Daniel Peralta v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

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DANIEL PERALTA, No. 08-09-00006-CR
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Appellant, Appeal from
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v. 120th District Court
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. (TC # 20070D03716)
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OPINION

We are again presented with a videotaped confession conducted in the Spanish language and

the legal requirements for admitting the tape and an English translation. The procedures

employed are critical because many jurors are fluent in Spanish and may interpret statements

differently than a court interpreter or an official English translation. Even more problematic is the

risk of Spanish-speaking jurors relating their own versions to other members of venire that speak

only English. Today we strive to offer a protocol that will provide parallel consistency among the

trial courts and allow the State and defense counsel to know what is expected. While the issue must

occur routinely throughout Texas, it is most prevalent in border cities. Indeed, the two prominent

decisions which have addressed the subject originated in Hidalgo County and El Paso County.

A jury found Daniel Peralta guilty of sexually assaulting his wife both anally and vaginally

and assessed punishment of ten years’ imprisonment together with a $10,000 fine. Upon jury

recommendation, the court suspended the confinement and placed Appellant on community

supervision. This appeal follows.

FACTUAL SUMMARY
 On Monday, March 12, 2007, at 9:24 a.m., Appellant’s wife, Sonia Peralta,1 placed a 911 call

from her neighbor’s apartment. Sonia told the operator she had managed to get away from Appellant

and needed help. Appellant had sexually assaulted her and threatened her with a knife; he would not

let her leave or use the phone. Sonia described Appellant as a 45-year-old Hispanic male weighing

approximately 180 pounds, with short black hair and last seen wearing a jean shirt, jeans, and a

black cowboy hat. At trial, the 911 operator testified Sonia sounded scared and feared her husband

was still outside and “going to get her.” The operator entered all this information into the Computer

Aided Dispatch (CAD), a system which allows officers to view the information from the computers

in their vehicles. The audio recording and a transcript of the 911 call were admitted into evidence.

Officers were then dispatched to the location on a family disturbance call. Officer Chavez

was the first on the scene and he proceeded to Maria Fonseca’s apartment, where the 911 call had

originated. He located Sonia and identified her as the caller. He described her as hysterical, shaken

up, and crying. She blurted out “I was assaulted,” and then told Officer Chavez her husband had

sexually assaulted her over the two previous days.

When Officer Ojeda arrived a few minutes later, Chavez was still interviewing Sonia outside

her friend’s apartment. Ojeda also testified the woman was shaken up and crying. He heard her say,

“He’s going to kill me” and “he has a knife.”

After speaking with the victim for five to ten minutes, the officers escorted her to her own

apartment. She was reluctant to go inside because she feared Appellant was there and was “going

to kill her.” The officers convinced her to open her apartment and they established that Appellant

was not inside. At this point, Officer Ojeda waited outside while Officer Chavez remained with the

victim and continued to question her about the events which led to the 911 call. During that time,

1
For clarity, we will refer to Daniel Peralta as Appellant and Sonia Peralta as Sonia.
Sonia broke down and cried again. Appellant had torn off her clothes and raped her in the bedroom.

Officer Chavez noticed that her arms and neck were bruised. Sonia described how Appellant had

grabbed her and bitten her. She felt pain and soreness in her buttocks and was having trouble

walking and sitting down.

Sonia provided Officer Chavez with a description of her husband and his vehicle. Chavez

relayed the information to Officer Ojeda who left the apartment complex to search for Appellant.

The information included the make, model, and color of the car and a description of Appellant.

After Ojeda left, Chavez put out a spot broadcast:

[P]ossible aggravated sexual assault, subject used a pocketknife, might be in
possession of a weapon; use caution; driving a primer old Camaro-type vehicle; was
last seen within 10, 15 minutes of this location at this time; no other information.

