### 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. 03-12-00098- CR

Justin T odd Vald ez, A ppellan t

v. The State of Texas, App ellee

F ROM TH E CO UNTY COURT AT LAW O F CALDWELL CO UNTY NO. 410 70, H ONO RAB LE EDWARD J. JARRETT, JUDGE P RESIDING

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

A p p e ll a nt Ju s ti n T o d d V a ld e z a

p p e a ls h is conviction for the offe nse of assault

- f a mi ly violence. See Tex. Penal Code § 22.01. In five poi n t s o f err or, appellant contends that the trial court err ed when it did not provide a sign lang uag e interpre ter, denied appellant’ s motion for new trial, and acc epted appellant’ s plea of nolo contende re. He also urg es the trial co u rt violated his fede ral and state due proce ss rig hts. See U.S. Const. amends. VI , XI V; Tex. Const. art. I , §§ 10, 19. We affir m the judgme nt of conviction.

BACK GR OUND Appellant appea

red without an att o rney at an arr aig nment proce eding on October 18, 2011. At the outset of the hear ing, the trial court questioned appellant and confirme d that appellant had a “hea

ring impairment” but that he could rea d lips. Appellant was also wea ring hear ing aids. Appellant responde d “Ye s” when asked by the court if he would like “to visit with theprosec utor to see if y ou can rea ch an ag ree ment about y our case .” After an ag ree ment was rea ched

betwee n the State and appellant, appellant signe d a waiver of rig h t s and enter ed a plea of nolo contende re, and the trial court sentenc ed appellant in confor mity with the ag ree ment. The trial court found appellant g uilty of the offe nse of assault-fa mily violence and assessed a sentenc e of 365 day s confine ment and a fine of $1,000 plus court costs but place d appellant on community supervision for a period of two y ear s.

Appellant there afte r reta ined an attorney and filed a motion for a new trial in the interest of justice. He contende d that he was “a deaf person who is substantially hear ing impaired i n b o t h ea rs , ” t h at he “uses hear ing aids to help him hear , but must rea d lips in order to try and understand what is being said to him,” and that he “did not understand what was actua lly occur ring [during the October court proce eding ] and he thought that the a ttorney for the State in this matter

was his attorney .” He also contende d that he reque sted an interpre ter but that one was not provided.

An evidentiar

y hear ing was held on the motion for new trial on Dec ember 19, 2011. A s ign lang uag e int erpr eter was at that hear ing. Appellant testi fied that he often misunderstands when rea ding lips and that he was confuse d by the waiver of rig hts a nd did not understand what a

no contest plea was or that he had the rig ht to a jury trial on the matter. Appellant also testified that he was “har d of hear ing” and that he asked a “lady cl er k ” fo r an interpre ter on the day of the October court proce eding

. He confirme d, howeve r, that he did not ask the trial court or the prosec utor for an interpre ter on that day and that he was wea ring hear ing aids. The transcr ipt from the Octobe r cour

t proce eding also was a dmitted as an exhibit

.

2The t ri al co u rt denied the motion for new trial but g ave appellant permission to

appea l the j udg ment of convictio n. The trial court also made findings of fac t and conclusions of law. This appe al followed.

DISCUSSIO N Interprete r I n his first, fo u rt h , an d fifth points of err or, appellant contends that the trial court

err ed when it did not pr ovide a qualified sign lang uag e interpre ter during the court proce eding on October 18, 2011. He contends that the failure to provide an interpre ter viol ated article 38.31 of the Texas Code of Criminal Procedur e, see Tex. Code Crim. Proc. art. 3 8

. 3 1 , and that the trial court’s misapplication of the law viola t ed h i s due proce ss rig hts under the Six th and Four teenth Amendments to the U.S. Constit ution and Article I , sections 10 and 19 of the Texas Constit ution. See U.S. Const. amends. VI , XI V; Tex. Cons t. art. I , §§ 10, 19.

Section 38.31 states in rele vant par t: (a) I f the court i s n o t i fi ed by a party that the defe ndant is deaf and will be prese nt at an arr aig nment [or] hear ing,

. . . the court shall appoint a qualified interpre ter to interpre t the proce eding s in any lang uag e that the deaf person can unde rstand, includingbut not lim ited to sign languag e.

. . . (g ) I n this Code: (1) “De af person ” means a person who has a hear ing impairment, reg ardle ss of whether the person also has a speec h impairment, that inhibits the person’ s compre hension of the proce edi n gs or communication with others.

