Opinion issued June 20, 2013

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-10-00697-CR

———————————

THE STATE OF TEXAS, Appellant

V.

ROBERTO ACUNA ANDAVERDE, Appellee

On Appeal from the 12th District Court

Grimes County, Texas

Trial Court Case No. 16670

MEMORANDUM OPINION

This is the State’s appeal from a pretrial order suppressing portions of an 

audiotaped interview of appellee, Roberto Acuna Andaverde.1

 In one issue, the 

 1 See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (West Supp. 2011); TEX. R.

APP. P. 25.2(a)(1).
2

State contends that the trial court abused its discretion in granting appellee’s 

motion to suppress certain translated portions of appellee’s statement to police. 

We affirm.

Background

On October 9, 2009, appellee was interviewed by Navasota Police 

Department Investigator Amanda Klawinsky and Officer David Ellison following a 

report that appellee had engaged in inappropriate conduct with a child. Aleda 

Jarvis, a Child Protective Services special investigator, was also present at the 

interview. Although most of the interview was conducted in English, appellee 

answered some questions in Spanish which Jarvis translated into English for 

Officer Ellison, the investigating officer, who did not speak Spanish. Although she 

considers herself to be fluent in Spanish, Jarvis is not a certified translator or 

interpreter.

On November 20, 2009, appellee was indicted on two counts of indecency 

with a child. On July 7, 2010, the first day of trial, defense counsel moved the trial 

court to redact certain portions of the audio and/or videotaped interview on the 

grounds that the evidence constituted (1) inadmissible extraneous offense

evidence, (2) hearsay, (3) narrative by the interviewing officer that was not a 

present sense impression (hearsay), (4) discussion of a polygraph examination, and 

(5) testimony after invocation of appellee’s Sixth Amendment right to counsel.
3

Before the jury was seated, the trial court both orally sustained and overruled 

varying portions of the motion. The trial court subsequently dismissed the jury. 

On July 22, 2010, the trial court issued an order granting portions of appellee’s 

motion to suppress.

Discussion

In its sole issue, the State contends that the trial court erred in suppressing 

the portion of the audio recording designated in appellee’s motion as III.B through 

L because there is no requirement that Jarvis be a certified translator.2

 The State 

also argues that, rather than redacting the challenged portions of the audiotape, the 

Court should have ordered the court-certified interpreter who was present for trial 

to provide a simultaneous translation of appellee’s answers in Spanish, or a written 

translation for presentation to the jury. Appellee did not file a brief.3

At the July 7, 2010 hearing on appellee’s motion to suppress, the trial court 

orally ruled as follows:

 2 Neither the trial court’s oral ruling nor its written order specifies the portions of 

the audio to be redacted. The specific time designations are present only in 

appellee’s written motion. All eleven of these specific portions of the audiotape 

are designated in the motion as “Translation.”

3 Trial counsel filed six motions to extend time to file appellee’s brief, four of 

which were granted and two denied as untimely after this Court indicated that 

further motions would not be considered absent extraordinary circumstances. 

Counsel was notified that the case would be set for submission in May 2012, with 

or without a brief from appellee, and ordered to notify his client. The State filed 

two motions to extend time to file its brief, which were granted.
4

[THE COURT]: Yes. Number 3, dealing with what is referred to as 

inadmissible hearsay, I’m overruling the objection to A, but I’m 

sustaining the objection to B through L, but it refers to the Spanish to 

English translation of the CPS investigator.

[ASSISTANT DISTRICT ATTORNEY]: And the grounds on that is 

that the translator’s rendition is hearsay?

[THE COURT]: It’s not a sworn interpretation, okay?

[DISTRICT ATTORNEY]: So you are not holding it’s hearsay -- if 

she were a sworn interpreter making the statements, I think it would 

be admissible.

[ANDAVERDE’S COUNSEL]: . . . . The defense would argue these 

are inadmissible. It’s inadmissible hearsay, Your Honor, under the 

Fis[c]her case [252 S.W.3d 375 (Tex. Crim. App. 2008)]4 and in 

addition to that, the 1990 Court of Criminal Appeals on Leal [782 

S.W.2d 844 (Tex. Crim. App. 1989)] 5 and that goes towards anything 

in Spanish on this audio tape is not admissible unless there’s a 

certified translation.

