## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-15-00220-CR

DONALD BRUCE WE RNER APPELLANT V. THE STATE OF TEXAS STATE

------------ FROM CRIMINAL DISTRICT COUR T NO. 2 OF TARRANT COUNTY TRIAL COURT NO. 1357744D

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### MEMORANDUM OPINION 1

---------- Appellant Donald Bruce Wern er appeals his convicti ons for five counts of aggravated sexual assa ult and two counts of in decency with a child. 2 In one issue, he contends that the trial court violated his co nstitutional rights of due

1 See Tex. R. App. P. 47.4.

2 See Tex. Penal Code Ann. § 21.11(a) (1) (West 2011), § 22.021(a)(1)(B), (2)(B) (West Supp. 2015).2 process, due course of law, and confrontation by fa iling to provide an interpreter for him at trial because he is hearing impaired. We affirm. Background Facts The undisputed evidence shows, and appellant conc edes, that he engaged in various sexual acts with hi s granddaughter, N.H. (Natalie), 3 over the course of several years while she wa s under fourteen years old. 4 Natalie eventually disclosed this abuse to he r mother. She also disc ussed the abuse with an interviewer at an advocacy center an d with a clinical social worker. A grand jury indicted appellant with tw elve counts of either aggravated sexual assault or inde cency with a child. At trial, the State proceeded with five counts of aggravated sexual assault and two counts of indecency with a child. Appellant chose the trial c ourt to assess his punishm ent in the event of his conviction, and with the assi stance of appoin ted counsel, he pled not guilty. At trial, appellant did not cross-examine any of the State’s witnesses. The trial court admitted a recording of appellan t’s interview with a police officer, in which appellant admitted that he had watched pornography with Natalie and that he had engaged in sexual contact with he r on several occasions and in various

3 To protect the victim’s identity, we use a pseudonym. See McClendon v. State , 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).

4 By way of example, Natali e testified that appellant had put his penis in her mouth “about 50 times.” Natalie also testified that appell ant had touched her breasts, that she had touched his peni s with her hands, and that they had watched pornography together.3 ways. During appellant’s testimony in fr ont of the jury, he again admitted to several instances of sexual abuse with Natalie. He claimed that both of them deserved blame for the abuse. When the parties concluded their present ation of evidence and arguments, the jury deliberated for eleven minutes an d convicted appellant of five counts of aggravated sexual assault and two counts of indece ncy with a child. After concluding the punishment ph ase of the trial, the trial court sentenced appellant to confinement for life for each of the aggravated sexual as sault convictions and to confinement for twenty years for ea ch of the indecency with a child convictions. The court ordered all of the sentences to run concurrently. Through new counsel, appellant filed a motion for new trial in which he contended, The trial court committed a material error likely to inju re [his] rights by failing to appoint an interpreter pu rsuant to [article 38.21 of the code of criminal procedure]. That failure denied [him] the rights guaranteed him by the United St ates and Texas Constitutions, including but not limited to the righ t to due process, the right to due course of law, the right to confr ont witnesses against him, [and] the right to a fair trial . . . . The trial court did not expr essly rule on the motion fo r new trial, so it was overruled by operation of law. 5 Appellant brought this appeal.

5 See Tex. R. App. P. 21.8(c).4 The Alleged Need fo r an Interpreter Appellant contends only th at the trial court abused its discretion by failing to provide an interpreter for him at trial. He contends that he is legally deaf and that the lack of an interpreter deprived him of the constitutional rights of due process, due course of law, and confrontation. 6 At various points before and during th e trial, appellant expressed difficulty in hearing questions and instructions pres ented to him. For example, during a pretrial hearing, the following colloquy occurred: THE COURT: All right, Mr. Wern er, you are -- I’m going to call your case. All right? It is -- THE DEFENDANT: What? THE COURT: Your case. The indictment is -- come up a little closer to me. The indictment is 1357744D wh erein Donald Bruce Werner is charged with aggravat ed sexual assault of a child. Do you understand? [You’ve] got to answer. THE DEFENDANT: (Shake s head up and down). THE COURT: And verbally answ er. Don’t shake your head. Tell me if you understa nd what I’m saying. THE DEFENDANT: What ? What did he say? THE BAILIFF: Answer the Judge yes or no. Answer. THE DEFENDANT: What did he say?

