Opinion issued April 23, 2024

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-22-00442-CR

———————————

SOSTENES LORENZO TOLENTINO, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 14

Harris County, Texas

Trial Court Case No. 2306675

O P I N I O N ON R E H E A R I N G

Sostenes Lorenzo Tolentino was found guilty of driving while intoxicated. On 

appeal, Tolentino complains that he could not understand the trial proceedings 
2

because he was not provided with an interpreter in his native language, Nahuatl.1

Tolentino argues that his rights under the United States and Texas Constitutions to 

due process and due course of law, confrontation, and counsel were denied; the trial 

court violated its statutory duty to appoint an interpreter in a language he 

understands; and the trial court abused its discretion when it denied his motion for 

new trial. 

On January 9, 2024, we issued our memorandum opinion and judgment 

reversing the trial court’s judgment and remanding for a new trial because 

proceeding with a Spanish interpreter violated Tolentino’s right to due process. The 

State of Texas has moved for en banc reconsideration. See TEX. R. APP. P. 49.5. 

Treating the en banc motion as a request for panel rehearing, we deny rehearing but 

withdraw our opinion of January 9, 2024, vacate our judgment of the same date, and 

substitute this opinion and judgment in their stead. The State’s motion for en banc 

reconsideration of our prior opinion is moot.2

1 Nahuatl is an indigenous language spoken in Mexico.

2 Because we issue a new opinion, the motion for en banc reconsideration is moot. 

See, e.g., Shuman v. Ganley, No. 01-22-00561-CV, 2023 WL 6627064, at *1 (Tex. 

App.—Houston [1st Dist.] Oct. 12, 2023, no pet.) (mem. op.) (treating en banc 

motion as request for panel rehearing, withdrawing original opinion and judgment, 

issuing new opinion and judgment, and dismissing en banc motion as moot); Poland 

v. Ott, 278 S.W.3d 39, 41 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) 

(motion for en banc reconsideration rendered moot by withdrawal and reissuance of 

opinion and judgment).
3

Background

In April 2020, Tolentino was near the scene of a separate ongoing DWI 

investigation. The police questioned Tolentino and then, based on those interactions, 

arrested him for DWI.

In June 2021, a year before trial, Tolentino’s trial counsel moved for 

appointment of a Nahuatl interpreter. Trial counsel informed the trial court that he 

communicated with Tolentino through Tolentino’s brother, who has a better 

understanding of Spanish. Tolentino’s native language is Nahuatl, and he speaks and 

understands little Spanish or English. The trial court initially attempted to provide a 

Nahuatl interpreter but eventually, over Tolentino’s objection, appointed a Spanish 

interpreter for Tolentino and proceeded with trial in June 2022. A jury found 

Tolentino guilty of DWI, and the trial court sentenced him to one year confinement 

probated for 15 months of community supervision. 

Tolentino moved for a new trial, arguing that his rights under the United States 

and Texas Constitutions to due process and due course of law, confrontation, and

counsel were denied. He also argued that the trial court violated its statutory duty to 

appoint an interpreter in a language he understands. The trial court denied his 

motion.
4

Due Process

Tolentino argues that his right to due process was violated by the trial court’s 

appointment of a Spanish interpreter instead of a Nahuatl interpreter. 

A. Standard of Review

We review a trial court’s decision to appoint an interpreter for an abuse of 

discretion. See Balderas v. State, 517 S.W.3d 756, 777–78 (Tex. Crim. App. 2016). 

Whether the trial court took adequate steps to ensure that a defendant sufficiently 

understood the proceedings is also reviewed for an abuse of discretion. Linton v. 

State, 275 S.W.3d 493, 502 (Tex. Crim. App. 2009). Our review of the record is 

generally limited to the evidence before the trial court at the time of the trial court’s 

ruling. See Amador v. State, 221 S.W.3d 666, 677 (Tex. Crim. App. 2007) (citing 

Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004)). We reverse only 

when the trial court’s ruling lies outside the zone of reasonable disagreement. Id. at 

503; see also Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App. 2016) (before 

reviewing court reverses trial court’s decision, it must find ruling was so clearly 

wrong as to lie outside zone within which reasonable people might disagree).

