Opinion
No. 10-00-217-CR.
Opinion delivered and filed July 23, 2003. Rehearing Overruled February 11, 2004.
Appeal from the 23rd District Court, Brazoria County, Texas, Trial Court #37065.
Affirmed.
Attorney(s) for Appellant/Relator: Kelly McClendon, Atty. at Law, Angleton, TX.
Attorney(s) for Appellee/Respondent: Jeri Yenne, Brazoria County Criminal Dist. Atty.
David P. Bosserman, Brazoria County Asst. Dist. Atty., Angleton, TX.
Before Chief Justice Davis Justice VANCE and Justice GRAY (Justice GRAY concurring).
OPINION
Juan Manuel Guerrero pleaded guilty without the benefit of a plea agreement to the offense of possession of cocaine in the amount of 4 grams or more but less than 200 grams with intent to deliver. The court assessed Guerrero's punishment at 8 years' and 6 months' imprisonment. Guerrero argues in his sole issue that the court erred by failing to sua sponte appoint an interpreter to assist him in the punishment phase.
In the papers Guerrero signed on January 26, 2000, in connection with his guilty plea, he wrote, "I went through the 6th grade in Mexico [interlineated] in school, can cannot [interlineated] read, write and understand the English language." The court appointed an interpreter to assist him during the hearing in which he pleaded guilty. At the commencement of this hearing, the court noted that the interpreter was translating the proceedings for Guerrero. The record reflects that the interpreter assisted him through the duration of the hearing. Guerrero's Spanish-speaking counsel informed the court that Guerrero and he had thoroughly discussed the merits of his case and that the interpreter and counsel had both reviewed the plea documents with him.
At the commencement of the sentencing hearing held on April 13, 2000, the trial court asked Guerrero's counsel, "Are you translating all this for me?" His counsel replied that he was. Guerrero did not object to this arrangement. No witnesses testified at this hearing.
ARTICLE 38.30
Article 38.30 of the Code of Criminal Procedure provides in pertinent part:
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. 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.
Tex. Code Crim. Proc. Ann. art. 38.30(a) (Vernon Supp. 2003).
Texas courts have consistently viewed this statute as one which facilitates an accused's federal and state constitutional rights of confrontation. Baltierra v. State, 586 S.W.2d 553, 558 (Tex.Crim.App. 1979); Martins v. State, 52 S.W.3d 459, 469-70 (Tex.App.-Corpus Christi 2001, no pet.). In Baltierra, the Court construed the right of confrontation to include more than "[p]hysical presence and competency." Baltierra, 586 S.W.2d at 556. Quoting Garcia v. State, 151 Tex.Crim. 593, 210 S.W.2d 574 (1948), the Court observed:
We know that in this State, especially along the Rio Grande border, our citizenship is comprised of Latin Americans who speak and understand only the Spanish language. These citizens, as well as nationals of the Republic of Mexico (which was the status of appellant), when brought before the courts of this State charged with crimes against the laws of this State, are entitled to be tried according to the Constitution and laws of this State. This, of necessity, means they are entitled to be confronted by the witnesses under the same conditions as applied to all others. Equal justice so requires. The constitutional right of confrontation means something more than merely bringing the accused and the witness face to face; it embodies and carries with the valuable right of cross-examination of the witness.
Unless appellant was in some manner, either through his counsel or an interpreter, afforded knowledge of the testimony of the witness, the right of cross-examination could not be exercised by him.
Baltierra, 586 S.W.2d at 557 (quoting Garcia, 151 Tex.Crim. at 601, 210 S.W.2d at 580). The Court concluded that Baltierra did not waive her "right" to have the proceedings translated by failing to request that the court interpreter do so. Id. at 559.
Texas is, of course, more bilingual now than in 1979 (or 1948). And, the discretionary rule discussed in Baltierra has been replaced with a mandatory statute. Tex. Code Crim. Proc. Ann. art. 38.30. Thus, we need look no further than the statutory directive that an interpreter must be appointed when the person charged does not understand and speak the English language to decide whether the court erred in failing to appoint an interpreter. Id.
