Opinion issued June 20, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-10-00697-CR
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THE STATE OF TEXAS, Appellant
V.
ROBERTO ACUNA ANDAVERDE, Appellee
On Appeal from the 12th District Court
Grimes County, Texas
Trial Court Case No. 16670
MEMORANDUM OPINION
This is the State’s appeal from a pretrial order suppressing portions of an
audiotaped interview of appellee, Roberto Acuna Andaverde. 1 In one issue, the
1
See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (West Supp. 2011); TEX. R.
APP. P. 25.2(a)(1).
State contends that the trial court abused its discretion in granting appellee’s
motion to suppress certain translated portions of appellee’s statement to police.
We affirm.
Background
On October 9, 2009, appellee was interviewed by Navasota Police
Department Investigator Amanda Klawinsky and Officer David Ellison following a
report that appellee had engaged in inappropriate conduct with a child. Aleda
Jarvis, a Child Protective Services special investigator, was also present at the
interview. Although most of the interview was conducted in English, appellee
answered some questions in Spanish which Jarvis translated into English for
Officer Ellison, the investigating officer, who did not speak Spanish. Although she
considers herself to be fluent in Spanish, Jarvis is not a certified translator or
interpreter.
On November 20, 2009, appellee was indicted on two counts of indecency
with a child. On July 7, 2010, the first day of trial, defense counsel moved the trial
court to redact certain portions of the audio and/or videotaped interview on the
grounds that the evidence constituted (1) inadmissible extraneous offense
evidence, (2) hearsay, (3) narrative by the interviewing officer that was not a
present sense impression (hearsay), (4) discussion of a polygraph examination, and
(5) testimony after invocation of appellee’s Sixth Amendment right to counsel.
2
Before the jury was seated, the trial court both orally sustained and overruled
varying portions of the motion. The trial court subsequently dismissed the jury.
On July 22, 2010, the trial court issued an order granting portions of appellee’s
motion to suppress.
Discussion
In its sole issue, the State contends that the trial court erred in suppressing
the portion of the audio recording designated in appellee’s motion as III.B through
L because there is no requirement that Jarvis be a certified translator. 2 The State
also argues that, rather than redacting the challenged portions of the audiotape, the
Court should have ordered the court-certified interpreter who was present for trial
to provide a simultaneous translation of appellee’s answers in Spanish, or a written
translation for presentation to the jury. Appellee did not file a brief.3
At the July 7, 2010 hearing on appellee’s motion to suppress, the trial court
orally ruled as follows:
2
Neither the trial court’s oral ruling nor its written order specifies the portions of
the audio to be redacted. The specific time designations are present only in
appellee’s written motion. All eleven of these specific portions of the audiotape
are designated in the motion as “Translation.”
3
Trial counsel filed six motions to extend time to file appellee’s brief, four of
which were granted and two denied as untimely after this Court indicated that
further motions would not be considered absent extraordinary circumstances.
Counsel was notified that the case would be set for submission in May 2012, with
or without a brief from appellee, and ordered to notify his client. The State filed
two motions to extend time to file its brief, which were granted.
3
[THE COURT]: Yes. Number 3, dealing with what is referred to as
inadmissible hearsay, I’m overruling the objection to A, but I’m
sustaining the objection to B through L, but it refers to the Spanish to
English translation of the CPS investigator.
[ASSISTANT DISTRICT ATTORNEY]: And the grounds on that is
that the translator’s rendition is hearsay?
[THE COURT]: It’s not a sworn interpretation, okay?
[DISTRICT ATTORNEY]: So you are not holding it’s hearsay -- if
she were a sworn interpreter making the statements, I think it would
be admissible.
[ANDAVERDE’S COUNSEL]: . . . . The defense would argue these
are inadmissible. It’s inadmissible hearsay, Your Honor, under the
Fis[c]her case [252 S.W.3d 375 (Tex. Crim. App. 2008)]4 and in
addition to that, the 1990 Court of Criminal Appeals on Leal [782
S.W.2d 844 (Tex. Crim. App. 1989)] 5 and that goes towards anything
in Spanish on this audio tape is not admissible unless there’s a
certified translation.
