### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03- 06 -00 714 -CR

No opi n Sim c oe , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 147TH JUDICIAL DISTRICT NO. D-1- DC-06 2023 52 , HO NORAB LE WILF ORD F LOW ERS , JUDGE PRESIDI NG

O P I N I O N
The trial court convicted Simcoe of burg lary of a building and assessed punishment
a t tw o y e ars in a

state ja il f

a c ili ty , p ro bate d f

or thr e e y e ars wi th con di tions of c omm un ity supervision. See Tex. P enal Code A nn. § 30.02 (West 2003). I n two issues, Sim coe c ontends that the tr ia l c ourt

e rr e d b y fa ili ngto a

pp oint an inte rp re te r f

or he r at tr ia l and

that t he e vid e nc e is fa c tua lly ins uf fi c ie nt t o s up po rt

the ve rd ic t. We a ff

ir m. Geor g iana B rown owns a

mobile home a

n d a storag e shed on pr operty located at 4806 Ti mbe r C re e k D ri ve , Aus tin , T e xas. B ro wn te sti fi e d th a t Simc oe ow ns re nta l pro pe rt y wi th a mob ile home on it at 4807 Timber Cre ek Dr ive, which is ac ross the stree t from B rown’s pr operty , and that Simcoe “ac tually lives around the corne r on the next bl ock.” O n April 30, 2006, Br own visited her proper ty with he r boy friend, son, and daug hter-in- law “to mow the g rass and cle an the yard.” She te sti fi e d th a t the mob ile ho me on he r pr op e rt y ha d be e n uno c c up ie d for “ a bo ut s ix or

e ig ht m on ths ” prior to April 2006. Ac cordingto Brown, when they arr ived at the pr op erty , she noticed that the2

fenc e along the back of

her pr operty

had bee n taken down. She te stified, “I could see the fe nce w as rolled up laying in f

ront of the stairs in front of the mobile home acr oss the street” on Simcoe’s re ntal proper ty . Br own testified that she went inside the mobile home on her proper ty and discove red that the stove, the re frig erator, and a cabine t were missing. B rown c alled the police
. De pu ty T i p t o nB i r dw e l l r e s p o n d e d t o B r o w n ’ s c a l l
. H e t e s t i f i e d t h a th e m e tw i th Br own and then “ made c ontact with [S imcoe] and asked he r i f she had any knowledg e of howthe fenc e ended up on her property .” Deputy Birdw ell stated that “at that point [ Simcoe] ki nd of we nt off talkingabout prior instanc es whe re she was a victim and complained of a lot of other things” and “then [Sim coe] said something about the owner of t he property the fence came from owed he r $300.” Acc ording to Deputy

Birdw ell, Simcoe kept cha ng ing the subject whe n he i n q u i re d as to how the fenc e g ot onto her prope rty and eve ntually

beg an yelling at him. He testified that Simcoe said that the prior r enter s had take n the fe nce but that he “k n ew t h e prior re nters had be en g one awhile.” Upon furthe r questioning, Simcoe chang ed her story ag ain. Acc ordingto Deputy Birdw ell, as he a

nd Br own wer e wa lking a

round the outsi de of Simcoe’s re ntal proper ty “[Brown] recog nized what she b el i ev ed t o b e h er

re fr i ger at o r o nt h e b ac k

d ec k o f t h e r en t al p ro p er t y

an d ro l l o f f en ce b y t h e s t o ra ge shed and the re w as a br own picnic table t h at wa s b ac k i n the bac k of the stora g e shed that she tho ug ht w a s h e rs a lso .” Simc oe re fu se d to le t B ro wn and De puty B ir dw e ll o nto he r re nta l pr op e rt y and, at one point, came outside with a vide o came ra a nd said, “I ’ll see you in court.” De te c tiv e Sc ott

