No. 05-10-00142-CR
Opinion Filed May 9, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 5 Dallas County, Texas, Trial Court Cause No. F09-54262-L.
Before Justices MOSELEY, RICHTER, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
Victor Manuel Rodriguez appeals his conviction of possession with intent to deliver cocaine in an amount of 400 grams or more. See Tex. Health Safety Code Ann. §§ 481.102(3)(D), 481.112(a) (West 2010). The jury assessed punishment at 28 years in prison. Appellant contends that the trial court denied him due process by failing to have a certified interpreter translate a recording from Spanish into English and that the evidence is insufficient to support the conviction. We affirm.
Background
Dallas police officers conducted an investigation and surveillance of a drug broker named Ezequiel Fernandez. Detective Noel Carrasco made undercover drug buys from Fernandez every month. Each buy involved from one to two ounces of cocaine. Several months into the investigation, Carrasco and Fernandez began to socialize, and Fernandez told Carrasco that he could sell large amounts of drugs. Carrasco told Fernandez that Carrasco had a buyer who wanted to purchase a large quantity of cocaine and introduced Fernandez to an undercover officer, Detective Byron Boston, who played the role of Carrasco's buyer. Boston told Fernandez he was interested in purchasing three to five kilos a week. A few months later, Carrasco arranged for Boston to purchase four kilos of cocaine from Fernandez. The three of them, along with a female undercover detective who played the role of Boston's girlfriend, met to discuss the deal. Then they drove to an underground parking garage where Boston said he lived and they agreed to conduct the transaction there. Carrasco told Fernandez that they would go upstairs to Boston's apartment to make the exchange. Fernandez did not want Boston involved, so they agreed that Carrasco and Boston's "brother," a role played by Detective Keith Tyler, would take Fernandez upstairs for the money. At the scheduled time, Fernandez arrived at the parking garage. He drove a Ford Expedition and had three passengers, one of whom was appellant. Appellant sat in the rear passenger seat directly behind Fernandez. Carrasco and Tyler arrived shortly after Fernandez and parked next to him. Carrasco knocked on the window of Fernandez's vehicle, Fernandez got out, and they walked to the back of the Expedition to discuss the exchange while the others remained in the vehicles. Carrasco was surprised to see three other individuals in the Expedition, and Tyler testified that he was concerned that Fernandez may be planning to rob them. Carrasco wore a microphone and recorded the transaction, which was conducted mostly in Spanish. When Fernandez told Carrasco that he had the cocaine, Carrasco went back to his car to get Tyler. Carrasco and Tyler walked back to the Expedition and told Fernandez that they wanted to see the cocaine before they went upstairs for the money. Fernandez resisted. He told Carrasco that the cocaine was in the cooler in the back of the Expedition. The officers could see the cooler through the back window. At some point, someone opened the back hatch door of the Expedition and appellant told Carrasco that the cocaine was in a false compartment in the cooler. Carrasco testified that appellant used a Spanish word that was "slang for hidden compartment in a vehicle." Carrasco insisted on seeing the cocaine, and appellant leaned over into the cargo area of the Expedition, grabbed the cooler, and opened it; it was empty. Carrasco did not understand. Appellant tapped the side walls of the cooler. After a back-and-forth discussion about the cocaine, Fernandez finally agreed to show the officers one kilo of cocaine and told the individual sitting in the front passenger seat of the Expedition, Eladio Lopez, to remove it from the cooler. Lopez got into the back of the Expedition, closed the hatch door, and removed the liner from the cooler. The cocaine was in a cut-out in the cooler's insulation. Tyler testified that he saw appellant and Lopez remove the insulation. Tyler sampled the cocaine and told Carrasco it was good. Carrasco told Fernandez they would go upstairs for the money. As Carrasco and Tyler walked away, the arresting team, which had been hiding in the garage, came in and arrested the four occupants of the Expedition, including appellant. At trial, appellant testified that he worked as a truck driver for several companies in the Dallas area and drove a 10-wheeler truck for Sanchez Trucking for the last year. Appellant admitted, however, that he did not have a Texas driver's license. He said his boss, Luis Sanchez, owned the truck he drove and that Sanchez paid appellant in cash. Appellant testified that his investigator tried to locate Sanchez for trial, but was unable to find him. Appellant testified that on the day of the offense, he went to the truck yard where he got his driving assignments to borrow money from a friend. He said a neighbor dropped him off at the truck yard. It was raining that day and he needed money to fix the windshield wiper motor on his car. Appellant testified that he saw Fernandez at the truck yard and Fernandez agreed to give