[THE COURT]: Okay, essentially, I’m dealing with the ruling in
Leal, not necessarily Fischer, but in Leal.
Following the court’s oral ruling, Jarvis testified that she was not certified as
an interpreter, but that she considered herself fluent in Spanish. A review of the
audiotape reveals that when appellee began speaking in Spanish toward the end of
the interview, Jarvis repeated what appellee had said to Officer Ellison in English
as well as asked appellee questions in Spanish. Although Jarvis initially claimed to
4
Fischer discusses the present-sense impression exception to the hearsay rule. See
Fischer v. State, 252 S.W.3d 375, 379–87 (Tex. Crim. App. 2008).
5
Leal discusses the admission of a tape-recorded conversation in a foreign
language. Leal v. State, 782 S.W.2d 844, 847–50 (Tex. Crim. App. 1989).
4
interpret appellee’s statements in Spanish to the officer “exactly” in English, she
later recanted:
[THE COURT]: Ms. Jarvis, when I listened to the tape, I had the
distinct impression that it was not a word for word translation but it
was more of a paraphrased translation to the officer present of what
Mr. Andaverde was saying. Am I correct or incorrect?
[WITNESS]: You’re correct.
[THE COURT]: Okay, so it wasn’t word for word.
[WITNESS]: No, sir.
On July 22, 2010, the trial court issued its order which stated as follows:
The Defendant’s Motion to Require the Prosecuting Attorney to
Redact Video came on for hearing and Defendant’s objections are
hereby:
....
Granted as to request ....
III. B
C
D
E
F
G
H
I
J
K
L
Article 38.30 of the Code of Criminal Procedure governs the use of
interpreters in criminal proceedings. TEX. CRIM. APP. PROC. ANN. art. 38.30(a)
(West 2011). It states, in relevant part, as follows:
5
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.
Id.
In Leal, the Court of Criminal Appeals held that the trial court had erred
when it admitted into evidence the tape-recorded conversation in Spanish between
the defendant and a witness cooperating with law enforcement authorities without
a sworn translation into English. See 782 S.W.2d at 849–50. The Court
analogized the situation involving a tape recording of witnesses speaking Spanish
to a non-English-speaking witness testifying in court and held that the safeguards
of article 38.30 apply. See id. “In the face of a proper motion or objection an
interpreter must be sworn to translate the conversation, so long as the interpreter is
‘considered to possess adequate interpreting skills for the particular situation’ and
is ‘familiar with the use of slang’ to the satisfaction of the trial court.” Id. at 849.
Because a sworn interpreter was not called upon by the trial court to translate the
admitted tape-recording containing the conversation, the Court held that the trial
court had failed to comply with article 38.30. See id. at 849–50 (holding trial court
“erred when it admitted the tape recording into evidence without it being translated
from Spanish to English by a sworn interpreter”).
6
Here, the docket sheet reflects that the trial court granted defense counsel’s
motion for an interpreter on February 22, 2010. 6 Thus, under the clear language of
the statute, appellee’s statements had to be translated by a sworn interpreter. It is
undisputed that Jarvis was not a sworn interpreter. Jarvis further admitted to the
trial court that she had not translated appellee’s statements at the interview word-
for-word but had paraphrased them instead.
In support of its argument that Jarvis was not required to be a certified
interpreter for her translation of appellee’s statements to be admissible, the State
relies on Rodriguez v. State, No. 2-05-398-CR, 2007 WL 174684 (Tex. App.—
Fort Worth Jan. 25, 2007, pet. ref’d) (memo op., not designated for publication)
and Martinez v. State, No. 08-02-00508-CR, 2004 WL 1576777 (Tex. App.—El
Paso July 15, 2004, pet. ref’d) (memo op., not designated for publication). We
initially note that both of these cases are unpublished and, as such, have no
precedential value. See TEX. R. APP. P. 47.7 & 2008 cmt.; Ferguson v. State, 335
S.W.3d 676, 688 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (noting that
“unpublished cases are not part of Texas jurisprudence and cannot be either
binding or persuasive authority”). Notwithstanding, both Rodriguez and Martinez
are factually distinguishable from the present case.