3Tex. Code Crim. P roc. a rt. 38.31(a) , (g ). Article 38.31 implements the constitutional right to confr ontation, w hich includes the defendant’s right to “suff iciently understand the p ro ce ed i n gs ag ainst him such t hat he is able to assist in h is own defe nse.” Linton v. State , 275 S.W .3d 493, 501, 503–04 (Tex. Crim. App. 2 0 0 9 ); see Lincoln v. State , 999 S.W .2d 806, 809 (Tex. App.—Austin 1999, no pet.). Fur th er , courts “have rec og nized an obligation outside the statute, based on state and fede ral constitutional law, to fashion a reme dy suitable to overc ome a particula r defe ndant’s disability .” Adams v. State , 749 S.W .2d 635, 639 (Tex. App.—Housto n [ 1 s t Di s t .] 1988, pet. ref ’d); see also U.S. Const. amend. VI , Tex. Const. art. I , § 10. Once a trial court lear ns that a defe ndant is deaf , “the trial court is responsible for taking whateve r steps are nece ssary to ensure minimum understanding .” Linton , 275 S.W .3d at 503–04.

The controlling issue here is whether the trial court should have been aw are that app el l an t was a “dea f person” as that term is define d under article 38.31. See Tex. Code Crim. Proc. art. 38.31(g )(1) ; Linton , 275 S.W .3d at 503

– 0 4 ; Lincoln , 999 S.W .2d at 809–10; see also Ex par t e C ockre ll , 424 S.W .3d 543, 551 (Tex. Crim. App. 2014) (noting that “whe ther the trial

cour t s h o u l d h ave rea liz ed that applicant had a hear ing impairment

. . . is pertinent when the complaint relates to whether the trial cour

t committed error

by failing to appoint a

n interpre ter” ). Although appellant testified at t h e hear ing on the motion for new trial that he reque sted an interpre ter from a “lady cler k,” he was unable to otherwise identify the cler k, and the rec ord ref

lects that he did not reque st an interpre ter from the court at any time during t he court proce eding in October

. At the outset of the hear ing, the trial court confirme d with appellant that he had a “hea ring

4impairment” but that he was able to rea d lips and appellant was wearing hear ing aids. The court

direc tly communicated with appellant throug hout the course of the proce eding , and appellant was able to answ er the court’s que stions and otherwise f ollow the court’s dire ctions. 1 The court also took steps to make sure appellant hear d and understood what was happening during the court proce eding

. When the court asked the prosec utor to say on the rec ord the agr eed rec ommendation for sen t en ci n g, the t rial court direc ted appellant that he “might want to turn and look at her to make sure y ou understand it all.” After the p rosecutor stated the

rec ommendation, the court asked appellant: “Now, Mr. Valdez, was that y our understanding and ag ree ment? I s that what y ou ag ree d to befor e y ou walked up here ? ” Appellant answe red: “That’s true.” Appellant also signe d a written waiver of rig hts and answe red “Ye s, sir” when asked by the

For example, afte r the court sentenc ed appellant and advised him that the court was g oing 1 to probate his jail sentenc e for two y ear s, the court a

nd appellant ha d the following exchang e: [The Court] : No w ar e y ou living in Caldwell County or [do] y ou live i n T ra v i s

County ? [Appellant] : Caldwell County

. [The Court] : Caldwell? [P rosec utor]: He wor

ks in Travis. [The Court] : All rig ht. Now, do y ou have any questions that y ou want to ask me? [Appellant] : Where is the probation office? [The Court] : Okay , we’ re going to s en d y ou over to the probation office in just a

minute. . . . What else? [Appellant] : That’s it. 5court if the signature on the waiver was his and answe red “True ” when asked by the court: “When

y ou signe d this, y ou’re telling me that y ou’ve rea d it and y ou understand what y our leg al rig hts are , true? ” Although appellant stated at other times during the hear ing that he did not understand cer tain

s t at em en t s b y the court, appellant did not advise the court that he was unable to hear , such as b y asking the court to repe at a question. I n context, the nature of his misunderstanding s conce rned the substance of

the cour t’s statements, not an inability to hear what the c ourt was sa

y ing. Given that appellant was able to communicate with others and to respond ap p ro p ri ately to questions and direc tions from the court during the plea proce eding on October 18, 2011, the t rial court could have rea sonably conclude d that ap p el lant was not a “deaf person” as that term is define d under article 38.31. See Tex. Code Crim. Proc

. art. 38.31; Linton , 275 S.W .3d at 503–04; Salazar v. State , 93 S.W .3d 339, 341 (Tex. App.—Texarkana 2002, pet. ref ’d) (conc luding that failure to pr ovide interpre ter for victim’s te stimony following defe ndant’s g uilty plea d i d not contribute to punishment assessed (citing Tex. R. App. P. 44.2(a) )); see also Sifuentes v. State , No. 11-11-00293- C R , 2013 Tex. App. L EXI S 9592, at *2–6 (Tex. App.—Eastland Aug