Until 1979, the Code of Criminal Procedure required the appointment of an interpreter only for witnesses who did not "understand and speak the English language." See Code of Criminal Procedure, 59th Leg., R.S., ch. 722, § 1, art. 38.30, 1965 Tex. Gen. Laws 317, 471 (amended 1979) (current version at Tex. Code Crim. Proc. Ann. art. 38.30 (Vernon Supp. 2003)). The Legislature enacted what is now subdivision (a) of article 38.30 regarding the appointment of an interpreter for an accused in 1979. Act of May 4, 1979, 66th Leg., R.S., ch. 209, § 1, 1979 Tex. Gen. Laws 453, 453 (amended 1991).
CAN THE RIGHT TO AN INTERPRETER BE FORFEITED?
The Court of Criminal Appeals has identified three categories of rights in the Texas legal system: "(1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request." Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App. 1993). Only category three rights under Marin can be forfeited by a failure to object or make a timely request. Id. We conclude that, because the statutory requirement contained in article 38.30 is designed to ensure that the constitutional rights of confrontation and competency are afforded all persons charged with a crime by the State of Texas, regardless of national origin, the requirement that an interpreter be appointed is a category two right — a right that must be implemented by the system unless expressly waived. See id.
An accused person can waive his constitutional right of confrontation. See Briones v. State, 595 S.W.2d 546, 548 (Tex.Crim.App. 1980); Leon v. State, 25 S.W.3d 841, 843 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd); Hernandez v. State, 986 S.W.2d 817, 822 (Tex.App.-Austin 1999, pet. ref'd); Vaszquez v. State, 819 S.W.2d 932, 937 (Tex.App.-Corpus Christi 1991, pet. ref'd). Guerrero did so in this case at the time of his guilty plea.
Conversely, the Due Process requirement that an accused person must be competent to stand trial constitutes a "nonwaivable, nonforfeitable systemic requirement." See Marin, 851 S.W.2d at 279. Thus, courts have held that an accused does not waive the right to an interpreter, even if he fails to request one, if the record "otherwise demonstrates the defendant's lack of understanding of the proceedings." Leon, 25 S.W.3d at 843; Hernandez, 986 S.W.2d at 822; accord Vaszquez, 819 S.W.2d at 937.
A waiver must be an "intentional relinquishment or abandonment of a known right or privilege" to be effective. See Marin, 851 S.W.2d at 279 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938)). Or, as the Supreme Court observed in Johnson, the waiver must be "intelligent and competent." Johnson, 304 U.S. at 465, 58 S.Ct. at 1023, 82 L.Ed. at 1467; see also Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2003) (court cannot accept plea "unless it appears that the defendant is mentally competent"). How can one who does not understand and speak English "intelligently and competently" waive rights couched in that language?
Accordingly, we conclude that, when the record affirmatively demonstrates that the accused does not understand and speak the English language, the right to an interpreter is a category two right which can be waived only in writing and on the record. Marin, 851 S.W.2d at 280. No such waiver appears in the record before us. Thus, the court's decision was not whether to appoint an interpreter, but who to appoint as interpreter.
CAN ONE'S ATTORNEY ACT AS THE INTERPRETER?
Article 38.30 provides, in part:
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.
Tex. Code Crim. Proc. Ann. art. 38.30. Although we believe that the better practice would be not to appoint the attorney for the accused, we perceive no reason why the attorney should be disqualified under the statute. See id. (" any person may be . . . recognized"). Our preference for the appointment of an independent interpreter is founded in a perception that an inherent conflict may exist between an attorney's professional obligation to his client and an interpreter's duty to interpret the proceedings fully and fairly. In the context of a trial for example, an interpreter/attorney's duty to interpret would unnecessarily distract from his duty to plan and execute a trial strategy designed to provide zealous representation of the accused.