6 Appellant does not discuss these consti tutional rights se parately. We will examine them together.5 [DEFENSE COUNSEL]: He says you’re charged with aggravated sexual assault of a child. THE DEFENDANT: Yeah. During the majority of the trial, includ ing during all of the voir dire stage, appellant did not expr ess any difficulty in hearing. He also conversed well with a police officer in an interview that he ga ve after his arrest although he asked for clarification after certain qu estions. And on many occa sions at trial, appellant followed and responded to st atements by witnesses, hi s counsel, and the trial court. As an example, during the same pretrial hearing, th e following exchange occurred: [DEFENSE COUNSEL]: . . . Mr . Werner doesn’t believe that it’s aggravated sexual assault be cause in his opinion the child cooperated and since she coo perated, it’s not aggravated. THE COURT: Oh. Even though she was a child younger than 14 years of age? [DEFENSE COUNSEL]: Yes, sir, he understands that. . . . [W]e have explained that to hi m and he doesn’t believe it’s aggravated because she cooperated. THE COURT: Okay. THE DEFENDANT: I didn’t do that. I didn’t aggravate anything and I didn’t assault anything. THE COURT: Okay. THE DEFENDANT: And I don’t want to plead guilty to that. THE COURT: All right. THE DEFENDANT: I’m innocent of that . . . .6 During the same pretrial hearing, appe llant’s counsel expressed that he did not know what to do about ap pellant’s difficulty in hearing. Appellant told the trial court that he did not have hearing aids but that he needed them. He said, “This is terrible living like this without being able to understand anybody.” The trial court asked appellant if he could h ear sound that was amplified with a microphone, and appellant said , “Probably. I think the best way I can explain it to you is I can’t hear the highs in a person’s voice . . . . All I hear is this (covered mouth with hand).” During the trial, while Natalie was testifying, the following exchange occurred: [DEFENSE COUNSEL]: I’m so rry, Your Honor, may we approach the bench? THE COURT: Yes. (At the bench, on the record) [DEFENSE COUNSEL]: Judge, he’s saying he can’t hear anything that she’s saying . But I don’t know what the solution to that problem would be. THE COURT: Yeah, I don’t either. [DEFENSE COUNSEL]: Y’all go t any suggestions? I don’t. THE COURT: She’s talking in to the microphone. The only thing I can suggest, you get close en ough to him and tell him what’s going on. [DEFENSE COUNSEL]: Can we turn it up any? This is as high as we’re getting?7 Later in Natalie’s testimony, the part ies again discussed whether appellant could hear her, and this exchange occurred: [DEFENSE COUNSEL ]: Your Honor, may we approach the bench again? I’m sorry. THE COURT: Come on up.

. . . . [DEFENSE COUNSEL]: Mr. Werner is not deaf. Therefore he does not need a deaf inte rpreter. I just want to ensure that he’s able to understand what’s going on . . . . THE COURT: Okay. [DEFENSE COUNSEL]: I mean, I’m writing everything down. Obviously I can’t jot every single wo rd down. But, I me an, as far as I guess her -- the part that we’re jotting down, whether he understands it or not. I mean , I think he may because he -- THE COURT: Well, he’s answer ing, because I could hear him saying she’s not telling the trut h. So he’s understanding something. [7]

. . . . [DEFENSE COUNSEL]: Would you put on the record that you’ve been watching the entire ti me? He understands what is going -- THE COURT: That’s what I just said. [DEFENSE COUNSEL]: Okay. THE COURT: I’ve watched him. He’s answering. He’s denying everything. So I think he understands it.

