Opinion
No. 02-19-00046-CR
08-13-2020
MARIO TENORIO ZURITA, Appellant v. THE STATE OF TEXAS
On Appeal from the 371st District Court Tarrant County, Texas
Trial Court No. 1530583D Before Sudderth, C.J.; Gabriel and Bassel, JJ.
MEMORANDUM OPINION
Appellant Mario Tenorio Zurita appeals from his conviction and 43-year sentence for continuous sexual abuse of a child (CSA). In two issues, Zurita, who cannot understand or read English, argues that his custodial statement was involuntary and subject to suppression or exclusion because the statutory warnings were not properly translated into Spanish. We conclude that the given warnings were the effective equivalent of the required warnings and that Zurita understood his rights before giving his statement. Additionally, the translator's testimony about Zurita's statement was not hearsay because he was acting as Zurita's agent or language conduit during the interview. In Zurita's remaining three issues, he contends that the trial court erred by failing to include instructions in the jury charge submitting the voluntariness issue to the jury. Because the evidence did not raise a contested fact issue regarding the lawfulness of Zurita's statements, the trial court did not abuse its discretion by failing to include the requested instructions. Accordingly, we affirm the trial court's judgment.
I. BACKGROUND
Because Zurita does not challenge the sufficiency of the evidence to support his CSA conviction, a detailed recitation of the facts is not necessary. For now, it is enough to state that Zurita was indicted with the CSA of his stepdaughter, Darla Grant, occurring between April 9, 2014, and January 23, 2018, when Darla was between the ages of 10 and 13. Darla finally reported the abuse to her friend Arnold Smith because she was afraid Zurita would begin to sexually abuse her younger sister. Arnold told his school counselor, who reported Darla's outcry to the police. Detective Tony Miller began investigating Darla's outcry and discovered that Zurita did not have a driver's license. Miller told Officer Joshua Oliver, who located Zurita and pulled him over after seeing Zurita fail to signal a left turn. Oliver arrested him for driving without a license after Zurita was unable to produce one.
We refer to the complainant and her friend by aliases. See Tex. R. App. P. 9.8 cmt., 9.10.
Miller made arrangements for a Spanish interpreter—Detective Jose Trevino—to be present during his interview with Zurita the next day. Trevino was not a state-certified interpreter but he had been certified by the police department based on written and oral exams and had previously served as a translator for police interviews more than 100 times. Trevino handed Zurita a written copy of the statutorily required warnings in Spanish. See Tex. Code Crim. Proc. Ann. art. 38.22, §§ 2(a), 3(a)(2). Trevino also read the warnings to Zurita in Spanish. After each warning, Zurita said either "okay" or "uh-huh." Zurita then signed the warnings and agreed to speak with Miller. Based on Zurita's behavior during the interview, Miller and Trevino believed that Zurita understood the warnings and had voluntarily waived his rights. During the interview, Zurita admitted that he had penetrated Darla's anus with his finger, causing him to ejaculate. Eventually, Zurita ended the interview.
Before trial, Zurita filed a motion to suppress his oral statements based on the "erroneous and illegal" Spanish warnings that Trevino gave Zurita. He also objected to the admission of his statement through Trevino's testimony, arguing that the testimony would be inadmissible hearsay because Zurita had not designated Trevino as his agent or language conduit for translation purposes. The trial court held a pretrial evidentiary hearing on the motion and the objection. See id. art. 38.22, § 6. Miller and Trevino testified to the circumstances surrounding the interview. Zurita called a certified interpreter, Josea Carmona, to testify to the alleged inaccuracies in the Spanish translation of the statutory warnings that Trevino had given and read to Zurita: "This is a confused document because[] in the way it's written . . ., I will say it's broken Spanish." Carmona also testified, however, that the video from the interview showed that Zurita never appeared to be confused or unable to understand Trevino.
