ACCEPTED
03-15-00727-CR
12913597
THIRD COURT OF APPEALS
N O . 03-15-00727-CR AUSTIN, TEXAS
9/27/2016 8:28:02 AM
JEFFREY D. KYLE
CLERK
I N T H E C O U R T OF APPEALS
T H I R D D I S T R I C T O F TEXAS I N A U S T I N
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
J U A N JOSE R A M I R E Z , SR., 9/27/2016 8:28:02 AM
JEFFREY D. KYLE
Appellant Clerk
V.
T H E STATE O F TEXAS
Appellee
Appeal i n Cause N o . 41984 i n the
424^^ Judicial District Court o f Burnet County, Texas
Brief For Appellee
Oral Argument Requested
OFFICE O F D I S T R I C T A T T O R N E Y
33^^ and 424'^ J U D I C I A L D I S T R I C T S
WILEY B. " S O N N Y " McAFEE, D I S T R I C T A T T O R N E Y
Gary W . Bunyard
Assistant District Attorney
P. O. Box 725
Llano, Texas 78643
Telephone Telecopier
(325) 247-5755 (325) 247-5274
g.bunyard@co.llano.tx.us
State Bar, N o . 03353500
A T T O R N E Y FOR APPELLEE
September 27, 2016
Identity Of The Parties
Trial Court
Honorable Evan Stubbs
424'^ Judicial District
Burnet County Courthouse Annex (North)
1701 East Polk St., Suite 74
Burnet, T X 78611
State/Appellee Counsel
Blake Ewing (Pretrial and Trial)
Assistant District Attorney (former)
1701 E. Polk St., Suite 24
Burnet, T X 78611
(512) 756-5449
State Bar N o . 24076376
Kristen Sharpe (Trial)
Assistant District Attorney
1701 E. Polk St., Suite 24
Burnet, T K 78611
(512) 756-5449
State Bar N o . 24073482
Gary W . Bunyard (Appellate)
Assistant District Attorney
P. O. Box 725
Llano, Texas 78643
(325) 247-5755
State Bar N o . 03353500
g.bunyard@co.llano.tx.us
ii
Appellant Counsel
Revis Kanak (Pretrial and Trial)
Public Defender's Office
1008 N . Water Street
Burnet, Texas 78611
Telephone:(512)234-3061
State Bar N o . 11091500
Daniel H . Wannamaker (Appellate)
1012 Rio Grande St.
Austin, Texas 78701
(512) 236-9929
State Bar N o . 20834300
dhw@wannamakerlaw.com
Appellant
Juan Jose Ramirez, Sr.
T D C J #02032163
SID #06581167
Bartlett State Jail
1018 Arnold D r .
Bartlett, T X 76511
iii
Table Of Contents
Page
Index o f Authorities V
Statement o f the Case 1
Statement on Oral Argument 1
Response to Issues Presented 2
Statement o f the Facts 3
Summary o f the Argument - Issue N o . 1 6
By not requesting a licensed court interpreter Appellant
has waived his right to have the court appoint a licensed
interpreter for the Plea Bargain Deadline hearing and
has further failed to preserve for appellate review any
error on this issue.
Argument on Issue N o . 1
lA Principals of Law 6
1.2 Applicable Facts 8
1.3 Discussion and Conclusion 10
Prayer for Relief. 15
Certificate o f Word Count 15
Certificate o f Service 16
iv
Index Of Authorities
Case Law Page
Baltierra v. State,
586 S.W.2d 553, 556-559 (Tex. C r i m . App. 1979) 11
Briones v. State,
595 S.W.2d 546, 548 (Tex. C r i m . App. 1980) 7
Ex parte Marez,
464 S.W.2d 866 (Tex. C r i m . App. 1971) 7
Ex parte Zantos-Cuehas,
429 S.W.3d 83 (Tex. App. - Houston Dist.] 2014, no pet.). 12,14
Garcia v. State,
151 Tex. C r i m . 593, 210 S.W.2d 574 (1948) 7
Garcia v. State,
149 S.W.3d 135, 138-140 (Tex. C r i m . App. 2004) 12
Hernandez v. State,
986 S.W.2d 817, 822 (Tex. App. - Austin 1999, pet. ref d) 7, 14
Constitutions
None cited
V
Statutes/Rules
Tex. Code C r i m . Proc. art. 38.30(a)
Treatises/Publications
None cited
statement Of The Case
Appellant has reasonably set forth the Statement o f the Case as proscribed i n Tex.
R.App. P. Rule 38.1 (d).
Statement on Oral Argument
The undersigned requests Oral Argument. The undersigned does not believe
that Oral Argument w i l l be beneficial for this case for the reason that the issues are
straight forward and do not contain complex nuances, however, the Appellant has
requested Oral Argument. I n such event that this Court should believe that Oral
Argument would assist the Court, the undersigned w i l l gladly participate.
