PD-0656-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/17/2015 6:21:02 PM
Accepted 8/18/2015 11:31:57 AM
ABEL ACOSTA
CLERK
PD-0656-15
COURT OF CRIMINAL APPEALS OF TEXAS
LAWAN PALUMBO,
Appellant,
vs.
THE STATE OF TEXAS,
Appellee.
On Petition for Discretionary Review from the First Court of Appeals in Cause No.
01-13-01072-CR, affirming the conviction in Cause No. 1868453, In the County
Criminal Court at Law No. 5 of Harris County, Texas.
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
VICTORIA ERFESOGLOU
Attorney at Law
SBN: 24076370
202 Travis, Suite 304
Houston, Texas 77002
August 18, 2015
Tel: (713) 252-4738
Fax: (832) 201--8225
verfeso@gmail.com
Counsel for Appellant
IDENTITY OF JUDGE, PARTIES AND COUNSEL
Trial Court Judges: Hon. Leslie Brock Yates
Hon. Margaret Harris
County Criminal Court at Law No. 5
Harris County, Texas
1201 Franklin Street, 7th Floor
Houston, Texas 77002
Parties to the Judgment: Lawan Palumbo
The State of Texas
Names and addresses of
trial counsel (State) : Kristena Glenn
Alvin Adjei
Christopher Handley
Assistant District Attorneys
Harris County, Texas
1201 Franklin Street, 6th Floor
Houston, Texas 77002
Name and address of
trial counsel (Defense): Joaquin Jimenez
7575 Gulf Freeway
Houston, Texas 77017
Counsel on appeal for the State of Texas: Abbie Miles
Alan Curry
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, 6th Floor
Houston, Texas 77002
Counsel on appeal for the Appellant: Allison Jackson
601 Sawyer Street, Ste. 105
Houston, Texas 77007
Counsel for PDR for the Appellant: Victoria Erfesoglou
202 Travis, Suite 304
Houston, Texas 77002
TABLE OF CONTENTS
PAGE
Identity of Judge, Parties and Counsel: 1
Table of Contents: 11
Index of Authorities: lV
Statement Regarding Oral Argument: V1
Statement of the Case: V1
Statement of Procedural History: vu
Grounds for Review: 1
Ground for Review One
Where Officer Smith testified that he groped the Appellant's breasts and buttocks
prior to arresting her, did the court of appeals err in concluding that such behavior did
not violate the Appellant's constitutional or statutory rights, and that she was
therefore not entitled to a jury instruction under article 38.23(a)?
Ground for Review Two
Given the violation to Appellant's body, the court of appeals err in holding that
Appellant's trial counsel was not ineffective when he did not attack the admissibility
of Smith's testimony or his audio recording on the theory that Appellant could not
have invoked Tex. Code Crim. Proc. Art. 38.23(a).
Ground for Review Three
The court of appeals erred in upholding the trial court's refusal to provide the
Appellant, after she repeatedly requested one, and to instead treat Appellant as a
person "with a lower education."
Argument Under Grounds for Review: 2
ii
TABLE OF CONTENTS (Cont'd)
PAGE
Prayer for Relief: 17
Certificate of Service: 18
Certificate of Compliance: 19
Appendix (Palumbo v. State): appendix
iii
INDEX OF AUTHORITIES
Cases Page
Baltierra v. State, 586 S.W.2d 553, 556-9 (Tex. Crim. App. 1979) ......... .. ...... . .. . ... 14
Chavez v. State, 9 S.W.3d 817, 819 (Tex. Crim. App. 2000) . . ..... ... ......... . ....... 7, 11
Crawford v. Washington, 541 U.S. 36, 42 (2004) .. . . ...... ... ...... ........... .... . . .... . .... 14
Fullerv. State, 829 S.W.2d 191, 202 (Tex. Crim. App. 1992) ........................... 7, 11
Garcia v. State, 149 S.W. 3d 135 (Tex. Crim. App. 2004) ... ........... ................ 14-15
Garcia v. State, 429 S.W.3d 604 (Tex. Crim. App. 2014) .... . ...... .. ...... ... ........ 14-16
Hampton v. United States, 425 U.S. 484 . . ......... ... ...................... .. .. .. ............ 12
Lopez v. State, 574 S.W.2d 563 (Tex. Crim. App. 1978) .. . ..... ...... ... .... ... ....... .. . 10
Miller v. State, 177 S.W.3d 1 ... ... ...... .......... . . ....... ............... ... . . . . .. ..... 13, 14
(Tex. App. -Houston [1 st Dist.] 2004, no pet.)