7 During Natalie’s testimony, while she was crying, appellant stated that she was “[m]aking up . . . lies.” Later during her testimony, the trial court sustained the State’s objection to appell ant’s making unsolicited comments.8 [DEFENSE COUNSEL]: To you does it appear he understands what’s going on? THE COURT: Yes, it does. [Emphasis added.] Later, after Natalie’s testimony conc luded, appellant’s counsel once again approached the trial court ab out appellant’s hearing im pairment. The following exchange occurred: [DEFENSE COUNSEL]: I realize I’ m being repetitive about this, Judge. But during [Natalie’s] test imony I was watchi ng Mr. Werner and the way he was acting about t he way [co-counsel] was talking to him. And it appears to me he understood what was going on. He made several comments throughout her testimony that indicated to me he understood what she was saying. THE COURT: And likewise I was watching him and he was making comments. He was denying certain things. So it’s my understanding that he’s hearing an d understanding the testimony as it goes. [DEFENSE COUNSEL]: And if from -- I’m going to assume unless anything changes, I’m going to assume he’s continuing to hear. But if I come to realize that he’s not, I’ll let you know, Judge. [Emphasis added.] Counsel did not raise the issue of appe llant’s hearing with the trial court at any point after this exchange. Appellant testified and responded appropriately to questions, although some questions r equired repetition. He stated while testifying that he was legall y deaf in one ear and that his other ear was “on its way.” Appellant argues that despite the “r ed flags” that appear in the record concerning his hearing, “n o efforts were undertaken to provide assistance as mandated by article 38.31 [of the code of criminal procedure] as well as federal9 and state constitutio nal requirements designed to prov ide [him] a fair trial.” He contends, “The ongoing record in this cause inescapabl y demonstrates that [he] suffered from some degree ofhearing loss that substa ntially impaired his ability to hear the testimony of witnesses, to he ar the audio recordin g of his post-arrest interview, and to hear the qu estions put to him . . . .” Article 38.31 states that if a defend ant is deaf, the court “shall appoint a qualified interpreter to inte rpret the proceedings in an y language that the deaf person can understand, includ ing but not limited to sign language.” Tex. Code Crim. Proc. Ann. art. 38.31(a ) (West Supp. 2015). A pe rson is deaf under article 38.31 when the person “has a he aring impairment . . . that inhibits the person’s comprehension of the proceedings or communication with others.” Id. art. 38.31(g)(1) (emphasis added); see Ex parte Cockrell , 424 S.W.3d 543, 546 (Tex. Crim. App. 2014). Article 38.31 serves the guarantee of due process an d implements the constitutional right of conf rontation, which includes the right to have trial proceedi ngs presented in a way that the accused can understand. Under [a rticle 38.31] and the relevant constitutional provisions, the tr ial court has a duty to devise a communication solution that provides the particular defendant with “that minimum level” of understa nding that is constitutionally required. Linton v. State , 275 S.W.3d 493, 501 (Tex. Crim . App. 2009) (footnote omitted); see also U.S. Const. amends. V (e xpressing the right of d ue process), VI (stating10 that in all criminal prosecutions, “the accused shall enjoy the right to . . . be confronted with the wi tnesses against him”). We apply an abuse of discretion st andard “in reviewin g whether the trial court took adequate step s to ensure that a deaf defendant sufficiently [understood] the proceedings to be ab le to assist in his own defense.” Linton , 275 S.W.3d at 502. Thus, we do not re verse the trial court’s decision unless it lies outside the zone of re asonable disagreement. Id. at 503. In our review, we must consider that the tria l judge was “in direct contac t with the defendant” and that “evaluating whether a hearing-impaired defendant truly comprehends what is spoken is more art than science.” Id. at 502–03. The tria l judge, “having the defendant in his presence, observing his level of comprehension, and asking him questions, has wide discretion in dete rmining the adequacy of interpretive services.” Id. at 500. The ultimate question is whether any inadequacy in the defendant’s understanding made the tria l fundamentally unfair. Id. at 503. The trial is fundamentally unfair when the defendant is unable to assist in his own defense. 8
Id. at 504. “100% comprehension is . . . not the constitutional requirement.” Id. at 508.