Approximately five minutes later and just a few blocks away from the apartment complex,

Officer Ojeda observed Appellant in a red Camaro. The car looked like the one Officer Chavez had

described. Ojeda had also seen Appellant through the window. Based on the totality of the known

facts and his own experience, Ojeda stopped the car. He identified Appellant by his driver’s license.

Ojeda then asked Appellant to step out of the vehicle and informed him he was under arrest for

sexual assault. He read Appellant his rights and transported him to the Crimes Against Persons

office (CAP).

Meanwhile, Officer Chavez accompanied Sonia to Sierra Medical Center where she was

admitted for a rape analysis exam. Stacey Adams, the attending nurse, testified that Sonia reported

Appellant had “repeatedly had sex with her against her will.” Sonia had also reported that her

husband accused her of cheating and, when she denied it, he forced himself on her both anally and

vaginally multiple times throughout the night.

After Officer Ojeda escorted Appellant to the CAP office, Detective Chavarria sent him to
relieve Chavez at the hospital. Chavez then returned to the station to give his statement. Detective

Chavarria informed Appellant of his Miranda rights for the second time and obtained his confession.

Appellant’s confession was conducted completely in Spanish.

In his confession, Appellant admitted to both the anal and vaginal rape of his wife. He

described in detail the events of the two proceeding days. He admitted throwing his wife into a

bedroom, forcibly removing her clothes, aggressively telling her to lay down on the bed, and

penetrating her anally and vaginally. She was very scared and did not want to engage in sex. He

knew he was hurting her but that he did it anyway because he was angry. Appellant also described

a conversation whereby Sonia repeatedly told him she wanted him to let her go. He became enraged

and decided to have sex with her “for the last time.”

The confession was admitted into evidence. Both the audio and video portions of the tape

were played for the jury. The written English translation was admitted and it was then read into the

record with the prosecutor asking the questions and Officer Chavez reading the answers. Appellant’s

counsel objected to the introduction of the confession both in a pretrial suppression hearing and at

trial.

Patricia Ortiz also testified for the prosecution. Ortiz is a friend of Sonia who works at the

Peralta’s apartment complex. She spoke with Sonia several times throughout the weekend in

question. Sonia was afraid and crying because he wouldn’t let her out. Appellant did not object to

this testimony. The following exchange then took place:

Mr. Schultz: What did she tell you that Sunday morning?

Mr. Lucas: Objection, hearsay, Your Honor.

Mr. Schultz: She’s emotional. She’s afraid. She established that the thing she’s afraid of
had just recently happened. All the elements of excited utterance have been met.
 Mr. Lucas: Your Honor, this is an interrogation going on from some conversation. There’s
nothing excited about it. There’s nothing spontaneous about it. Classic hearsay.

The Court: Overruled. Go ahead.

Mr. Schultz: Thank you.

Q (By Mr. Schultz): What did she tell you?

A: She had told me that she was afraid of him because he had gotten her through the back.

SPANISH LANGUAGE VIDEOTAPED CONFESSION

Because of its significance, we begin with Issue Two in which Appellant challenges the

admission of his videotaped confession. State’s Exhibit 34 was the Spanish-language video. Exhibit

35 was a transcribed English translation of the video. It was accompanied by a sworn affidavit

detailing the interpreter’s qualifications. Both exhibits were admitted over Appellant’s objections.

On appeal, Appellant focuses his argument on the admission of the videotape itself.

Appellant argues that because the video was entirely in Spanish, it was error to play it to the

jury without a qualified interpreter providing a contemporaneous translation either by simultaneous

in-court translation or by embedding a translation into the video via subtitles. The State responds

the video was properly admitted since no contemporaneous translation was necessary and the video

was properly authenticated.

A trial judge is afforded wide discretion in determining the adequacy of interpretive services.