Palumbo v. State, No. 01-13-01072-CR, 2015 ..... ..... ............... . . . ... .... ... ..... passim
(Tex. App.-Houston [1 st Dist.] April 16, 2015, no pet. h.)
Watson v. State, 10 S.W.3d 782, 784 .. ....... .. .... . .. ................................ 7, 11-12
(Tex. App. -Austin 2000, no pet.)
Wilson v. State, 311S.W.3d452, 458-9 (Tex. Crim. App. 2010) ............ .. ... 7, 9-10, 13
Statutes and Rules
Health and Safety Code Ann., sec. 481.062(a)(4) ... . . . ..... ........... ..... . . .. ........... 9
Tex. Code Crim. Proc. Ann., art. 38.23(a) ....... ... ...... ... ................... 6-10, 12-13
Tex. Code Crim. Proc. Ann., art. 38.30 . . . . .... ........... .. ... .. ~ - ....... ..... ..... .... . . 14
Tex. Code Crim. Pro. Ann., art. 43.06 .... ... ...... ...... .................... .... .. . .. .. .. 10
iv
INDEX OF AUTHORITIES (Cont'd)
Tex. Const. art. I, sec. 19 .. ........ ... . . ............ . ......................... .. .... . ....... 12
Tex. Penal Code Ann., sec. 22.011(b)(8) .. ...... ... ............. .... .... . ..... . ....... . .... 12
Tex. Penal Code Ann., sec. 43.05 ........................................................... 12
Tex. Penal Code Ann., sex. 43.06 ........... . . .... .. ...... ....... ....... .... .. .. ... . . . . . .. 10
U.S. Const. amend. VI .............................. . ....................................... 13
U.S. Const. amend. XIV ......................................... . .......................... 12
Other Authority
George E . Dix & John M. Schmolesk:J, 6 Texas Practice and Procedure .. ....... .. . ... 10, 12
Criminal Law Sec. 25.6 (2d ed. 2015)
v
STATEMENT REGARDING ORAL ARGUMENT
Appellant believes oral argument would assist the Court in disposition of the
issues presented. Oral argument would be helpful because the issue of whether an
officer's unfettered and unnecessary sexual contact with a suspect of prostitution is
sanctioned, is an important issue of state law that has not been, but should be, decided
by this Court. See Tex. R. App. P. 66.3(b) .
STATEMENT OF THE CASE
The Appellant was charged by misdemeanor information with the class B offense
of prostitution, in cause number 1868453, alleged to have occurred on or about
December 17, 2012 (C.R. at 7). The punishment range for a Class B Misdemeanor is up
to 180 days confinement in county jail, and up to a $2,000 fine. The jury found
Appellant guilty (C.R. at 44). Although the Appellant filed an election for the jury to
assess punishment, Appellant reached an agreement on punishment with the State, for
180 days probated for one year, and a $2,000 fine (6 R.R. at 6) . The judge modified
Appellant's punishment to include a condition that Appellant reimburse the State for
attorney's fees for her appointed counsel (6 R.R. at 7). Appellant did not file a Motion
for New Trial. Appellant's Notice of Appeal was filed on November 26, 2013. (C.R. at
54) .
vi
STATEMENT OF PROCEDURAL HISTORY
On April 16, 2015, in a published opinion, the First Court of Appeals affirmed
the Appellant's conviction. Palumbo v. State, No. 01-13-01072-CR, 2015 (Tex. App. -
Houston [1 sr Dist.] April 16, 2015, no pet. h.). A motion for rehearing was not filed.
This Court has extended the time to file the Appellant's Petition for Discretionary
Review until August 17, 2015, which is the date that this document is being e-filed.
vii
GROUNDS FOR REVIEW
GROUND FOR REVIEW ONE
Where Officer Smith testified that he groped the Appellant's breasts and
buttocks prior to arresting her, did the court of appeals err in concluding that such
behavior did not violate the Appellant's constitutional or statutory rights, and that she
was therefore not entitled to a jury instruction under article 38.23(a)?
