NO CR IN THE FIFTH COURT OF APPEALS OF TEXAS DALLAS, TEXAS. JUAN CARLOS HERNANDEZ, Appellant VS. THE STATE OF TEXAS, Appellee

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1 NO CR IN THE FIFTH COURT OF APPEALS 5th Court of Appeals FILED: 03/08/ :00 Lisa Matz, Clerk OF TEXAS DALLAS, TEXAS JUAN CARLOS HERNANDEZ, Appellant VS. THE STATE OF TEXAS, Appellee On Appeal from the Judicial District Court # 194 Of Dallas County, Texas Trial Court Cause No. F M BRIEF FOR THE APPELLANT ROBERT J. HERRINGTON P. O. BOX PLANO, TEXAS TELEPHONE (972) FACSIMILE (972) STATE BAR NO ATTORNEY FOR APPELLANT Oral Argument Requested 1

2 IDENTITY OF PARTIES AND COUNSEL 1. Trial Judge: The Honorable Ernest White, Judge of the 194th Judicial District Court of Dallas County, Texas, presided over the trial and sentencing in case number F M. 2. Appellant: Juan Carlos Hernandez, # , TDCJ, BELO Unit, 1391 F.M. 3328, Tennessee Colony, TX Counsel for Appellant: Robert J. Herrington, P.O. Box , Plano, TX At trial, the defendant-appellant was represented by the Hon. James Jamison, Attorney at Law. 4. The State of Texas was represented by the Hon. Jennifer Morse and the Hon. Anthony Eiland, Assistant District Attorneys, at the trial court level, and is represented on appeal by and through Craig Watkins or his delegate, at 133 N. Riverside, Dallas, TX

3 STATEMENT REGARDING ORAL ARGUMENT Appellant requests oral argument. 3

4 TABLE OF CONTENTS Identity of Parties and Counsel Statement Regarding Oral Argument Table of Contents Index of Authorities Statement of the Case Issues Presented Statement of Facts Summary of the Argument Argument Prayer Certificate of Service

5 INDEX OF AUTHORITIES CASES: Oprean v. State, 201 S.W.3d 724, 726 (Tex.Crim.App.2006) Saavedra v. State, 297 S.W.3d 342 (2009) STATUTES and RULES: TEX. R. EVID. 602, 604, and TEX. PENAL CODE

6 STATEMENT OF THE CASE In this case, Appellant was charged, on April 15, 2010, by Indictment with the offense of Aggravated Robbery with a deadly weapon, Texas Penal Code (CR1, 5) 1 On June 8, 2011, after a jury trial and verdict of guilty, Appellant was sentenced to 52 (fifty-two) years imprisonment in the TDCJ (CR1, 40). Appellant timely filed a Notice of Appeal on June 8, 2011 (CR 1, 45). Undersigned counsel was appointed to represent Appellant on appeal, and this appeal and brief follow. ISSUE PRESENTED 1. Whether the court abused his discretion in permitting a state witness police officer to testify, over objection, as to the content of defendant s video recorded Spanish language confession, where there was no showing of the officer s qualifications or training to do so. STATEMENT OF FACTS Testimony of Officer Gilberto Martinez, III This officer is a detective with Dallas Police Department who interviewed defendant after his arrest and recorded his statement. (RR3: 11) According to his testimony, the Crandall, Texas Police Department provided him with a video of a traffic 1 Unless otherwise indicated, references to the Clerkʼs Record are made in the following fashion: CR1, [page number]. References to the Reporterʼs Record are made as follows: RR1, [page number]. 6

7 stop, for speeding, of a person who had been driving the victim s car on September 8, He also took biographical information of the driver, who self-identified as Juan Carlos Hernandez, again on September 8, (RR3: 79) He later learned that the vehicle had been towed away, on September 26, 2009, from an apartment complex for not having the appropriate parking sticker. The car was then returned to the victim/ owner, who then reported that she found a ticket in the car that had been issued by the Dallas County Constable s office on September 23, This ticket had been issued to the brother of defendant Juan Carlos Hernandez. The officer then learned that defendant Hernandez was in custody in Dallas, and he then went to interview him, on March 30, 2010, while he was in custody. Defendant agreed to talk to the officers and the statement was recorded. Defendant according to the officer admitted on videotape to being at the location of the robbery and gave details which, the officer said, only the complainant or the offender would know. (RR3:88) Specifically, he testified that defendant told the officers that his homeboy, evidently meaning a companion, stuck a screwdriver in the back of a lady s car and that defendant then jumped in the vehicle and drove away. (RR3: 89) He named the companion but the officers were unable to locate him. The officer identified defendant in the courtroom as the person he had interviewed concerning the robbery. (RR3: 95) During the testimony, but before the officer testified as to the particulars of the incriminating video statement, defense counsel timely objected to the witness serving in the capacity of a translator as the testimony was in English but consisted of the officer 7