Guerrero complains that the trial court did not sua sponte appoint an interpreter at the punishment phase of the proceedings. During the plea hearing, a court-appointed interpreter assisted Guerrero by reviewing the pertinent plea documents with his counsel and him and by translating the proceedings to him. His Spanish-speaking counsel also reviewed the merits of the case and the pertinent plea documents with him. Guerrero's counsel confirmed to the court both verbally and in writing that he had advised Guerrero of his rights. Counsel expressed his belief that Guerrero was "able to understand the nature and consequences of these proceedings." The court verbally admonished Guerrero regarding his right of confrontation. The court signed an order in which the court found that Guerrero is "able to and does understand the nature and consequences of these proceedings."
Nevertheless, the court, recognizing that Guerrero did not understand and speak the English language, should have formally appointed an interpreter for the punishment hearing. In failing to do so, the court erred.
HARM ANALYSIS
Rule of Appellate Procedure 44.2 provides two standards for reversal, depending on whether the error in question is "constitutional" or "non-constitutional." See Tex.R.App.P. 44.2. Our research has not disclosed a case which determines the appropriate classification for a violation of article 38.30.
The Court of Criminal Appeals has held that a violation of article 26.13, which sets out the admonishments a trial court must provide a defendant who is pleading guilty or nolo contendere, presents non-constitutional error. See Carranza v. State, 980 S.W.2d 653, 656 (Tex.Crim.App. 1998); accord Raney v. State, 958 S.W.2d 867, 873 (Tex.App.-Waco 1997), pet. dism'd, improvidently granted, 982 S.W.2d 429 (Tex.Crim.App. 1998). As the Court observed, the specific admonishments required by article 26.13 are not "constitutionally required" but rather "aid the trial court in making the determination that the [defendant's plea and accompanying waiver of rights] is both knowing and voluntary," which is a constitutional requirement. See Carranza, 980 S.W.2d at 656.
The purposes of article 38.30 and article 26.13 are similar. Both statutes are designed to facilitate constitutional requirements. However, we cannot deem their violation a "constitutional" error merely because they are so designed. Id. Because article 38.30 serves a function similar to that of article 26.13, we hold that a violation of that statute presents non-constitutional error. Id. Accordingly, we apply the harm analysis of Rule of Appellate Procedure 44.2(b). See Tex.R.App.P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997); Fowler v. State, 958 S.W.2d 853, 865 (Tex.App.-Waco 1997), aff'd, 991 S.W.2d 258 (Tex.Crim.App. 1999).
Under Rule 44.2(b), we review the entire record to determine whether the error had more than a slight influence on the sentence. If we find that it did, we must conclude that the error affected the defendant's substantial rights in such a way as to require a new punishment hearing. Otherwise, we disregard the error. See Flores v. State, 48 S.W.3d 397, 404-05 (Tex.App.-Waco 2001, pet. ref'd); Fowler, 958 S.W.2d at 865.
Guerrero's counsel stated on the record that he was translating the punishment proceedings to him. Guerrero does not contend on appeal that counsel failed to do so or that counsel's translation was otherwise inadequate. No witnesses testified at the punishment hearing. Because Guerrero pleaded guilty without the benefit of a plea agreement, the trial court possessed the discretion to assess his punishment at any term of between 5 and 99 years' imprisonment, or life imprisonment, and a fine of not more than $10,000. The court assessed his punishment near the bottom of the available range.
For the foregoing reasons, we conclude that the court's error in failing to appoint an interpreter for Guerrero during his punishment hearing did not affect his "substantial rights." See Tex.R.App.P. 44.2(b). Accordingly, we overrule his sole issue.
We affirm the judgment.
CONCURRING OPINION
The majority opinion holds that Guerrero need not have preserved his complaint concerning the trial court's use of Guerrero's appointed counsel to interpret for Guerrero at the sentencing hearing, and that the court erred in so using counsel. Although I cannot join in these holdings, I agree that the trial court's judgment should be affirmed.
