Opinion issued July 25, 2023

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 22
- 00227
- CR

——————————— BERNADETTE MCZIEL SMITH , Appella nt

V. THE STATE OF TEXAS , Appell e e
On Appeal from the County Court at Law No. 5

Fort Bend County, Texas Trial Court Ca se No. 20
- CCR
- 216020

MEMORANDUM OPINION Bernadette McZiel Smith appeals from a n assault conviction

. Smith ple a d ed
not guilty to the charged offense . The trial court found her guilty after a bench trial and assessed punishment at 12 months’ confinement in the Fort Bend County Jail, probated for 24 months, and a $100 fine. Smith complains that the trial court erred2

by failing to appoint a licensed court interpreter , which violated her statutory and constitutional right s . Because Smith failed to preserve the statutory complaint for appeal and failed to show constitutional violations , we affirm. Background At the beginning of trial , counsel and the trial court discussed various prelimina ry matters, including that two of the State’s witnesses were non

- English speakers and required an interpreter

. The trial court then spoke with Smith , who expressed her desire to waive her right to a jury trial and proceed with a bench trial . The parties e ntered a stipulation of evidence , which the trial court accepted

. Smith pleaded “not guilty.” The complainant’s son, Konstantinos Stergiou , testified that he emigrated from Greece and liv ed with his parents in Sugar Land, Texas when the assault occurred

. On the day of the incident , Konstantinos arrived at his parents’ home to find the police there. Konstantinos saw his mother , Magdalini Stergiou , was injured, so he took a photo of the scratc h on her face and observed that she was limping from a leg injury

. Konstantinos watched video s that showed Smith kicking h er , pushing her , and attempting to take h er phone. The home had several security cameras outside because of prior run - ins with the ir n eighbor, Smith

. The security cameras captured the assault on video.3

The State call ed its next witness, Magdalini’s husband , Stergios Stergiou, before the interpreter arrived to court. Smith’s counsel asked if the testimony could begin without an interpreter because Stergios “speaks some English.” While Stergios did speak some English, the State informed the trial court that he would feel more comfortable using an interpreter. When the interpreter arrived, she was unable to provide the trial court with an interpreter number . When asked whether she was a master interpreter , she stated that she was a “professionally qualified interpreter

. ” 1 The interpreter did not state what lang uage she would be interpreting, but the trial court’s docket sheet reflects that a “Greek translator [was] present.” No further discussion or objections to the interpreter occurred

. Stergios testified using the interpreter. He testified that Smith began a rguing with him over cutting the grass between their houses and when Magdalini came outside with her phone in her hand, Smith pushed her to the ground and took her phone. Smith gave Magdalini ’s phone to Smith ’s daughter

. Stergios grabbed Smith ’s daughter a nd held her still so that his wife could get her phone back. Smith ’s

1 A ‘“[l]icensed court interpreter” means “ an individual licensed

. . . by the [Judicial Branch Certification Commission] to interpret court proceedi ngs for an individual who can hear but who has no or limited English proficiency.” T EX
. G OV ’ T C ODE § 157.001. A court interpreter license is issued to an applicant who has passed the appropriate examination by the commission. Id. § 157.101(a). A court interpreter’s license provides a designation as a “basic” or “master” interpreter. Id. § 157.101 (d).4

daughter ran off toward her house. Smith then approached Magdalini , who was going back to her house, and k nocked her to the ground by kicking her

. Magdalini fell face first on to the ground , scraping her face on the concrete

. Smith struggled with Magdalini , trying to take her phone away, and scratched Magdalini ’s face. Afterward, Stergios saw that Magdalini ’s face was bleeding. Stergios narrated what was going on in the videos of the incident taken from the security cameras on his home and the cell phone video. The video s show an argument , Smith shoving Magdalini to the ground , Smith kicking her, and her falling . Stergios testified that Magdalini was injured by Smi th ’s actions

. Magdalini then testified about the assault

. Magdalini testified using the interpreter but answer ed in English . She was admonished by the trial court to wait for the interpreter to interpret the question before giving an answer. Magdalini
tes tified that she heard Smith shouting at Stergios and so she went outside and record ed the interaction on her phone. Smith then took her phone away, tackled her , and kicked her. Magdalini testified she was scratched , felt pain , and that her knee still hurt. Magdalini also described the videos show ing Smith’s assault on her. The trial court found Smith guilty of assaulting Magdalini. It then conducted a punishment hearing. Magdalini and Stergios testified about the impact Smith’s
actions had on them. Smith also testified in her own defense. The trial court5

sentenced Smith to 12 months in the Fort Bend County Jail but probated that sentence for 24 months.

