NUMBER 13-02-146-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
FRANCISCO ESQUIVEL CASTANEDA, JR.,
A/K/A MARIO CASTANEDA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 93rd District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Rodriguez, and Garza
Memorandum Opinion by Justice Garza
Appellant, Francisco Esquivel Castaneda, Jr. (a/k/a Mario Castaneda), appeals pro se from the judgment of the trial court in two issues: (1) the trial court abused its discretion in failing to provide a qualified interpreter for Castaneda after defense counsel so requested; and (2) defense counsel failed to provide effective assistance of counsel. Castaneda’s appellate counsel has also filed an Anders brief with this Court asserting that this appeal is wholly frivolous. See Anders v. California, 386 U.S. 738, 744 (1967). Because we conclude that the trial judge provided qualified interpreters for Castaneda and that defense counsel was effective, we affirm. Further, because our Anders-based review of the entire record reveals no other grounds for error, we affirm.
Procedural History
Castaneda was originally found guilty of two counts of aggravated robbery, one count of aggravated kidnapping, and one count of aggravated sexual assault. The jury assessed punishment at ninety-nine years’ imprisonment and a $10,000 fine.
Castaneda appealed to this Court. See Castaneda v. State, 28 S.W.3d 685, 687 (Tex. App.–Corpus Christi 2000, no pet.). We affirmed his conviction, but found that the trial court had erred in denying Castaneda’s request for a new trial on punishment, and remanded the case for a new trial on punishment only. Id. at 697.
The punishment-only retrial was held in November 2001, after which the jury assessed Castaneda’s punishment at sixty-five years’ imprisonment. Following pronouncement of this sentence, Castaneda filed a notice of appeal. His attorney submitted an Anders brief and Castaneda filed a pro se brief asserting two issues for our review.
Qualified Interpreter
By his first issue, Castaneda alleges that the trial judge committed an abuse of discretion by failing to provide a qualified interpreter for him at his punishment-only retrial after he requested one through his attorney.
The constitutional right to confrontation has been interpreted in Texas to include the right of a criminal defendant to understand the testimony of witnesses against him. See Garcia v. State, 2004 Tex. Crim. App. LEXIS 519, at *12-13 (Tex. Crim. App. Mar. 24, 2004) (designated for publication); Baltierra v. State, 586 S.W.2d 553, 556-57 (Tex. Crim. App. 1979). In the case of non-English-speaking defendants, this right to understand the proceedings is implemented through article 38.30(a) of the Texas Code of Criminal Procedure, which requires that “when . . . 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.” Tex. Code Crim. Proc. Ann. art. 38.30(a) (Vernon Supp. 2004). When the trial court is aware that a defendant does not speak or understand English, the court has an independent duty to implement the defendant’s right to an interpreter in the absence of a knowing and voluntary waiver of this right by the defendant. Garcia, 2004 Tex. Crim. App. LEXIS 519, at *29.
Any person proficient in the language spoken by the defendant may be designated as an interpreter for the proceedings by the court. Tex. Code Crim. Proc. Ann. art. 38.30(a). When official court interpreters are unavailable, translation duties can be properly assumed by a bailiff, see Montoya v. State, 811 S.W.2d 671, 673 (Tex. App.–Corpus Christi 1991, no pet.); Castillo v. State, 807 S.W.2d 8, 9 (Tex. App.–Corpus Christi 1991, pet. ref’d), or in some cases by the defendant’s own attorney. See Guerrero v. State, 2004 Tex. App. LEXIS 6382, at *3 - 4 (Tex. App.–Waco July 14, 2002, no pet.) (designated for publication). The question of an interpreter’s competency and qualifications is committed to the discretion of the trial court and absent an abuse of this discretion, decisions on this subject will not be disturbed on appeal. Montoya, 811 S.W.2d at 673.
Castaneda, through his attorney, Rogelio Garza, requested an interpreter at the beginning of the trial. As the official interpreter was not present, Garza suggested having the bailiff act in this capacity: “Judge, in the last trial, we had an interpreter for him, and at this time, Judge, I have no problem in the voir dire. Now that the first witness is there, I’d like to get an interpreter, if your bailiff would be the one.” After a discussion regarding whether Castaneda was entitled to an interpreter, the judge told the bailiff to interpret and noted aloud, “The record will reflect that the bailiff will interpret for the defendant’s understanding.”
On the second day of the trial, the judge announced in the morning that the bailiff, although present, was ill. Garza suggested that he himself interpret for his client. Although the testimony is ambiguous, it appears that the judge ultimately directed the bailiff to continue translating the proceedings for Castaneda. In the afternoon session, the judge noted, “The record will also reflect that the bailiff will interpret for the defendant. When he does have to walk out, Mr. Garza, if you would assist the court in interpreting?” Garza responded, “Yes, your honor, I will.” The record does not reflect the bailiff leaving the proceedings at any time.