The trial court denied the motion to suppress at the conclusion of the hearing and later signed written findings of fact and conclusions of law. See id. The trial court found that Zurita's election to end the interview "indicat[ed] that he did understand his rights" and concluded that the "objective facts" revealed that the written and oral warnings Trevino gave to Zurita "substantially complied" with the statutory requirements even though the warnings used "words that have different meanings [in Spanish] when taken out of context." The trial court also overruled Zurita's hearsay objection to Trevino's proposed testimony about Zurita's statement. Accordingly, the State admitted Zurita's oral statements to Miller through Trevino's trial testimony. A jury, after hearing this evidence as well as Darla's and others' testimony, found Zurita guilty of CSA and assessed his punishment at 43 years' confinement.
Now on appeal, Zurita attacks the denial of his motion to suppress and the admission of his statement on two grounds:
• The Spanish warnings were not the effective equivalent of the statutorily mandated warnings, rendering his waiver unknowing, unintelligent, and involuntary.Zurita also argues that the trial court abused its discretion by refusing to submit three issues to the jury:
• Zurita did not authorize Trevino to speak for him or adopt Trevino as his agent for purposes of translating his statements to Miller; thus, Trevino's out-of-court translation was inadmissible hearsay.
• Whether Zurita's statement was voluntarily made, see id.;
• Whether the statutory warnings as given in Spanish were adequate, see id. art. 38.22, § 7; and
• Whether the statement was obtained in violation of Zurita's constitutional rights and must be disregarded, see id. art. 38.23(a).
II. ADMISSION OF CUSTODIAL STATEMENT
A. SUPPRESSION RULING
Article 38.22 provides that no oral statement of the accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless (1) the statement was recorded and (2) before the statement but during the recording, the accused was warned of his rights and knowingly, intelligently, and voluntarily waived those rights. Joseph v. State, 309 S.W.3d 20, 23-24 (Tex. Crim. App. 2010) (citing Tex. Code Crim. Proc. Ann. art. 38.22, § 3). The warnings must inform the accused that
(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;Tex. Code Crim. Proc. Ann. art. 38.22, § 2(a). Regarding oral statements, the warnings given to the accused are effective even if not given verbatim, so long as they convey the "fully effective equivalent" of the statutory warnings. Id. art. 38.22, § 3(e)(2); see Florida v. Powell, 559 U.S. 50, 60 (2010). A warning that conveys the precise meaning of the statutory warning, even if given in slightly different language, is sufficient to comply with the statute. See Eddlemon v. State, 591 S.W.2d 847, 850 (Tex. Crim. App. [Panel Op.] 1979); Rutherford v. State, 129 S.W.3d 221, 224 (Tex. App.—Dallas 2004, no pet.). Although a total failure to administer one of the warnings is reversible error, an incomplete or incorrect warning may be sufficient for purposes of effective equivalence. See Rutherford, 129 S.W.3d at 224.
(2) any statement he makes may be used as evidence against him in court;
(3) he has the right to have a lawyer present to advise him prior to and during any questioning;
(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and
(5) he has the right to terminate the interview at any time.
Carmona testified that based on his translation of the Spanish warnings Trevino gave and read to Zurita, Zurita effectively was warned as follows:
Zurita does not argue on appeal that he was unable to read the Spanish warnings that Trevino handed to him. Indeed, he initialed each Spanish warning, indicating that he understood them.
(1) You have the right to stay quiet and not to make any statement in everything, and any statement you make can be utilized against you in your essay/rehearsal.
(2) Any statement you do can be utilized as evidence against you in the tribunal.
(3) You have one right to have an attorney present to advise you before of and during any interrogatory.
(4) If you can not obtain an attorney, you have the right to have an attorney did nominate to advice you before of and during any interrogatory.
(5) You have the right to finish this interview at any moment.
Regarding the fourth warning, Carmona testified that the word designó meant nominate instead of appoint. Trevino testified that when he read the fourth warning to Zurita, he pronounced designó as designo, which would mean a designated attorney. The trial court found that designó "would indicate that an attorney can be 'nominated'" instead of appointed but that Trevino's pronunciation meant "to appoint or designate" an attorney. Regarding the first warning, Carmona testified that ensayo meant "essay/rehearsal" instead of trial. Trevino recognized that ensayo translates into several words but averred that in the context of the given warning, ensayo meant a trial or judgment. The trial court found that ensayo could mean trial, judgment, hearing, essay, rehearsal, or test. Even with these discrepancies, the trial court concluded that the warnings Trevino gave to Zurita substantially complied with the Article 38.22 requirements and denied the motion to suppress. And the trial court concluded that Zurita's waiver was knowing and voluntary, partially based on the trial court's finding that Zurita exercised his right to end the interview.