8 translating the defendant s statement. (RR3: 108) The objection was denied in the words of the trial judge. (RR3: 109) " Testimony of Criselda Salazar This witness was the alleged victim in the case. She testified that she was in her car on September 8, 2009 when two men pulled her from her car and one put an object to her back. (RR3: 18) One looked Mexican-American but she could not describe the appearance of the other, though both were more or less skinny.) They took her cell phone, keys and car and drove away. She admitted it was dark in the driveway and she could not identify anyone n the courtroom as one of the attackers, though defendant was of course in the courtroom at the time. (RR3:19) She claimed to have seen the weapon and described it as an icepick. (RR3: 33) She was cared and crying during the offense. (Id.) When she later recovered her car, she found a steel (apparently meaning crowbar or some similar tool) and a traffic ticket and shoes that did not belong to her. (RR3: 38) Testimony of Officer Sara Vergara This officer interviewed the victim the night of the offense and described her as crying and upset. (RR3: 46) The victim gave her license plate number to the officer and generally described the offense. she made a report and entered into a national crime database (NCIC), identified the defendant as the person he arrested on the day of the incident. He assisted in the arrest but did not see the incident itself. (RR3: ) 8

9 Testimony of Officer Christopher Biggs This officer identified defendant as a person who had been stopped and ticketed for speeding, in the victim s car, on September 8, 2009 in Crandall, Texas. As he was issuing the ticket, the officer noticed the defendant giving what appeared to the officer as suspicious and inconsistent stories of why he was speeding, defendant claiming that he was on the way to the hospital to see his wife, but the officer unable to confirm the wife s presence at the hospital whose name defendant provided. He ticketed the defendant and let him leave the scene, and then received information about an hour and a half later to the effect that the car had been stolen. (RR3: 64) He taped the scene of the stop and the video was entered into evidence. On cross examination, the officer agreed that he had found no weapons on defendant s person or inside the car. (RR3: 69) The jury retired and returned a verdict of guilty. Punishment phase After the jury returned a verdict of guilty, the State presented evidence to the effect that defendant had previously been convicted of burglary of a building and burglary of a habitation, had received probation for the former and had it revoked, and had previously been sent to the Texas Youth Commission for offenses committed as a juvenile, including robbery. (RR4: 19-22) 9

10 The jury then found the defendant guilty of the offense of aggravated robbery with a deadly weapon, found the enhancement paragraph of the indictment, alleging a prior conviction for burglary of a habitation to be true, and assessed punishment at 52 years and a fine of $10, (RR4: 55) SUMMARY OF THE ARGUMENT The trial court erred in permitting the state s witness to translate the defendant s video-taped statement made after his arrest. The testimony was hearsay. Moreover, there was no showing by the state or by the witness that he had sufficient training or experience to properly render the statement from Spanish into English. As the lead detective on the case, the officer s bias was self-evident and constituted a separate basis for disallowing his testimony on this issue of interpretation. 10

11 ARGUMENT ISSUE 1: The court erred in permitting a police officer to testify, over objection, as to the content of defendant s video recorded Spanish language confession. STANDARD OF REVIEW: The appellate standard for reviewing the trial court s determination is abuse of discretion. Oprean v. State, 201 S.W.3d 724, 726 (Tex.Crim.App.2006). DISCUSSION: Rule 602 of the Texas Rules of Evidence provides that a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Tex. R. Evid (Emphasis added.) An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation. Tex. R. Evid