Castaneda asserts in his pro se brief that the proceedings were translated for him, but he disputes the qualifications of his ad hoc interpreters. A trial court has no duty to formally question interpreters in order to determine their qualifications. Montoya, 811 S.W.2d at 673; see also Mendiola v. State, 924 S.W.2d 157, 166 (Tex. App.–Corpus Christi 1995, pet. ref’d) (J. Yanez, dissenting). If there is a question concerning a translator’s qualifications, a defendant must object and make a record of the objection. Montoya, 811 S.W.2d at 673; Castillo, 807 S.W.2d at 9 (“At no time did appellant’s attorney request that another person be appointed to serve as [interpreter] . . . . Appellant’s failure to object at trial waives any error on appeal.”). Here, Castaneda, through counsel, suggested the use of both the bailiff and his counsel as interpreters, and made no objection to their abilities or qualifications. While there is concern that a defendant might not be able to effectively object to his own attorney’s qualifications as his interpreter, we note that in this case the record reflects that only the bailiff acted as Castaneda’s in-court interpreter. As Castaneda has waived any objection to the qualifications of the bailiff as his interpreter, we conclude that the trial court did not abuse its discretion in using the bailiff as an interpreter throughout the second punishment trial. We overrule Castaneda’s first issue.
Effective Assistance
By his second issue, Castaneda asserts that his trial counsel failed to render effective assistance of counsel.
This Court uses the two-pronged Strickland test to determine whether representation was so inadequate that it violated a defendant’s Sixth Amendment right to counsel. See Strickland v. Washington, 466 U.S. 668, 684 (1984) (recognizing the Sixth Amendment right to counsel); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Alfano v. State, 780 S.W.2d 494, 495 (Tex. App.–Corpus Christi 1989, no pet.). To establish ineffective assistance of counsel, appellant must show (1) his attorney’s representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for his attorney’s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. Whether this test has been met is to be judged on appeal by the totality of the representation, not by isolated acts or omissions. Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App. 1995).
The burden is on appellant to prove ineffective assistance of counsel by a preponderance of the evidence. Munoz v. State, 24 S.W.3d 427, 434 (Tex. App.–Corpus Christi 2000, no pet.). Appellant must overcome the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Id. Also, the acts or omissions that form the basis of appellant’s claim of ineffective assistance must be evidenced by the record. See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).
Castaneda points to the following exchange as demonstrative of his counsel’s ineffectiveness:
Court: Mr. Garza, you had requested that my bailiff be interpreting for your client. I believe your client understands English. I believe it’s a waste of time. Also, my bailiff is — it’s a waste of court resources and my bailiff is ill. So unless you present me with some authority that says that your English-understanding client somehow needs to have a comfort level whereby he’s more comfortable having someone sitting next to him translating what’s going on, your request is going to be denied for today. Do you have any such authority?
Garza: Not at this time, Judge. I would need half an hour or so, Judge, to go downstairs.
Castaneda argues that this was a clear demand by the court for his attorney to present article 38.30(a) of the criminal procedure code as authority for his request. In his pro se brief, Castaneda asserts “There can be NO question that (Garza) failed to present T.C.C.P. article 38.30(a) to the trial court as ordered, which resulted in Judge Delgado denying defense counsel’s request for an appointment of an interpreter for the appellant.”
We note initially that Castaneda incorrectly characterizes the record. Judge Delgado did not deny his request for an interpreter; rather, he assigned the bailiff to act as Castaneda’s translator when the request was made. In addition, Castaneda’s attorney did not err by failing to present article 38.30(a) to the court; the court was not looking for general authority but rather wanted authority which required the assignment of an interpreter to someone who already had some understanding of the English language. Regardless of this exchange, an adequate interpreter was named. Thus, given that defense counsel sought and obtained translation as required by his client, Castaneda cannot show that either prong of the Strickland test was violated. Counsel’s actions were reasonable and failed to change the outcome of the proceedings. See Strickland, 466 U.S. at 687. We overrule Castaneda’s second issue.
Anders Brief
In addition to Castaneda’s pro se brief, appellant’s counsel has filed a brief and motion to withdraw in which he concludes that appellant has no non-frivolous grounds for appeal. See Anders, 386 U.S. at 744. Counsel certifies that he diligently reviewed the complete record and researched the law applicable to the facts and issues contained therein, and he concludes that he was unable to find any error which would arguably require a reversal of the trial court’s sentence. See id.; see also High v. State, 573 S.W.2d 807, 812-13 (Tex. Crim. App. 1978). Although counsel’s brief does not advance any arguable grounds of error, it does present a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced on appeal. See Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); High, 573 S.W.2d at 812. We conclude counsel’s brief meets the requirements of Anders. See Anders, 386 U.S. at 744; High, 573 S.W.2d at 812.
Upon receiving a “frivolous appeal” brief, appellate courts must conduct a full examination of all the proceedings to decide whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). Having reviewed the entire record, we find that there are no reversible grounds of error and we affirm the judgment of the trial court. In accordance with Anders, appellant’s attorney has asked permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744. We grant his motion to withdraw. We further order counsel to notify appellant of the disposition of this appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).
_______________________
DORI CONTRERAS GARZA,
Justice
Do not publish.
Tex.R.App.P. 47.2(b)
Memorandum Opinion delivered
and filed this the 4th day of November, 2004.