We review the trial court's denial of Zurita's motion to suppress under a bifurcated standard of review, conferring almost total deference on any historical-fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor and reviewing de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. See Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those fact findings. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006).
On appeal, Zurita points to the alleged incorrect use of designó and ensayo in support of his suppression argument; however, he also argues that the warnings as a whole were not the effective equivalent of the statutory warnings. But the warnings given, while not a word-for-word identical translation of the statutory warnings, were an effective equivalent when viewed in the context in which they were given. See, e.g., Bible v. State, 162 S.W.3d 234, 240-41 (Tex. Crim. App. 2005); Hernandez v. State, No. 05-17-00560-CR, 2018 WL 2316026, at *10 (Tex. App.—Dallas May 22, 2018, pet. ref'd) (mem. op., not designated for publication); Hernandez v. State, 533 S.W.3d 472, 480 (Tex. App.—Corpus Christi-Edinburg 2017, pet. ref'd); Cervantes-Guervara v. State, 532 S.W.3d 827, 836-37 (Tex. App.—Houston [14th Dist.] 2017, no pet.); Galvan-Cerna v. State, 509 S.W.3d 398, 408-09 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Garner v. State, No. 02-12-00052-CR, 2014 WL 2538804, at *4 (Tex. App.—Fort Worth June 5, 2014, no pet.) (mem. op., not designated for publication); McGowan v. State, No. 12-12-00056-CR, 2013 WL 1143240, at *3-4 (Tex. App.—Tyler Mar. 20, 2013, no pet.) (mem. op., not designated for publication); Rutherford, 129 S.W.3d at 225-26. Although we recognize that the best practice would be to follow the statutory warnings exactly with no variance, the effect of the translation variances here were issues of fact that were determined adverse to Zurita's argument, and we conclude that the evidence and the law supported the trial court's findings and conclusions on this issue. See Galvan-Cerna, 509 S.W.3d at 409; Garner, 2014 WL 2538804, at *4. As the trial court stated at the hearing, the given warnings were "correct enough to comply with the law."
Zurita also contends that the State failed to prove by a preponderance that Zurita knowingly, intelligently, and voluntarily waived his rights. This argument is premised on his challenge to the sufficiency of the warnings. We have determined that the warnings given were the effective equivalent of the statutory warnings. And as Trevino and Miller testified, Carmona recognized, and the trial court concluded, the totality of the circumstances surrounding Zurita's statement reflected that he understood the warnings (later evidenced by his choice to end the interview), did not appear to be confused, and voluntarily waived his rights. Viewing the evidence through the appropriate deferential prism, we conclude the trial court did not abuse its discretion or err by determining that Zurita's waiver was voluntary. See Eddlemon, 591 S.W.2d at 850; Randle v. State, 89 S.W.3d 839, 842-43 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd).
B. HEARSAY RULING
Zurita additionally argues that the trial court abused its discretion by admitting his translated, oral custodial statement through Trevino's testimony. Before trial, Zurita objected to Trevino's proposed testimony on the basis of hearsay because Zurita did not authorize Trevino to speak for him or adopt Trevino as his agent for the purposes of the translation. See Tex. R. Evid. 801(e)(2)(C)-(D). Zurita argues that because neither of these qualifiers applies, Trevino's testimony was hearsay and, thus, was inadmissible. See Tex. R. Evid. 802. The trial court ruled that the statement was not hearsay, overruled Zurita's hearsay objection, and allowed Trevino to testify at trial, which we review for an abuse of discretion. See Saavedra v. State, 297 S.W.3d 342, 349 (Tex. Crim. App. 2009).
