### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00727- CR

Juan Jos e Ram irez , Sr., Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B URNET COUNTY , 424 TH JUDICI AL DISTRICT

NO. 419 84, H ONO RAB LE EVAN C. STUB B S, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

J uan J ose Ramirez, Sr., was char g ed with ag g rava ted assault with a deadly wea pon, and the indictment alleg ed that he “intentionally or knowing ly threa ten[ed] Ana Marlene Ramirez, with imminent bodily injury , by holding a knife to her throat” and “use[d] or ex hibit[ ed] a d eadly

wea pon, to-wit: a knife, during the commission of said assault.” See Tex. Penal Code § 22.02(a) (2) 1 (setting out elements for offe nse of ag g rava ted assault); see also id. § 2 2

. 01(a) (desc ribing when
person commits assault). During a pretria l hear ing, Ramirez’s attorney serve d as an interpre ter, but

a translator was provided during the trial. At the end of the g uilt-or-innoce nce phase of the trial, the jury found Ramirez g uilty of the offe nse. At the end of the punishment phase, the jury rec ommended

T h e indictment also contained a second count alleg ing that Ramirez “intentionally , 1 knowing ly , or re cklessly

cause [d] bodily

injury to Ana Marlene Ramirez by cutting her ha nd with a knife ” and tha t he “did then a nd there use or e x hibit a deadly wea pon, to-wit: a

knife, during

the commission of said assault.” Be cause the jury found Ramirez g uilty

of the fir st count, it made no deter mination reg arding the alter native count.that Ramirez be sentenc ed to ten y ears’ imprisonment. See id. § 12.33(a) (listing permissible

punishment rang e for second- deg ree felony ). The district court rende red its judgme nt in acc ordanc e with the jury ’s verdic ts. I n a single issue on appea l, Ramirez contends that he was denied the rig ht to have the pr etrial he aring translated. We will af firm the district cour

t’s judgme nt of conviction.

DISCUSSIO N
I n his sole issue on appea l, Ramirez urg es that he “ was de nied his rig ht to have the plea barg ain deadline hear ing interpre ted as g uara nteed” by the S i x t h Am en d m ent and by article
38.30 of the Code of Criminal Procedur e. See U. S

. C o n s t

. am end. VI (listing acc used’s rig hts in

c r im in a l p r o s e c u ti o n s ) ; T e x. Co d e Cr im

. Pr o c . a r t. 3 8

. 3 0 ( s e tt in g o u t c ir c u

ms ta n c e s in w h ic h d e f

e n d a n t is entitled to interpre ter). Although Ramirez acknow ledg es t h at h i s t ri al attorney translated the
proce eding s, he asser

ts that his attorney “did not translate verba tim either the court’s statements or the response s from” him and that his attorney was not a cer tified interpre ter or sworn in by the district court. Fur

ther, Ramirez contends that the rec ord does not show what his attorney said to him and that the rec ord does not show if he understood what was being told to him. Although Ramirez

conce des that the rec ord indicates that he “did respond to the court’s inquiries,” he asser ts that “those

wer e no t n ec es s ar i l y response s born out of a true understanding of t he procee dings.” I n addition, Ramirez urg es that the prese nce of a b i l i n gu al p er s on, without more, does not comply with the require ments of t he relevant gove rning law but also arg ues that t he record does not show whether his attorney was, in fac t, bilingual. Simi larly , Ramirez insists that “the rec ord shows nothing about whether [hi s attorney ] had a g ood g rasp of the Spanish lang uag e, or whether [he] had any g rasp of the Eng lish langua g e.”

