Your Honor.[The Court]:
And what's her plea to the charge?[Counsel]:
Not guilty.[The Court]:
Okay. And what language does — is her native language?[Counsel]:
Her native language is Korean, Your Honor.[The Court]:
Okay. You're a Korean interpreter?[Interpreter]:
Yes, sir.[The Court]:
Raise your right hand.(Interpreter was sworn by the Court) [The Reporter]: Judge, I need her name. [Interpreter]:
Michelle, M-I-C-H-E-L-L-E, Kim, K-I-M.[The Reporter]: Thank you. [Counsel]:
Are we on the record?[The Reporter]: I am. [Counsel]:
Your Honor, you don't mind if I ask the interpreter a couple of questions?[The Court]:
Yeah.[Counsel]:
Ms. Kim, are you certified to be a translator in Dallas County?[Interpreter]:
No, sir.[Counsel]:
Your Honor, at this time I want to make an objection on the record stating that the interpreter that's being used today is not certified pursuant to the Criminal Appeals.[The Court]:
Okay. And there's no certified interpreter available. And when there is no certified interpreter available we have an uncertified interpreter. We can utilize an uncertified interpreter.
The only certified [interpreter] we had appeared before this case before and there was a conflict with that person translating in this case. I do not know what the conflict was. Then whenever the second interpreter — that was Dr. Zoe (Phonetic)?[Counsel]:
Zoe, I believe, Your Honor.[The Court]:
That was Dr. Zoe. And I believe you — he had a conflict, and I forgot what his conflict was.[Counsel]:
He wasn't certified, Your Honor.[The Court]:
Then that there was your only conflict with him?[Counsel]:
Yes. Yes.[The Court]:
Okay. Well, I mean, we're now at the third interpreter at about the — how many trial settings? Four — six trial settings. I think we've gone about as far down this road as we can, so I'm gonna have to overrule your objection.[Counsel]:
Thank you, Your Honor.On appeal, appellant contends she did not receive a proper trial because the uncertified, unlicensed translator's improper and incorrect translations damaged her case. Appellant cites to section 57.002 of the Texas Government Code as authority that a translator must be certified. The record does not show appellant ever presented this authority to the trial court in support of her objection. The right to have the trial proceedings interpreted to the accused in a language the accused understands is part of the constitutional right to confrontation. Kan v. State, 4 S.W.3d 38, 41 (Tex.App.-San Antonio 1999, pet. ref'd) (citing Baltierra v. State, 586 S.W.2d 553, 557 (Tex.Crim.App. 1979)). The accused's right to have the trial proceedings accurately interpreted in a language she understands is also a matter of due process. Kan, 4 S.W.3d at 41. In Texas, an individual called to act as an interpreter in a criminal proceeding is not required to have specific qualifications or training. What is required is sufficient skill in translating and familiarity with the use of slang. See Tex. Code Crim. Proc. Ann. art. 38.30(a) (Vernon Supp. 2008). The competency of an individual to act as an interpreter is a question for the trial court, and absent a showing of abuse of discretion, that determination will not be disturbed on appeal. Kan, 4 S.W.3d at 41 (citing Mendiola v. State, 924 S.W.2d 157, 161-162 (Tex.App.-Corpus Christi 1995, pet. ref'd, untimely filed); Montoya v. State, 811 S.W.2d 671, 673 (Tex.App.-Corpus Christi 1991, no pet.)).
Cf. Garcia v. State, 887 S.W.2d 862, 875 (Tex.Crim.App. 1994), abrogated in part on other grounds, Hammock v. State, 46 S.W.3d 889, 893 (Tex.Crim.App. 2001) (stating "Appellant's counsel apparently abandoned their `objection' [to the translation] stating, `that's fine, your Honor.'")
Section 57.002 of the government code provides, in relevant part: "(a) A court shall appoint a certified court interpreter or a licensed court interpreter if a motion for the appointment of an interpreter is filed by a party or requested by a witness in a civil or criminal proceeding in the court." Paragraph (d) of section 57.002 states, "Subject to Subsection (e), in a county with a population of 50,000 or more, a court may appoint a spoken language interpreter who is not a certified or licensed court interpreter if: (1) the language necessary in the proceeding is a language other than Spanish; and (2) the court makes a finding that there is no licensed court interpreter within 75 miles who can interpret in the language that is necessary in a proceeding." Paragraph (e) states, "A person appointed under Subsection (c) or (d): (1) must be qualified by the court as an expert under the Texas Rules of Evidence; (2) must be at least 18 years of age; and (3) may not be a party to the proceeding." See Tex. Gov't Code Ann. § 57.002 (Vernon Supp. 2008).
The only complaint appellant raises on appeal is that the translator was not certified or licensed. She makes no complaint about any other deficiencies in the translator's qualifications.
Article 38.30(a) of the Texas Code of Criminal Procedure provides:
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 the person charged or the witness. Any person may be subpoenaed, attached or recognized in any criminal action or proceeding, to appear before the proper judge or court to act as interpreter therein, under the same rules and penalties as are provided for witnesses. In the event that the only available interpreter is not considered to possess adequate interpreting skills for the particular situation or the interpreter is not familiar with use of slang, the person charged or witness may be permitted by the court to nominate another person to act as intermediary between the person charged or witness and the appointed interpreter during the proceedings. Tex. Code Crim. Proc. Ann. art. 38.30(a).
Analysis
No Interpreter
This is not a case where appellant claims she was denied her constitutional right of confrontation by the failure to appoint an interpreter. Cf. Garcia v. State, 149 S.W.3d 135, 145 (Tex.Crim.App. 2004) (State did not dispute that appellant did not speak English and there was no translation during trial). Rather, pursuant to article 38.30 of the code of criminal procedure, the trial court appointed and swore in an interpreter to translate the trial proceedings. The trial court stated there was no certified interpreter available.Ineffective Interpreter
Although appellant makes conclusory statements in her brief about how she was damaged by the use of a non-certified translator, the record does not provide factual support for her conclusions. Appellant does not point to any specific instances of inaccurate translations by the translator nor does the record show appellant objected in the trial court to inaccurate translations. Rather, appellant's complaints about the inaccurate translations are general:the translator was so ineffective that the [a]ppellant started to testified [sic] without the aid of the translator. . . . Appellant was very concerned because the translator was very limited in her English speaking abilities. . . . [T]he translator failed to properly translate the words spoken by [a]ppellant in Korean, her grammar was terrible and elementary, and the reporter's record truly does not reflect how terrible her translations were.To the extent appellant complains about inadequate or inaccurate translations, "we conclude that we cannot even review the question, because there is no legal issue presented; it is a factual question which ultimately only the jury can answer, and which is not reviewable by this court." Garcia, 887 S.W.2d at 875. Nothing is presented for our review on the issue of the ineffectiveness of the interpreter. Based on the record before us, we conclude neither appellant's Sixth Amendment right of confrontation nor her due process right was violated by the failure to appoint a certified translator during her trial. A translator was appointed and participated in appellant's trial. Appellant's only complaint is that the translator was not licensed or certified. Appellant has failed on the record before us to show the trial court abused its discretion by proceeding to trial, after six settings, without a certified Korean translator when no certified translator was available. Appellant has not explained how she was harmed by the lack of certification of the translator. No harm is shown. We affirm.