COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
MERCEDES ESCAMILLA, )
) No. 08-03-00193-CR
Appellant, )
) Appeal from the
v. )
) 168th Impact District Court
THE STATE OF TEXAS, )
) of El Paso County, Texas
Appellee. )
) (TC# 20020D02196)
)
O P I N I O N
Appellant, Mercedes Escamilla appeals from a conviction for possession with intent to distribute a controlled substance. After finding her guilty, the jury assessed a punishment of 9 years= confinement and imposed a $5,000 fine. Appellant raises three issues on appeal. Appellant first contends that the trial court abused its discretion in denying her motion for mistrial. Secondly, Appellant challenges the accuracy of the translation and the competency of the court-appointed interpreter. Finally, in her third issue, Appellant alleges error in the jury charge. We affirm.
Detective Luis Serrano, of the El Paso Police Department Narcotics Section, received a tip that the house at 11758 Prado Del Sol was being used as a stash house. After conducting surveillance on the home for about a month, Detective Serrano determined that no one lived in the house. On April 25, 2002, Detective Serrano saw a yellow truck backed up into the driveway of the home; the bed of the truck inside the garage, with the garage door partially down. Detective Serrano then witnessed two men exit the house, close the garage door, and drive away in the truck. Using his radio, he requested for the truck to be followed and for a K-9 unit to assist in the event that the truck was stopped.
Continuing to watch the house, Detective Serrano saw a male and a female, later identified as the Appellant, exit the house and drive away in a small red car. Detective Serrano proceeded to follow the car and radioed in to request for a traffic stop to be conducted on the vehicle. El Paso Police Officer Carlos Contreras, a uniformed motorcycle officer, performed the stop. Once the car was stopped, Detective Serrano and another detective that had met him there, walked over to where Officer Contreras had conducted the stop. Officer Contreras gave Detective Serrano the names of the driver and the passenger of the vehicle. Detective Serrano then approached the driver, asked him his name, and identified himself as a police officer and told the driver he was conducting an investigation on the house located on Prado Del Sol. He noticed the driver was extremely nervous and was being evasive in answering the questions Detective Serrano was asking him; the driver further denied being at the house in question. The driver of the vehicle then gave consent to have the car searched by the K-9 unit. The search uncovered a black plastic trash bag which contained individual plastic wrappings that looked and smelled like cocaine. When Detective Serrano asked the driver about the bag, he was very evasive about it. He then told the driver that he had seen him leave the house on Prado Del Sol and the driver stated that he had been there to help a friend get a vehicle started.
El Paso County Sheriff=s Detective Hope Gomez, who was assigned to work with the police department on the date in question, was also assigned to keep surveillance on the house on Prado Del Sol. She testified that she had also followed the red car until it was pulled over, and at that point, she met Detective Serrano and walked over to the red car. She spoke to the Appellant who only spoke Spanish. The officer testified that she explained to Appellant that they were conducting an investigation and that Appellant was unable to produce any identification. Appellant was described as nervous and avoided eye contact with Detective Gomez. Appellant told Detective Gomez that her name was Herendia Rojas and provided her with a false date of birth. Appellant=s true identity was later discovered by INS agents when they processed Appellant=s fingerprints. When Detective Gomez asked the Appellant where she was coming from, Appellant could not remember the street name or address of the home. Detective Gomez asked Appellant where she and the driver were going and Appellant was very evasive and provided conflicting stories; at one point Appellant stated they were going to visit a friend and then later said they were going to the store.
Once Detective Serrano gave the order to place both Appellant and the driver under arrest, Detective Gomez testified that she placed the Appellant under arrest and provided her with her rights. She then searched the Appellant=s person and in so doing, she discovered a plastic bag above Appellant=s breast containing thirty-four bindles of cocaine. The amount was approximately 184 grams which Detective Gomez testified that such amount was not normal for personal use. The cocaine was also packaged in the same manner used for trafficking the drug. The Appellant was then transported to the police station.
Detective Serrano and Detective Gomez went back to the house on Prado Del Sol where some detectives had already attempted to make contact at the front door and had deployed a dog which alerted to the garage area. This information gave Detective Serrano probable cause to obtain a search warrant. Once the search warrant was secured, they entered the house. There were no other suspects in the house. Once inside, they found very little furniture throughout the house; they also did not find any clothing, there were no plates or glasses in the kitchen cabinets, and inside the refrigerator, the only thing they found was a case of beer. Detective Gomez testified that in her experience, the lack of furniture indicates that the house is being used as a stash house. Inside the home, they discovered more cocaine; they found a total of approximately 601 grams, a digital scale, and car jack, commonly used to press bricks of cocaine, empty wrappings containing cocaine residue, boxes of sandwich bags, and empty grocery bags. Detective Serrano further testified that in his experience, persons allowed access to a stash house are usually people that are trusted by the drug traffickers.