B. Analysis

The parties do not dispute that Tolentino required an interpreter, only whether 

a Spanish interpreter satisfied this need. If a defendant cannot understand the 

proceedings, fundamental fairness and due process require that the court provide an
5

interpreter. See Linton, 275 S.W.3d at 500. Whether an accused receives adequate 

interpretation is a matter within the trial court’s discretion because it depends on “a 

potpourri of factors.” Id. “The question on appeal is not whether the ‘best’ means of 

interpretive services were employed, but whether the services . . . were 

constitutionally adequate such that the defendant could understand and participate 

in the proceedings.” Id.

The constitutional guarantee of due process “is, in essence, the right to a fair 

opportunity to defend against the State’s accusations.” Chambers v. Mississippi, 410 

U.S. 284, 294 (1973). That guarantee encompasses the defendant’s rights to confront 

witnesses against him and assist in his own defense. See U.S. CONST. amend. VI; 

Chambers, 410 U.S. at 295; Pointer v. Texas, 380 U.S. 400, 405 (1965). While the

Constitution does not guarantee every defendant a perfect trial, it requires “that a 

defendant sufficiently understand the proceedings against him to be able to assist in 

his own defense.” Ex Parte Cockrell, 424 S.W.3d 543, 557 (Tex. Crim. App. 

2014) (internal quotation omitted). The Court of Criminal Appeals has considered 

that a defendant is denied due process when 

(1) what is told him is incomprehensible; (2) the accuracy and scope of 

a translation at a hearing or trial is subject to grave doubt; (3) the nature 

of the proceeding is not explained to him in a manner designed to insure 

his full comprehension; or (4) a credible claim of incapacity to 

understand due to language difficulty is made and the district court fails 

to review the evidence and make appropriate findings of fact.
6

Linton, 275 S.W.3d at 505 (internal quotation omitted). “The ultimate question is 

whether any inadequacy in the interpretation made the trial ‘fundamentally unfair.’”

Id. at 503.

Tolentino moved for a Nahuatl language interpreter. The trial court stated on 

the record that it could not “put [Tolentino] to trial without having a qualified 

interpreter interpreting for him.” The trial court acknowledged if it could get a 

Nahuatl interpreter it would proceed with trial, otherwise it would not. At a later 

hearing, the trial court acknowledged that Nahuatl interpreters were available, but 

either they would need an additional interpreter to translate from English to Spanish 

and then from Spanish to Nahuatl or the English-to-Nahuatl interpreter would have 

to translate remotely because they were unable to physically attend trial. 

A few months later, the trial court told the parties that it would provide a 

Spanish interpreter instead of a Nahuatl interpreter. The trial court held a pretrial 

hearing in which the court considered the record from an earlier suppression 

hearing,

3

including Detective A. Nerio’s testimony about video of Tolentino’s arrest. 

Detective Nerio testified that the video captured a “full conversation” he had with 

3 Tolentino moved to suppress any physical evidence, his arrest, his statements, and 

any recorded communications, arguing that there was no evidence he had operated 

a motor vehicle. The hearing was not about Tolentino’s ability to understand 

Spanish. Defense counsel waived Tolentino’s appearance because there was no 

interpreter for Tolentino’s “particular Aztec dialect.”
7

Tolentino in Spanish. No translation was provided for the audio from the arrest video 

other than Detective Nerio translating “manejo bien” as “drive well.”4

The video depicts Detective Nerio approaching Tolentino and shouting “hey” 

at Tolentino. Detective Nerio, speaking Spanish, then repeatedly asks Tolentino the 

same question, to which Tolentino responds by grunting before finally giving a 

one-word response. Detective Nerio then asks a different question repeatedly and 

Tolentino mumbles unintelligibly. Detective Nerio then repeats the question twice 