Linton v. State, 275 S.W.3d 493, 500 (Tex.Crim.App. 2009); Flores v. State, 299 S.W.3d 843, 855

(Tex.App.--El Paso 2009, pet. ref’d). On appeal, the question is whether the services employed were

constitutionally adequate, such that the defendant could understand and participate in the

proceedings. Linton, 275 S.W.3d at 500. The issue is not whether the “best” interpretive services

were employed. Id. The translation must be true or accurate, but need not be perfect. Id. at 501-02.
An abuse of discretion standard is applied to determine whether the trial court erred. Id. at 502.

In support of his contention that a contemporaneous translation was required, Appellant

directs us to Leal v. State, 782 S.W.2d 844 (Tex.Crim.App. 1989). There, the Court of Criminal

Appeals determined that the admission of a recorded conversation in a foreign language is analogous

to testimony by a non-English speaker such that the safeguards of Article 38.30 of the Code of

Criminal Procedure apply. There was no testimony as to who actually translated the conversation.

No one was positively identified as the translator in court and no one was sworn by the trial court

as an interpreter. Id. at 847. Whoever the interpreter was, he or she was not called to the stand so

the accuracy of the translation could be subjected to cross-examination. Id. at 849.

In a recent decision, we faced a similar argument. Flores v. State, 299 S.W.3d 843, 854

(Tex.App.--El Paso 2009, pet. ref’d). There, the defendant gave a videotaped confession primarily

in Spanish and the State prepared a transcript of a sworn Spanish-to-English translation. Id. At trial,

defense counsel objected, arguing the non-Spanish speaking jurors would read the translation as the

video played and be unable to correlate the English statements with the context in which the

defendant made them. Id. The trial court overruled the objections, and noted both the tape and the

transcript would be available during deliberations if the jury needed to watch or read them again.

Id. The opinion included the following rationale:

The interpreter’s rendition of the Appellant’s statement created the only permanent
record of what was said. It is as if the non-English language was never spoken before
the jury and the interpreter stands in place of the witness. There is in fact no
requirement or means available at trial to preserve the original foreign language
spoken in court. It is the translation presented by the interpreter that creates the
record and that ultimately serves as the basis for any potential appeal. In this case all
the jurors should have been focused on the written translation and not on the Spanish
audio.

Id. at 855-56. We explained that because the interpreter was positively identified, qualified,
officially sworn, and subjected to cross-examination, the requirements of Texas Code of Criminal

Procedure, Article 38.30 were met. Id. at 856. We did not hold that Article 38.30 was the only

method of authenticating such a translation. Id.

Neither Leal or Flores addresses the issue of whether the translations in those cases could

have been properly authenticated in accordance with Rule 1009. See TEX .R.EVID . 1009. Rather, the

cases merely stand for the notion that proper safeguards should be applied to ensure an accurate and

reliable translation is provided to the jury. See Leal, 782 S.W.2d at 848-49; Flores, 299 S.W.3d at

856.

In most instances, there will be no reason for the jury to hear the Spanish audio and certainly

that is preferable. Flores, 299 S.W.3d at 855. Physical positioning and proximity between the

defendant and the interrogators will be visible. Body language will reveal whether the defendant was

tired, dazed, sleepy, or otherwise compromised. Facial expression and demeanor will indicate

whether the defendant was angry, serious, remorseful, laughing or smirking. Unless the defense

claims verbal coercion or threatening tones of voice, the audio is unnecessary. Here, Appellant

purportedly “insinuated” in voir dire that there was some sort of intimidation or fear.

We turn now to the translation. Article 38.30 requires:

Art. 38.30. Interpreter

(a) 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 the person charged or the witness.

TEX .CODE CRIM .PROC.ANN . art. 38.30 (a)(Vernon Supp. 2010). We are also guided by the unified

Texas Rules of Evidence. Article X relates to the contents of writings, recordings and photographs

and Rule 1009 specifically addresses the translation of foreign language documents. Subsection (a)
provides that a translation of foreign language documents shall be admissible upon the affidavit of

a qualified translator setting forth his or her qualifications and certifying that the translation is fair

and accurate. The affidavit, along with the translation and the foreign language documents, shall be

served upon all parties at least forty-five days prior to trial. Here, it is undisputed that defense

counsel timely received the recording, the translation, and the sworn affidavit. The parameters of

the grid translation are noteworthy. In three linear columns, the translator identified the speaker, the

Spanish audio transcription, and the English translation.

