A [‘FiRM; and Opinion tiled March 1, 2013.

In The

Qnurt uf Apprats

.Fift1! 1iitrict nf rxzu at 1a1ta

No. 05-1 1-00826-CR

JUAN CARLOS [IERNANDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 194th Judicial District Court

Dallas County, Texas

Trial Court Cause No. F09-60943-M

MEMORANDUM OPINION

I3efore Justices Moseley. Francis, and Lang

Opinion By Justice Lang

Juan Carlos Hernandez appeals from a conviction of aggravated robbery with a deadly

weapon. In a single issue on appeal. Hernandez contends the trial court abused its discretion by

permitting a police detective to testify, over objection, respecting the Spanish statements made by

Hernandez in his audio-recorded confession. We decide against Hernandez on this issue. The trial

court’s judgment is affirmed. Because all dispositive issues are clearly settled in law, we issue this

memorandum opinion. See TEx. R. App. P. 47.4.

1. FACTUAL AND PROCEDURAL BACKGROUND

Hemandez was charged by indictment with aggravated robbery with a deadly weapon. After

pleading not guilty, he was convicted by ajury, ordered to pay a $10,000 fine, and sentenced to fitly-
two years’ imprisonmenL At trial, Detective (iilherto Martinez. HI. testified that he interviewed

I Iernandez and recorded his confessioii. According to the detecti\ e there were “some points in the

interview when he spoke Spanish with Flernandez. Portions of the audiorecorded statement were

played durinr the detective’s testimony, and he testi tied regarding the English portion ot the

conversation between himself and I-fernandez. Then, before the detective started to testi iv to what

Hernandez said in the parts of the statement he made in Spanish. definse counsel objected to the

detective “serving inj the capacity ota translator.” The objection was overruled, and the detective

continued his testimony.

II. STANDARD OF REVIEW AND APPLICABLE LAW

“On appellate review, and pursuant to Texas Rule of Appellate Procedure 44.2(b), a nonconstitutional error must be disregarded unless it affects the defendant’s substantial rights.” Barshaw

v. State, 342 S.W.3d 91,93 (Tex. Crim. App. 2011) (citing TEx. R. App. P.44.2(b) (“Other errors.

Any other error, detect, irregularity, or variance that does not affect substantial rights must he

disregarded.”)). We will not overturn a criminal conviction for non-constitutional error if, after

examining the record as a whole, we have fair assurance the error did not influence the jury, or

influenced the jury only slightly. Id. (citing Schulz v. State, 63 S.W.3d 442, 444 (Tex. Crirn. App.

2001)). In considering the potential to harm, the focus is not on whether the outcome ofthe trial was

proper despite the error, but whether the error had a substantial or injurious effect or influence on

the jury’s verdict.” Id. at 93-94 (citing Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App.

2000)).

“A conviction must be reversed for non-constitutional error ifthe reviewing court has grave

doubt that the result of the trial was free from the substantial effect of the error.” Id. at 94 (citing

Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002)). “Grave doubt’ means that ‘in the
judge’s mind. the matter is so evenly balanced that he feels himself in virtual equipoise as to the

harmlessness of the error.’” Id (quoting Burnett, 88 S.W.3d at 637-38). ‘“[ljn cases of grave doubt

as to the harmlessness the petitioner must win.” Id. (quoting Burnett, 88 S. W.3d at 638).

In assessing the likelihood that the jurY’s decision was improperly influenced, we must

consider everything in the record, including any testimony or physical evidence admitted for the

jury’s consideration, the nature of the evidence supporting the verdict, and the character of the

alleged error and how it might be considered in connection with other evidence in the case. Id.