Cr ow e te sti fi e d th a t, af

te r re c e ivi ng the re po rt fr om D e puty B ir dw e ll
conce rning the allege d theft of B rown’s pr operty , he dec ided to obtain a sea rch w arr ant for Simcoe’ s renta l property . He testified that he did not contact Simcoe pr ior to exec u t i n g t h e s ea rch warr ant ba se d o n B ir dwe ll ’s re po rt of Simc oe ’s a c tio ns tow ard s h im. Cr ow e te sti fi e d, “ Idid n’ t th ink it3

would be prude nt to contact [Si mcoe] and g et the same attitude.” He also testified t hat he had driven by Simc oe ’s re nta l pro pe rt

y pr ior to exe c uti ng the se arc h warr ant an d h a d o bs e rv e d s ome of the ite ms d e s c r i b e d b y B r o w n , i n c l u d i n g t h e c h a i nl i n k f e n c e an d t h e r e f r i g e r a t o r , o n S i m c o e ’ s p r o p e rt y. Acc ording to Detec tive Crowe, on the da y the sear ch war

rant was signe d, he conta cted Simcoe a nd she allowe d the offic ers onto the r ental prope rty . He testified that “ [t ]he r efr ige rator was still on the back porch” but that “the fencing that was in t he fr ont underne ath the fr ont porch wa s now g one and the fe ncing in the backyard w as now g one as well.” Simcoe led Detec tive Crowe around the inside of the mobile hom e and explained to him that she was prepa ring the re sidence for he r son, who had
re c e ntl y be e n r e le a se d fr om ja il. De te c tiv e Cr ow e te sti fi e d that the sto ve in Simc oe ’s mob ile ho me matched the descr iption of the stove that Br own had r eporte d stolen from her proper ty and that he discovere d a cabine t in Simcoe’s laundry room matching the desc ription of the ca binet Br own had repor ted stolen. He a lso discovere d t h e m i s sing f ence in a storag e shed in Simcoe’s ba cky ard. Acc ording to D etec tive Crowe, Simcoe orig inally told him that she had purcha sed the stove, but then chang ed her

story , claiming that a pre vious tenant by the name of

Trac y Rickerson ha d stolen the stove. Crowe te stified that he had r eviewe d the ut ility rec ords for the prope rty and that he did not
see a ny body by the name of Trac y Rickerson in the rec ords. Dete ctive Crowe place d Simcoe under
ar r e s tf o r b u r g l ar y. On May 26, 2006, Simcoe was indicted for burg lary under section 30.02 of the T exas Penal Code. She wa ived a jury trial on a plea of not g uilty
. At the bench trial, the State pre sented four witnesse s
— G e o r g ia

n a B rown, De puty

Birdw ell, Detec tive Crowe, a nd Cindy Castillo, Brown’s next-door neig hbor. Simcoe testified in her own def ense and called three chara cter witnesses. The4

t r i a l c o u rtf

o u n d S i m c o e g u i l t y

o f b u r g l ar y an d s e n t e n c e d

h e r t o t w o y e ar s i na

s t a t e j a i l f

a c i l i t y, probate d for thre e y ear s with conditions of community supervision. I n her f irst issue, Simcoe, who is origina lly from Tha iland and spea

ks both Thai and Eng lish, contends that the t ri al co u rt err ed by failing to appoint an interpre ter for her at trial. She relies on the Texas Court of Criminal Appeals’s opinion in Ga rc ia v . S tate to sup po rt

he r a rgume nt. See 149 S.W .3d 135, 145 (Tex. Crim. App. 2004). I n Ga rc ia , it wa s und isp ute d th a t th e de fe nd ant, J ose Ga rcia , did not speak Eng lish. The pre trial proce eding s were translated f or Ga rcia by a sworn interpre ter, a

nd defe nse counse l discussed Gar ci a’ s lang uag e diffic ulty during voir dire. The trial judge stated on the re cord that at “some point” duringthe g uilt/i nnocenc e phase o f the trial, he beca me aware that the proceeding s wer e not being translated for Garcia
. Id. Gar cia himself testified, thr ou g h an int e rp re te r, that he ha d be e n una ble to und e rs tand the c omp la ina nt’ s te sti mony

a t tr ia l. Th e c ou rto f

c r i m i n a l a

p p e a l s h e l d

t h a t“ [s ]i n c e t h e j u d g e w a s aw ar e t h a tG ar c i a h a d d i f f i c ult y understandin g Eng lish, the judge was re quired to ensur e that the tria l proce eding s were translated into a lang uag e which Gar cia could understand, absent an eff ective waiver

by Gar cia.” Id. The c ourt conclude d that Gar cia’ s Six th Amendment rig ht to confront the witnesse s ag ainst him was violated beca use Ga rcia did not knowingly

or voluntarily

waive his rig ht to an interpre ter. I n closing , the court e x plai n ed that Ga

rcia “dese rved more than to sit in t otal incomprehe nsion as the trial proce eded.” I

d. (q u o t i n g Un ite d S

tates e xre . Ne gr on v . Ne w York, 434 F.2d 386, 390 (2d Cir. 1970)).