6
See Stokes v. State, 277 S.W.3d 20, 24 (Tex. Crim. App. 2009) (finding trial
court’s docket sheet to be reliable indicator of judge’s decisions and business of
court).
7
In Rodriguez, a police detective interviewed the defendant in Spanish and a
portion of the interview was tape recorded. See 2007 WL 174684, at *2. The
taped portion of the interview was translated by a certified court interpreter, but the
trial court also allowed into evidence the defendant’s statements made to the
detective before the recorder was turned on. See id. On appeal, the defendant
argued that the trial court had erred by allowing testimony from an uncertified
police interpreter regarding his allegedly incriminating statements. See id.
Rodriguez is factually distinguishable from the present case because the detective
in Rodriguez—who had passed a test enabling him to be a translator for the police
department—testified at trial in English concerning his conversation with
defendant in Spanish, thereby subjecting his translations to cross-examination. See
id. at *3; Leal, 782 S.W.2d at 849 (noting fact that individuals who translated
conversation between witnesses speaking Spanish were not called to witness stand
so that accuracy of their work could be subject to cross-examination, in court’s
analysis of whether trial court complied with article 38.30). Additionally, the tape-
recorded portions of the defendant’s conversations with the detective in Spanish
were translated by a certified court interpreter. See Rodriguez, 2007 WL 174684,
at *3. Here, by contrast, the State sought to admit portions of appellee’s tape-
8
recorded interview which were not translated by a certified interpreter and could
not be subject to cross-examination.7
In Martinez, the defendant argued that the trial court had erred in admitting
his written statement because he had received an inadequate translation of his
Miranda rights into Spanish by the police officer. See 2004 WL 1576777, at *2.
The court of appeals noted that the question of a translation’s accuracy is an issue
of fact to be settled by the trier of fact, and that an appellant must settle the
question at trial by impeaching the translation, either by cross-examination or other
means. See id. (citing to Garcia v. State, 887 S.W.2d 862, 875 (Tex. Crim. App.
1994)). Noting that trial counsel had vigorously questioned the police officer on
his translation, the Martinez court held that the trial court had not abused its
discretion in concluding that the defendant had been properly warned before being
subjected to custodial interrogation. See Martinez, 2004 WL 1576777, at *3.
Here, by contrast, the State is challenging the trial court’s suppression of translated
7
It is worth noting that the Rodriguez court did not cite to Leal in its discussion of
the admissibility of the testimony of an uncertified police interpreter. Further, the
Rodriguez court’s statement that “by its very terms, article 38.30, governs the use
of interpreters in court proceedings, not police interviews,” implies that article
38.30 applies only to court proceedings. 2007 WL 174684, at *3. Such a
conclusion is contrary to the Court of Criminal Appeals’s finding in Leal that
article 38.30 applied to a tape-recorded conversation between the defendant and a
witness cooperating with law enforcement authorities. See Leal, 782 S.W.2d at
847.
9
portions of the audiotape prior to trial for which Jarvis was not subject to cross-
examination.
Based on appellee’s motion, the pretrial hearing, and the court’s written
order, we conclude that the trial court suppressed only the audio recording of
Jarvis’s translations, not appellee’s testimony in Spanish. Nothing in the court’s
order prevents the State from calling Jarvis as a witness at trial. We therefore
express no opinion concerning the admissibility at trial of appellee’s testimony in
Spanish with appropriate translation, or any testimony by Jarvis. We overrule the
State’s sole issue.8
Conclusion
We affirm the judgment of the trial court.
Jim Sharp
Justice
Panel consists of Justices Higley, Sharp, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
8
The State also contends that the trial court suppressed appellee’s statements
because it found them to be hearsay. We disagree. The trial court’s oral ruling
makes clear that it based its ruling on Leal and the fact that appellee’s statements
were not translated by a sworn interpreter. The State also asserts that, at the
hearing on the motion to suppress, trial counsel raised constitutional concerns
regarding the translations. However, a review of the record reveals no mention by
trial counsel of constitutional grounds supporting the suppression of appellee’s
statements. Thus, we do not address the State’s arguments concerning hearsay or
constitutional issues.
10
State v. Roberto Acuna Andaverde
Combined Opinion