(citing Morales v. State. 32 S.W.3d 862, 867 (Tex. Crim. App. 2000); Haley v. State, 173 S.W.3d

510, 518-19 (Tex. Crim. App. 2005)). “The reviewing court may also consider the jury instruction

given by the trial judge, the state’s theory, defensive theories, closing arguments, voir dire, and

whether the state emphasized the error.” Id. (citing Morales, 32 S.W.3d at 867; Haley, 173 S.W.3d

at 518-19; Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002)). Additionally, the

presence ofoverwhelming evidence of guilt plays a determinative role in this analysis. Neal v. State,

256 S.W.3d 264. 285 (Tex. Crirn App. 2008) (citing Mod/la, 7$ S.W.3d at 356).

B. Application of Law to Facts

Hernandez argues the trial court erred in permitting the detective to translate the Spanishlanguage portions ofhis recorded confession, contending the testimony was hearsay and the detective

was a witness for the State who (lid not establish his qualifications to translate. The State responds

Hernandez’s objection at trial was not specific enough to preserve the issue, the trial court did not

abuse its discretion in permitting the detective to translate Hernandcz’s Spanish statements, and any

error was harmless.

Assuming, without deciding, the trial judge erred by admitting the detective’s testimony

regarding Hcrnandez’s Spanish statements when defense counsel interposed his objection that the
detective was “serving the capacity of a translator” and “we have a translation issue,” we must

analyze whether that error affected Hcrnandez’s substantial rights. See Wx. R. Api. P. 44.2(b):

Barshaw, 342 S.W.3d at 93. The record reflects that before the detective testified and any part ofthe

recording was played for the jury. evidence of Hernandez’s guilt was admitted without objection.

Another police officer, Officer Christopher Biggs, testified he stopped Hernandez in the

complainant’s vehicle forspeeding. The police officer’stestimony, video ofthat traffic stop, and still

photographs from the video established liemandez was the driver ofthe vehicle the police officer

stopped. The evidence showed the complainant wasthe registered owner ofthe vehicle stopped, and

not Hernandez. The police officer’s testimony and the traffic citation he issued to Hemandez

established Hemandez was driving the complainant’s vehicle a few hours after the vehicle was

reported stolen.

Then the detective testified. The record shows that before Heniandez raised the issue ofthe

translation, the detective had already testified that Hernandez admitted he was there when the

complainant was robbed, his “homeboy” used a screwdriverto steal the complainant’s vehicle, and

Hernandcz “took off’ in the complainant’s vehicle. The detective testified that being a Spanish

speaker he would use occasional Spanish to establish rapport during the interview and that this

interview contained some Spanish language. The complete audio recording was admitted into

evidence, and no request was made to have any Spanish portions translated into English. The

prosecution played the portion of the recording containing Hernandez’s statements in English

wherein he admitted he and his “homeboy” took the complainant’s vehicle, but that his “homeboy”

was the one with the screwdriver. Then, when the State began to play the portion ofthe recording

containing Spanish and asked the detective what Hernandez said, the defense interposed its

objection. After the trial court’s ruling, the detective continued his testimony. Defense counsel did

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not crossexarnine the (letective on his Interpretation, and he did not ask the “courtroom interpreter”

to yen iv the accuracy of the detective’s testinonv. We conclude any error in admitting the

comphunedot testimony was harmless in light of’ the overwhelming evidence ot guilt shown by

other evidence in the record. See Neal, 256 S.W3d at 285.

IV. CONCLUSION

We decide against Hernandez on his sole issue on appeal. The trial court’s judgment is

a ttirnicd.

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D6iG[.AS. LANG 1

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JUDGMENT

.I[AN CARL.( )S HERNANDEZ. Appellant Appeal from the 194th Judicial District

Court of Dallas County, Texas. (Tr.Ct.No.

No. 05-1 1-00826-CR V. F09-60943-fv1),

Opinion delivered 1w Justice Lang. .lusticcs

fl IF STATE OF: TE\AS Appellee Mosclev and Francis participating.

l3ased on the (fourt’s opinion of this date, the judgment of the trial court is AFFiRM El),

Judgment entered March 1 2() 13.

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OOUGL.’S. LAN(i

JUSTI c4