1
Response to issues Presented
Issue N o . One:
By not requesting a licensed court interpreter Appellant has waived his right
to have the court appoint a licensed interpreter for the Plea Bargain Deadline
hearing and has further failed to preserve for appellate review any error on
this issue.
2
statement Of TIte Facts
Appellant has not fully described the Statement o f the Facts i n accordance w i t h
Tex. R. App. P. Rule 38.1(g).
Appellant was charged by Indictment w i t h the offense o f Aggravated Assault W i t h
A Deadly Weapon.^ Prior to trial the trial court conducted a Plea Bargain Deadline
Hearing wherein Appellant informed the trial court that he declined the plea bargain
offer made by the State.^
O n the day o f trial the trial court announced for the record that M r . Tomas Leon
and Mrs. Sophia Leon, each certified Spanish/English interpreters, were present.^
A t trial State's witness Ana Ramirez, Appellant's ex-wife, testified by way o f an
interpreter that Appellant called her phone many times sounding drunk and mad."^
W h e n Ana arrived home from work Appellant grabbed her from behind placing a
knife to her throat.^ Appellant told Ana that i f she moved Appellant would kill Ana.^
^ ICR.4-5.
2 2R.R.4-6.
^ 3 R.R. 4. During trial Tomas Leon performed interpretation for Appellant and Sophia
Leon performed interpretation for the witnesses.
^ 4 R.R. 15-16, 25.
^ 4 R.R. 26-27.
4 R.R. 57.
3
Ana struggled to move the knife away from her and her hand was cut when she was
finally successful i n getting the knife away from her throat/
Appellant continued to maintain a hold on Ana preventing her from being able
to escape.^ D u r i n g this struggle Appellant attempted to throw the knife at Ana's
chest.^ A t some point during the struggle Appellant kicked Ana i n the lower
stomach area.^° Appellant had also taken Ana's phone during the struggle and
threw it down.^^ I t was not until Ana's sister arrived next door that Appellant
released Ana and ran away/^ Ana was so frightened during the struggle that she
urinated on herself
As Appellant was running away he told Ana that he would get revenge on her
family i n Honduras i f Ana caused trouble for h i m w i t h the police.
^ 4 R.R. 29-30.
^ 4 R.R. 31.
^ 4 R.R. 31.
1° 4 R.R. 32.
4 R.R. 43.
^2 4 R.R. 31.
" 4 R.R. 32.
" 4 R.R. 33.
4
Once the State rested its case Appellant rested without calling any witnesses. A
Court's Charge to the Jury was prepared to which neither side had objections.^^
Following the reading o f the Charge and final arguments by both sides the j u r y
rendered its verdict that Appellant was Guilty o f the offense o f A ^ a v a t e d Assault
W i t h A Deadly Weapon by Threat as charged i n the Indictment.^^
Having elected for the j u r y to assess punishment, the jury's verdict was for
imprisonment for a period o f 10 years w i t h no fine assessed.
4 R.R, 169.
4 R.R. 170-171.
5 R.R. 26-27.
6 R.R. 55.
5
Summary Of The Argument on Issue No, 1
Appellant here argues that the trial court was obligated to provide Appellant w i t h
a licensed court interpreter to assist Appellant during the Plea Bargain Deadline
hearing. Appellant did not request the services o f a licensed court interpreter for
this hearing, but instead relied upon his o w n understanding o f the English language
together w i t h the interpretation provided by his court-appointed trial counsel. As
such Appellant has waived his right to a licensed court interpreter for the Plea
Bargain Deadline hearing and has further failed to preserve for appellate review any
error on this issue.
Argument On Issue No, 1
1.1 Principals of Law
When a motion for appointment o f an interpreter is filed by any party or on
motion o f the court, i n 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.^^
^5 Tex. Code Crim. Proc. art. 38.30(a).
6
Unless the record otherwise demonstrates the defendant's lack o f understanding
o f the proceedings, a defendant who does not request an interpreter waives the right
to complain on appeal.^^
The only basis for providing an interpreter is because o f the constitutional and
statutory guarantee o f confrontation under the Constitutions o f the United States
and o f Texas.^^ However those rights may be waived.^^
Where the record shows that the appellant was aware o f the consequences o f his
entry o f a plea o f nolo contendere, the waiver given by the appellant was "an
intentional relinquishment or abandonment o f a known right."^ As such an
interpreter, other than his attorney, would have added nothing to insure that
appellant voluntarily and intelligently waived his right to confrontation and
cross-examination o f witnesses and entered a plea o f nolo contendere .^"^
2 ° Hernandez v. State, 986 S.W.2d 817, 822 (Tex. App. - Austin 1999, pet. ref d).