before Tolentino gives a two-word response. Detective Nerio then asks a series of 

questions to which Tolentino mumbles and points before Detective Nerio asks 

another question. Tolentino stares blankly for a moment before saying a short phrase 

and looking away. Detective Nerio asks another question twice before Tolentino 

gives a two-word response. Detective Nerio spends most of the interaction speaking

and repeating questions. Tolentino can be seen staring blankly at Detective Nerio, 

occasionally grunting, and mumbling short phrases. Detective Nerio then calls 

Tolentino a “fucker,” handcuffs him, and escorts him to the back of his patrol 

4 State’s Exhibit 2, the video of Tolentino completing field sobriety tests at the police 

station, was not introduced until trial. Even if the State had presented it when the 

trial court was evaluating the translator request, the video lacks audio. Without 

audio, the only information the video conveys is Tolentino’s ability to mimic the 

actions demonstrated by the officers to test his sobriety. The video is silent on his 

ability to understand Spanish.
8

vehicle. Tolentino can be heard mumbling something repeatedly to himself while 

being handcuffed. 

After opening the back door to his patrol vehicle, Detective Nerio instructs 

Tolentino in Spanish, but Tolentino does not respond. Detective Nerio turns 

Tolentino around so Tolentino’s back is facing the interior of the patrol vehicle so 

Tolentino can get inside. Tolentino makes a brief comment to which Detective Nerio 

responds. Tolentino then repeats a short question to Detective Nerio, which 

Detective Nerio does not respond to. Then Detective Nerio is seen using his hand to 

push Tolentino into the vehicle while Tolentino begins repeating an earlier phrase. 

Detective Nerio ignores Tolentino and lifts Tolentino’s leg into the vehicle before 

closing the door. 

The video then briefly depicts Detective Nerio’s investigation away from 

Tolentino before he returns to speak to Tolentino in the back of his vehicle. Detective 

Nerio and Tolentino then have a broken exchange of repeated questions and short 

responses for about 30 seconds. Shortly after, Detective Nerio approaches the 

driver’s seat of his vehicle. Tolentino says a short phrase, to which Detective Nerio 

responds, “Manejo bien,” and “Ok,” but the audio of whatever else Tolentino says 

is unintelligible and is ignored by Detective Nerio. Detective Nerio then speaks with 

another officer before going over to the front passenger side of his vehicle. Tolentino 

can then be heard saying something to Detective Nerio, but the audio is unclear. 
9

Detective Nerio says something to Tolentino in Spanish then ignores him. Based on 

this evidence, the trial court overruled Tolentino’s objection and proceeded with a 

Spanish interpreter.

The State compares this case to Martins v. State, where the defendant 

complained that he required a Portuguese interpreter but was given a Spanish 

interpreter. See Martins v. State, 52 S.W.3d 459, 471 (Tex. App.—Corpus 

Christi-Edinburg 2001, no pet.). But there are significant differences. In Martins, the 

defendant did not request a Portuguese interpreter or object to a Spanish interpreter. 

See id. Here, Tolentino did both. Moreover, the record in Martins lacked any 

evidence of the defendant’s difficulty understanding Spanish. Id. at 472. Instead, 

there was evidence that the defendant had a Spanish-speaking wife, testified at trial 

in Spanish, and communicated with his attorney in Spanish. See id. Martins was 

decided based on the defendant’s failure to object to the appointment of a Spanish 

translator and the lack of evidence that he required a Portuguese interpreter. See id.

at 473. That is not the case here. Tolentino made his request and objection clear to 

the trial court, and the trial court was aware that Tolentino’s Spanish-speaking 

attorney had his “primary communications” when first hired through Tolentino’s 

brother who had “a little bit more” understanding of Spanish than Tolentino.