GROUND FOR REVIEW TWO
Given the violation of Appellant's body, did the court of appeals err in holding
that Appellant's trial counsel was not ineffective when he did not attack the admissibility
of Smith's testimony or his audio recording on the theory that Appellant could not have
invoked Tex. Code Crim. Proc. Art. 38.23(a)?
GROUND FOR REVIEW THREE
The court of appeals erred in upholding the trial court's refusal to provide the
Appellant with an interpreter after she repeatedly requested one, and to instead treat
Appellant as a person "with a lower education."
1
ARGUMENT UNDER GROUNDS FOR REVIEW
A. Statement of Facts Relative to Grounds for Review:
The misdemeanor information in this case alleges, in relevant part, that:
... PALUMBO, hereafter styled the Defendant, heretofore on or about December 17,
2012, did then and there unlawfully, knowingly AGREE TO ENGAGE in sexual
conduct, namely, sexual intercourse, to-wit: STRAIGHT SEX, with B. SMITH, for a
fee ..... [and] deviate sexual intercourse, to-wit: ORAL SEX, with B. Smith, for a fee.
(C.R. at 7).
Officer Smith (hereafter "Smith") went to the Pink Spa in an undercover capacity
and paid a $60 door fee to "Lola," the manager. (4 R.R. at 70). Smith went to a
massage room alone and Ms. Palambo (hereafter "Appellant") entered the room. (4
R.R. at 49). At one point, "Lola" entered the room to ask if Smith was an undercover
officer. (4 R.R. at 80) . Smith denied he was an officer and "Lola" left the room. Id.
Appellant, now alone with Smith, never asked him if he was an undercover officer.
(4 R.R. at 98). In the room, Appellant was nervous and afraid. (4 R.R. at 80). Her
fear and nervousness was visible to Smith. (4 R.R. at 80-1). Smith told Appellant to
relax, she was doing fine and assured her it was okay. Id.
Smith's supervisor, Sergeant McDaniel (hereafter "McDaniel") was familiar with
the Pink Spa. (4 R.R. at 35). McDaniel testified these kinds of massage parlors are
locked from the inside, controlled by the manager at the door, and equipped with
cameras. (4 R.R. at 26).
In the room Smith took off his clothes and got on his' stomach. (4 R.R. at 72,
78). Appellant was rubbing Smith when he asked her "How much is it to fuck?" (4
2
R.R. at 74). Smith testified that after some negotiating he offered Appellant $140 for
sexual intercourse and oral sex. (4 R.R. at 75, 83, 84). He said Appellant agreed by
shaking her head yes and saying, 'yeah, that's fine.' (4 R.R. 75). After Smith made
the agreement with Appellant, he arrested her. (4 R.R. 84-5).
Prior to her arrest, Smith testified he asked to see Appellant's breasts and she
took her top off. (4 R.R. 81). He then touched her breasts. (4 R.R. at 81-2). Smith
proceeded to ask what he was going to get for his money, and "how much is it to
fuck?" (4 R.R. 82). Smith touched Appellant's buttocks too. (4 R.R. at 97). Smith
explained that he touched Appellant's private areas to assure her that he was not an
undercover officer, although Appellant never asked him if he was, and was already
. rubbing him. (4 R.R. at 74, 97-8).
Appellant was acting nervous and embarrassed, and Smith told Appellant there
was "no sense in being nervous or embarrassed." (4 R.R. 99). More than once, Smith
testified that Appellant was mumbling, scared, nervous, and afraid. (4 R.R. 80, 81,
98, 99). Although Smith said he did not coerce the Appellant, he admitted to telling
her to relax and that "it" was okay. (4 R.R. 81, 85) .
Appellant's trial counsel informed the court that Appellant is a Thai native
speaker. (R.R. at 112). He also informed the court that it was not Appellant's
decision to proceed without an interpreter. (4 R.R. at 111). During trial, Appellant
'
did not have an interpreter. (R.R. at 1-116). When Appellant took the stand, she did
not have an interpreter, and the trial court was concerned about Appellant's ability
3
to understand English. (4 R.R. at 101-3, 112). The judge specifically asked Appellant
if she wanted an interpreter. (4 R.R. at 113). Appellant told the judge, multiple times,
that she wanted an interpreter. (4 R.R. at 113). Even after Appellant's requests, an
interpreter was never brought to court. (4 R.R. 113-4). The trial court ultimately
decided that the State could treat Appellant like someone with a "lower education,"
in lieu of obtaining an interpreter, and "explain" the questions being asked while on
the witness stand. (4 R.R. at 116). Similarly, the preceding evidence and witness
testimony, were never interpreted or "explained" for Appellant. (4 R.R. 1-116).