2^ Ex parte Marez, 464 S.W.2d 866 (Tex. Crim. App. 1971).
22 Garcia v. State, 151 Tex. Crim. 593, 210 S.W.2d 574 (1948).
23 Briones v. State, 595 S.W.2d 546, 548 (Tex. Crim. App. 1980).
2^ Id.
7
1,2 Applicable Facts
O n October 13,2015, the trial court called this cause for a Plea Bargain Deadline
Hearing. For the record the trial court announced the presence o f Appellant and
his trial counsel and that his trial counsel was interpreting for Appellant.^^ This
hearing begins w i t h the trial court asking Appellant to verify that he is Juan Jose
Ramirez, Senior to which Appellant answers affirmatively.^"^ The trial court then
explains the range o f punishment, both prison and probation, for a second degree
felony.^^ I n response to this Appellant, through his trial counsel acting as his
interpreter, asks to clarify that the fine is i n addition to the prison time.^^ The trial
court acknowledges the clarification to which Appellant responds 'Yts. So after all
that, yes."^° I t is at this point that the trial court makes the following inquiry:
"THE COURT: Okay. Y o u understand that i f you want to w o r k out an
agreement, today is your day to do an agreement?
2^ 2R.R. 1.
26 2. R.R. 4.
2^ 2 R.R. 4.
2« 2 R.R. 4.
29 2 R.R. 4.
3° 2 R.R. 4.
8
"MR. KANAK: Okay. Yes, he understands that, and, no, he's wanting to
proceed.
"THE COURT: Okay. Then we w i l l be here on October the 19th at 8:30
a.m.
"MR. KANAK: Okay. Yes."^^
Following this discussion the prosecutor offered to recite the plea bargain offer
for the record, that being two years confinement i n the Institutional Division or an
alternative offer o f ten years deferred adjudication and either o f those would be
accepted by the State "today".^^ T o this recitation the Appellant personally
responded "Okay. Yes. I understand that and I ' m not accepting that."^^
The trial court made the following further admonishment:
"THE COURT: Okay. M r . Ramirez, what I want you to understand is that
after today we're not going to have a plea agreement and i f
you go to trial the j u r y can give you anywhere from two to
20 years i n prison. A n d i f you get a 20-year sentence, you
won't being eligible for parole until after you've served at
least ten o f that. So that's your choice, but I want to make
sure that you understand the risk that you are taking.
"THE DEFENDANT: Yes, I understand.
31 2 R.R. 4.
32 2 R.R. 5.
33 2 R.R. 5.
3^ 2 R.R. 5.
9
IJ Discussion and Conclusion
As described by the Court o f Criminal Appeals i n Ex parte Marez, the purpose o f
art. 38.30(a) is to guarantee a defendant's right to confrontation o f the witnesses
against him. Further, the protection o f art. 38.30(a) is not triggered unless or until
any party requests the trial court to appoint an interpreter or until the trial court sua
sponte believes that a defendant is not able to understand the proceedings. More
importantly to this case is that because Appellant did not request the appointment
o f an interpreter his ability to complain on this issue on appeal is waived unless the
record establishes that Appellant could not understand the proceedings.
It is very important to note that the entire complaint is centered around perhaps
a five minute hearing i n which the trial court sought to establish whether a plea
bargain was possible. There was no witness called nor any exhibits offered for any
reason. Therefore the confrontation issue was never at play i n this hearing.
N o request was made for an interpreter to be present for this hearing. A
presumption can be made that the trial court would be aware o f Appellant's trial
counsel's familiarity w i t h the Spanish language as counsel was a member o f the local
public defender's office and would have appeared before the trial court on a number
o f occasions. Careful consideration as to the appropriateness o f Appellant's
responses to the questions posed by the trial court would give further confidence
10
that between the trial counsel's interpretation and Appellant's even rudimentary
understanding o f the English language Appellant had a sufficient comprehension o f
what was being said during this hearing and the implications o f his rejection o f the
plea bargain offer. Although Appellant started the hearing by answering through
his court-appointed counsel, when the prosecutor described the plea bargain offer
Appellant began directly answering himself w i t h well-worded comments.
Following this when the date o f trial arrived one interpreter was present for
Appellant while a second interpreter was present for the witnesses. The interpreter
for Appellant was present at trial from start to finish.
The case authority cited by Appellant can be distinguished as the holding o f the
Baltierra case and the Garcia case points to the constitutional right to confront the
witnesses against h i m . I n Baltierra^^ the Court o f Criminal Appeals reviewed the
history o f cases involving persons unable to understand the English language. This
history was completely and totally focused on the need o f the defendant to
understand the trial proceedings i n order to protect the defendant's constitutional
and statutory guarantees o f confrontation under the Constitution o f Texas and o f the
United States. The Court noted that a court interpreter was present but only
Baltierra v. State, 586 S.W.2d 553, 556-559 (Tex. Crim. App. 1979).