appellant a ride back to appellant's apartment. Appellant testified that, in addition to Fernandez, there were two other men in Fernandez's vehicle when he got in, but that he had never seen them before that day. He testified that on the way to his apartment Fernandez got a phone call and asked appellant if he could wait a little longer because Fernandez needed to go see a friend. Fernandez drove to a parking garage. Appellant said he was not really aware of what was going on with the cooler because he was feeling badly, had problems with his chest, and "had phlegm with blood." He testified that when he turned around, he saw one of the men holding a package and putting something in his mouth. When he realized what was going on, he asked Fernandez, "Why did you do that? Why didn't you tell me what you were bringing?" He said Fernandez told him "to not get nervous about it, to not worry about it. It wasn't a big deal, it was no problem." Appellant said he would not have gotten into Fernandez's vehicle at the truck yard if he had known there was cocaine in it. He also said he did not get out of his seat in the Expedition, that there was no way he could have reached the cooler from his seat, that he did not open the cooler, that he did not know there was cocaine in the cooler, that he never spoke to the undercover officers, and that his voice was not on the recording. Appellant admitted that the confrontation with Fernandez about the cocaine that he referred to in his testimony was also not on the recording and he did not know why it was not. Appellant also presented testimony from his girlfriend. She testified that appellant could not afford an apartment, had three or four roommates, and drove an old car. She said appellant was a truck driver and hauled dirt from one place to another. And she said appellant did not drink, smoke, or use illegal substances. In rebuttal, the State asked the courtroom interpreter to listen to portions of the recording. She listened to the portion of the recording containing the Spanish word for false compartment and testified that she "wouldn't have known the meaning of the word `clavo.' I think it's a Mexican word. But I did — I mean, I did hear the word `clavo.' What it means, I couldn't say." She translated another portion of the recording to mean, "It's really a shame. Otherwise, they would have sent me alone, but they sent all of them." The Recording
In his first issue, appellant argues that the trial court denied him due process by failing to have a certified interpreter translate the recording of the undercover drug buy from Spanish to English. The State offered the recording of the undercover drug buy into evidence through Detective Carrasco. The recording was in Spanish. Appellant said he had "no objection." The State intended to play the recording and stop it periodically for Carrasco, who was fluent in Spanish, to describe what was happening. But in a hearing outside the presence of the jury, appellant asked the trial court to let "the Spanish-speaking interpreter interpret the tape and — rather than have the officer either do that or say, `Here's what they're saying.'" The trial court told appellant that the State was "entitled to ask the officer about what he's saying[,]" and advised counsel that if he wanted to call the interpreter "later on to testify to what it says, that's fine. . . ." Appellant again asked "for the procedure that we would have a translation on the tape." The court denied the request and again told counsel that "[w]hen you get to cross-examine and your part of the case, you can do whatever you want to." Appellant stated he had "no objection" when the recording was offered into evidence. And when the trial court refused his request to have an interpreter translate the recording as it was being played, appellant did not object on due-process grounds. We conclude that appellant did not preserve his due-process claim for our review. See Tex. R. App. P. 33.1(a). In his appellate brief, appellant also states it was "reversible error to admit, over objection, a tape recording of a conversation in Spanish without a sworn translation to aid the jury." Appellant relies on Leal v. State, 782 S.W.2d 844 (Tex. Crim. App. 1989) to support his contention that it was error not to submit a sworn translation to aid the jury. In Leal, the Texas Court of Criminal Appeals held that the admission of a recorded conversation in a foreign language "is analogous to [the situation] where a non-English speaking witness testifies" and that the safeguards of article 38.30 apply. Id. at 849; see Tex. Code Crim. Proc. Ann. art. 38.30 (West Supp. 2010) (stating procedures for using interpreter). The court stated, "In the face of a proper motion or objection an interpreter must be sworn to translate the conversation. . . ." Leal, 782 S.W.2d at 849. The court concluded that the appellants properly objected to the admission of the recording and that the trial court did not comply with the procedures for an interpreter. See id. at 849-51. The trial court in that case did not swear in an interpreter to translate the conversation for the jury and allowed the jury to follow along with the State's translation of the recording even though there was no evidence the