. 1, 2013, no pet.) (mem. op., not desig nated for publication) (conc luding that trial court did not err when it did not provide an interpre ter and noting that rec ord “does not reve al any fac ts indicating that the trial court should have b ee n aw ar e t h at Appellant had difficulty understanding the Eng lish lang uag e”)

. Thus, we conclude that the trial court did not reve rsibly err when it did not provide an inter prete r. Fur ther, we conclude that appellant has not e stablished that the trial court violated his due proce ss rig hts when it did not provide an interpre ter. See Linton , 275 S.W .3d at 501 (listing

6“lip rea ding” and “wr itten communication” as possible “solutions to provide the particula r defe ndant with ‘ the minimum level’ of understandingthat is c onstitut ionally require d”); Lincoln , 9 9 9 S

. W

. 2 d at 810 (conc luding that “not persua ded that the court failed to take constitutiona l l y adequate steps to assure that appellant hear d and understood the proce eding s”); Adams , 749 S.W .2d at 638–39 (discussing alternative methods for providing “minimum leve l of understanding that is constitutionally

require d”). We ove rrule a ppellant’s first, four

th, and fifth points of er

ror. Motion for New T

rial I n his second point of err or, appellant contends that the tri al co u rt erred when it denied his motion for new trial. Appellant’s motion for new trial was based on his alleg ed inability to understand and assist in his defe nse at the proce eding on Oc tober 18, 2011, beca use of his “hea ring disability .” A trial court may g rant a new trial “in the interest of justice,” and its decision to g rant or deny a d ef

endant’s motion for new trial is revie wed under an abuse of discretion standard. State v. Herndon , 215 S.W .3d 901, 906–07 (Tex. Crim. App. 2007). Under that standard, “[w]e do not substitute our judg ment for that of the trial court; rathe r, we decide whether the trial court’s decision was arbitra ry or unrea sonable.” Holden v. State , 201 S.W .3d 761, 763 (Tex. Crim. App. 2006). “A t ri al court abuses its discretion in denying a motion for new trial only when no

rea sonable viewof the re cord c ould support the trial court’ s ruling.” Id.

As previously stated, appellant had a sign languag e interpre ter at the hear ing on his motion for new trial. He also testified about his hear ing impairment and his lack of understanding of the October proce eding beca use of this impairment. His position was that, without an interpre ter, he was unable to understand the proce eding ag ainst him or to defe nd himself. T h e t ri al co u rt , 7howeve r, observe d appellant at the proce eding on October 18, 2011, and “wa s in the best position

to judge the cre dibilit y of appellant’ s claim” that he was unable to understand what was happening at t he procee ding b ecause of a hearing impairment. See Lincoln , 999 S.W .2d at 810 (noting that district court in “best position to judge cre dibilit y of appellant’ s claim that he did not hear the proce eding s” beca

use the court “obser

ved appellant throug hout the trial”). The trial court’s finding of fa ct included:

3. The Def

endant J ustin Todd Valdez informed the Court that he was hear ing impaired, but indicated that he could rea d l i ps. The Def endant never reque sted the aid of a

deaf interpre ter.

. . . 13. At no time did the Def endant J ustin Todd Valdez indicate to the Court that he was not able to communicate with the Court or State’s counsel, or that he did not understand the statements made to him, or that he did not understand the written admonishments that he executed, or that he wanted the service s of a de af inter

prete r.

Ba sed on its finding s, the trial court conclude d that appellant “fa iled to show g ood cause why [hi s]

m otion for new trial should be g rante d.” On this rec ord, we cannot conclude that the trial co u rt abused its discretion when it denied appellant’ s motion for a new trial. See id. We overr ule appellant’ s second point of e rror . Plea of Nolo Cont endere I n his third point of err or, appellant contends that the trial court erred when it

ac ce p ted appellant’ s plea of nolo contende re beca use it was not fre ely and voluntarily g iven and

8beca

use the trial court failed to admonish him in compliance with article 26.13 of the Texas Code of Criminal Procedur e. See Tex. Code Crim. P roc. a rt. 26.13. For purposes of this appea l, article 26.13 require s the court to admon i s h the defe ndant prior to acc epting a plea of nolo contende re and prohibits the court from acc epting a plea of nolo contende re “unless it appea rs that the defe ndant is mentally competent and the plea is fre e and vo l u n t ar y .” See id