Once the jury was brought back to the courtroom, the trial court informed the
jury that Appellant was comfortable going forward without an interpreter, even
though Appellant told the judge she wanted one. (4 R.R. 117). The exchange, in
relevant part, was as follows:
THE COURT: I'm a little uncomfortable as to her fluency in English. Are you
convinced that she's fluent in English?
MR. JIMENEZ: It's a tough call. I was going to get an interpreterl but I think
she knew enough to -
THE COURT: Did you discuss it with her?
MR. JIMENEZ: Yes.
THE COURT: And was it her decision to go forward without an interpreter?
MR. JIMENEZ: No.
4
THE COURT: Ms. Palumbo .. .I'm concerned that you might not understand
everything that's happening. How do you feel about it? Do you feel like you
understand what everyone is asking you and saying?
THE DEFENDANT: You know, be honest with you, sometimes I understand,
but sometimes the truth is the truth, you know. But I try to answer the truth,
that's all I did.
THE COURT: That's not my question, though. I just want to know whether you
need an interpreter. Do you need someone to speak Thai with you?
THE DEFENDANT: Yes. First, I ask him because sometimes you know, like,
the word fall, sometimes I don't understand.
THE COURT: Okay. And you said early on - or before you asked him that.
How about trial, though, are you okay testifying without an interpreter to speak
Thai with you?
THE DEFENDANT: Yes.
THE COURT: You're okay? You feel like you understand well enough?
THE DEFENDANT: Yes.
THE COURT: Because one of these lawyers is getting ready- I think Ms. Glenn
is going to start asking you questions in English, and you need to be able to
understand her correctly so that you can answer correctly.
THE DEFENDANT: But may I ask you for the translator for a little bit, that's
okay? Like with some questions I don't understand, like, I might ask my brother
or something? (4 RR at 113-4).
An interpreter was never brought for Appellant, during her testimony Appellant
asked "what you mean," "say again," more than once, and when the judge next asked
her if she understood, she replied, "I try." (4 R.R. 118, 120, 123, 129).
5
B. Appellant's Argument At The Court of Appeals, and That Court's
Opinion:
Appellant complained her trial counsel was ineffective by failing to attack, or
object to the admission of unlawfully obtained evidence, Smith's testimony and his
audio recording. Palumbo at 2. Appellant also argued the trial court committed
fundamental error by admitting said unlawfully obtained evidence; and failing to
provide a jury charge according to article 38.23 of the Texas Code of Criminal
Procedure. Id Lastly, Appellant complained the trial court erred by failing to appoint
an interpreter during Appellant's trial. Id
Specifically, Appellant complained that the prostitution statute does not contain
a provision authorizing officers to violate that statute in order to conduct investigations.
Appellant further complained that Smith committed prostitution and violated the law
prior to arresting her, and the evidence against her was collected unlawfully. As a result,
Appellant complained trial counsel rendered ineffective assistance of counsel when he
failed to object and/ or attack the unlawfully obtained evidence. Since a 38.23
instruction was never provided, Appellant essentially argued there was unobjected-to
error in the court's charge which resulted in egregious harm. Appellant argued that the
trial court was aware of Appellant's inability to understand or communicate effectively
in English, yet an interpreter was never appointed for her. Id at 6, 9.
The First Court of Appeals responded, in relevant pa.tit,
article 38.23 prohibits any evidence obtained in violation of law from
being admitted against an accused in trial of a criminal case. Tex. Code
6
Crim. Proc. art. 38.23(a) (West 2005). Nevertheless, article 38.23(a) does
not 'confer automatic third party standing upon all persons accused of
crimes, such that they may complain about the receipt of evidence which
was obtained by violation of the rights of others, no matter how remote
in interest from themselves.' Fuller v. State, 829 S.W.2d 191, 202 (Tex.
Crim. App. 1992); see Chavez v. State, 9 S.W.3d 817, 819 (Tex. Crim. App.