Appellant also testified on her own behalf at the trial. She testified that at the time of trial, she was twenty-two years old, a citizen of Mexico, and was illegally in the United States. She testified that she came to the United States to work and was staying with family. She worked cleaning houses. She had met Regino Pimental, the driver of the red vehicle, at Romeo=s Nightclub a week before the day of her arrest. She testified that she had seen Mr. Pimental twice that week and had talked to him on the phone. She had told him what she did for a living and he asked her to clean the house on Prado Del Sol. On April 25, 2002, Mr. Pimental drove her to the house located on Prado Del Sol. When they arrived, there was a man and a yellow truck in the garage. Upon entering the house, she noticed there were no decorations on the living room walls, no personal items, no pots and pans in the kitchen, and no food in the refrigerator. She was unable to locate any cleaning supplies, but she did find a towel which she used that to wipe the few pieces of furniture in the house. She was at the house for about forty minutes when she and Mr. Pimental left to go to the store to buy cleaning supplies. She testified that on the way to the store, they saw that the police had pulled over the yellow truck that had been in the garage. She then noticed that they were being followed by a police officer in a motorcycle who finally pulled them over. As they were being pulled over, Mr. Pimental gave her a transparent bag and told her to hide it, and since her immediate reaction was fear, she hid the bag in her own person. She testified that she was afraid because she is illegally in this country. She indicated that she did not know what the bag contained and that she had never possessed cocaine nor had seen cocaine inside the house. She stated that she did not give the police her real name because of her illegal status in this country.
After hearing all of the evidence, the jury found Appellant guilty of unlawful possession with intent to distribute cocaine. The jury assessed punishment at nine years= confinement and a fine of $5,000. On March 14, 2003, Appellant filed a motion for new trial that was denied by a written order that same day. Appellant then timely filed a notice to appeal.
Prosecutorial Misconduct and Motion for Mistrial
In Issue One, Appellant argues that the actions of the prosecutor during voir dire violated her rights and prevented her from receiving a fair trial and effective assistance of counsel. Appellant argues that the prosecutor engaged in misconduct during voir dire when the prosecutor placed her hands in a Acompromising and biased manner on a prospective juror to obtain favorable answers from that juror.@ Appellant further agues that the denial of her request for a motion for mistrial was an abuse of the trial court=s discretion.
Standard of Review
A trial court=s denial of a mistrial is reviewed under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case. Id. The Texas Court of Criminal Appeals has recognized that mistrials are an extreme remedy for prejudicial events occurring during the trial process. See Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996). Even when a prosecutor intentionally elicits testimony or produces other evidence before the jury which is excludable at the defendant=s option, our law prefers that the trial continue. Id.
In order to preserve error in cases of prosecutorial misconduct, the defendant must: (1) make a timely and specific objection; (2) request an instruction that the jury disregard the matter improperly placed before the jury; and (3) move for a mistrial. Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App. 1993); see Tex.R.App.P. 33.1(a). Claims of prosecutorial misconduct are determined on a case by case basis. Stahl v. State, 749 S.W.2d 826, 830 (Tex.Crim.App. 1988)(Opin. on reh=g). Prosecutorial misconduct has been found where (1) the prosecutor=s action deliberately violated an express court order, and (2) the prosecutor=s misconduct was so blatant as to border on being contumacious. Stahl, 749 S.W.2d at 831, citing Landry v. State, 706 S.W.2d 105, 111 (Tex.Crim.App. 1985), cert denied, 479 U.S. 871, 107 S. Ct. 242, 93 L. Ed. 2d 167 (1986).
During voir dire, several jurors presented concerns about the ability to be fair and impartial jurors. While conducting the individual voir dire of Venireperson Elva Boydston, the prosecutor, while asking questions, placed her hands on Venireperson Boydston=s person in what Appellant alleged was a sympathetic and comforting manner. During this time, there were no other panel members present and they had been instructed not to discuss their individual voir dire with any of the other panel members. After the touching occurred, Appellant=s counsel made the following objection outside the presence of the Venireperson Boydston and the other potential jurors:
First off, this is not a personal attack on Ms. Hill, because I=ve practiced law with Ms. Hill for quite some time. But in this instance, I noticed that she was touching the juror. Several times she touched her on the arm, like a reassuring gesture that it was okay, that she=s all right to be that way.