Upon Tolentino’s objection, the trial court asked whether Tolentino 

communicated with his family members in Spanish. Trial counsel responded that 
10

Tolentino communicates with his family primarily in Nahuatl because they are from 

the same region of Mexico and that Tolentino’s job does not require him to 

communicate “with anybody really[] but himself.” Trial counsel also highlighted 

that Nahuatl can be a difficult language because there are no phrases or words for 

certain terms and that his primary communication with Tolentino relied on

Tolentino’s brother as his interpreter.

The only evidence that Tolentino understood Spanish was Detective Nerio’s 

testimony about the video of the arrest. But the video does not support Detective 

Nerio’s testimony that Tolentino had full conversations with him. See Carmouche v. 

State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000) (declining to give “almost total 

deference” to trial court’s implicit findings where video contradicts essential 

portions of testimony). Detective Nerio is repeatedly asking Tolentino the same 

questions, sometimes getting no response, and Tolentino gives blank stares, 

mumbles, speaks unintelligibly, and points down the street. What little Spanish is 

spoken by Tolentino are the same few phrases. 

A defendant may receive a fair trial absent a perfect translation. Linton, 275 

S.W.3d at 508 (reviewing entire record); see generally Linton v. State, 246 S.W.3d 

698 (Tex. App.—Corpus Christi-Edinburg 2007), rev’d on other grounds, 275 

S.W.3d 493, 495 (Tex. Crim. App. 2009). In Linton, the deaf defendant testified at 

a suppression hearing using an American Sign Language interpreter that she never 
11

learned to read or write English and was unable to communicate with the arresting 

officer. Linton, 246 S.W.3d at 700. But she often answered questions before the 

interpreter translated them, and there were direct exchanges between the trial court 

and the defendant using an American Sign Language interpreter. Linton, 275 S.W.3d

at 505–06. These exchanges reflected the defendant’s “ability to communicate 

effectively.” Id. at 506. There was also evidence that the defendant graduated from 

high school, was admitted to college, understood sufficient English to obtain a 

driver’s license, could communicate sufficiently with another person to exchange 

information related to a car accident, and could follow law enforcement’s 

instructions. Id. at 509. The arresting officer testified that he communicated with the 

defendant by writing her notes which she would read and then answer verbally. Id.

at 496. At the hearing, the defendant also clarified testimony provided by the 

arresting officer. See id. The trial court denied the motion to suppress.

On the morning of trial, the defendant moved to reopen the suppression 

hearing based on the defendant’s limited comprehension abilities. Id. at 496. The 

trial court deferred ruling until after voir dire when the two court-appointed 

interpreters were questioned by the parties. The interpreters testified that they were 

able to effectively convey what was being said to the defendant by using 
12

transliteration,5 which is what the defendant was using with them. Id. Trial 

proceeded.6 The next day, the defendant moved for mistrial based on competency. 

The trial court held a hearing on the mistrial issue and heard testimony from the 

defendant’s pastor, who testified that the defendant communicated using a 

combination of English and broken ASL, and from the director of graduate program 

in deaf education from Lamar University, who testified that transliteration does not 

help someone like the defendant and that the defendant did not understand what was 

going on during trial but that having a deaf interpreter appointed would allow the 

defendant to understand the proceedings. Id. at 497–98. The trial court denied the 

mistrial request and appointed an additional interpreter, not a deaf interpreter, to sit 

with the defendant “to break down anything to the level at which [the defendant] can 

understand.” Id. Defense counsel responded, “I can live with that.”7Id. at 498. The 

5

“Transliteration is the means by which spoken English is converted word for word 

into visual English. . . . Transliteration conveys the words being spoken. It does not 

decode the spoken English—that is, it does not get to the meaning. Rather, it recodes 

the English, making the spoken word visible, either in signed form or orally.” 

Michele LaVigne & McCay Vernon, An Interpreter Isn’t Enough: Deafness, 

Language, and Due Process, 2003 WISC. L. REV. 843, 871 (2003).