Error
The majority concludes that the trial court did not swear an interpreter for Guerrero at his sentencing hearing, and thus erred. 134 S.W.3d at 263. The majority concludes that "we need look no further than the statutory directive that an interpreter must be appointed when the person charged does not understand and speak the English language to decide whether the court erred in failing to appoint an interpreter." 134 S.W.3d at 261 (citing Tex. Code Crim. Proc. Ann. art. 38.30 (Vernon Supp. 2003)). This is an accurate statement of neither the law nor the facts of the case.
First, the majority overstates the force of the statute. Article 38.30 is mandatory, but conditional. The statute requires that "[w]hen 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 . . . 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). Thus, the trial court has a statutory duty to appoint and swear an interpreter for a party only upon either the party's motion or the court's finding of necessity.
On the record of the instant cause, neither condition was met. The record contains neither a motion by Guerrero nor a finding by the trial court. As the majority quotes, the record does contain, in a modification to boilerplate language in Guerrero's plea papers, an allegation that he "cannot read, write and understand the English language." But this allegation is not a motion. Moreover, the trial court did not make any determination on that allegation. The court did appoint an interpreter for Guerrero's plea hearing and for counsel's preparation for that hearing. But trial courts often err on the side of caution, and the court's appointment cannot be taken as a finding that the appointment was required by statute.
In this connection, the majority correctly notes that the statutory appointment of interpreters has been held to implement the constitutional right to confrontation. 134 S.W.3d at 261 (quoting Baltierra v. State, 586 S.W.2d 553, 556 (Tex.Crim.App. 1979)). I accept this as a matter of stare decisis. The right of confrontation is primarily the right of cross-examination of witnesses. Ky. v. Stincer, 482 U.S. 730, 736 (1987); Lopez v. State, 18 S.W.3d 220, 222 (Tex.Crim.App. 2000). But in the instant cause, as the majority notes, no witnesses testified at Guerrero's sentencing hearing, and no evidence was offered. Accordingly, confrontation is not implicated.
Preservation of Error
After finding that the trial court erred, the majority proceeds to the question of whether Guerrero preserved the error, and concludes that he need not have done so. 134 S.W.3d at 262. The majority holds that the trial court's conditional duty to appoint an interpreter is one of those few "rights of litigants which must be implemented by the system unless expressly waived." 134 S.W.3d 261 (quoting Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997)). The majority so concludes because "article 38.30 is designed to ensure that the constitutional rights of confrontation and competence are afforded to all persons charged with a crime." 134 S.W.3d at 262. The conditional, statutory duty to appoint an interpreter is not such that it may only be intentionally waived, and, in any case, Guerrero did intentionally waive it.
It is axiomatic that a right does not fall into the category of rights that may be intentionally waived, but not forfeited by inaction, merely by virtue of being a constitutional right. Almost all rights, including constitutional rights, are forfeited by the failure to assert them. Marin, 851 S.W.2d at 278-79. Only those rights that are "widely considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system" fall into that category. Marin at 278. And the special protections of those absolutely fundamental rights are exclusively statutory. See Marin at 278-79; Rushing v. State, 85 S.W.3d 283, 286 (Tex.Crim.App. 2002); Saldano v. State, 70 S.W.3d 873, 888 (Tex.Crim.App. 2002); In re C.O.S., 988 S.W.2d 760, 766 (Tex. 1999). Moreover, the express language of Article 38.30 contemplates implementation by a motion, and not express waiver. Tex. Code Crim. Proc. Ann. art. 38.30(a). And cases have held that a party must preserve by objection a complaint concerning the appointment of an interpreter. See, e.g., Solorio v. State, No. 01-94-00357-CR, 1995 WL 155568, *2 (Tex.App.-Houston [1st Dist.] Apr. 6, 1995, pet. ref'd) (not designated for publication); see also Castillo v. State, 807 S.W.2d 8, 9 (Tex.App.-Corpus Christi 1991, pet. ref'd) (court bailiff as interpreter). Thus, Article 38.30 does not create a waivable-only right. In holding that the requirement of Article 38.30 "can only be waived in writing and on the record," see 134 S.W.3d at 262, the majority purports to write a requirement into the Code of Criminal Procedure, which we lack the authority to do.