Subsection (b) speaks to objections. Any party may object to the accuracy of another party’s

translation by pointing out the specific inaccuracies and stating with specificity what would

constitute a fair and accurate translation. Objections must be served on all parties at least fifteen

days prior to trial. No such objection was filed on behalf of Appellant.

There having been no timely objection, we look to subsection (c) which addresses the effect

of a failure to object:

(c) Effect of Failure to Object or Offer Conflicting Translation. If no conflicting
translation or objection is timely served, the court shall admit a translation submitted
under paragraph (a) without need of proof, provided however that the underlying
foreign language documents are otherwise admissible under the Texas Rules of
Evidence. Failure to serve a conflicting translation under paragraph (a) or failure to
timely and properly object to the accuracy of a translation under paragraph (b) shall
preclude a party from attacking or offering evidence contradicting the accuracy of
such translation at trial.

In the event the time requirements of subsection (a) are not met, a party may nevertheless introduce

the translation at trial either by live testimony or by deposition testimony of a qualified expert

translator. TEX .R.EVID . 1009(e). Here, there was an identified, official translator with qualifications

listed in a sworn affidavit. Although she was not called to testify, there is nothing in the record to

indicate that she was not available to testify. Nor did Appellant object to her qualifications. He does
contend that the word “sworn” as used in Article 38.30 is a more stringent requirement than merely

“certifying” that the translation is fair and accurate as required by Rule 1009(a). We need not

address this distinction inasmuch as the affidavit here specifies, “Before me the

undersigned authority, personally appeared Araceli Guevara,2 who, being by me duly sworn, deposed

as follows . . . .” [Emphasis added]. Clearly an oath was administered. We overrule Issue Two.

We pause now to offer some suggestions for admission of Spanish recordings. The

proponent of the recording may rely on Article 38.30 and require that the interpreter be sworn, testify

to her credentials, and certify that the translation is fair and accurate. Alternatively, the proponent

may comply with Rule 1009(a). In that event, the proponent establishes admissibility if no objection

is timely filed. In the event of conflicting translations served under Rule 1009(a) or if objections to

another party’s translation are served under Rule 1009(b), the trial court shall determine whether

there is a genuine issue as to the accuracy of a material part of the translation to be resolved by the

trial court. Although not required by subsection (a), better practices dictate that the supporting

affidavit should (1) establish the translator’s identity; (2) itemize his or her credentials in sufficient

detail; (3) identify the document or recording being translated; (4) demonstrate that the translator has

been administered an oath; and (5) certify that the translation is fair and accurate. We also

recommend a limiting instruction similar to that given to the jury by the trial court below:

Members of the jury, I just want to make sure. The purpose of showing you the video
is not so that you-all can interpret it for yourself. There’s going to be an official
translation, and that will be the official translation. The purpose of the video is so
that you can see the video and see what they were doing, the tone of voice, those
kinds of things. You will have an official translation.

2
M s. Guevara is the same translator who was involved in Flores. See Flores, 299 S.W .3d at 854. In her
affidavit in this case, she predicated her qualifications on the facts that she has been fluent in Spanish for fifty-three years,
has been fluent in English for forty-three years, has written the Spanish language for fifty-one years, has written the
English language for twenty-seven years, and has been translating documents for twelve years in connection with her
affiliation with Border Language Services and its predecessors.
 EVIDENTIARY ERROR

Denial of the Motion to Suppress

In Issue One, Appellant complains that his videotaped confession was not suppressed. He

contends that the confession was obtained as the result of an illegal traffic stop in violation of the

Fourth Amendment and was therefore fruit of the poisonous tree.