I n this case, Simcoe testified in Eng lish that she was born in Tha i l and and that she moved to the United States in 1978. She also testified that she lea rned howto speak Eng lish six teen y ear s ag o. Simcoe ans we red a ll of the questions posed to her by the prosec utor and by

her ow n5

attorney in Eng lish and offe red va rious explanations of how t h e s t o l en proper ty ended up on he r proper ty in Eng lish. During c ross examination, however, the following exchang e occ urre d betwee n the prosec utor, Simcoe, and the tria l judge : [P rosec utor]: Ms. Sim coe, did you know Tim Br own? [Simc oe ]: Ye s. [P rosec utor]: When did he die? [S imcoe]: April. Around Apr il 1995 or 2005. [P rosec utor]: Are y ou sure a bout that date or are y ou g uessing ? I f his wife state d th a t th e d ay h e d ie d w a s N o v e mb e r 1 4 , 2 0 0 4 , do y ou thi nk that w ou ld b e c or

re c t? [Simc oe ]: Ye s, ma ’a m. [Pro se c uto r]: An d a c c or din g to t he pa pe rs tha t y our atto rn e y

a dmi tte d into evidenc e, you ev i ct ed Tracy Rickerson on Septembe r 21, 2005? [S imcoe]: Yes, ma’ am. Octobe r of that 2005. [P rosec utor]: An d af t er Mr. Rickerson moved out of your house, did you beg in at that time to prepar e it for your son to move into? [Simc oe ]: No , ma ’a m, my so n in ja il, c ounty

state ja il. [Pro se c uto r]: So a ft e r M r. Ric ke rs on mov e d o ut , was the pr op e rt y e mpt y un til y our s on

wa s r e le a se d f

ro m ja il? [S imcoe]: Cannot lend ag ain he a bandoned my

home. [ P r o s e c u t o r ] : I’ m s o r r y. [S imcoe]: Cannot able to lend a g ain. M r. T rac y Rickerson a

bandoned my home.6

[P rosec utor]: So it was vaca nt un t i l y our son moved in. So no one lived there betwee n Mr. Rickerson a nd y our son? [Simc oe ]: No , ma ’a m. [Pro se c uto r]: Yo ur Ho no r, may

I a pp ro a c h th e wi tne ss? [Th e Court ]: Ye s. Ap pr oa c h th e be nc h f ir st. (Discussion off the rec ord) [T h e Co u rt] : L et’s g o [b] ack on the rec ord. Ms. Si mc o e , do y ou

understand the questions being asked? [ S i m c o e ] : S o m e , s i r . I c o u l d s ay— I’ m s o r

r y. [T h e Co u rt] : L et’s take a short r e c e s s to s e e if

— Ikn o w w e c an’t g et an y b o d y here as an inter

prete r but to see if c ourt administration has ac cess. You a re f rom Thailand? [S imcoe]: Yes, sir. [Th e Court ]: Th a ila nd . T hat w ou ld b e Th a i. [Simc oe ]: Ye s. [The Court] : L et’s just pause a few m i n u t es . S t el la is g oing to call rig ht

now.
A f te r a r e c e s s , th e p r o s e c u to r

r e s u me d qu e s ti o n in g Si mc o e , an d Si mc o e c o n ti nu e d

an s w e r in g the questions posed to her in Eng lish. The recor d contains no further mention of requiring the servic es of an inter

prete r for Simco e. On appe al, Simcoe contends that the exchang e quoted a bove demonstrates that the trial judg e was awa re that she did not understand Eng lish and, theref ore, ha d a duty to appoint an interpre ter for her a bsent an e ffe ctive wa iver. Th is c a se dif

fe rs fr om Garcia. I n Ga rc ia , it was undisput ed that Gar cia did not speak Eng lish. Garcia

testified throug h an interpr ete r t hat he did not under stand the complaina nt’s7

testimony , which wa s in English and was not t ranslate d to him. I n holding that the tr ial court’s failure to appoint an int erpr eter for him at trial violated Ga rcia ’s constitutional rights, the c ourt of criminal appe als stated that “G arc ia ‘de serve d more than to sit in total incompr ehension a s the trial proce eded.’ ” Id. I n this c as e, unlike Ga rc ia , Simcoe testified that she unde rstood and spoke Eng lish. S he answ ere d the questions posed to her in En gl i s h
. Al though Simcoe g ave c onflicting
answe rs to some of the questions pose d to he r, the rec ord re flec ts that any confusion g ener ated by Simcoe’s re sponses to questions was li kely more a function of her attempts to create confusion rather than an hone st failure to unde rstand the que stions posed. Moreov er , b o t h Deputy Birdw ell and De te c tiv e Cr ow e te stifi ed th at the y c omm un ic a te d w ithSimc oe in E ng lis h. Ac c or din g to D e pu ty Birdw el l, w h o h a d