We are not friends in a court of law, as far as jurors go. And I believe -- it may not have been an intentional attempt to sway a venireperson to answer the way they wanted to, but it may have been -- and I know Ms. Hill=s nature, and she is a very nice person, so I wouldn=t say it was intentional, but it was something that was done. And I=m going to ask for a mistrial at this time because of the fact that this venireperson has been poisoned because of the touching of the arm.
The trial court denied Appellant=s motion and instructed that there be no further touching of the jurors. Further, the State=s attorney indicated that the State would stipulate to no touching. The trial court additionally granted Appellant=s challenge for cause of Venireperson Boydston.
In this particular instance, we find that the prosecutor=s behavior did not amount to prosecutorial misconduct. As was admitted by Appellant=s counsel, the touching of Venireperson Boydston was not done in an intentional manner. The record does not reflect that the prosecutor violated a court order, nor do we find her behavior in this instance to be Aso blatant as to border on being contumacious.@ See Stahl, 749 S.W.2d at 831. Appellant fails to explain how counsel=s actions prejudiced her in any manner or affected her counsel=s ability to provide effective assistance at trial. Furthermore, Appellant=s objection to this touching was that Venireperson Boydston had become poisoned as a result of such behavior. Even if Appellant=s theory was correct, Venireperson Boydston did not serve on the jury but rather was challenged for cause. Venireperson Boydston never sat in Appellant=s jury at trial, preventing the spread of such poisonous affect to the other jury members and influencing the outcome of Appellant=s trial. Moreover, such behavior occurred outside the presence of the other panel members and all potential jurors were specifically instructed by the trial judge not to discuss their individual voir dire with any of the other panel members. Under these specific circumstances, we fail to see how counsel=s behavior amounted to prosecutorial misconduct and how Appellant was prejudiced by such conduct. We find that the trial court did not abuse its discretion in denying Appellant=s motion for mistrial. We overrule Issue One.
In Issue Two, Appellant alleges that she was denied due process and a fair trial due to the interpreter providing an inaccurate and incorrect translation. Appellant also challenges the competency of her court-appointed interpreter. The State argues that the accuracy of the translation cannot be reviewed on appeal because it is a factual question that may only be answered by the jury.
Objections Complained Of
During the cross-examination of the Appellant, her counsel made the following objections:
Defense: Your Honor, I=m going to object. I think there=s a problem going on with the translation, not that the interpreter is not doing her job. I think it=s just the form of the question. The question is not specific enough, and my client is not -- I don=t think she=s understanding what is being asked of her.
Prosecutor: Your Honor, I=ve asked her two different ways.
Defense: Can we approach?
The Court: Well, I think she=s got to tell us that, if she doesn=t understand the question.
Prosecutor: And I=ve offered two choices.
Defense: Well, is it the length of time as to the telephone conversation, or is he asking -- I mean, I=m confused. Is he asking, did they talk on the phone for two, three, four, five, six hours at a time, or did they talk multiple times throughout the day? He=s asking how much did you-all talk during one conversation or during a day?
The Court: Well, he said a little or a lot.
Defense: But, again, is it -- I=m confused as to the question he=s asking. If I=m confused, I don=t see how she could answer it. Is he asking about the length of the conversation?
The Court: Well, she can tell us if she=s confused and then ask him to repeat the question or rephrase the question.
Prosecutor: Okay.
Then there was the following objection:
Prosecutor: Without the translation, Your Honor, you can tell we=ve had a lot longer answer than yes or no to my question of at least five times.
I=d just ask you to direct the witness to answer yes or no to the question of at least five times.
Defense: Judge, he=s not direct. If he doesn=t want her to explain, then he shouldn=t ask open-ended questions. If he is asking for yes or no, then he needs to ask the question. And I=m going to object.
The Court: Just a minute here.
Defense: She speaks Spanish, and she hasn=t even answered, and he=s already objecting. We don=t even know the English interpretation. We don=t know if our jurors speak Spanish, and he=s objecting before she even responds.
Prosecutor: Your Honor, we can tell she didn=t say yes or no, and I asked, >Did you speak with him at least five times?=
The Court: This is the way she should -- on the questions that can be answered yes or no, you must answer yes or no. If you need to add anything to it, we=ll allow a brief additional answer, but normally, just answer yes or no, unless it doesn=t fit, in which case, you can give a little bit more of an answer.