2000). The purposes underlying article 38.23(a) are the same as the
purposes underlying the federal exclusionary rule: 'to protect a suspect's
privacy, property, and liberty rights against overzealous law enforcement,'
and the primary purpose 'is to deter unlawful actions which violate the
rights of criminal suspects in the acquisition of evidence for prosecution.'
Wilson v. State, 311 S.W.3d 452, 458-9 (Tex. Crim. App. 2010) (emphasis
added) ... .article 38.23(a) may not be invoked for statutory violations
unrelated to the purpose of the exclusionary rule or to the prevention of
the illegal procurement of evidence of crime.' Id; see also Watson v. State, 10
S.W.3d 782, 784 (Tex. App.-Austin 2000, no pet.). Id at 7-8.
The First Court of Appeals found that all of Appellant's arguments concerning
article 38.23 hinged on her ability to invoke article 38.23 "for an alleged violation of the
prostitution statute." Palumbo at 7. The First Court of Appeals addressed the fact that
Smith agreed to pay Appellant money in exchange for oral and vaginal sex, but they did
not address the officer's acts of touching Appellant's breasts and buttocks. Palumbo at
2, 6. The court reasoned, since Appellant could not invoke article 38.23(a) based on the
officer's verbal agreement, her trial counsel was not ineffective by failing to attack the
officer's testimony and audio recording under article 38.23(a), and the trial court did
not commit fundamental error by admitting the evidence and omitting an article
38.23(a) instruction from the jury charge. Id at 8-9. Accordingly, Appellant's first three
complaints concerning ineffective assistance of counsel and the admission of the
'
unlawful evidence obtained by Smith were overruled based on her lack of standing to
7
invoke article Tex. Crim. Code Pro., art. 38.23(a). Id The First Court of Appeals never
addressed the unnecessary touching of Appellant's private parts.
Appellant also complained the trial court erred in failing to provide an
interpreter for her. This complaint was also overruled by the First Court of Appeals.
The appellate court found that the trial court addressed the issue of an interpreter with
Appellant during trial, and that Appellant was capable of understanding E nglish. Id at
10. The court of appeals responded further that Appellant told the trial court she did
not want an interpreter and that Appellant freely, and knowingly waived her right to an
interpreter. Id at 11.
C. Argument Under Grounds for Review:
1. Appellant's standing to invoke Tex. Crim. Code Pro., art. 38.23(a):
Review is proper pursuant to Tex. R. App. Pro. 66.3(b) because the court of
appeals has decided an important question of state law that has not been, but should
be, settled by the Court of Criminal Appeals. Specifically, how much of Appellant's
body could Smith have sexual contact with, though unnecessary for his investigation,
before violating her constitutional rights, rights under due process, and providing
Appellant with standing to invoke Tex. Code Crim. Pro., art. 38.23(a)? How much
unfettered sexual contact was Smith allowed to engage in, even though it was not
necessary for his arrest of Appellant, before said conduct was sufficiently outrageous as
to violate the concept of fundamental fairness inherent in Appellant's due process
rights? Did said unnecessary sexual contact provide Appellant with standing to invoke
8
Tex. Code Crim. Pro., art. 38.23(a), to challenge Smith's recording and testimony as
inadmissible evidence?
The First Court of Appeals correctly agreed that the primary purpose of Tex.
Code Crim. Pro., art. 38.23(a) is to deter unlawful actions which violate the rights of
criminal suspects in the acquisition of evidence for prosecution. Id at 7. The primary
purpose of article 38.23(a) is to deter unlawful actions which violate the rights of
criminal suspects in the acquisition of evidence for prosecution. Wilson v. S fate, 311
S.W.3d 452, 459 (Tex. Crim. App. 2010) . "Article 38.23(a) may not be invoked for
statutory violations unrelated to the purpose of the exclusionary rule or to the
prevention of the illegal procurement of evidence of crime." Id.
In Wilson, the court stated that one of the principles in safeguarding against
officers' violations, is to address
the harm that comes from the [actor's] disobedience of the law- damage
to the authority of the government; a lessening of the public's confidence
in our institutions; public cynicism, fear, and uncertainty and a social
climate that is likely to lead to even greater disobedience. Id at 460. -
The State often argues that trickery and deception are necessary in interrogations
and in order to catch criminals. Id at 461-2. However, this Court (opinion by Judge
Cochran, joined by Judges Price, Womack, Johnson and Holcomb) disagreed in Wilson.