6

It is unclear whether the trial court was using one or two interpreters at this point. 

Compare Linton, 275 S.W.3d at 496 (explaining how two court-appointed 

interpreters testified), with Linton v. State, 246 S.W.3d at 700 (“trial proceeded with 

a single interpreter.”).

7 The defendant later argued the additional interpreter was inadequate because the 

interpreter was restricted to only communicating with the defendant during breaks 

in trial. Linton, 275 S.W.3d at 498. The trial court again denied the motion for 

mistrial and the motion to suppress. Id.
13

trial proceeded using these interpreters. The defendant then moved for a new trial,

arguing that she did not understand what was happening using the two interpreters. 

Id. at 499. The trial court held a hearing, heard testimony on the matter, and denied 

the motion. Id.

The record before us is significantly different. Here, there are no 

communications by Tolentino to the trial court demonstrating Spanish competency. 

Tolentino never had an exchange with the trial court, nor did he testify before any 

ruling on what type of interpreter should be appointed. The trial court here also did 

not have evidence before it like the trial court in Linton did. 

In Linton, there was evidence of the defendant’s ability to communicate in 

English based on her graduation from high school, admission to college, possession 

of her driver’s license, the defendant’s ability to exchange insurance information 

after a car accident, and an explanation of how the defendant communicated with 

the arresting officer. Additionally, when confronted again at trial with the 

defendant’s inability to communicate effectively, the Linton trial court took

additional steps to safeguard the defendant’s rights by appointing a table interpreter 

who was not restricted to literal translations and was given the instructions to “break 

down anything to the level at which [the defendant] can understand.” The trial court 

here took no similar steps. A final difference is that here we are only reviewing the
14

trial court’s ruling based on the information available at the time it appointed the 

interpreter. See Amador, 221 S.W.3d at 677.

In reaching its holding, the Linton court considered cases from across the 

country where defendants were given interpreters in languages other than what they 

requested. We consider their applicability here.

First, in People v. Warcha, there was ample evidence of the defendant’s 

Spanish proficiency despite his late request for a Quiche interpreter. People v. 

Warcha, 17 A.D.3d 491, 492–93 (N.Y. App. Div. 2005). The appellate court 

reviewed the trial court’s rulings, based on the evidence available to the trial court 

at the time it ruled, to not nullify proceedings that occurred before the defendant’s 

request for a Quiche interpreter and to continue with trial using the Spanish 

interpreters. Id. The defendant raised his request for a Quiche interpreter 10 months 

into the case, after pretrial proceedings, and two days into jury selection. Id. at 492.

The trial court had two Spanish interpreters independently interview the defendant,

and they reported that the defendant could understand Spanish if they spoke slowly. 

Id. The trial court ordered a recess to locate a Quiche interpreter, but none was found. 

Before proceeding without a Quiche interpreter, the trial court had a conversation 

with the defendant and determined that the defendant was proficient in Spanish. Id.

The trial court also instructed the interpreters to signal the court whenever necessary 

to ensure that the defendant would have the proceedings fully explained to him. Id.
15

at 493. Moreover, the defendant had communicated in Spanish with co-workers for 

two years, his education was in Spanish and Quiche, and he had communicated with 

counsel in Spanish during the 10 months of his case. Id. at 492–93. 

Another case Linton considered, Gado v. State, held that proceeding with a 

French interpreter over the defendant’s objection and request for a Djerma 

interpreter was permissible when there was ample evidence that the defendant 

understood French and English. Gado v. State, 882 N.E.2d 827, 830–31 (Ind. Ct.

