O pinion i ssued 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 ANDAVE RDE , Appellee

On Appeal from the 12th District Court Grimes County, Texas Trial Court Ca se No. 16670



### MEMORANDUM OPINION
This is the State’s appeal from a pretrial order suppressing portions of a n audiotaped interview of appellee , Roberto Acuna An d averde. 1 In one issue, the

1 See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 44.01(a)(5) (West Supp. 2011); T EX

. R. A PP

. 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 a nd 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 i n English, appellee
answered some questions in Spanish which J arvis t ranslated 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 interv iew 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) test imony 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 a ppellee’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 chall enged 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. A ppelle e did not fil e a brief. 3 At the July 7, 2010 hearing on appellee’s motion to suppress, the trial court
oral ly ruled as follows:

2 Neither the trial court ’s oral ruling nor its w ritten 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 ground s 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.2 d 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 consider ed 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 E llison in English
as well as asked appellee questions in Spanish. Although Jarvis i nitially claimed to

4 Fischer d iscusses 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 s tatements in Spanish to the officer “exactly” in English , she
later recanted: [T HE COURT ] : Ms. Jarvis, w hen I listened to the tap e, 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 Pro cedure governs the use of interpreters in criminal proceedings. T EX
. C RIM
. A PP
. P ROC
. A NN
. 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. I n Leal , the Court of Criminal Appeals held that the trial court had erred
when it admitted into evidence the tape

- record ed 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 t estifying in court and held that the safeguards
of a rticle 38.30 apply. See i d

. “ 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.
B ecause a sworn interpreter was not called upon by the trial court to translate the admitted tape

- recording con taining 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 s heet 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 inte rpreter. I t 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 word

for

- word but had paraphrased them instead

. In support of its argument t hat 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 1 5 , 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 T EX
. R. A PP
. 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 c ases 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 Rodrig ue z , 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 i s 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 tran slations 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 whethe r trial court complied with article 38.30) . A dditionally, the tape

recorded 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 cro ss
- 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 th at t he 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 t rial 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 def endant 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 “b y its very terms, article 38.30, governs the use of interpreters in court proceedings, not police interviews,” implies that article 3 8.30 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 wit h 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 cross

examination.
Ba sed o n 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 appel lee’s t estimony in Spanish

. N othing 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 t estimony 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. T EX
. R. A PP
. 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 interpre ter. 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.