Id. Undercover drug investigations, like drug buys, involve specific statutorily
sanctioned deception. Id at 463. The Texas legislature specifi~ally exempted liability for
officers to possess controlled substances during undercover drug buys. Id Health and
9
r
Safety Code § 481.062(a)(4), allows officers in the lawful discharge of their official
duties, to possess controlled substances, without fear of penalty. Id at 463 n. 42.
However, there is no legislative exemption for officers to tamper with government
documents and/ or to fabricate evidence. Id Similarly, there is no legislative exemption
for officers to commit prostitution, sexual assault, compelling prostitution, or other
sexual acts on suspects. "Sometimes 'it takes a thief to catch a thief,' but the decision
to exempt police officers from certain penal laws rests with the Legislature, not the
court." Id at 463.
An undercover officer is not an accomplice if he does not bring about the crime,
and only collects evidence against those engaged in crime. Lpez v. State, 574 S.W.2d
563, 565 (Tex. Crim. App . 1978). However, officers who do participate in a crime, may
freely testify under Tex. Penal Code Sec. 43.06 as an accomplice. Officers who testify
in court in prostitution cases get immunity from prosecution under this theory as an
accomplice witness furnishing testimony and/ or evidence. George E . Dix & John M.
Schmolesky, 6 Texas Practice: Criminal Law sec. 25.6 (2d ed. 2015). However, the
legislature did not provide officers with more than testimonial immunity in prostitution
cases. There are several instances of officer immunity, beyond testimony, in cases
similar to undercover drug investigations, but, prostitution is not among them. Here,
the First Court of Appeals found that regardless of Smith's violations, Appellant could
'
not invoke article 38.23 or challenge Smith's unlawful conduct because she did not have
standing. Palumbo at 8.
10
Under ChaveZ; and Watson, there is no third party beneficiary status to complain
about law enforcement conduct. Id; Chavez v. State, 9 S.W.3d 817 (Tex. Crim. App.
2000); Watson v. State, 10 S.W.3d 782 (Tex . App.-Austin 2000). In Watson, a female
undercover officer acting as a decoy solicited a 'john' to prostitution verbally. Watson at
783. At no time did the undercover officer touch the criminal suspect's private areas.
Id An agreement to exchange money for oral sex was made, and the suspect was
arrested. Id The female officer's verbal solicitation of the suspect to exchange money
for oral sex did not confer standing on him to trigger the exclusionary requirement. Id
at 784.
In ChaveZ; the appellant did not allege any violation of her own rights. Chavez at
818. This Court in ChaveZ; relied on Fidler, where a defendant did not have standing to
complain about seized evidence because no invasion of his rights occurred. Id In Fuller,
the defendant made a sexual audio recording while he was in custody for capital murder
and attempted to give it to a female inmate. Fuller v. State, 829 S.W.2d 191, 201 (Tex.
Cr. App. 1992). The recording was intercepted by another inmate who turned it over
to law enforcement. Id. In all three cases, the defendants were found to not have
standing to invoke 38.23(a) because their personal rights were not violated.
The facts in Fuller, Watson and Chavez are entirely distinguishable from this case.
Here, Smith admitted to touching Appellant's breasts and buttocks, even though she
' necessary to the verbal
did not ask him if he was an undercover officer, and it was not
agreement made to exchange sexual intercourse and oral sex for money. (4 R.R. 74, 97-
11
8) . Physically touching her body was not necessary for his investigation or arrest. A
decision stating Appellant does not have standing to assert a violation of her rights
when her private areas were violated by Smith is illogical.
Perhaps the fairest reading of [Article 38.23] is that it must have been
intended to permit challenges to evidence on the basis that the evidence was
obtained in violation of a 'law' that serves to protect an individual's personal
and property rights from infringement by others. George E . Dix & John lv1.
Schmo!esky, 6 Texas Practice: Criminal Law sec. 25.6 (2d ed. 2015) .
At its core, the primary purpose of article 38.23(a) is to deter unlawful actions which
violate the rights of suspects. Watson at 784. Here the First Court of Appeals cited
Watson and found Appellant lacked standing to assert a violation of 38.23(a) because
Smith did not violate her constitutional or statutory rights. Palumbo at 8. However,
Watson is completely distinguishable from Appellant's case. The female officer in Watson
did not touch his genitalia or private parts. Id
The due process rights guaranteed by the United States and Texas constitutions,
protect individuals against abusive government action. U.S. Const. amend. XIV; Tex.