d e a lt w it h Si mc o e a

p p r o xim a te ly

1 5 o r 2 0 ti me s p r io r

to th e r e p o rte d

th e f t of Br own’s prope rt y , S i m co e wa s not hard to communicate with “[a]s long a s she wasn’ t excited. When she i s excited she talks a little fast, hard to unde rstand.” T he evide nce at trial also established that Sim c oe , a s a

land lor d, u

n d e r s t o o d E n g l i s h w e l l e no ug h to c on tr a c t w ithEn g lis h- sp e a kin g te na nts and to proc ure a

n eviction from a

justice of the pe ace when one of her tenants bre ache d the le a se a g re e me nt.

Although the rec ord re flec ts one instance where the t rial j udg e considered the issue
o f w h e th e r Si mc o e n e e d e d

an inte r p r e te r , th e r e c o r d is s il e n t a s to th e r e s o luti o no f th a t i s s u e . We have r eviewe d the re cord, inc luding Simcoe’s testimony . Although the rec ord demonstrates that Simco e oft en an sw eredth e qu est io ns po sedto her i n i mp erfect En gli sh andgave con fl ict in g answ ers, it does not demonstrate that Simcoe was unable to understand Eng lish or t o participate in the trial in a me an in g f

u l m an n e r

w it h o u t t h e a s s is ta n c e o f aninte r p r e te r . Si mc o e d id

n o t “ s it in to ta l incomprehe nsion as the trial proc eede d” like the de fenda nt in G a r c ia
. I

d

. Und er t he se8

circ umstances, the tr ial judge did not commit e rr o r wh en he a llowed the trial to proc eed w ithout appointing a

n interpre ter. I n h e r s e c on d is su e , Si mco e c on te nd s th a t th e e vid e nc e is f a c tua lly ins uf fi c ie nt t o support her c onviction. I n a factual sufficiency revie w, we view the evidenc e in a neutral lig ht and ask whether a finder of fac t was rationally justified in finding g uilt bey ond a re asonable doubt. See W ats on v . S tate , 2 0 4 S
. W
. 3 d 4 0 4 , 414 (Tex. Crim. App. 2006). We then determine whether the evidenc e supporting the verdict is so weak that the ver dict is clear ly wrongand manife stly

unjust or whether the ver dict is ag ainst the g reat weig ht and pre pondera nce of the evidenc e. Id
. a t 4 1 5
. We will not reverse a ca se on a f actua l sufficienc y

challeng e unless we can sa y , with some objective basis in the record, that the g reat weig ht and pre pondera nce of the evidenc e contr adicts the verdic t. Id . at 417.

A pe rs o n co m mits t he off ense of burg lary if, without the eff

ective c onsent of the
ow ne r, the pe rs on

e nte rs a bu ild ing (o r any po rt ion of a bu ild ing ) no t the n op e n to the pu bli c , w ith intent to commit a theft. See Te x. Pe na l Code Ann § 30 .0 2( a )( 1) . T he fi nd e r o f f a c t is e xclu siv e ly
e mpo we re d to de te rm ine the iss ue of int e nt, and

the e ve nts of

a burg la ry may imp ly the int e nt w ith which the de fenda

nt entere d. Mo or e v . S

tate , 54 S.W .3d 529, 539 (Tex. App.—For t Worth 2001, pet. re f’d) . Thus, inten t m ay be infe rre d from the de fenda nt’s conduct a

nd surrounding circ umstances. Id.