Appellant=s counsel then objected to the form of the question asked by the prosecutor, and the trial judge asked the prosecutor to rephrase. The next objection was as to whether the question being asked was an actual question or an answer to a question. Appellant=s counsel asked for the question to be rephrased; the trial judge did not respond, but rather the prosecutor rephrased his question. Then an objection based on speculation was made. Then another objection on a misstatement of the evidence was made, followed by another for misstatement of the evidence.
As the State properly points out, Appellant=s counsel failed to properly preserve the issue for appeal regarding the above listed objections. In order to preserve an issue for appeal, the complaining party must make a specific objection and obtain a ruling on the objection. Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002), citing Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995). The point of error on appeal must comport with the objection made at trial. Wilson, 71 S.W.3d at 349, citing Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App. 1986). With respect to the objections mentioned above, these were a series of objections made at trial, none of which were objections regarding the accuracy of the translations. Therefore, we find that Appellant failed to preserve error for appeal based on the above objections, since no objection was made regarding the accuracy of the translations.
Before this Court on appeal, there was only one instance where the Appellant complained about the accuracy of the translation. The prosecutor asked the Appellant if she looked through the cupboards and she answered that she did; he then asked her if she did so Aextensively?@ Thereafter, Appellant=s counsel asked to approach the bench and stated the following: AExtensively and >cuidado=[1] are not -- that=s not the correct translation. That=s a difficult word to translate.@ The trial court asked for the question to be rephrased. The question was rephrased and Appellant=s counsel did not object any further.
Although Appellant=s objection at the hearing comports with his issue on appeal, the accuracy of translations are not reveiwable on appeal. See Garcia v. State, 887 S.W.2d 862, 875 (Tex.Crim.App. 1994), overruled on other grounds by Hammock v. State, 46 S.W.3d 889 (Tex.Crim.App. 2001). The accuracy of a translation is a factual issue to be determined by the trier of fact. Id. We therefore do not reach the merits of Appellant=s issue regarding the accuracy of the translations.
Competency of Interpreter
Included as part of her Issue Two, Appellant challenges the competency of the interpreter. Appellant argues that the trial court was required to make a determination as to the qualifications of the interpreter.
Section 38.30(a) of the Texas Code of Criminal Procedure provide in pertinent part:
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 him. . . . In the event that the only available interpreter is not considered to possess adequate interpreting skills for the particular situation or the interpreter is not familiar with use of slang, the person charge or witness may be permitted by the court to nominate another person to act as intermediary between himself and the appointed interpreter during the proceedings.
See Tex.Code Crim.Proc.Ann. art. 38.30(a)(Vernon 2005). The trial court=s determination of competence of an interpreter is subject to a review for abuse of discretion. Mendiola v. State, 924 S.W.2d 157, 162 (Tex.App.--Corpus Christi 1995, pet. ref=d, untimely). A general claim of confusion will not suffice; where a defendant presents an issue of potential harm without a specific example of misunderstanding or inability to confront a particular witness such as by way of objection, voir dire examination, or reexamination of the witness, he fails to demonstrate any actual injury. Frescas v. State, 636 S.W.2d 516, 518 (Tex.App.--El Paso 1982, no pet.). In such an event, even if there was error in the record, it would be harmless. Montoya v. State, 811 S.W.2d 671, 672 (Tex.App.--Corpus Christ 1991, no pet.).
Here, there is no indication on the record that Appellant=s counsel requested for the trial court to appoint another translator. Appellant=s trial counsel understood Spanish and was able to point out alleged specific error made by the interpreter. Furthermore, we note that a trial court is under no duty to question the interpreter to determine her qualifications; instead if a question regarding her qualifications arose, the Appellant should have objected and made a record. See Montoya, 811 S.W.2d at 673. Appellant in her brief does not direct us to the objections made as to the competency of the interpreter. Rather, Appellant includes conclusory statements[2] in her brief to support her argument, and in so doing, fails to provide the Court with a proper record to review her complaint. Moreover, Appellant did not request to nominate another person to act as an intermediary between her and the interpreter. We find that the trial court did not abuse its discretion in determining the competency of the translator. We therefore overrule Issue Two.