Const. art. I, § 19. Even a predisposed defendant may have this kind of protection when
police over-involvement reaches a "demonstrable level of outrageousness." Hampton v.
United States, 425 U.S. 484, 495 n. 7, (Powell, J., concurring). Under Tex. Penal Code
Sec. 22.011 (b)(8), sexual assault occurs without the consent of the other person, if the
actor is a public servant who coerces the other person to submit or participate. Pursuant
I
to Tex. Penal Code Sec. 43.05, compelling prostitution occurs, if the actor knowingly
causes another by force, threat, or fraud to commit prostitution. Smith testified that
12
"Lola" was the only person in the Pink Spa to ask if he was an officer. (4 R.R. at 80).
He admitted Appellant was nervous and afraid, and he had to tell her to relax. (4 R.R.
81, 85) . Smith's acts of touching Appellant's breasts and buttocks was not necessary to
conceal his identity. Smith answered that he wanted to see her breasts, but he did not
stop there. He proceeded to touch her breasts and her buttocks. Smith did not need to
touch Appellant's private areas to conduct his investigation. "A 'good faith,' or 'pure
motive' violation of Texas penal laws concerning the acquisition of evidence does not
render art. 38.23 inapplicable to the evidence obtained as a result of that violation."
Wilson at 465. There should be an incentive for officers to behave with integrity.
Smith's motives in touching Appellant's private areas do not affect Appellant's
standing to invoke article 38.23(a). The touching played no part in Smith's probable
cause to arrest Appellant. Allowing officers to freely engage in this unnecessary sexual
contact, with no investigative purpose, with people in Appellant's position, shocks the
conscience.
2. Appellant's Requests for an Interpreter and Her Waiver:
Review is proper pursuant to Tex. R. App. Pro. 66.3(a) because the First Court
of Appeals' decision conflicts with the decision of another panel of the same court of
appeals, specifically, Miller v. State, 177 S.W.3d 1 (Tex. App.-Houston [1st Dist.] 2004,
no pet.).
I
The Sixth Amendment's Confrontation Clause provides that '[i]n all
criminal prosecutions, the accused shall enjoy the right ... to be confronted
with the witnesses against him.' US Const. Amend. VI. This 'bedrock
13
procedural guarantee' applies to both federal and state prosecutions.
Crawford v. Washington, 541 U.S. 36, 42 (2004) . Likewise the Texas
Constitution guarantees that ... the accused be confronted by the
witnesses against him. Tex. Const. art. I, sec. 10. Cross-examination has
been described as 'beyond any doubt the greatest legal engine ever
invented for the discovery of truth.' Miller at 5.
This Court acknowledged that providing an interpreter to an accused who
doesn't understand English is required by the Confrontation Clause and by the Texas
Constitution. Baltierra v. State, 586 S.W.2d 553, 556-9 (Tex. Crim. App. 1979). This
concept has been codified in Tex. Code Crim. Pro., Art. 38.30, which states that even
on motion of the court, if it is determined that a person charged . .. does not understand
and speak English, an interpreter must be sworn to interpret. Miller at 6. Confrontation
clause guarantees are "simply lost to an accused who, because of a language barrier," is
deprived of meaningful cross-examination. Id.
Review is also proper pursuant to Tex. R. App. Pro. 66.3(c) because the First
Court of Appeals has decided an important question of state law in a way that conflicts
with an applicable decision of the Court of Criminal Appeals in Garcia v. S fate, 149 S.W.
3d 135 (Tex. Crim. App. 2004), and in Garcia v. State, 429 S.W.3d 604 (Tex. Crim. App.
2014). Further, review is proper pursuant to Tex. R. App. Pro. 66.3(t) because the Court
of Appeals has so far departed from the accepted and usual course of judicial
proceedings as to call for an exercise of the Court of Criminal Appeals' power of
supetvls1on.
14
Absent an effective waiver that is knowing and voluntary an accused's rights
under the Sixth Amendment, as well as the ability to participate during trial in a
meaningful way, are violated. Garcia v. State, 149 S.W. 3d 135, 145 (Tex. Crim. App.