2Both the United States Constit ution and the Texas Constit ution g rant a defe ndant the

rig ht to be prese nt at a trial to confr ont the witnesses ag ainst him. See U.S. Const. amend. VI ; Tex. Const. art. I , § 10. The rig ht to be prese nt includes not only the rig ht to attend proce eding s but also
to compre hend those proce eding s. See Garcia v. State , 149 S.W .3d 135, 140-41 (Tex. Crim. App. 2004). For n o n -E n gl i sh speake rs, that rig ht includes the assistance of an interpre ter during trial
proce eding s. See Cantu v. State , 993 S.W .2d 712, 721 (Tex. A pp.—San Antonio 1999, pet. ref ’d) (providing that “ac cused’ s constitutional rig ht to confr ont witnesses encompa sses the rig ht to have trial proce eding s interpre ted to the ac cused in a lang uag e he c an under stand”). Under article 38.30 of t he Code of Criminal Procedur e, an interpre ter must be provided when “it is de termined that a person char g ed or a witness does not understa nd and spea

k the English lang uag e.” Tex. Code Crim. Proc. art. 38.30. Th e t ri al court may become awa re that the defe ndant does not understand “either by being informed of it by one or both parties or noticing the problem sua sponte,” Franqui v. State , No. 0 3 -0 8 -00028-CR, 2009 WL 280981, at *1 (Tex. App.—Austin Fe b. 6, 2009, no pet.) (mem. op., not de signa ted for publication), and if a trial court is awa re that the defe ndant has a problem understanding the Eng lish lang uag e, the court is obliga ted
t o implement this rig ht unless the defe ndant knowing ly and voluntarily waives the rig ht, Ga r ci a , 1 4 9 S.W .3d at 145. “De cisions reg arding adequate i nterpre tive service s depend upon a potpo u rr i of fac tors, including the defe ndant’s understanding of the Eng lish lang uag e and the complexit y of t he pertinent law and its proce dures, and the testimony .” Linton v. State , 275 S.W .3d 493, 500 (Tex. Crim. App. 2009). Acc ording ly , beca use the trial court has the defe n dant in its prese nce, “obser v[es] his level of com p rehension, and ask[s] him questions,” it “has wide discretion in

3deter

mining the adequa cy of interpre tive service s.” Id. ; see also State v. Story , 445 S.W .3d 729, 732 (Tex. Crim. App. 2014) (explaining that under abuse- of-discr etion standard, trial court’s “judg ment

w il l b e r e v e r s e d o n ly if it is a r b it r a r y , u n r e a s o n a b le , o r ‘ o u ts id e th e zo n e o f r e a s o n a b le d is a g r e e me n t’ ” (quoting State v. Dixon , 206 S.W .3d 5 8 7 , 5 9 0 (T ex. Crim. App. 2006)))

. I n addition, as with evidentiar y deter minations, a

n attack on the competenc y of an interpre ter is r eviewe d for an abuse

o f d is c r e ti o n . S

e e Ca s tr e jo n v
. S ta te , 4 2 8 S. W. 3 d 1 7 9 , 1 8 4 ( T e x. A p p . — H o u s to n [1 s t D is t. ] 2 0 1 4 , n o pet.); Shu Guo Kan v. State , 4 S.W .3d 38, 41 (Tex. App.—San Antonio 1999, pet. ref ’d) (providing that “[t] he competenc y of an individual to act as an inter prete r is a question for

the trial cour

t, and absent a showing of abuse of discre tion, that determination will not be disturbed on appe al”)

. 2
As an initial matter, we note that the district court announce d at the beg inning of the
very short pretria l hear ing that Ramirez’s attorney would be “interpr eting ever y thing into Spanish,” and nothing in the rec ord from that hear ing, which is only a littl e over two-pag es long, reve als that Ramirez or the State objected or reque sted that a differ ent interpre ter be used. See Medina v. State ,