Standard of Review

We review a trial court’s ruling on a motion to suppress on the bifurcated standard of review

articulated in Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). See Carmouche v. State,

10 S.W.3d 323, 327 (Tex.Crim.App. 2000). At a suppression hearing, the trial judge is the sole trier

of fact as to the credibility and weight to give witness testimony. St. George v. State, 237 S.W.3d

720, 725 (Tex.Crim.App. 2007). As such, the trial judge may choose to accept or reject any or all

of the testimony offered. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007); Gaines v.

State, 888 S.W.2d 504, 507-08 (Tex.App.--El Paso 1994, no pet.). We do not engage in our own

factual review of the trial court’s decision. Garcia v. State, 15 S.W.3d 533, 535 (Tex.Crim.App.

2000).

Almost total deference is given to a trial court’s ruling on questions of historical fact and

application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Amador,

221 S.W.3d at 673. We review de novo mixed questions of law and fact that do not turn on the

credibility and demeanor of witnesses. Id.; Guzman, 955 S.W.2d at 88-89. Accordingly, we review

de novo the trial court’s application of legal principles to a specific set of facts, including the trial

court’s determination of reasonable suspicion. Id. When, as here, the trial court makes no explicit

findings of fact, all evidence is viewed in the light most favorable to the trial court’s ruling.

Carmouche, 10 S.W.3d at 328; Torres v. State, 182 S.W.3d 899, 902 (Tex.Crim.App. 2005). Upon
review of the record, the trial court’s ruling will stand so long as it is reasonably supported by the

record and is correct under any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587,

590 (Tex.Crim.App. 2006).

Applicable Law

The Fourth Amendment to the United States Constitution protects against unreasonable

searches and seizures. U.S. CONST . amend. IV. To the extent this argument applies to the Texas

Constitution, it has not been briefed and error, if any, has been waived. See TEX .R.APP .P. 38.1(I);

Muniz v. State, 851 S.W.2d 238, 251-52 (Tex.Crim.App. 1993). To make an investigatory stop of

a vehicle an officer must have reasonable suspicion; i.e., specific, articulable facts that, when

combined with rational inferences from those facts and the officer’s training, would lead an officer

to believe that a person in the vehicle was, or is about to engage in criminal activity. Terry v. Ohio,

392 U.S. 1, 20-21, 88 S.Ct. 1868, 1879-1880, 20 L.Ed.2d 889 (1968); Ford v. State, 158 S.W.3d

488, 492 (Tex.Crim.App. 2005). Temporary detention is lawful if based on reasonable suspicion

that an individual is violating the law. Ford, 158 S.W.3d at 492. The reasonable suspicion

determination disregards the subjective intent of the officer making the stop and instead looks solely

to whether there was an objective basis for the stop. Id. When a police officer makes a stop without

a warrant or consent, the State has the burden at a suppression hearing of proving the reasonableness

of the stop. Id.

Analysis

Appellant’s argument is limited to the legality of the traffic stop and not the warrantless

arrest. He contends Officer Ojeda lacked reasonable suspicion because the color of his car did not

match the color description in the spot broadcast; and no license plate or other vehicle identification

numbers were known to the officer prior to effectuating the stop. The crux of the argument is that
Officer Ojeda stopped a red Camaro and the spot broadcast to police officers described the car as

“a primer-old Camaro-type vehicle.” Ojeda testified at the suppression hearing that Chavez

described the car to him as being a red, older model Camaro. Chavez also advised him that: (1) an

aggravated sexual assault had occurred; (2) a weapon was involved; (3) the suspect was the victim’s

husband; (4) the suspect was driving a red, older model, Camaro with unknown Texas plates; and

(5) a description of the suspect’s physical traits as well as his name, age, and date of birth. Upon

receipt of the information Officer Ojeda left the scene to check for Appellant’s vehicle in the area.