11
interpreted for the defendant when the defendant personally took the stand as a
witness. Since the court interpreter did not interpret for the defendant during the
testimony o f the other witnesses the Court held that the defendant's right to
confront the witnesses had been violated. The Court further noted that because
that trial court had been made aware at the beginning o f the trial that the defendant
was not able to understand the English language that trial court had a duty to appoint
an interpreter for the defendant during the entire trial process.
I n the Garcia case^^ the facts under scrutiny were that Garcia could not
understand the English language to any appreciable degree. The trial court "hired"
the legal assistant o f Garcia's trial counsel as the interpreter. However, while the
legal assistant interpreted Garcia's testimony for the jury, she did not interpret the
testimony o f any o f the other witnesses for Garcia.
I n the case o f Ex parte Zantos-Cuehas^^ the defendant was charged w i t h the
misdemeanor offense o f terroristic threat/dating relationship. The defendant
brought his 17 year old friend to act as an interpreter. The defendant waived
counsel and plead guilty as part o f a plea bargain. Adjudication o f guilt was deferred
and the defendant was placed on community supervision. The defendant was later
36 Garcia v. State, 149 S.W.3d 135,138-140 (Tex. Crim. App. 2004).
3^ Ex parte Zantos-Cuebas, 429 S.W.3d 83 (Tex. App. - Houston [1'* Dist.] 2014, no pet.).
12
detained and subjected to deportation proceedings. The defendant fded an art.
11.072 application for w r i t o f habeas corpus complaining that his friend did not
translate the portion o f the plea papers informing h i m that a plea o f guilty could
result i n his being deported. The trial court held the application to be frivolous
without making any written findings o f fact and conclusions o f law.
The First Court o f Appeals held that i n order to waive a constitutional right the
defendant must be aware o f the right. The court also held that the trial court could
only determine that an application is frivolous without filing findings o f fact and
conclusions o f law i f the application on its face showed the claim to be without
merit. The court pointed out that the 17 year old friend signed an affidavit stating
that she did not interpret that part o f the papers that discussed the potential impact
o f a plea o f guilty on the defendant's immigration status. The court further pointed
out that the application also contained the defendant's affidavit that a plea o f guilty
could have an impact on his immigration status and he would never have pleaded
guilty had he known that he could be deported. As such the First Court o f Appeals
determined that the application was not frivolous on its face and remanded the case
to the trial court to conduct an evidentiary hearing and to make findings o f fact and
conclusions o f law.
13
I n the present case, the record establishes that the only right that Appellant was
waiving was his right to request a court-appointed interpreter at the Plea Bargain
Deadline Hearing. There is nothing i n this record to show that Appellant did not
have a clear understanding that i f he did not accept one o f the two plea bargain offers
on that day his case would go to trial on the next j u r y date.
The basic theory o f law i n the Zantos-Cuebas^^ case is not different from the
holding i n the Hernande^^^ case and as such, without a clear record showing
Appellant had no understanding o f the proceedings, Appellant failed to preserve
error for appellate review when he did not request a court-appointed interpreter for
the Plea Bargain Deadline Hearing.
Therefore Appellant's first and only issue should be denied and the judgment and
sentence i n this cause should be affirmed.
Supra.
Hernandez v. State, 986 S.W.2d at 822.
14
PRAYER FOR R E L I E F
WHEREFORE, PREMISES C O N S I D E R E D , Appellee prays the Court deny
the relief requested by Appellant and affirm the judgment of conviction and sentence
entered against Appellant.
Respectfully submitted,
OFFICE OF D I S T R I C T A T T O R N E Y
33^^ and 424'^ J U D I C I A L D I S T R I C T S
Wiley B. McAfee, District Attorney
P. O. Box 725
Llano, Texas 78643
Telephone Telecopier
(325) 247-5755 (325) 247-5274
By:_^:^^^^^^^^^!lri__
G^W./gunyard^
Assistant District Attorney
State Bar N o . 03353500
g.bunyard@co.llano.tx.us
A T T O R N E Y FOR APPELLEE
C E R T I F I C A T E OF WORD C O U N T
This is to certify that the pertinent portions o f this brief, including footnotes,
contains 2,544 words printed in Aldine401BT 14 font (footnotes are printed i n
Calibri 12 font), according to the WordPerfect™ X 8 word count tool.
15
C E R T I F I C A T E OF SERVICE
This is to certify that a true copy o f the above and foregoing instrument, together
w i t h this proof o f service hereof, has been forwarded on the 27th day o f September
2016, to Daniel H . Wannamaker, Attorney for Appellant, by EServe.
Assistant District Attorney
16