Leon v. State

OPINION

DAVIE L. WILSON, Justice.

With an agreed recommendation, appellant Alfredo Edison Leon pleaded guilty to possession of a controlled substance weighing more than four grams and less than 200 grams. Consistent with the plea agreement, the court assessed punishment at 10 years imprisonment. We affirm.

DISCUSSION

In a sole point of error appellant argues that his guilty plea was involuntary because, although he does not understand and speak English, he did not have a sworn interpreter. The plea admonishments form states that appellant understands the Spanish language. The form also states that appellant’s counsel explained the admonishments to appellant in Spanish before appellant signed the form. Finally, the form states that appellant consulted fully with his attorney before entering the plea.

Appellant, however, argues that Code of Criminal Procedure article 38.30(a) requires an interpreter be sworn when an accused does not understand and speak English. He argues that having defense counsel translate for a client does not satisfy article 38.30. In support, he cites Baltierra v. State, 586 S.W.2d 553 (Tex.Crim.App.1979). We conclude that appel*843lant has waived any complaint under article 38.30 and that Baltierra is inapposite.

Article 38.30(a) provides in part: 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.

Tex.Code Crim. P. Ann. art. 38.30(a) (Vernon Supp.2000). Unless the record otherwise demonstrates the defendant’s lack of understanding of the proceedings, a defendant who does not request an interpreter waives the right to complain on appeal. Hernandez v. State, 986 S.W.2d 817, 822 (Tex.App.—Austin 1999, pet. ref'd).1

We do not have a reporter’s record of the plea hearing. The admonishments form indicates (1) that counsel explained to appellant the admonishments, the waivers of constitutional rights, the agreement to stipulate, and the judicial confession, (2) that appellant understood the admonishments, and (3) that appellant was aware of the consequences of his plea. The admonishments form states that appellant’s plea was freely and voluntarily made. The judgment states that it appeared to the court that appellant understood the consequences of his plea and that appellant’s plea was freely and voluntarily made. Absent any showing to the contrary, we assume regularity in the proceedings. Breazeale v. State, 683 S.W.2d 446, 450-51 (Tex.Crim.App.1984).

Appellant contends that, under Baltier-ra, it was not sufficient for counsel to act as an interpreter. In Briones v. State, the •defendant contended his plea of nolo con-tendere was not voluntarily and intelligently entered because he did not read, speak, or understand English. 595 S.W.2d 546, 547 (Tex.Crim.App.1980). During the entry of his plea, the trial court engaged in the standard plea colloquy with the defendant, and defendant’s counsel translated. See id. at 547-48. The court of criminal appeals held that the trial court had not erred in accepting the defendant’s plea. Id. at 548. The court explained:

The only basis for providing an interpreter is because of the constitutional and statutory guarantee of confrontation under the Constitutions of the United States and of Texas. Ex parte Marez, 464 S.W.2d 866 (Tex.Cr.App.1971). However those rights may be waived. Garcia v. State, 151 Tex.Cr.R. 593, 210 S.W.2d 574 (1948). The question involved in the case at bar is not whether the failure to appoint an interpreter denied the appellant’s right to confrontation. Rather the question is whether the failure to appoint an interpreter prevented the appellant from intelligently and voluntarily waiving his right to confrontation and entering a plea of nolo contendere.
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This case may be distinguished from those of Baltierra v. State, 586 S.W.2d 553 (Tex.Cr.App.1979) and Ex parte Nanes, 558 S.W.2d 893 (Tex.Cr.App.1977). Here the appellant waived his right to confrontation and cross-examination of witnesses. Baltierra and Nanes did not waive their rights to confrontation and cross-examination of the witnesses, and they could not fully exercise those rights because they did not understand the English language; they needed interpreters to help them understand the testimony of the witnesses.

Id. at 547-548.

As in Briones, the record in the present case indicates appellant was informed of *844his rights, waived them, and freely and intelligently entered his plea.

We overrule point of error one.

We affirm the judgment.

Justice COHEN concurring.

. The State argues that appellant waived “his right to appeal,” when he pleaded guilty and the court sentenced him according to the plea bargain. Appellant, however, is challenging the voluntariness of his plea. This Court has held that Texas Rule of Appellate Procedure 25.2(b)(3) does not preclude a challenge to the voluntariness of a plea. Davis v. State, 7 S.W.3d 695, 697 (Tex.App.—Houston [1st Dist.] 1999, no pet.)