. art. 26.13(a) , (b). “[S] ubstantial compliance is sufficie nt, unless the defe ndant aff

irmatively shows that he was not awa re of the conseque nces of his plea and that he was mis l ed or harme d by the admonishment of the court.” Id

. art. 26.13(c)

. I n considering the voluntariness of a plea, we examine the rec ord as a whole. W illiams v. State , 522 S.W .2d 483, 485 (Tex. Crim. App. 1975). Fur ther, the failure to admonish is subject t o harm a naly sis of statutory

err or. See Tex. R. App. P. 44.2(b); Fake ye v. State , 227 S.W .3d 714, 716 (Tex. Crim. App. 2007) (noting that failure to admonish subject to harm ana ly sis of statutory err or). Appellant contends that he did not enter his p l ea freely or vol untarily beca use t he

rec ord shows that he was unawa re of the conseque nces of his plea, did not understand his options

or the proce eding , and thought he was following the advice of counsel beca use he thought the State’s attorney was his attorney
. He urg es that “ther e was no voluntary waiver of his r ights” and that he was not pr operly admonished by the trial court, specific ally as to the waiver of his r ight to appea l and the non-binding nature of a plea ag ree ment. See Tex. Code Crim Proc. art. 26.13(a) (2), (3). Appellant also urg es that he was confuse d by the written waiver of rig hts beca use it was in Eng lish and he was in specia l education classes. Appellant testified at the hearing on his motion for new trial that he did not understand what a no contest plea was, that he told the trial court at the

9proce eding on October 18, 2011, that he did not understand, and that he “wa s in specia l ed classes”

and that he “ still had some proble ms understanding written and unde rstanding Eng lish also.”

The rec ord from the October proce eding does n o t s upport appellant’ s arguments. The recor d shows that the t rial court oral l y ad m o n ished appellant during the court procee ding as to his rig hts to a formal arr aig nment, the rig ht to be repr esente d by an attorney , the rig ht to have an attorney appointed if he could not aff ord one, the rig ht to rema in silent, the rig ht to a jury trial, and the rig ht to enter a plea of not g uilty , g uilty , or no contest to the char g e. The trial co u rt also admonished appellant as to the rang e of punishment, and appellant signe d a written waiver of rig hts. The trial c ourt’s finding s of fa ct included:

4. The Def

endant J ustin Todd Valdez was admonished by the Court of his rig ht to a formal arr aig nment; the rig ht to be repr esente d by an attorney ; the rig ht to ha ve an attorney appointed to r epre sent him if he was poor and couldn’t hire an attorney ; the ri gh t t o rema in silent; the rig ht to a trial by jury or befor e the judge ; a

nd the rig ht to enter a plea of Not Guilty , Guilty or Nolo Contendere to the char g e pending

. The Def endant stated he understood his rig hts. The Def

endant was admonished as to the rang e of punishment for a Class “A” Misdeme anor. 5. T he Def

endant J ustin Todd Valdez elec ted to enter into plea neg otiati o n s with the State of Texas. 6. The Def

endant J ustin Todd Valdez was ag ain admonished of his leg al rig hts and the r ang e of punishment for a Class “A” Misdemeanor

. 7. The Def

endant J ustin Todd Valdez indicated that he could rea d and write Eng lish and there afte r he executed a written waiver of rig hts document and repr esente d to t h e Court that he understood his rig hts, that he wished to waive his rig hts, and that he wanted to enter a plea of No C ontest to the char g e.

10Ba sed on its finding s, the trial court conclude d that appellant “made a knowing waiver of his leg al

rig hts and enter ed into a neg oti at ed plea.” The trial court also g rante d appellant permission to

a ppeal despite the plea ag ree ment, and the trial court’s sentenc e confor med with the neg otiated ple a . Although the rec ord does not show that the t rial court admonished appellant as to the waiver of his rig ht to appea l and the non-bin d i n g n at ure of a plea ag ree ment, based on

our rev i ew of the rec ord as a whole, we conclude that the trial court substantially complied with article 26.13 when it acc epted appellant’s p l ea of nolo contende re. See Tex. Code Crim. Proc. art. 26.13(c ); W

illiams , 522 S.W .2d at 485. Further, we conclude that any err or by the trial cour

t

was harmless. See Tex. R. App. P. 44.2(b ); F a key e , 227 S.W .3d at 716. Thus, we overr ule appellant’ s third point of error

.
CONCLUSION

For these re asons, we a ffirm the judg ment of convic tion.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ____ _ _ _ _ _ _ Melissa Goodwin, Jus tice Be fore Chief J ustice Jones, J ustices Goodwin and F ield Affir med Filed: August 29, 2014 Do Not Publish

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