I n its brie f, the State contends that Ramirez ha s waived his complaints reg arding his rig ht 2 to an interpre ter beca

use Ramirez did not reque st an interpre ter for the proce eding

. Howeve r, in his arg uments on appea l, Ramirez is essentially asser ting that the rec ord shows that althoug h the district court initially allowed Ramirez’s attorney to serve as an interpre ter, it beca me awa re t h at h e was unable to unde rstand the proce eding s and neede d an interpr eter and that he did not wa ive his rig ht to an interpre ter. See Hernande z v. State , 986 S.W .2d 817, 822 (Tex. App.—Austin 1999, pet. ref ’d) (stating that “[a] defe ndant who does not reque st an interpret er waives the rig ht to complain on appea l, unless the rec ord otherwise demonstrates the defe ndant’s lack of understanding of the proce eding s”); see also Garcia v. S t a t e , 429 S.W .3d 604, 607 (Tex. Crim. App. 2014) (providing that if t ri al court knows that defe ndant cannot understand Eng lish, court must appoint interpre ter unless defe ndant waives appointment and that defe ndant may only waive rig ht if waiver is made “‘pla inly , fre ely , intelligently , sometimes in writing a nd always on the record ’” ( quoting Marin v. State , 851 S.W .2d 275, 280 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State , 947 S.W .2d 262 (Tex. Crim. App. 1997) (emphasis adde d in Garcia )))

. 4No. 14-97-00859- CR, 1999 WL 587657, at *1 (Tex. App.—Houston [14t h Dist.] Aug

. 5, 1999, no

pet.) (not desig nated for publication) (providing that “[i] t is we l l s et t led law that an attorney may

serve as an interpre ter for his clien t ”)

. M o re o ver, nothing in the rec ord indicates that Ramirez’s attorney was unable to adequately serve as a translator or that Ramirez was unable to understand the
proce eding s. See Rivera v. State , 981 S.W .2d 336, 338 (Tex. App.—Houston [14t h Dist.] 1998, no pet.) (explaining that “[w]here there is evidenc e an interpre ter was prese nt and available to help the defe ndant, then a trial court does not err by failing to appoint an interpre ter” and that this also holds
true “whe n the defe ndant’s counsel is c apable of interpre ting for the defe ndant”) ; cf. Leon v. State , 25 S.W .3d 841, 843 (Tex. App.—Houston [1st Dist.] 2000, pet. ref ’d) (stating that “[a]bsent any showing to the contra

ry , we a ssume reg

ularity in the proce eding s”).
On the contra

ry , the rec ord shows that Ramirez understood the proce eding s beca use it documents that Ramirez answe red all of the quest i o n s p o s ed to him by the court and simil arly responde d to sta tements made by the State. For example, w hen the district c ourt asked Ramirez if he was the person who had been char g ed in this case and if he understood that the trial was schedule d to start in six day s, at which time a jury would be chosen, he answe red, “Ye s,” to b o th questions. Next, af

ter Ramirez’s attorney informed the district court that Ramirez unde rstood that the hear ing was being convene d to deter mine if the parties could ag ree to a plea- barg ain ag ree ment but tha t Ra mirez w anted to proce ed to trial and afte r the State rea d what the terms of the plea offe r

wer e, Ramirez sta ted, “Oka y . Yes. I understand tha t and I ’m not acc epting that.” Moreove r, afte r the court informed Ramirez a bout the rang e of punishment that he could fac e if no plea ag ree ment

was rea ched and also war ned Ramirez reg arding potential conseque nces to his elig ibilit y for parole

5if he wer e to be g iven a twenty -y ear sentenc e, Ramirez responde d, “Ye s, I understand.” Finally , the

court i n fo rm ed Ramirez that it would see him in six day s, and Ramirez responde d, “Oka y .” Cf. Hernande z v. State , 986 S.W .2d 817, 822-23 (Tex. App.—Austin 1999, pet. ref ’d) (dete rmining that there was no basis in r ecor d upon which to c onclude “that the district c ourt should ha ve appointed

an i n terpre ter for appellant on its own motion” wher e rec ord showed that appellant “answ er ed

sever al of the c ourt’s questions”).