I n this case , Br own’s nex t-door neighbor , Cindy Castillo, testified t hat s he had se en Simcoe on Br own’s prope rty “more than once ” and ha d also seen Simcoe e nter the stora g e shed on Br own’s prope rty

“more than once.” Castillo also testified t hat s he had seen Si mcoe removing the fe nc e fr om B ro wn ’s pr op e rt y a s f oll ow s:9

[Pro se c uto r]: Ha ve y ou e ve r s e e n M s. Simc oe re mov e ite ms f ro m Ms
. B r o w n ’ s p r o p e rt y? [C astillo] : Yes. Just the fe nce. [ P ro s ec u t o r] : W h at s p ec i fi ca l l y d i d y o us ee h er

d o i n g? [C astillo] : Well, when Iwas drivinghome from wor k one af ternoon I saw he r put ting up a fence in her—try ing to put a f

ence in her front y ard. I

went an d as k ed her

beca use I am missing two rows of f ence . Iwent t o go as k h er about it. W hen I was a pp ro a c hin g he r s he wa s a lr e a dy c omi ngba ck wi th so me more fe nce, like the bars of the fe nce. [Pro se c uto r]: Th e po le s? [C astillo] : Yea h, the poles, and I had asked her—that’s when Iasked he r wh e re did y ou g e t th a t f e nc e fr om be c a

us e I ’m mis sin g so me fe nc e my se lf

and sh e sa id o h, no , n o, no , I g ot i t f ro m T im be c a us e Ti m to ld m e Ic ou ld h a ve it. [P rosec utor]: When she used the name Tim, who was she ref err ing to? [C astillo] : Tim who is decea sed. [ P r o s e c u t o r ] : H e p r e v i o u s l y o w n e d w h i c hp r o p e rt y? [Ca sti llo ]: Th e on e ne xt doo r whic h G e or g iana [B ro wn ] now

ow ns . [Pro se c uto r]: An d wh e n sh e state d that he ha d g ive n he r pe rm is si on , did

y ou ask her

any fu rther que stions about how that had happene d? [Ca sti llo ]: Ye s, sh e tol d me sp ir itu a lly he ta lks to h e r; his g ho st t a lks to her a nd she communicates with him all the tim e. [P rosec utor]: At the time she made that comment, appr ox imately how long had Mr. [Tim] Br own bee n dece ased? [C astillo] : Iwould say it was probably six to seven months, ar ound that rang e.10

[Pro se c uto r]: So w he n y ou e nc ounte re d he r, sh e ha d the fe nc ingmate ri a ls,

what prope rty

was she c oming f

rom at that time? [Ca sti llo ]: Ge or g iana ’s
. I n addition to this testimony , Deputy Birdw ell testified that duringhis init ial meeting with Sim coe, she “sa id something a

bout the owner

of the prope rty

the fe nce c ame f

rom owed he r $300,” essentially

acknow ledg ing that the fenc e had be en take n from someone else’s pr operty . Howeve r, B r o w n t e s t i f

i e d t h a t s h e d i d n o t g i v e S i m c o e p e r m i s s i o n t o r e m o v e an y i t e m s f r o m h e rp r o p e rt y, storag e shed, or

mobile home. Although Simcoe of

fer ed var ious e x planations of how the stolen proper ty ended up on her r ental prope rty

—including that either he r son, a f ormer te nant, or Br own’s son, Daniel Rice,
remove d the items from B rown’s property —the t rial judg e, as the sole judg e of the cre dibilit y of the witnesses an d t h e we i g ht of their testimony , was fr ee to be lieve or disbelieve all or any part of Simcoe’s testimony
. S

e e W i l l i a m s v . Sta te , 692 S.W .2d 671, 676 (Tex. Crim. App. 1984). F ur the rm or e , th e e vid e nc e a dd uc e d at tria l, inc lud ingSimc oe ’s te sti mony , s ho we d th a t th e mob ile home on S i m coe’s renta l property was unoc cupied dur ing the time period whe n the items were
remove d from B rown’s pr operty and mobile home
. Although B rown testified that her son, Da niel Rice, wa s the last person to live at the mobile home on her pr operty and that “he did sell a shelter that was on the proper

ty that was rec overe d,” she also testified that the items that she re ported stolen
wer e still in the mobile home at the time Rice move d out. Brown also testified that Rice did not have a key to the mobile home during the time period whe n the stolen items were remove d from her proper ty and mobile home. Viewing the rec ord in a neutra l light, we c annot say that the g reat weig ht11

and pr e po nd eran c e of

the e vid e nc e c on tr a dic ts t he ve rd ic t. T he e vid e nc e is f a c tua lly su ff ic ie nt t o
s u p p o rtS i m c o e ’ s c o n v i c t i o nf o r b u r g l ar y. Affir med.

__________________________________________ G. Alan Waldrop, Just ice Be fore J ustices Patterson, Pember ton and Waldrop Affir med Filed: August 29, 2007 Pub lis h