To determine whether a translated out-of-court statement is admissible through an interpreter's testimony under Rule 801(e)(2)(C)-(D), a court is to consider (1) who supplied the interpreter, (2) whether the interpreter had any motive to mislead or distort, (3) the interpreter's qualifications and language skills, and (4) whether actions taken after the translated statement were consistent with the statement as translated. Id. at 348-49. Under these interrelated factors, if the State can show that Zurita authorized Trevino to speak for him on the particular occasion, or otherwise adopted Trevino as his agent for translation purposes, then the out-of-court translation may be admitted over a hearsay objection. See id. at 349.
First, it is undisputed that the State provided Trevino as the interpreter for Zurita's interview with Miller. Thus, this factor weighs in favor of exclusion. See Palomo v. State, No. 06-14-00076-CR, 2015 WL 1546148, at *4 (Tex. App.—Texarkana Apr. 1, 2015, pet. ref'd) (mem. op., not designated for publication); Saavedra v. State, No. 05-06-01450-CR, 2010 WL 2028111, at *3 (Tex. App.—Dallas May 24, 2010, no pet.) (not designated for publication) (op. on remand).
Second, nothing in the record shows that Trevino had a motive to mislead or distort Zurita's answers. Trevino was not involved in the investigation of Darla's outcry or in Zurita's arrest, and he testified that he accurately translated Miller's questions and Zurita's answers. This factor weighs in favor of admissibility. See Guillen-Hernandez v. State, Nos. 01-18-00461-CR, 01-18-00462-CR, 2019 WL 2750597, at *5 (Tex. App.—Houston [1st Dist.] July 2, 2019, no pet.) (mem. op., not designated for publication); Palomo, 2015 WL 1546148, at *4.
Third, Trevino grew up in a bilingual family and speaks Spanish daily. He was exam certified by the police department to translate and has done so more than 100 times. This factor weighs in favor of admissibility. See Diaz v. State, No. 08-07-00323-CR, 2010 WL 109703, at *8 (Tex. App.—El Paso Jan. 13, 2010, pet. dism'd, untimely filed) (not designated for publication); Driver v. State, No. 01-07-00386-CR, 2009 WL 276539, at *6 (Tex. App.—Houston [1st Dist.] Feb. 5, 2009, pet. ref'd) (not designated for publication).
Fourth, Darla testified at trial and affirmed that Zurita had penetrated her anus with his sexual organ many times, causing him to ejaculate, which was similar to Zurita's inculpatory statement to Miller. The sexual-assault nurse examiner who interviewed Darla after her outcry testified that Darla had told her that Zurita had penetrated her anus with his sexual organ and with his finger and that she had "felt wet on my butt before." This subsequent testimony was consistent with Zurita's statement and indicates that the translation was reliable. This factor weighs in favor of admissibility. See Guillen-Hernandez, 2019 WL 2750597, at *5; Palomo, 2015 WL 1546148, at *4; Trevizo v. State, No. 08-12-0063-CR, 2014 WL 260591, at *6 (Tex. App.—El Paso Jan. 22, 2014, no pet.) (not designated for publication).
After reviewing the Saavedra factors—three of which weigh in favor of reliability and admissibility—we conclude that the trial court could have found that Trevino was acting as Zurita's agent or language conduit during the interview with Miller and, thus, that the statement was not hearsay. See Guillen-Hernandez, 2019 WL 2750597, at *6. Accordingly, it was within the trial court's discretion to admit Trevino's testimony about Zurita's translated statement to Miller. See, e.g., Driver, 2009 WL 276539, at *6.
III. JURY INSTRUCTIONS
Zurita next contends that the trial court erred when it refused his requests to submit the voluntariness issue to the jury based on the insufficiency of the given warnings and to instruct the jury that they should disregard Zurita's statement to Miller because it was involuntary. See Tex. Code Crim. Proc. Ann. art. 38.22, §§ 6-7, art. 38.23(a).