Fur thermore , althoug h Ramirez noted that his attorney was not a cer tified interpre ter, the rele vant provision of the Code of Criminal Procedur e g overning the use of interpre ters in criminal proce eding s does not req u i re t h at an interpre ter be licensed or cer tified in order to

serve as a translator. See Tex. Code Crim. Proc. art. 38.30(a) ; Nois v. State , No. 05-15-00203- CR,
2016 WL 891086, at *8-9 (Tex. App.—Dallas Mar. 9, 2016, no pet.) (mem. op., not desig nated for publication). The district court deter mined that Ramirez’s atto rn ey could adequately serve as an interpre ter, and ther e i s nothing in the rec ord befor e this Court that contra dicts that conclusion. Cf. Ramos v. Terry , 622 S.E.2d 339, 343 (Ga

. 2005) (stating that “[t] he failure to interpose a timely objection to an interpr eter ’s qualifica tions constitut es a w aiver of the issue on a

ppeal” ). When arg uing that his rig hts wer e violated, Ramirez primarily relies on Garcia v. State , 149 S.W .3d 135 (Tex. Crim. App. 2004), and Ex parte Zantos-Cuebas , 429 S.W .3d 83 (Tex. App.—Houston [1st Dist.] 2014, no pet.), but we believe that both case s are disti n gu i shable. I n Garcia , the rec ord established that Gar cia did not “spea k, rea d, or write Eng lish to any appre ciable deg ree ,” that Gar cia’ s lawy er did not speak Spanish, and that Gar cia and his attorney communicated throug h his attorney ’s “bili ng ual l eg al assis tant.” 1 4 9 S

. W

. 3 d at 136-37. When deter mining that

6G a

r c ia ’ s Si xth A me n d

me n t r ig h ts w e r e v io la

te d , th e c o u

r t o f c r im in a l a

p p e a ls e xp la in e d th a

t a lt h o u g h the leg al assistant was bilingual and sat next to Gar cia during the trial, the assistant “wa s not sworn in by the court to inter

pret the trial for Gar cia,

. . . was not told to inter pret the trial for Gar cia, and . . . did not interpret the tria l for Ga rcia .” Id. at 143, 145.
I n Ex parte Zantos-Cuebas , the appellate court de termined that the tria l court er red when it deter

mined that Z antos-Cueba s’s applicatio n fo r writ of habea s corpus was frivolous.
429 S.W .3d at 91. I n rea ching this deter mination, the appellate court explained that the application

an d the acc ompany ing aff idavits “indicate that he enter ed his plea without an awa rene ss o f t h e

c o n s ti tu ti o n a l rig hts he was waiving there by ,” including possible im mi g r a ti o n c o n s e q

u e n c e s , b e c a

u s e they set out that Z antos-Cueba s did “not s peak Eng lish,” “that he relied on a 17-y ear old friend to translate for him in the courtroom,” and “that h i s amateur interpre ter” translated some of the
proce eding s but “‘did not translate the admonishmen t s o f pleading g uilty to the offe nse and the resulting immigra

tion c onsequenc es of a plea. [His friend] did not tr anslate Applicant’s waiver of constitutional rights, stipulation of evidenc e, and judicia l confe ssion to appellant.’” Id. at 89-90.

Unlike the case s discussed above, in the prese n t ca s e, the district court sanctioned the use of Ramirez’s attorney as an interpre ter, and nothing in the rec ord indicates that his attorney failed to translate al l o r any part of the proceeding for Ramirez. Moreove r, t he record establishes that Ramirez understood that the purpose of the hear ing was to deter mine whether he would acc ept a plea deal a nd that Ramirez personally reje cted the of

fer ed dea l.
I n light o f t h e p re ceding, we cannot conclude that the district court abused its discretion when it deter

mined that Ramirez’s attorney could proper ly serve as an interpre ter during

7the hear ing or that Ramirez’s constitutional and statutory rig hts wer e violated by the district court’s

decision to not appoint another interpre ter to translate the hear i n g. Ac co rdi ng ly , we overr ule Ramirez’s sole issue on appe al.

CONCLUSION

Having overr

uled Ramirez’s sole issue on appea l, we aff irm t h e d i strict court’s judgme nt of conviction.

__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Pemberton, and F ield Affir med Filed: Oc tober 21, 2016 Do Not Publish

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