In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-16-00071-CR

EBER CASTRO MORALES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 188th District Court

Gregg County, Texas

Trial Court No. 45158-A

Before Morriss, C.J., Moseley and Burgess, JJ.

Memorandum Opinion by Justice Moseley
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MEMORANDUM OPINION

Eber Castro Morales entered an open plea of guilty to aggravated sexual assault of a child. 

The trial court convicted Morales of the offense, and he was sentenced to life imprisonment. 

Although an interpreter was provided for Morales, a citizen of Guatemala, during both a hearing 

in which he waived his right to a jury trial and a status hearing, Morales appeals his conviction on 

the ground that the trial court erred in failing to provide an interpreter for a status hearing. Morales 

also argues, and the State concedes, that the trial court’s judgment contained language that could 

allow him to later petition the court for an exemption of certain sex-offender registration 

requirements, under Article 42.017 of the Texas Code of Criminal Procedure, based on a mistaken 

finding that Morales was under the age of nineteen. 

Because the appellate record demonstrates that Morales understood and spoke English, we 

find no error in the trial court’s failure to make a sua sponte appointment of an interpreter for 

Morales during the status hearing. However, because we determine that the record affirmatively 

establishes that Morales was thirty-three years old at the time of the offense, we modify the trial 

court’s judgment to delete its Article 42.017 finding and affirm the judgment, as modified. 

I. Failure to Provide An Interpreter During A Status Hearing Was Not Erroneous 

“The right of a non-English speaking person to the assistance of an interpreter during trial 

proceedings is guaranteed by the Confrontation Clause of the Sixth Amendment to the United 

States Constitution, the Due Process Clause of the Fourteenth Amendment, [and] article I, section 

10 of the Texas Constitution.” Pineda v. State, 176 S.W.3d 244, 247 (Tex. App.—Texarkana 

2004, pet. ref’d) (citing Baltierra v. State, 586 S.W.2d 553, 558 (Tex. Crim. App. 1979); Garnica 
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v. State, 53 S.W.3d 457, 458 (Tex. App.—Texarkana 2001, no pet.)). Consequently, Article 

38.30(a) of the Texas Code of Criminal Procedure provides:

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 the person charged or the witness.

TEX. CODE CRIM. PROC. ANN. art. 38.30(a) (West Supp. 2016). 

Morales never filed a motion for an interpreter for the status hearing, and he did not request 

an interpreter during the hearing. However, the Court of Criminal Appeals has held that a 

defendant’s right to an interpreter must be implemented unless expressly waived if the trial judge 

is aware that the defendant has difficulty understanding the English language. Garcia v. State, 149 

S.W.3d 135, 144–45 (Tex. Crim. App. 2004). “The judge may become aware of the defendant’s 

language problem either by being informed of it by one or both parties or by noticing the problem 

sua sponte.” Id. at 145. Thus, “[t]he onus is on the trial court to inquire whether the accused’s 

rights would be safeguarded in the absence of an interpreter when the ability of the defendant to 

speak and understand English is raised to some extent.” Garnica, 53 S.W.3d at 459. But, when 

the record reveals “nothing that would put the trial court on notice that [the defendant] needed an 

interpreter,” a trial court does not err in failing to appoint one. Id.; see Mares v. State, 636 S.W.2d 

627, 631 (Tex. App.—San Antonio 1982, pet. ref’d). 

“[T]he mere fact that an accused may be more fluent in [another language] does not, in and 

of itself, make it incumbent upon a trial court to appoint an interpreter for an accused who speaks 

and understands the English language.” Abdygapparova v. State, 243 S.W.3d 191, 201 (Tex. 

App.—San Antonio 2007, pet. ref’d) (quoting Flores v. State, 509 S.W.2d 580, 581 (Tex. Crim. 
4

App. 1974)). Without question, there was evidence that Morales was capable of communicating 

in English. 

During the status hearing, Morales answered several of the trial court’s questions in English 

and informed the trial court that he wanted to fire his attorney. At the plea hearing, Morales’

attorney told the trial court that Morales was able to communicate with him. Significantly, the 

State admitted an audio/video recording of Morales’ interview with Debra Stiles, a detective with 

the Longview Police Department. The interview was conducted entirely in English. During the 

fifty-minute interview, Morales demonstrated that he was able to communicate in English 

fluently.1 

“In the absence of facts to show that appellant could not understand English,” there is no 

error in the trial court’s failure to appoint an interpreter. Vasquez v. State, 819 S.W.2d 932, 937–

38 (Tex. App.—Corpus Christi 1991, pet. ref’d); see Diaz v. State, 491 S.W.2d 166, 168 (Tex. 