The first instruction Zurita requested was a "general" voluntariness instruction, which would have asked the jury whether Zurita's statement was voluntary. See id. art. 38.22, § 6; Oursbourn v. State, 259 S.W.3d 159, 173 (Tex. Crim. App. 2008). Such an instruction is to be submitted in the charge if a reasonable jury, viewing the totality of the circumstances, could have found that the accused's statement was involuntary. Vasquez v. State, 225 S.W.3d 541, 544-45 (Tex. Crim. App. 2007). But this instruction is not meant to address complaints about the insufficiency or defectiveness of the given statutory warnings. See Oursbourn, 259 S.W.3d at 175. This instruction is meant to address mental or physical conditions affecting voluntariness such as sickness, intoxication, or mental disability, not issues regarding the statutory warnings themselves. See id. at 176; Smith v. State, 532 S.W.3d 839, 843 (Tex. App.—Amarillo 2017, no pet.). Voluntariness in this respect was never raised in the trial court, removing this instruction from the law applicable to the case that the trial court was required to submit to the jury. See Tex. Code Crim. Proc. Ann. art. 36.14; Oursbourn, 259 S.W.3d at 175-76, 180; see also Butler v. State, No. 02-17-00171-CR, 2018 WL 2343653, at *5 (Tex. App.—Fort Worth May 24, 2018, no pet.) (mem. op., not designated for publication); Little v. State, No. 04-14-00618-CR, 2015 WL 5838082, at *2 (Tex. App.—San Antonio Oct. 7, 2015, no pet.) (mem. op., not designated for publication). The trial court did not err by failing to instruct the jury on an issue that was not the law applicable to the case.
Zurita also unsuccessfully requested a "specific" voluntariness instruction regarding whether the police had complied with the statutory-warnings requirement such that his statement was voluntary. See Tex. Code Crim. Proc. Ann. art. 38.22, § 7. To be entitled to such an instruction, the affirmative evidence must have raised a genuine factual dispute regarding whether Zurita was adequately warned of his rights and thereafter was able to knowingly and intelligently waive them. See Oursbourn, 259 S.W.3d at 176-77; Hailey v. State, 413 S.W.3d 457, 496 (Tex. App.—Fort Worth 2012, pet. ref'd). Here, Trevino reviewed each warning with Zurita, and Zurita initialed and responded that he understood each warning. Zurita gave no indication that he did not understand the warnings. Carmona reviewed the interview video and agreed that there was no indication that Zurita was confused or did not understand the rights read to him. Because the dispute Zurita raised was whether the given warnings were the essential equivalent of the statutory warnings—not what warnings were actually given—a genuine fact issue under Article 38.22, Section 7 was not raised. See Little, 2015 WL 5838082, at *3. Thus, the question of the adequacy of the given warnings was a question of law for the trial court to decide, and Zurita was not entitled to the requested instruction. See Oursbourn, 259 S.W.3d at 177-78; Little, 2015 WL 5838082, at *3.
Finally, Zurita asserts that the trial court should have instructed the jury to disregard his statement if the jury believed that the statement was obtained in violation of due process. See Tex. Code Crim. Proc. Ann. art. 38.23(a). As with Article 38.22, Section 7, a genuine, disputed fact issue must be raised by the affirmative evidence to trigger the applicability of an Article 38.23 instruction. See Hernandez, 533 S.W.3d at 481-82 (citing Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007)). As the State points out, there were no contested issues regarding the specific facts and circumstances surrounding Zurita's interview. As such, Zurita was not entitled to the requested instruction. See id. at 482-83; Smith, 532 S.W.3d at 843-44; Dede v. State, No. 14-15-00772-CR, 2018 WL 1278731, at *17 (Tex. App.—Houston [14th Dist.] Mar. 13, 2018, pet. ref'd) (mem. op., not designated for publication).
IV. CONCLUSION
We conclude that the Spanish warnings given to Zurita were the effective equivalent of the required statutory warnings; thus, his ensuing inculpatory statement to Miller was not rendered involuntary. Trevino's testimony about Zurita's statement to Miller was not hearsay because the evidence showed that Trevino acted as Zurita's agent during the interview. Finally, the trial court did not err by refusing Zurita's requested instructions because they were either not the law applicable to the case or because the affirmative evidence did not raise a genuine, disputed fact issue that warranted their submission. Accordingly, we overrule each of Zurita's appellate issues and affirm the trial court's judgment. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
Lee Gabriel
Justice Do Not Publish
Tex. R. App. P. 47.2(b) Delivered: August 13, 2020