In Issue Three, Appellant alleges that the trial court erred in denying her jury charge requests and that such denial resulted in a denial of her right to due process and a fair trial. Appellant requested for the jury charge to include the definition of actual and constructive delivery. Appellant submitted to the court the following request on how the jury charge should have been worded:
Now if you believe the State met its burden of proof by presenting sufficient evidence beyond a reasonable doubt that on or about April 25, 2002 in the County of El Paso, in the State of Texas, Mercedes Escamilla, the defendant, did intentionally and knowingly possess with intent to actually /constructively deliver a controlled substance, to wit: cocaine, having an having [sic] and [sic] aggregate weight including adulterants and dilutants, over 400 grams, as alleged in the indictment, then you will find the defendant guilty as charge in the indictment and answer verdict form B. If not, then continue to the next paragraph.
However, if you believe that the State did not meet its burden of proof by not presenting sufficient evidence to prove beyond a reasonable doubt that on or about April 25, 2002 in the County of El Paso, in the State of Texas, Mercedes Escamilla, the defendant, did intentionally and knowingly possess with intent to actually/constructively deliver a controlled substance, to wit: cocaine . . . . [Emphasis added].
The trial court refused Appellant=s request.
We review a charge error utilizing a two‑step process. Orona v. State, 52 S.W.3d 242, 249 (Tex.App.‑-El Paso 2001, no pet.). We first determine whether error actually exists in the charge. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984)(Op. on reh=g); Orona, 52 S.W.3d at 249. If error exists, we must then determine whether sufficient harm was caused by the error to warrant reversal. Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986). If the charge error was the subject of timely objection, reversal is required if that error was calculated to injure the rights of the defendant thereby causing Asome harm.@ Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App. 2000). If error exists, we must then assess whether any resulting harm requires reversal. Almanza, 686 S.W.2d at 171. The party alleging a charging error bears the burden of persuading the reviewing court that the erroneous charge resulted in some actual harm; absent a showing of actual harm, reversal is improper. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994).
Appellant was indicted by a grand jury. Appellant=s indictment read as follows:
The Grand Jurors for the County of El Paso, State of Texas, duly organized as such, at the April Term, A.D., 2002 of the 34th Judicial District Court for said County, upon their oaths in said Court, present that on or about the 25th day of April, 2002 and anterior to the presentment of this indictment, in the County of El Paso and State of Texas, MERCEDES ESCAMILLA, hereinafter referred to as Defendant, did then and there knowingly and intentionally possess with intent to distribute, a controlled substance, to-wit: cocaine, having an aggregate weight, including adulterants or dilutants, of 400 grams or more.
The definition section of the jury charge contained definitions for the words deliver and distribute as defined in the Tex.Health & Safety Code Ann. ' 481.002(9), (14)(Vernon Supp. 2004-05). The jury charge submitted to the jury read as follows:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 25th day of April, 2002, in El Paso County, Texas, the defendant, MERCEDES ESCAMILLA, did then and there unlawfully, knowingly or intentionally possess with intent to distribute a controlled substance listed in Penalty Group 1, to-wit: Cocaine, having an aggregate weight, including any adulterants and dilutants, of 400 grams or more, then you will find the defendant guilty of the offense as charged in the indictment. (VERDICT FORM B) [Emphasis added].
Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of that offense and next consider whether the defendant intentionally or knowingly possessed a controlled substance, to-wit: Cocaine, having an aggregate weight, including any adulterants or dilutants of 400 grams or more.
The language of the jury charge tracked the language found in Tex.Health & Safety Code Ann. ' 481.112(a)(Vernon 2003).
In her brief, the Appellant provides this Court with only conclusory statements to support her contention, but fails to show the error or point to harm resulting from the above charge. Reviewing the charge in its entirety, the charge limited the application of the term Adelivery@ to a meaning consistent with the charge put forth in the indictment. We fail to see any error contained in the jury charge. Assuming arguendo that the jury charge contained error, the Appellant has nevertheless failed to meet her burden of showing actual harm requiring reversal. See Abdnor, 871 S.W.2d at 732. Finding that the jury charge contains no error, we overrule Issue Three.
Having overruled Appellant=s issues, we affirm the trial court=s judgment.
May 31, 2005
DAVID WELLINGTON CHEW, Justice
Before Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)
[1] ACuidado@ was the word the interpreter used to translate Aextensively@ into Spanish.
[2] In her brief, the Appellant states: AIt is apparent that the record reflects that the very changing of the words did cause confusion to Counsel and likely caused confusion to the jury, [sic] Therefore, a harm analysis requires reversal based on the factors of confusion and interruption caused by the repeated objections by both Appellant=s and Appellee=s counsel. At this point, it became incumbent upon the Court to make a determination under Art. 38.30 and 38.31. None occurred and the abuse of discretion did occur.@