Failure to Appoint Licensed Court Interpreter Smith contends that the trial court failed to appoint a licensed court interpreter for the testimony of Stergios and Magdalini and thereby violated Texas statutory requirements and Smith’s confrontation and due process right s under the federal and state constitutions

. The State respond s that Smith waived any issue s by failing to object at trial

. A. Standard of Review An individual’s competency 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
for an ab use of discretion. Linton v. State , 275 S.W.3d 493, 500 (Tex. Crim. App. 2009). A trial court ’ s decision to appoint an interpreter is also reviewed for an abuse of discretion. Balderas v. State , 517 S.W.3d, 756, 778 (Tex. Crim. App. 2016).
B. Statutory Requi rements The State called two witnesses who were present at the time of the assault. Both individuals testified in English and Greek on the record

. Article 38.30 of the Texas Code of Criminal Procedure governs the use of interpreters in criminal trials : 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 the6

English language, an interpreter must be sworn to interpret for the person charged or the witness

. T EX
. C ODE C RIM
. P ROC
. art. 38.30 (a)

. We read Article 38.30 along with Section 57.002 of the Texas Government Code , which requires a court to “appoint a licensed court interpreter for an individual who can hear but does not comprehend or communicate in English ” if a motion for the appointment of an interpreter has been filed, a witness requests an interpreter, or on it s own motion

. T EX
. G OV ’ T C ODE §§ 57.002( a)

– ( b)

. Smith also highlights that Section s 157.106 and 157.107 of the Texas Government Code criminalize acting as a licensed court interpreter without a license. Id. §§ 157.106

– .107. Before turning to the merits of Smith’s arguments, we must determine whether Smith’s statutory complaints were preserved for appeal. To preserve error, the record must show that Smith made a timely objection or motion stating the grounds for the ruling sou ght , and that the trial court ruled on the objection

. T EX
. R.
A PP
. P. 33.1 ; s ee Garza v. State , 126 S.W.3d 79, 81

– 82 (Tex. Crim. App. 2004). Smith did not complain about the trial court’s handling of the interpreter before appealing

. By failing to raise her complaints with the trial court, Smith has failed to
preserve these issue s for our review. See Pham v. State , No. 09

- 15

- 00460

- CR, 2017
WL 2 373525, at *3 (Tex. App.

— Beaumont May 31, 2017, no pet.) (mem. op., not designated for publication) (once trial court appoints interpreter, defendant must object at trial to preserve complaint about interpreter’s qualifications or7

competency); Colunga

–

Pina v. State , No. 05

- 15

- 01337

- CR, 2016 WL 3877865, at *1 (Tex. App.

— Dallas July 13, 2016, no pet.) (mem. op., not designated for publication) (complaint about trial court ’ s failure to establish interpreter ’s credentials waived by failing to object) ; Phommathe p v. State , No. 07

- 12

- 00503

- CR, 2014 WL 561813, at *2

– 3 (Tex. App.

— Amarillo Feb. 11, 2014, no pet.) (mem. op., not designated for publication) ( failure to object at trial waived complaint that trial court appointed interpreter without making required findings ) ; Montoya v. State , 811 S.W.2d 671, 673 (Tex. App.

— Corpus Christi 1991, no pet.) (defendant waived right to complain of us ing bailiff as interpreter by failing to timely object )

. We overrule Smith’s statutory complaint. C. Constitutional Requirement s As for Smith’s constitutional complaints, the United States Constitution, through the Sixth Amendment , provides that “[i]n all criminal prosecutions, the accused shall enjoy the right

. . . to be confronted with the witnesses against him.”
U.S. C ONST
. am end. VI. This “bedrock procedural guarantee” applies to both federal and state prosecutions. Crawford v. Washington , 541 U.S. 36, 42 (2004). Likewise, the Texas Constitution guarantees that “[i]n all criminal prosecutions [,] the accused shall

. . . be conf

ronted by the witnesses against him.” T EX
. C ONST . art. I, § 10. The Texas Court of Criminal Appeals has recognized that providing an interpreter to an accused who does not understand English is required by the Confrontation Clause8

and by Article I, section 10. Baltierra v. State , 586 S.W.2d 553, 556

– 59 (Tex. Crim. App. 1979). The right to an interpreter is part of a defendant’s constitutional right to confrontation and due process. Orellana v. State , 381 S.W.3d 645, 657 (Tex. App.

— San Antonio 2012 , pet. ref ’ d)

. Courts have recognized that when a material witness does not understand English , an interpreter must be provided so that the accused may test the credibility of that witness through cross

- examination. See Balderas v. State , 517 S.W.3d 756, 77 7 (Tex . Crim. App. 2016) ( citing Miller v. State , 177 S.W.3d 1, 5

– 8 (Tex. App.

— Houston [1st Dist.] 2004, no pet.)); see also Garcia v. State , 149 S.W.3d 135, 144

–

45 (Tex. Crim. App. 2004). As to whether Smith’s constitutional complaints have been waived, we find they have not. In Marin v. State , the Texas Court of Criminal Appeals explained that “our system may be thought to contain rules of three distinct kinds: (1) absolute requirements an d 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.” 851 S.W.2d 275 , 279 (Tex. Crim. App. 1993 ) , overruled on other grounds by Cain v . State , 947 S.W.2d 262 (Tex. Crim. App

. 1997), and abrogated on other grounds by Matchett v. State , 941 S.W.2d 922 (Tex. Crim. App . 1996)

. Because the right of a non

- English speaking person to an interpreter under the constitutions is a category