App. 2008). The appellate court only considered the information available to the trial 

court at the time of its ruling. Id. The trial court attempted to procure a certified 

Djerma interpreter upon the defendant’s request but only found two uncertified 

Djerma interpreters. Id. at 829. During trial, the interpreters told the trial court that 

they were threatened with repercussions if they continued translating. Id. The trial 

court suspected the defendant made these threats and declared a mistrial. Id. The trial 

court tried unsuccessfully to find another Djerma interpreter. Id. During a hearing to 

determine the defendant’s language proficiency, the trial court recalled interacting

with the defendant on several occasions in English and that the defendant had 

participated in earlier proceedings using a French interpreter. There was also

evidence that the defendant had conversations in English lasting over an hour on 

various topics, including his family, where he lived, and his criminal history. Id. at 

830–31.
16

Finally, Linton also considered Costa v. Williams, where the appellate court 

found that using a Spanish interpreter was sufficient when there was evidence that 

the Portuguese defendant gave detailed answers to the trial court’s questions and did 

not request a Portuguese interpreter until his habeas petition. Costa v. Williams, 830 

F. Supp. 223, 224 (S.D.N.Y. 1993). The defendant’s petition was also written in 

English and signed by him without any indication that an interpreter was used or 

needed. Id. at 224 n.2.

Here, Tolentino made the trial court aware of his need for a Nahuatl interpreter 

a year before trial. No independent Spanish interview was done with Tolentino

before trial. Trial counsel informed the trial court that he had used a Nahuatl speaker 

to communicate with Tolentino. And Tolentino’s family communicated in Nahuatl.

Thus, the cases highlighted in Linton are inapposite. 

Because the trial court was aware that Tolentino had difficulty understanding 

English, it was required to ensure that the trial proceedings were translated into a 

language that Tolentino could understand. Garcia v. State, 149 S.W.3d 135, 145 

(Tex. Crim. App. 2004). The trial court recognized the need for a Nahuatl interpreter 

and delayed the trial for a year to procure one, but it changed course based on 

testimony from Detective Nerio. While a trial court “must be given wide discretion,”

the ultimate question before this Court is whether any inadequacy in the 

interpretation made the trial fundamentally unfair. Linton, 275 S.W.3d at 503. Linton
17

instructs us that we measure the trial court’s decision on interpretive services by 

whether the defendant has a basic understanding of the proceedings to support his 

participation in them. See id. at 500–04 (trial is fundamentally unfair when defendant

is unable to assist in his own defense). 

The record shows that during Tolentino’s arrest he appeared confused and 

spoke minimal broken Spanish, that Tolentino communicates with his family 

primarily in Nahuatl, and that trial counsel, a Spanish speaker, used a Nahuatl 

speaker to communicate with Tolentino, so it follows that Tolentino would not be 

able to understand the proceedings well enough to assist in his own defense absent 

a Nahuatl interpreter. The record also reflects that a Nahuatl interpreter was 

available, at least virtually, but that the trial court chose not to use that interpreter.

We find that the interpretation provided was inadequate because Tolentino required 

a Nahuatl interpreter, so the trial was fundamentally unfair. Id. at 505 (defendant is 

denied due process when “the nature of the proceeding is not explained to him in a 

manner designed to insure his full comprehension” (internal quotation omitted)). 

Accordingly, the trial court’s decision to proceed with a Spanish interpreter was an 

abuse of discretion. 

Because we limit our review to solely the trial court’s ruling to appoint a 

Spanish interpreter based on the information available at the time of that ruling and 

reverse based on Tolentino’s due process rights, we need not consider Tolentino’s 
18

remaining constitutional challenges or the remaining issue involving his motion for 

new trial.

8 See TEX. R. APP. P. 47.1. We sustain Tolentino’s due process issue.

Conclusion

We reverse and remand for new trial.

Sarah Beth Landau

Justice

Panel consists of Justices Kelly, Landau, and Farris.

Publish. TEX. R. APP. P. 47.2(b).

8

“[T]he cardinal principle of judicial restraint—if it is not necessary to decide more, 

it is necessary not to decide more—counsels us to go no further.”” PDK Labs. Inc. 

v. U.S. Drug Enf’t Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., 

concurring); accord VanDevender v. Woods, 222 S.W.3d 430, 433 (Tex. 2007).