He located Appellant a “couple of hundred yards away.” After Officer Ojeda left the scene, Officer

Chavez issued a spot broadcast to all officers stating there was a possible aggravated sexual assault;

the suspect might be in possession of a weapon; use caution; driving a primer old Camaro-type

vehicle; was last seen within ten to fifteen minutes at the apartment complex.

In essence, Appellant argues that based on the facts articulated at the suppression hearing,

the State failed to prove, by a preponderance of the evidence, reasonable suspicion existed for the

traffic stop. See Ford, 158 S.W.3d at 492. But the question before us is whether all of the

information known to Officer Ojeda at the time of the stop supports a finding of reasonable

suspicion. Id. at 492. Ojeda knew the color, make, and model of the car; the approximate time

Appellant was last seen at the apartment complex; and the area in which Appellant was likely to be

located.

The weight and credibility to give to such testimony is within the discretion of the trial court.

Garcia, 15 S.W.3d at 535. Officer Ojeda testified that he knew the Camaro was red. Even if the

trial court gave that statement little or no credibility, in light of all the information known at the time

of the stop, the trial court could have reasonably concluded that reasonable suspicion existed. See

Dixon, 206 S.W.3d at 590. Based on the totality of the circumstances, the record supports the trial
court’s decision. See id. Finding no abuse of discretion, we overrule Issue One.

Hearsay Testimony

In Issues Four and Five, Appellant complains of the admission of hearsay statements by two

different witnesses under the excited utterance exception to the hearsay rule. Issue Four relates to

various statements admitted via Officer Chavez’s testimony. Issue Five relates specifically to three

statements by Patricia Ortiz.

Standard of Review

We review evidentiary matters for an abuse of discretion. Zuliani v. State, 97 S.W.3d 589,

595 (Tex.Crim.App. 2003). An abuse of discretion exists when the trial court’s decision is so clearly

wrong that it lies outside the zone of reasonable disagreement. Id. Accordingly, the trial court abuses

its discretion if its decision or action is arbitrary, unreasonable, and made without reference to any

guiding rules or principles. Id.

Testimony of Officer Chavez

Appellant first asserts that the trial court abused its discretion in finding that Sonia’s

statements to Officer Chavez qualified as excited utterances under Texas Rule of Evidence 803(2).

He argues that the statements were made “at least two days” after the event; and that they were made

not as spontaneous declarations, but as the result of questions he put to her. The State responds that

Appellant did not preserve this issue for appeal because: (1) although Appellant objected initially,

he failed to obtain a running objection; (2) Appellant failed to object when similar testimony was

introduced by other witnesses; and (3) Appellant elicited the complained of testimony himself on

cross examination.

Evidentiary error must be preserved by making a proper objection and securing a ruling on

that objection. TEX .R.APP .P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002).
A proper objection is one that is specific and timely. Id. With two exceptions, a party must continue

to object each time inadmissible evidence is offered. Ethington v. State, 819 S.W.2d 854, 858

(Tex.Crim.App. 1991); Gillum v. State, 888 S.W.2d 281, 285 (Tex.App.--El Paso 1994, pet. ref’d).

The two exceptions require counsel to either (1) obtain a running objection, or (2) request a hearing

outside the presence of the jury. Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App. 2003).

Evidentiary error is cured when the same evidence is admitted elsewhere without objection. Leday

v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998); Gillum, 888 S.W.2d at 285. When not

preserved, there is nothing for an appellate court to review. Hudson, 675 S.W.2d at 511.

While the record reveals several instances in which defense counsel made a timely, specific

hearsay objection to a question asked by the State, he did not object to other questions which elicited

the same or similar responses. Nor did counsel obtain a running objection or a court ruling outside

the jury’s presence. Indeed in his own confession, Appellant admitted virtually every fact to which

Officer Chavez testified. The record also contains testimony of the other officers involved, Nurse

Adams, and the 911 operator, along with medical reports and call records which address the same

or substantially similar evidence. We overrule Issue Four.