8 Like in Linton , where the court of criminal appeals held that a trial court did not abuse its discretion by refusing to use a deaf-relay interpreter, in appellant’s motion for new tr ial, he did not “set out . . . any specific instances in which [he] failed to understand crucial test imony during the trial . . . or . . . was not able to communicate adequately with [his] counsel.” 275 S.W.3d at 509.11 Under these standards, we cannot conclude that th e trial court abused its discretion or violated appellant’s consti tutional rights by not appointing an interpreter. Article 38.31(a) and Linton instruct us that we measure the trial court’s decision on interpretive services by whether the de fendant has a basic understanding of the proc eedings to support his participation in them. See Tex. Code Crim. Proc. Ann. art. 38.31(a); Linton , 275 S.W.3d at 500–04; see also Brazell v. State , 828 S.W.2d 580, 581 (Tex. App.—Austin 1992, pet. ref’d) (stating that a deaf defendant must have a “minimum understanding” of the proceedings). Here, as demonstrated by the quotes emphasized above, the trial judge and appellant’s counsel—both of whom observed appe llant closely and directly—agreed that he had such a co ntemporaneous underst anding. Upon the last discussion between appellant’s counsel and the trial court about the issue of appellant’s hearing, counse l represented that he w ould thereafter inform the court if he realized that appellant wa s not understanding the proceedings, but counsel never did so. The co ld record does not provide us with reasons to reject the first-hand observations ofthe trial court and appellant ’s counsel that affirmed appellant’s understanding of the proceedings. Cf. Salazar v. State , 93 S.W.3d 339, 341 (Tex. App.—Texar kana 2002, pet. dism’d) (“C onsidering what the trial court was told and observed during the trial, we ar e not persuaded the court failed to take constitu tionally adequate steps to ensure Salazar heard and understood the pr oceedings.”); Lincoln v. State , 999 S.W.2d 806, 810 (Tex. App.—Austin 1999, no pet.) (“Having observed appellant throughout the trial, the12 district court was in the be st position to judge the cr edibility of appe llant’s claim that he did not hear the proceedings.”). As the State contends, appellant’s position in his motion for new trial and on appeal that he needed an interpreter is expressly contrary to the position that his counsel took at trial. Furthermore, the record shows that appellant appropriately and meaningfully, even if imperfectly, resp onded to questions and instructions presented to him and to the testimony offered by the State’s witnesses. Appellant interjected his op inion about the truthfulness or validity of Natalie’s testimony more than once a nd responded to mu ltiple questions and instructions presented to him by his counsel, the tria l court, the State, and the police officer who interviewed him before trial. Cf. Valdez v. State , No. 03-12-00098-CR, 2014 WL 4362949, at *3 (Tex. App.—Austin Aug. 29, 2014 , no pet.) (mem op., not designated for publication) (“Given that appellant was able to communicate with others and to resp ond appropriately to questions and directions from the court during the plea proceeding[,] . . . the tria l court could have reasonably concluded that appellant was not a ‘deaf person’ as that term is defined under article 38.31.”). We note that toward the end of appellant’s brief, he contends that the trial court erred by “failing to conduct a hearing as reques ted on [his] mo tion for new trial.” Appellant does not provide any anal ysis or citation to authority to support this argument, and the argument, which is not fairly included within appellant’s presented issue, is multifarious. Thus, we overrule the argument. See Tex. R.13 App. P. 38.1(f), (i); Soliz v. State , 432 S.W.3d 895, 900 (Tex. Crim. App. 2014), cert. denied , 135 S. Ct. 1154 (2015); Mays v. State , 318 S.W.3d 368, 390 n.82 (Tex. Crim. App. 2010), cert. denied , 562 U.S. 1274 (2011). We cannot conclude that the trial court abused its discretion or violated appellant’s statutory or constitutional rights when it did not provide an interpreter. See Linton , 275 S.W.3d at 501–02. Thus, we overrule appellant ’s only issue. Conclusion Having overruled appellant’s only issue, we affirm the trial court’s judgments convicting him of five counts of aggravated sexual assault and two counts of indecency with a child.
/s/ Terrie Livingston TERRIE LIVINGSTON CHIEF JUSTICE PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: June 23, 2016