But even if the right to confrontation were implicated here, and even if the swearing of an interpreter were one of Marin's waivable-only rights, Guerrero could not prevail. Guerrero did expressly and emphatically waive the right to confrontation. In his plea papers, Guerrero swore:
I desire to waive and do waive the following rights:
. . . .
5. Waive the right to be confronted by the witnesses against me, consent to the stipulation of evidence and consent to waive the appearance, confrontation, and cross-examination of witnesses, and further consent to either an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence, including, but not limited to, the indictment herein and request the consent and approval of the Court to my waiver. . . .
Guerrero made this waiver after being admonished orally by the trial court and by counsel, and in writing, all with the assistance of an appointed and sworn interpreter. At the plea hearing, in the course of the court's admonishment, Guerrero testified:
THE COURT: . . . . Do you . . . understand that you have a constitutional right to confront your accusers?
THE INTERPRETER: Yes.
. . . .
THE COURT: You are consenting to allowing the prosecutor to put on offense reports, lab tests, witness statements—
(Interpreted)
THE COURT: —proof of your guilt—
(Interpreted)
THE COURT: —instead of requiring live witnesses to come here and testify to those facts.
THE INTERPRETER: Yes.
THE COURT: And do you understand these documents, for the most part, would not be admissible. You would have to have the live witnesses unless you agree to enter into a plea this morning.
THE INTERPRETER: Yes.
When the State offered Guerrero's written waiver into evidence, Guerrero's attorney stated:
For the record, Your Honor, I went over this matter with my client at least on two times that I can recall, one, being today; and for the record, also, I am fluent in Spanish. I have interpreted for this Court as well as for other courts and I went over this matter with him and also the interpreter went over with him also, Your Honor; and to my understanding when he signed the initials at the bottom of each page and he also swore to this, my understanding is that he understood what he was signing, Your Honor.
(Interpreted)
. . . .
I would like to introduce what is Defendant's Exhibit No. 1, which is a copy of the Defendant's — same duplicate copy of the State's Exhibit . . ., with my initials and his initials where my client and I went over this matter with him and he stated that he understood.
(Interpreted)
The trial court admitted Guerrero's exhibit. The court found that Guerrero's waivers were "freely and voluntarily made," approved them, and accepted Guerrero's guilty plea. In light of this record, it is beyond any reasonable doubt, even on the strictest constitutional standards and statutory standards advocated by the majority, that Guerrero waived his rights of confrontation. Thus, even if the duty to appoint an interpreter were involved in the case, and implicated a waivable-only confrontation right, Guerrero knowingly and intelligently waived those rights.
Use of Counsel as Interpreter
Lastly, the majority holds that the trial court erred in using Guerrero's counsel to interpret for Guerrero at the sentencing phase. The majority frankly grounds its holding on its "preference" for the appointment of an interpreter other than counsel. 134 S.W.3d at 262. This is in spite of the majority's acknowledgment that Article 38.30 expressly provides that "[a]ny person may be . . . recognized in any criminal action or proceeding, to appear before the proper judge or court to act as interpreter therein." Tex. Code Crim. Proc. Ann. art. 38.30. The holding is also in spite of the majority's statement, "we perceive no reason why the attorney should be disqualified under the statute." 134 S.W.3d at 262. Nonetheless, the majority baldly concludes, "we believe that the better practice would be not to appoint the attorney for the accused" as interpreter. 134 S.W.3d at 262. The trial court does not err in disagreeing with the majority's preference; the court errs only in violating the law. The law, in this case the express statutory language, and not the majority's preference, controls. The majority errs in holding otherwise.
CONCLUSION
Guerrero cannot now complain of the interpretation that he received at his sentencing hearing, and, in any case, he received competent interpretation. For these reasons, I cannot join in the majority's opinion. But because the majority ultimately concludes that any error was harmless and affirms the trial court's judgment, it reaches the correct result. Accordingly, I join the judgment only.