[THE COURT]: Okay, essentially, I’m dealing with the ruling in 

Leal, not necessarily Fischer, but in Leal.

Following the court’s oral ruling, Jarvis testified that she was not certified as 

an interpreter, but that she considered herself fluent in Spanish. A review of the 

audiotape reveals that when appellee began speaking in Spanish toward the end of 

the interview, Jarvis repeated what appellee had said to Officer Ellison in English

as well as asked appellee questions in Spanish. Although Jarvis initially claimed to 

 4 Fischer discusses the present-sense impression exception to the hearsay rule. See

Fischer v. State, 252 S.W.3d 375, 379–87 (Tex. Crim. App. 2008).

5 Leal discusses the admission of a tape-recorded conversation in a foreign 

language. Leal v. State, 782 S.W.2d 844, 847–50 (Tex. Crim. App. 1989).
5

interpret appellee’s statements in Spanish to the officer “exactly” in English, she 

later recanted:

[THE COURT]: Ms. Jarvis, when I listened to the tape, I had the 

distinct impression that it was not a word for word translation but it 

was more of a paraphrased translation to the officer present of what 

Mr. Andaverde was saying. Am I correct or incorrect?

[WITNESS]: You’re correct.

[THE COURT]: Okay, so it wasn’t word for word.

[WITNESS]: No, sir.

On July 22, 2010, the trial court issued its order which stated as follows:

The Defendant’s Motion to Require the Prosecuting Attorney to 

Redact Video came on for hearing and Defendant’s objections are 

hereby:

. . . .

Granted as to request . . . .

III. B

C

D

E

F

G

H

I

J

K

L

Article 38.30 of the Code of Criminal Procedure governs the use of 

interpreters in criminal proceedings. TEX. CRIM. APP. PROC. ANN. art. 38.30(a)

(West 2011). It states, in relevant part, as follows:
6

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.

Id. 

In Leal, the Court of Criminal Appeals held that the trial court had erred 

when it admitted into evidence the tape-recorded conversation in Spanish between 

the defendant and a witness cooperating with law enforcement authorities without 

a sworn translation into English. See 782 S.W.2d at 849–50. The Court 

analogized the situation involving a tape recording of witnesses speaking Spanish 

to a non-English-speaking witness testifying in court and held that the safeguards 

of article 38.30 apply. See id. “In the face of a proper motion or objection an 

interpreter must be sworn to translate the conversation, so long as the interpreter is 

‘considered to possess adequate interpreting skills for the particular situation’ and 

is ‘familiar with the use of slang’ to the satisfaction of the trial court.” Id. at 849. 

Because a sworn interpreter was not called upon by the trial court to translate the 

admitted tape-recording containing the conversation, the Court held that the trial 

court had failed to comply with article 38.30. See id. at 849–50 (holding trial court 

“erred when it admitted the tape recording into evidence without it being translated 

from Spanish to English by a sworn interpreter”).
7

Here, the docket sheet reflects that the trial court granted defense counsel’s 

motion for an interpreter on February 22, 2010.

6

 Thus, under the clear language of 

the statute, appellee’s statements had to be translated by a sworn interpreter. It is 

undisputed that Jarvis was not a sworn interpreter. Jarvis further admitted to the 

trial court that she had not translated appellee’s statements at the interview wordfor-word but had paraphrased them instead.

In support of its argument that Jarvis was not required to be a certified 

interpreter for her translation of appellee’s statements to be admissible, the State 

relies on Rodriguez v. State, No. 2-05-398-CR, 2007 WL 174684 (Tex. App.—

Fort Worth Jan. 25, 2007, pet. ref’d) (memo op., not designated for publication) 

and Martinez v. State, No. 08-02-00508-CR, 2004 WL 1576777 (Tex. App.—El 

Paso July 15, 2004, pet. ref’d) (memo op., not designated for publication). We 

initially note that both of these cases are unpublished and, as such, have no 

precedential value. See TEX. R. APP. P. 47.7 & 2008 cmt.; Ferguson v. State, 335 

S.W.3d 676, 688 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (noting that 

“unpublished cases are not part of Texas jurisprudence and cannot be either 

binding or persuasive authority”). Notwithstanding, both Rodriguez and Martinez 

are factually distinguishable from the present case.