individuals who translated the recording for the State were qualified to do so. In addition, the individuals who translated the recording for the State were not called as witnesses and were not subject to cross-examination. See id. Unlike in Leal, however, in this case appellant stated he had "no objection" to the recording when the State offered it into evidence. It was only after the recording had been admitted that appellant asked to have an interpreter translate the recording. And even if appellant's untimely request for an interpreter to translate the recording preserved any error, we conclude that appellant has not shown he was harmed. After the trial court denied appellant's request to have an interpreter translate the recording, Carrasco described the events in English as the prosecutor played the recording. Carrasco was fluent in Spanish, was a sworn witness, and was subject to cross- examination. But appellant did not cross-examine Carrasco on his translation of the recording and appellant did not call the courtroom interpreter to testify about whether the officer properly translated the conversation. See id. Additionally, before the recording was admitted into evidence, Carrasco had already testified without objection about the details of the drug transaction, including appellant's involvement. And after the recording was played for the jury, Detective Tyler also testified on direct and cross-examination about appellant's involvement in the offense. Consequently, we conclude that even if the recording was admitted without a proper translation, the jury heard the same evidence both before and after the recording was played without any objection from the defense. As a result, appellant has not shown how he was harmed by the admission of the recording without an English translation. See id. at 850-51. We resolve issue one against appellant. Sufficiency of the Evidence
In issues two and three, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. He argues that the evidence is insufficient to support the conviction because there is no evidence linking him to the cocaine other than his mere presence in the vehicle. We disagree. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Under this standard, we defer to the jury's assessment of witness credibility, resolution of conflicts in the evidence, determination of the weight of the evidence, and reasonable inferences from the evidence. See id. at 319, 326. In this case the State was required to prove beyond a reasonable doubt that appellant knowingly possessed with intent to deliver cocaine in an amount of 400 grams or more. See Tex. Health Safety Code Ann. §§ 481.102(3)(D), 481.112(a). Appellant challenges only the State's proof linking him to the cocaine. See Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). The Texas Court of Criminal Appeals has enumerated a non-exclusive list of factors to consider in determining whether a defendant knowingly possessed a controlled substance. Id. at 162 n. 12. The number of factors linking the appellant to the contraband is not dispositive, however. It is the "logical force of all of the evidence, both direct and circumstantial," that establishes possession of the contraband. Id. at 162. The State presented evidence that appellant was present during the drug transaction and physically opened the cooler so that Carrasco and Tyler could see where the cocaine was hidden. He told Carrasco that the cocaine was in a false compartment in the cooler, and he tapped the side walls of the cooler. He helped Lopez remove the insulation from the cooler and there were four kilos of cocaine hidden in the insulation. The State also presented expert testimony that an individual inside a vehicle carrying four kilos of cocaine would not have been along for the ride, but would have played a role in the transaction. The expert testified that there was too much cocaine involved and too much at stake to have someone along who was not part of the organization. Although appellant denied all involvement in the offense and presented evidence that the surveillance team never saw him during the months they conducted surveillance of Fernandez, the jury was in the best position to judge appellant's credibility. He denied that he could have reached the cooler from his seat in the Expedition, but the State presented pictures of the cooler in the back of the Expedition before it was seized and moved by the police from which the jury could have determined whether appellant was able to reach the cooler by kneeling on the seat and leaning over. Appellant also denied that his voice was on the recording, but admitted that he had confronted Fernandez about the cocaine and that the confrontation was also not on the recording. In summary, the record shows that the evidence of appellant's involvement in the offense was conflicting and turned on the credibility of the witnesses. The jury resolved the conflicts in favor of the State. Viewing the evidence under the proper standard, we conclude that the State presented sufficient evidence linking appellant to the cocaine and that the evidence is sufficient to support the conviction. We resolve issues two and three against appellant. Conclusion
We affirm the trial court's judgment.