- two Marin right when the trial court is aware of a problem understanding English, Smith did not waive her constitutional9

complaints

. See Garcia , 149 S.W.3d at 14 5 (trial judge has an independent duty to implement right to an interpreter when aware that defendant ha s problem understanding English, unless there is a knowing and voluntary waiver by defendant) ; Balderas , 517 S.W.3d at 77 7 (citing Garcia , 149 S.W.3d at 14 4

– 4 5 , and applying duty to use of interpreter for material witness). Smith complains that because a licensed court interpreter was not provided by the trial court, she was deprived of her right to confront her accusers. U.S. C ONST
. amend. VI; T EX
. C ONST . art. I, § 10; Miller , 177 S.W.3d at 5

– 6. But an interpreter was provided, so what Smith contests is the interpreter’s competency. See Franco v.
State , No. 04

- 16

- 00090

- CR, 2017 WL 781033, at *2 (Tex. App.

— San Antonio Mar. 1, 2017, no pet.) (mem . op., not designated for publication) (“A complaint regarding the competency of an interpreter appointed by the trial court

. . . is waived if the defendant does not object to the appointment at trial.” ) ; Martins v. State , 52 S.W.3d 459, 470 (Tex. App.

— Co rpus Christi 2001, no pet.). When the interpreter arrived, the trial court swore her in and asked for her name and interpreter number. Upon learning that the interpreter did not have an interpreter number, the trial court asked whether she was a master int erpreter, to which the interpreter responded that she was a “professionally qualified interpreter.” Satisfied, the trial court moved on. Smith neither objected n or made a record of what the interpreter’s qualifications were

.10

Thus , we are left with a record that is, at most, unclear on the interpreter’s qualifications. Nothing in the record suggests that the interpreter did not translate the proceedings for the witnesses or Smith. Instead, the record reflects that Smith’s counsel wanted to proceed without a translator, pushing for Stergios to testify before the interpreter arrived because he speaks some English. Without proof to the contrary, we presume regularity of the proceedings. Light v. State , 15 S.W.3d 104, 107 (Tex. Crim. App. 2000) . Smith bears the burden of overcoming this presumption. Marras v. State , 741 S.W.2d 395, 407 (Tex. Crim. App. 1987)

. See Ex parte Wilson , 716 S.W.2d 953, 956 (Tex. Crim. App. 1986) (there “is the presumption of the regularity of the judgment of conviction and the proceedin gs absent a showing to the contrary” and “the burden is on the defendant to overcome the presumption”). Because Smith has not established that the trial court failed to appoint a licensed interpreter, she cannot establish that a failure to do so violated h er confrontation rights under the federal or state constitutions. See Ridge v. State , 205 S.W.3d 591, 597 ( Tex. App.

— Waco 2006, pet. ref ’ d) . So, we overrule these issues. Lastly, Smith’s remaining claims are that she was deprived of due process
under the federal and state constitutions. U.S. C ONST . amend. XIV; T EX
. C ONST . art. 1 § 19. T he Texas Constitution is different in that it refers to “due course” rather than “due process,” but these terms lack meaningful distinction

. See Univ. of Tex.11

Med. Sch. at Hous. v. Than , 901 S.W.2d 926, 929 (Tex. 1995). The defendant’s due process right i ncludes within it the right to a fair trial. Marx v. State , 987 S.W.2d 577, 581 (Tex. Crim. App. 1999). A defendant’s right to have the trial proceedings interpreted in a language she understands implicates fundamental fairness and due process of law. Lint on , 275 S.W.3d at 500 ; In re L.M.I. , 117 S.W.3d 1, 4 (Tex. App.

— Houston [14th Dist.] 2001), aff’d , 119 S.W.3d 707 (Tex. 2003) ; Kan v. State , 4 S.W.3d 38, 41 (Tex. App.

— San Antonio 1999, pet. ref ’ d)

. While the use of an interpreter for a material witness wh o has trouble communicating in English i s a requirement of the Confrontation Clause because the use of an interpreter enables a defendant to conduct a meaningful cross examination , it also implicates due process

. See Davidson v. Great National Life Ins

. Co. , 737 S.W.2d 312, 314 (Tex. 1987) (d ue process requires an opportunity to confront and cross

- examine adverse witnesses ); Balderas , 517 S.W.3d at 777. The federal and state constitutions require “that a defendant sufficiently understand the proceedings a gainst him to be able to assist in his own defense.” See Linton , 275 S.W.3d at 500

– 01. “The ultimate question is whether any inadequacy in the interpretation made the trial ‘fundamentally unfair.’” Id. ( citing United States v. Huang , 960 F.2d 1128, 1136 (2 d Cir. 1992)). Again, Smith does not complain of any inaccuracy in the interpretation . Smith focuses on whether the interpreter was licensed or not. As discussed above , Smith has not established that the trial court failed to appoint a licensed interpreter , so she cannot12

establish a violat ion her right to due process under the federal or state constitutions. See Ridge , 205 S.W.3d at 597. Conclusion We affirm the trial court’s judgment.

Sarah Beth Landau Justice Panel consists of Justices Landau, Countiss, and Guerra

. Do not publish. T EX
. R. A PP
. P. 47.2(b).