12 In this case, officer Gilberto Martinez testified as to the substance of defendant s responses to questions, during a custodial interrogation. Defense counsel objected as follows before the officer began narrating and paraphrasing the defendant s recorded statement: Judge, I'm -- he's serving the capacity of a translator. He can certainly tell us what he's saying, but if he's interpreting what some other person is saying we have a translation issue. (RR3: 108) This officer presented no information to the court to establish his competency as an interpreter, much less his certification or licensure as such, beyond a bald statement that I m a Spanish speaker. (RR3: 102) The State of Texas has strict and particular rules regarding the licensing of interpreters. See Administrative Rules of the Texas Department of Licensing and Regulation, 16 Texas Administrative Code, Chapter 80. The rules require, inter alia, as follows: License Requirements--Examination. (Effective October 18, 2001, 26 TexReg 8065; amended effective February 1, 2004, 29 TexReg 627; amended effective November 11, 2011, 36 TexReg 7315) (a) Each applicant must pass all parts of a Department approved language examination. (b) An applicant must pass the written examination with a score of 80%. (c) An applicant must pass all three parts of the oral examination according to the following: (1) an applicant scoring at least 60% on each part of the oral examination is eligible for a Basic Designation license. 12

13 (2) an applicant scoring at least 70% on each part of the oral examination is eligible for a Master Designation license. (d)an applicant taking an examination must comply with the Department's examination requirements under 16 Texas Administrative Code Chapter 80, Subchapter E. In Saavedra v. State, 297 S.W.3d 342 (Nov. 4, 2009), the Court of Criminal Appeals remanded a case where the appellant had made qualified admissions to an officer through an interpreter. In considering whether the defendant had adopted an interpreter as his agent, the court observed that a number of courts have considered the following factors: who supplied the interpreter; whether the interpreter had any motive to mislead or distort; the interpreter's qualifications and language skills; and whether actions taken subsequent to the translated statement were consistent with the statement as translated. In Saavedra, the Court noted that the trial court had no information regarding the interpreter s qualifications, other than that the interpreter had been on a list of approved translators [sic] and that he s the one that we normally use. The testifying officer did not know what expertise, training or certification the interpreter might have had to qualify him to interpret from Spanish to English. 13

14 holding: The case was therefore reversed and remanded, the Court of Criminal Appeals We therefore hold that, taking these factors into account, if the proponent of an out-of-court translation of an out-of-court statement of a party can demonstrate to the satisfaction of the trial court that the party authorized the interpreter to speak for him on the particular occasion, or otherwise adopted the interpreter as his agent for purposes of translating the particular statement, then the out-of-court interpretation may properly be admitted under Rule 801(e)(2)(C) or (D) of the Texas Rules of Evidence. If the trial court is not so satisfied, it should sustain a hearsay objection to the out-ofcourt translation, under Rule 802 of the Texas Rules of Evidence. As with all questions of admissibility of evidence, the appellate standard for reviewing the trial court's determination is abuse of discretion. In the instant case, the objection was well-founded and timely. The first two tests alone under Saavedra make the ruling immediately suspect: the state supplied the interpreter and the interpreter was the lead detective with a motive to distort, or at least hear what he wanted to hear. While counsel s objection might narrowly be read to have meant he objected only to the officer s competency under the Rules of Evidence to render the statements of defendant from Spanish into English, it should more broadly and fairly be read as an objection to both competency and hearsay. Under either test, the testimony was improper and the trial judge abused his discretion in overruling the objection. The conviction should be reversed and the case remanded for new trial. 14

15 PRAYER Appellant prays that the judgment be reversed and remanded with instructions to conduct a new trial. Respectfully submitted, /s/ Rob Herrington ROBERT J. HERRINGTON P. O. BOX PLANO, TEXAS TELEPHONE (972) FACSIMILE (972) STATE BAR NO CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Appellant s Brief was served March 8, 2012, upon the District Attorney of Dallas County, Appellate Division, Dallas, TX 75071, by hand delivery or by depositing the same, postage prepaid in the United States Mail first class, in an envelope, properly addressed to his address of record. A copy was also mailed to defendant the same day, c/o Texas Department of Corrections, Juan Carlos Hernandez, # , TDCJ, BELO Unit, 1391 F.M. 3328, Tennessee Colony, TX /s/ Rob Herrington Robert J. Herrington 15

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