2004) . If the judge is aware of a defendant's language barrier, the judge has an
independent duty to ensure the proceedings are interpreted for the defendant. Id at 144.
"It would be illogical to require a non-English speaking defendant to assert [her] right
to an interpreter in a language [she] does not understand, when [she] may very well be
unaware [of the] right in the first place." Id
Without a knowing and intelligent waiver, defendant maintains the right. Id The
classic definition of waiver is an intentional relinquishment or abandonment of a known
right. Id There must be evidence that a valid waiver occurred. Garcia v. State, 429 S.W.3d
604, 608 (Tex. Crim. App. 2014). Although the Court found in the 2014 Garcia case that
a valid waiver of the right to an interpreter occurred, there was evidence to support that
waiver was voluntary and intelligent. Id at 609. In that case, trial counsel discussed the
strategy of not getting an interpreter with Garcia, in Spanish, defendant's native
language, and a language in which trial counsel was fluent Id at 606. Garcia told trial
counsel, in Spanish, that he was in agreement with trial counsel's strategy not to get an
interpreter, and trial counsel interpreted all of the evidence and testimony to Garcia
during breaks. Id The prosecutor and the trial judge were made aware that trial counsel
would be interpreting the testimony for Garcia and that he' did not want to get an
interpreter due to strategy. Id.
15
Appellant's trial counsel was not fluent in Thai. An interpreter was never
obtained for her. While on the witness stand the trial court specifically asked Appellant
if she wanted an interpreter because she was a native Thai speaker. (4 R.R. at 112). The
trial court was concerned about her ability to understand English. (4 R.R. at 113).
Appellant said "yes," when asked if she wanted an interpreter, more than once. Id She
signaled that she was having trouble understanding multiple times. (4 R.R. 118, 120,
123, 129). The trial court instructed the State to treat Appellant as though she had a
"lower education," and "explain" things Appellant did not understand while she was
on the witness stand. (4 R.R. at 116). An interpreter was never brought for Appellant.
No one interpreted, or "explained" the preceding testimony or evidence for Appellant,
not in Thai and not as though she had a "lower education." Id Appellant was forced to
navigate the proceedings without fully comprehending her trial or the testimony against
her.
The trial judge's decision to proceed without an interpreter, after Appellant asked
for one, was an abuse of discretion. The First Court of Appeals found that the trial
court did not act arbitrarily in deciding not to obtain an interpreter because Appellant
stated she did not want one. But Appellant asked for an interpreter more than once. (4
R.R. 113). She signaled to the judge that she did not understand the proceedings, more
than once. (4 R.R. 118, 120). The proceedings were never interpreted for her or
I
explained. Although Appellant asked for an interpreter, the trial court pressed on in
English, and decided not to get one. (4 R.R. 116). How many times did Appellant have
16
to say 'yes' when asked if she wanted an interpreter in order for the trial court to secure
one?
PRAYER FOR RELIEF
For the reasons stated above, the Appellant moves that this Court grant her
petition and reverse the judgment of conviction in this case, and remand the case for a
new trial.
Respectfully Submitted,
/ s/ Victoria Erfesoglou
Victoria Erfesoglou
SBN 24076370
202 Travis, Suite 304
Houston, Texas 77002
Tel: (713) 252-4738
Fax: (832) 201-8225
verfeso@gmail.com
Counsel for Appellant
17
CERTIFICATE OF SERVICE
I hereby certify that on this the 17rh day of August 2015, a copy of the foregoing
petition has been served on Alan Curry, who is the chief of the appellate division of the
Harris County District Attorney's Office, and on the State Prosecuting Attorney by mail
and/ or hand-delivery.
ls/Victoria E rfesoglou
Victoria E rfesoglou
18
CERTIFICATE OF COMPLIANCE
This petition complies with the type-volume limitations of Tex. R. App. Proc.
9.4(e) and 9.4(i). It contains 4,338 words printed in proportionally spaced typeface using
Garamond 14 point font.
Isl Victoria Erfesoglou
Victoria Erfesoglou
19
APPENDIX
Opinion in Palumbo v. State, No. 01-13-01072-CR, 2015
(Tex. App. Houston [ls• Dist.] April 16, 2015).
20
Opinion issued April 16, 2015
In The
Palumbo, Lawan
Combined Opinion