Testimony of Patricia Ortiz

Next, Appellant claims the trial court abused its discretion in finding that Sonia’s statements

to Patricia Ortiz qualified as excited utterances under Rule 803(2). Specifically, he complains the

following statements were inadmissible hearsay: (1) Sonia was being held hostage; (2) she was afraid

of Appellant; and (3) Appellant forcefully penetrated his wife’s anus.

We need not address the complaint as to the first two statements (testimony that Sonia told

Ortiz she was being held hostage and that she was afraid of Appellant). Because Appellant failed

to object, the issue has been waived. The only remaining issue relates to Sonia’s statement that
Appellant had “gotten her through the back.” Yet evidence of anal sexual assault was also admitted

via testimony of Officer Chavez, Officer Ojeda, Nurse Adams, and Appellant’s own confession.

Because any error was harmless, we overrule Issue Five.

INEFFECTIVE ASSISTANCE OF COUNSEL

Defense counsel represented Appellant both at trial and on appeal. In Issue Three, counsel

faults himself for failing to object to the introduction of the sixty-two page English translation of the

videotaped confession on the grounds it was a hearsay document and should not have been admitted

pursuant to Texas Rule of Evidence 1009. Both the United States and the Texas Constitution

guarantee an accused the right to assistance of counsel. U.S. CONST . amend. VI; TEX .CONST . art.

I, § 10; TEX .CODECRIM .PROC.ANN . art. 1.05 (Vernon 2005). This includes the right to reasonably

effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 683-86, 104 S.Ct. 2052,

2062, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme Court articulated the standard of review

for evaluating claims of ineffective assistance of counsel. Id. at 687, 2064. The two-prong

Strickland test requires Appellant to show that: (1) counsel’s performance fell below an objective

standard of reasonableness, and (2) counsel’s performance prejudiced his defense. Id. Prejudice

requires a showing that, but for counsel’s unprofessional error, there is a reasonable probability that

the result of the proceeding would have been different. Id.; Mitchell v. State, 68 S.W.3d 640, 642

(Tex.Crim.App. 2002); Vasquez v. State, 830 S.W.2d 948, 949 (Tex.Crim.App. 1992). Reasonable

probability is defined as a “probability sufficient to undermine confidence in the outcome.”

Stickland, 466 U.S. 668 at 694, 104 S.Ct. 2052 at 2068.

Appellant bears the burden to prove ineffective assistance of counsel by a preponderance of

the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). An ineffective

assistance claim must be “firmly founded in the record,” and “the record must affirmatively
demonstrate” the meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813

(Tex.Crim.App. 1999). Generally, isolated failures to object to improper evidence do not constitute

ineffective assistance of counsel. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App. 1984).

Further, Appellant is not entitled to errorless representation or competency of counsel which is

judged by hindsight. Calderon v. State, 950 S.W.2d 121, 126 (Tex.App.--El Paso 1997, no pet.).

In analyzing a claim for ineffective assistance, we begin with the strong presumption that

counsel was competent. Thompson, 9 S.W.3d at 813. Appellant must overcome the presumption

that counsel’s conduct falls within the wide range of reasonable, professional assistance, and that,

under the circumstances, the challenged action might be considered sound trial strategy. Jackson

v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Counsel’s action or inaction will be found

to be reasonable if the record is silent as to the facts, circumstances, or rationale behind a particular

course of action. Thompson, 9 S.W.3d at 814.

Counsel objected to the translation on the grounds that it violated the optional completeness

rule, and that it was proffered without any in-court testimony by the person who translated the

videotape to show she was certified to translate the conversation. He did not object on hearsay

grounds. The State counters that Appellant’s contention lacks merit as the document was admissible

as a “non-hearsay” admission by a party-opponent and the translation was properly admitted under

Rule 1009.

