AP-77,036
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/6/2015 12:12:57 PM
Accepted 10/6/2015 12:37:53 PM
No. AP-77,036 ABEL ACOSTA
CLERK
In the
Court of Criminal Appeals of Texas
At Austin
♦
October 6, 2015
No. 1412826
In the 179th District Court
Of Harris County, Texas
♦
JUAN BALDERAS aka APACHE
Appellant
v.
THE STATE OF TEXAS
Appellee
♦
STATE’S LIST OF SUPPLEMENTAL AUTHORITIES
♦
To the Honorable Court of Appeals:
This case is set for oral argument on October 7, 2015. The issues that
will be argued revolve around the appellant’s claims that the trial court erred
in allowing a State’s witness to testify through an interpreter when there was
evidence in the record that the witness could speak English.
The State’s pre-argument research has not uncovered any additional
authority on the statutory or constitutional claims made by the appellant. The
State has found a small number of federal cases interpreting Federal Rule of
Criminal Procedure 28, which relates to the appointment of interpreters by
the trial court. The State does not believe these cases are binding, but,
considering the paucity of cases addressing whether a trial court erred in
appointing an interpreter, they may be of some assistance to this Court.
United States v. Salsedo, 607 F.2d 318, 320 (9th Cir. 1979). The Ninth Circuit
upheld a trial court’s decision to appoint an interpreter for a State’s witness
over defense objection. The Court determined the matter by deferring to the
trial court’s conclusion, made after a hearing, that the witness was “not fluent
in English.”
United States v. Frank, 494 F.2d 145, 157-58 (2d Cir. 1974). In this case, a
prosecution witness testified in English on direct examination but testified
through an interpreter on cross-examination. Judge Friendly, writing for the
Second Circuit overruled the appellant complaint but expressed disapproval of
the trial tactic. Judge Friendly noted that the jury observed the procedure and
the defense used the tactic to attack the witness’s credibility.
United States v. Cheung Kin Ping, 555 F.2d 1069, 1078 (2d Cir. 1977). In this
case a prosecution witness who spoke English “fairly well” testified through an
interpreter. The trial court specifically instructed the jury that “[i]f a witness
were to pretend or feign ignorance of the English language, you may consider
it in the same manner as you would a false statement of a witness in
determining whether or not to believe his testimony.” The defendant raised a
Confrontation Clause claim on appeal, but that argument was overruled
because it had not been raised in the trial court.
United States v. Petrosian, 126 F.3d 1232, 1234-35 (9th Cir. 1997). After
Petrosian admitted that he would have a hard time testifying in English, the
trial court forced him, over objection, to testify through an interpreter. The
Ninth Circuit upheld this impingement on the defendant’s right to testify
based on the trial court’s “legitimate interest” in excluding unreliable
evidence. The Ninth Circuit explicitly noted that Petrosian had been “afforded
the opportunity to convey his sincerity to the jury by his physical reaction as
the interpreter repeated questions and by the tone of his voice and his facial
expression as he responded.”
Respectfully submitted,
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002-1923
(713) 755-5826
morgan_clinton@dao.hctx.net
TBC No. 24071454
CERTIFICATE OF SERVICE
I certify that I have requested that efile.txcourts.gov electronically serve
a copy of this motion to:
R. Scott Shearer
shearerlegal@yahoo.com
Counsel for Appellant
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002-1923
(713) 755-5826
morgan_clinton@dao.hctx.net
TBC No. 24071454
Date: October 6, 2015