Crim. App. 1973); Vargas v. State, 627 S.W.2d 785, 787 (Tex. App.—San Antonio 1982, no pet.) 

(“In the instant case, there is ample evidence that appellant understood and communicated in the 

English language reasonably well, and the mere fact that he might have been able to express 

himself a little better in Spanish did not require the use of an interpreter.”). The record before this 

Court both demonstrates that Morales understood and spoke English and shows no specific 

example of misunderstanding or inability to employ the assistance of counsel in his defense. See 

Frescas v. State, 636 S.W.2d 516, 518 (Tex. App.—El Paso 1982, no pet.). 

 

1The clerk’s record contains a well-written letter, composed entirely in English, from Morales to the trial court. In a 

second letter, written after the status hearing, Morales informed the trial court that he did not understand or write 

English well and had asked someone to write the first letter for him. After receiving this letter, the trial court provided 

Morales with an interpreter. 
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In short, this record does not establish that the trial court was put on notice that Morales 

needed an interpreter prior to or at the status hearing or that Morales was so deficient in his capacity 

to understand and speak English that the absence of an interpreter during this hearing amounted to 

a denial of a fundamental constitutional right.2 We find no error in the trial court’s failure to 

provide an interpreter during the status and waiver of jury trial hearings. Consequently, we 

overrule Morales’ first point of error. 

II. The Judgment Is Modified to Delete the Article 42.017 Finding

Under Article 62.301 of the Texas Code of Criminal Procedure, at any time, a person 

required to register as a sex offender may petition the court for an exemption from sex-offender 

registration if he establishes his eligibility to do so. TEX. CODE CRIM. PROC. ANN. art. 62.301(a) 

(West Supp. 2016). As applicable to the facts of this case, a person is eligible to petition for an 

exemption from sex-offender registration if (1) the person is required to register only as a result of 

a single reportable conviction or adjudication and (2) the court has entered an affirmative finding 

described by Article 42.017. TEX. CODE CRIM. PROC. ANN. art. 62.301(b) (West Supp. 2016). 

Article 42.017 of the Texas Code of Criminal Procedure provides:

In the trial of an offense under Section 21.11 or 22.011, Penal Code, the 

judge shall make an affirmative finding of fact and enter the affirmative finding in 

the judgment in the case if the judge determines that:

(1) at the time of the offense, the defendant was not more than four years 

older than the victim or intended victim and the victim or intended victim was at 

least 15 years of age; and

 

2Further, during the plea hearing, Morales confirmed that his attorney and the court-provided interpreter explained the 

plea agreement to him and that he understood the nature and content of the documents when he signed them. Morales 

further informed the trial court that he made the decision to plead guilty because he was, in fact, guilty of the offense. 
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(2) the conviction is based solely on the ages of the defendant and the victim 

or intended victim at the time of the offense.

TEX. CODE CRIM. PROC. ANN. art. 42.017(a) (West Supp. 2016). 

The trial court’s judgment contains the following language referencing Article 42.017:

The Court FINDS that at the time of the offense, Defendant was younger than 

nineteen (19) years of age and the victim was at least thirteen (13) years of age. The 

Court FURTHER FINDS that the conviction is based solely on the ages of

Defendant and the victim or intended victim at the time of the offense. [TEX. CODE 

CRIM. PROC. ANN. art. 42.017].

Morales argues that this language should be deleted from the judgment because the record 

conclusively established that Morales was thirty-three years old at the time of the offense. The 

State concedes the error. We have the authority to modify the judgment to make the record speak

the truth when the matter has been called to our attention by any source. French v. State, 830 

S.W.2d 607, 609 (Tex. Crim. App. 1992); see TEX. R. APP. P. 43.2(b). Because we conclude that 

the language referencing Article 42.017 must be deleted from the judgment, we sustain Morales 

second point, although we note that the heading in the judgment under which the Article 42.017 

language is contained—”LIFETIME REGISTRY AS A SEX OFFENDER”—must remain. 
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III. Conclusion 

We modify the trial court’s judgment to remove the language referencing Article 42.017 

and affirm the trial court’s judgment, as modified. 

Bailey C. Moseley

Justice

Date Submitted: December 8, 2016

Date Decided: February 1, 2017

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