The determination regarding whether a defendant received effective assistance of counsel

must be made according to the facts of each case. Thompson, 9 S.W.3d at 812. An appellate court

looks to the totality of the representation and the particular circumstances of the case in evaluating

counsel’s effectiveness. Id. In the majority of instances, an appellant cannot rebut the presumption

of reasonable assistance, because the record on direct appeal is simply undeveloped and does not
adequately reflect the alleged failings of trial counsel. Id. at 813-14. A silent record that provides

no explanation for counsel’s actions will not ordinarily overcome the strong presumption of

reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). Any

error in trial strategy will be deemed inadequate representation only if counsel’s actions are without

any plausible basis. Id.

Here, Appellant filed a motion for new trial which alleged generally that the evidence was

factually insufficient to support the jury’s finding. Because he did not raise the issue of ineffective

assistance in his motion for a new trial, the record is silent on this issue. Rylander, 101 S.W.3d at

110-11. Based on the record presented, we conclude Appellant has failed to overcome the

presumption of reasonableness. See id; Thompson, 9 S.W.3d at 812. More importantly, we have

concluded that admission was proper pursuant to Rule 1009. We overrule Issue Three and affirm

the judgment of the trial court.

November 30, 2010
ANN CRAWFORD McCLURE, Justice

Before McClure, J., Rivera, J., and Antcliff, Judge
Antcliff, Judge, sitting by assignment

(Publish)

CONCURRING OPINION

I concur but write separately to express my concern with trial court decisions to play the

audio of a videotape in a foreign language. Proceedings are to be conducted in the English language.

See Garcia v. State, 210 S.W.2d 574, 601 (Tex.Crim.App. 1948). Indeed, notice of charges for

crimes committed by a person against the laws of the State are in English, see id., and we qualify

jurors to serve on the basis of whether they can read and write the English language. See Sayyadi
v. State, 40 S.W.3d 722, 722 (Tex.App.--Austin 2001, no pet.). When necessary, we provide

interpreters for defendants or witnesses who speak languages other English. See TEX .CODE

CRIM .PROC.ANN . art. 38.30 (Vernon Supp. 2010). Due process, at a minimum, requires that. Pineda

v. State, 176 S.W.3d 244, 247 (Tex.App.--Houston [1st Dist.] 2004, pet. ref’d).

Similarly, recordings of conversations in foreign languages are routinely translated into

English prior to their admission at trial. In fact, this method of translation is preferable to the live,

contemporaneous translation where the opportunity for error and lack of opportunity to object are

greater. However, once the trial court admits the translation, the trial court, in essence, has

determined what the videotape said, and it is solely the role of the jurors to decide what weight to

attach to that evidence. Indeed, the trial court is the gatekeeper of the evidence at a trial. It decides

what evidence to admit, whereas the fact finder decides what weight should be attached to that

evidence. When, as here, the trial court admits a translation of a foreign language into evidence, that

translated rendition becomes the only permanent record of what was said. Flores v. State, 299

S.W.3d 843, 855 (Tex.App.--El Paso 2009, pet. ref’d). The words spoken in the foreign language

are as if they were never spoken before the jury. Id.

Playing the audio recordings in their original form, however, may be helpful to the jury in

judging the tone and demeanor of the persons speaking thereon. But I caution that if those

recordings are played along with the limiting, contemporaneous instruction as given here, a further

instruction in the charge should be given, noting that the jury may only listen to the audio for

purposes of determining tone and demeanor of those speaking on the recording, which goes to the

weight and credibility to be attached to such evidence. The instructions should further provide that

the jurors, who may also speak the same language as exhibited on the recording, should not be

allowed to engage in their own interpretation of the words spoken but rather must accept the
translated rendition of the foreign language as provided by the trial court. Failure to give such

instructions could disrupt the trial court’s role as the gatekeeper of the evidence and allow the jury

to make its own translation of the foreign language, which they cannot do.

With these comments, I concur.

November 30, 2010
GUADALUPE RIVERA, Justice