Opinion
No. 04-16-00090-CR
03-01-2017
Jose Flores FRANCO, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 112th Judicial District Court, Sutton County, Texas
Trial Court No. 2355
Honorable Pedro Gomez, Judge Presiding Opinion by: Irene Rios, Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Irene Rios, Justice AFFIRMED
Jose Flores Franco was convicted by a jury of five counts of indecency with a child by contact. The sole issue presented on appeal is whether the trial court violated Franco's constitutional right of confrontation and section 57.002 of the Texas Government Code "when it failed to appoint a licensed Spanish language interpreter to interpret the testimony of [a] State's witness." We overrule Franco's issue and affirm the trial court's judgment.
BACKGROUND
The State requested an interpreter for one of its witnesses who primarily spoke Spanish. The trial court appointed Sandy Espinosa as the interpreter, and the record reflects Espinosa had been appointed as an interpreter by the trial court on one prior occasion. Franco's attorney did not object to the appointment of Espinosa and did not make any objections to her translation of the testimony while the witness testified.
STANDARD OF REVIEW
The competency of an individual to act as an interpreter is a question for the trial court, and the trial court's determination of the individual's competency is reviewed on appeal under an abuse of discretion standard. Martins v. State, 52 S.W.3d 459, 470 (Tex. App.—Corpus Christi 2001, no pet.); Kan v. State, 4 S.W.3d 38, 41 (Tex. App.—San Antonio 1999, pet. ref'd). The accuracy of an interpreter's translation is a question of fact for the factfinder and not reviewable by an appellate court. Martins, 52 S.W.3d at 470; Kan, 4 S.W.3d at 43.
In his brief, Franco alludes to his inability to adequately cross-examine the witness because of issues with the translation. As noted, the accuracy of an interpreter's translation is not reviewable by an appellate court. Martins, 52 S.W.3d at 470; Kan, 4 S.W.3d at 43. Even if this court could review the accuracy of the translation, Franco never objected to the translation; therefore, the issue would not have been preserved for this court's review. Martins, 52 S.W.3d at 471; Kan, 4 S.W.3d at 43. Finally, even if the issue were reviewable and preserved for this court's review, Franco does not point to any specific evidence in the record of an inaccurate translation that prevented him from confronting the witness. Martins, 52 S.W.3d at 471; Kan, 4 S.W.3d at 43.
DISCUSSION
In the issue presented, Franco contends the trial court erred in failing to appoint a licensed Spanish language interpreter. In his brief, Franco also argues the trial court erred in failing to make express findings that the interpreter met the qualifications set forth in section 57.002(e) of the Texas Government Code.
In a criminal case, the appointment of an interpreter by a trial court is governed by section 57.002 of the Texas Government Code and article 38.30 of the Texas Code of Criminal Procedure. See TEX. GOV'T CODE ANN. § 57.002 (West Supp. 2016); TEX. CODE CRIM. PROC. ANN. art. 38.30 (West Supp. 2016). Under article 38.30, an individual appointed as an interpreter is not required to have any specific qualifications or training but need only have sufficient skill in translating and familiarity with the use of slang. Kan, 4 S.W.3d at 41. Under section 57.002, an individual appointed as an interpreter generally must be a licensed court interpreter; however, a court located in a county with a population of less than 50,000 "may appoint a spoken language interpreter who is not a licensed court interpreter." TEX. GOV'T CODE ANN. § 57.002(a),(c). If the court appoints a spoken language interpreter who is not a licensed court interpreter, that person: (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. Id. at § 57.002(e).
In his issue and argument, Franco contends the trial court erred in failing to appoint a licensed court interpreter and, apparently in the alternative, the trial court erred in failing to expressly find Espinosa met the qualifications set forth in section 57.002(e). When a trial court knows a witness cannot understand English, the requirement that an interpreter be appointed in response to a timely request or motion is a waivable-only right, meaning an interpreter must be appointed unless the defendant waives the appointment. See Garcia v. State, 429 S.W.3d 604, 606-07 (Tex. Crim. App. 2014). A complaint regarding the competency of an interpreter appointed by the trial court, however, is waived if the defendant does not object to the appointment at trial. See, e.g., Colunga-Pina v. State, No. 05-15-01337-CR, 2016 WL 3877865, at *1 (Tex. App.—Dallas July 13, 2016, no pet.) (holding appellant waived complaint about the trial court's failure to establish the credentials of the interpreter by failing to object) (mem. op., not designated for publication); Phommathep v. State, No. 07-12-00503-CR, 2014 WL 561813, at *3 (Tex. App.—Amarillo Feb. 11, 2014, no pet.) (holding appellant waived complaint that trial court appointed an interpreter without making the findings required by section 57.002(e) where appellant did not make proper objection at trial) (mem. op., not designated for publication); Montoya v. State, 811 S.W.2d 671, 673 (Tex. App.—Corpus Christi 1991, no pet.) ("The trial court was not under a duty to interrogate the interpreter to determine his qualifications; rather, if there was a question concerning his qualifications, appellant should have objected and made a record."). In this case, Franco did not object to the competency of the interpreter; therefore, his complaints on appeal are waived.
Even assuming error was preserved with regard to the trial court's failure to appoint a licensed court interpreter, Franco concedes the trial court is located in a county with a population of less than 50,000. Accordingly, the trial court was not required to appoint a licensed court interpreter. See id. at § 57.002(c). Moreover, even if the law required the trial court to appoint a licensed court interpreter, Franco cites no law requiring the trial court to determine on the record the credentials of the interpreter, and we will not hold the trial court abused its discretion from a record that is silent as to whether or not an interpreter is licensed. See Colunga-Pina, 2016 WL 3877865, at *2 (refusing to find error where record was silent as to whether or not an interpreter was licensed); Ridge v. State, 205 S.W.3d 591, 597 (Tex. App.—Waco 2006, pet. ref'd) (refusing to find error where silent record did not support contention that interpreter was not licensed because "[t]o do so would be to find error on the basis of speculation"). For the same reasons, we would not hold the trial court abused its discretion by failing to expressly find Espinosa met the qualifications set forth in section 57.002(e). See Colunga-Pina, 2016 WL 3877865, at *2; Ridge v. State, 205 S.W.3d at 597.
CONCLUSION
The trial court's judgment is affirmed.
Irene Rios, Justice DO NOT PUBLISH