 6 See Stokes v. State, 277 S.W.3d 20, 24 (Tex. Crim. App. 2009) (finding trial 

court’s docket sheet to be reliable indicator of judge’s decisions and business of 

court).
8

In Rodriguez, a police detective interviewed the defendant in Spanish and a 

portion of the interview was tape recorded. See 2007 WL 174684, at *2. The 

taped portion of the interview was translated by a certified court interpreter, but the 

trial court also allowed into evidence the defendant’s statements made to the 

detective before the recorder was turned on. See id. On appeal, the defendant 

argued that the trial court had erred by allowing testimony from an uncertified 

police interpreter regarding his allegedly incriminating statements. See id. 

Rodriguez is factually distinguishable from the present case because the detective 

in Rodriguez—who had passed a test enabling him to be a translator for the police 

department—testified at trial in English concerning his conversation with 

defendant in Spanish, thereby subjecting his translations to cross-examination. See

id. at *3; Leal, 782 S.W.2d at 849 (noting fact that individuals who translated 

conversation between witnesses speaking Spanish were not called to witness stand 

so that accuracy of their work could be subject to cross-examination, in court’s 

analysis of whether trial court complied with article 38.30). Additionally, the taperecorded portions of the defendant’s conversations with the detective in Spanish 

were translated by a certified court interpreter. See Rodriguez, 2007 WL 174684, 

at *3. Here, by contrast, the State sought to admit portions of appellee’s tape-
9

recorded interview which were not translated by a certified interpreter and could 

not be subject to cross-examination.

7

 

In Martinez, the defendant argued that the trial court had erred in admitting 

his written statement because he had received an inadequate translation of his 

Miranda rights into Spanish by the police officer. See 2004 WL 1576777, at *2. 

The court of appeals noted that the question of a translation’s accuracy is an issue 

of fact to be settled by the trier of fact, and that an appellant must settle the 

question at trial by impeaching the translation, either by cross-examination or other 

means. See id. (citing to Garcia v. State, 887 S.W.2d 862, 875 (Tex. Crim. App.

1994)). Noting that trial counsel had vigorously questioned the police officer on 

his translation, the Martinez court held that the trial court had not abused its 

discretion in concluding that the defendant had been properly warned before being 

subjected to custodial interrogation. See Martinez, 2004 WL 1576777, at *3. 

Here, by contrast, the State is challenging the trial court’s suppression of translated 

 7 It is worth noting that the Rodriguez court did not cite to Leal in its discussion of

the admissibility of the testimony of an uncertified police interpreter. Further, the 

Rodriguez court’s statement that “by its very terms, article 38.30, governs the use 

of interpreters in court proceedings, not police interviews,” implies that article 

38.30 applies only to court proceedings. 2007 WL 174684, at *3. Such a 

conclusion is contrary to the Court of Criminal Appeals’s finding in Leal that 

article 38.30 applied to a tape-recorded conversation between the defendant and a 

witness cooperating with law enforcement authorities. See Leal, 782 S.W.2d at 

847.
10

portions of the audiotape prior to trial for which Jarvis was not subject to crossexamination.

Based on appellee’s motion, the pretrial hearing, and the court’s written 

order, we conclude that the trial court suppressed only the audio recording of 

Jarvis’s translations, not appellee’s testimony in Spanish. Nothing in the court’s 

order prevents the State from calling Jarvis as a witness at trial. We therefore 

express no opinion concerning the admissibility at trial of appellee’s testimony in 

Spanish with appropriate translation, or any testimony by Jarvis. We overrule the 

State’s sole issue.8

Conclusion

We affirm the judgment of the trial court.

Jim Sharp

Justice 

Panel consists of Justices Higley, Sharp, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).

 8 The State also contends that the trial court suppressed appellee’s statements 

because it found them to be hearsay. We disagree. The trial court’s oral ruling 

makes clear that it based its ruling on Leal and the fact that appellee’s statements 

were not translated by a sworn interpreter. The State also asserts that, at the 

hearing on the motion to suppress, trial counsel raised constitutional concerns 

regarding the translations. However, a review of the record reveals no mention by 

trial counsel of constitutional grounds supporting the suppression of appellee’s 

statements. Thus, we do not address the State’s arguments concerning hearsay or 

constitutional issues.