In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-16-00071-CR
EBER CASTRO MORALES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th District Court
Gregg County, Texas
Trial Court No. 45158-A
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Eber Castro Morales entered an open plea of guilty to aggravated sexual assault of a child.
The trial court convicted Morales of the offense, and he was sentenced to life imprisonment.
Although an interpreter was provided for Morales, a citizen of Guatemala, during both a hearing
in which he waived his right to a jury trial and a status hearing, Morales appeals his conviction on
the ground that the trial court erred in failing to provide an interpreter for a status hearing. Morales
also argues, and the State concedes, that the trial court’s judgment contained language that could
allow him to later petition the court for an exemption of certain sex-offender registration
requirements, under Article 42.017 of the Texas Code of Criminal Procedure, based on a mistaken
finding that Morales was under the age of nineteen.
Because the appellate record demonstrates that Morales understood and spoke English, we
find no error in the trial court’s failure to make a sua sponte appointment of an interpreter for
Morales during the status hearing. However, because we determine that the record affirmatively
establishes that Morales was thirty-three years old at the time of the offense, we modify the trial
court’s judgment to delete its Article 42.017 finding and affirm the judgment, as modified.
I. Failure to Provide An Interpreter During A Status Hearing Was Not Erroneous
“The right of a non-English speaking person to the assistance of an interpreter during trial
proceedings is guaranteed by the Confrontation Clause of the Sixth Amendment to the United
States Constitution, the Due Process Clause of the Fourteenth Amendment, [and] article I, section
10 of the Texas Constitution.” Pineda v. State, 176 S.W.3d 244, 247 (Tex. App.—Texarkana
2004, pet. ref’d) (citing Baltierra v. State, 586 S.W.2d 553, 558 (Tex. Crim. App. 1979); Garnica
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v. State, 53 S.W.3d 457, 458 (Tex. App.—Texarkana 2001, no pet.)). Consequently, Article
38.30(a) of the Texas Code of Criminal Procedure provides:
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 the person charged or the witness.
TEX. CODE CRIM. PROC. ANN. art. 38.30(a) (West Supp. 2016).
Morales never filed a motion for an interpreter for the status hearing, and he did not request
an interpreter during the hearing. However, the Court of Criminal Appeals has held that a
defendant’s right to an interpreter must be implemented unless expressly waived if the trial judge
is aware that the defendant has difficulty understanding the English language. Garcia v. State, 149
S.W.3d 135, 144–45 (Tex. Crim. App. 2004). “The judge may become aware of the defendant’s
language problem either by being informed of it by one or both parties or by noticing the problem
sua sponte.” Id. at 145. Thus, “[t]he onus is on the trial court to inquire whether the accused’s
rights would be safeguarded in the absence of an interpreter when the ability of the defendant to
speak and understand English is raised to some extent.” Garnica, 53 S.W.3d at 459. But, when
the record reveals “nothing that would put the trial court on notice that [the defendant] needed an
interpreter,” a trial court does not err in failing to appoint one. Id.; see Mares v. State, 636 S.W.2d
627, 631 (Tex. App.—San Antonio 1982, pet. ref’d).
“[T]he mere fact that an accused may be more fluent in [another language] does not, in and
of itself, make it incumbent upon a trial court to appoint an interpreter for an accused who speaks
and understands the English language.” Abdygapparova v. State, 243 S.W.3d 191, 201 (Tex.
App.—San Antonio 2007, pet. ref’d) (quoting Flores v. State, 509 S.W.2d 580, 581 (Tex. Crim.
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App. 1974)). Without question, there was evidence that Morales was capable of communicating
in English.
During the status hearing, Morales answered several of the trial court’s questions in English
and informed the trial court that he wanted to fire his attorney. At the plea hearing, Morales’
attorney told the trial court that Morales was able to communicate with him. Significantly, the
State admitted an audio/video recording of Morales’ interview with Debra Stiles, a detective with
the Longview Police Department. The interview was conducted entirely in English. During the
fifty-minute interview, Morales demonstrated that he was able to communicate in English
fluently.1
“In the absence of facts to show that appellant could not understand English,” there is no
error in the trial court’s failure to appoint an interpreter. Vasquez v. State, 819 S.W.2d 932, 937–
38 (Tex. App.—Corpus Christi 1991, pet. ref’d); see Diaz v. State, 491 S.W.2d 166, 168 (Tex.
Crim. App. 1973); Vargas v. State, 627 S.W.2d 785, 787 (Tex. App.—San Antonio 1982, no pet.)
(“In the instant case, there is ample evidence that appellant understood and communicated in the
English language reasonably well, and the mere fact that he might have been able to express
himself a little better in Spanish did not require the use of an interpreter.”). The record before this
Court both demonstrates that Morales understood and spoke English and shows no specific
example of misunderstanding or inability to employ the assistance of counsel in his defense. See
Frescas v. State, 636 S.W.2d 516, 518 (Tex. App.—El Paso 1982, no pet.).
1
The clerk’s record contains a well-written letter, composed entirely in English, from Morales to the trial court. In a
second letter, written after the status hearing, Morales informed the trial court that he did not understand or write
English well and had asked someone to write the first letter for him. After receiving this letter, the trial court provided
Morales with an interpreter.
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In short, this record does not establish that the trial court was put on notice that Morales
needed an interpreter prior to or at the status hearing or that Morales was so deficient in his capacity
to understand and speak English that the absence of an interpreter during this hearing amounted to
a denial of a fundamental constitutional right.2 We find no error in the trial court’s failure to
provide an interpreter during the status and waiver of jury trial hearings. Consequently, we
overrule Morales’ first point of error.
II. The Judgment Is Modified to Delete the Article 42.017 Finding
Under Article 62.301 of the Texas Code of Criminal Procedure, at any time, a person
required to register as a sex offender may petition the court for an exemption from sex-offender
registration if he establishes his eligibility to do so. TEX. CODE CRIM. PROC. ANN. art. 62.301(a)
(West Supp. 2016). As applicable to the facts of this case, a person is eligible to petition for an
exemption from sex-offender registration if (1) the person is required to register only as a result of
a single reportable conviction or adjudication and (2) the court has entered an affirmative finding
described by Article 42.017. TEX. CODE CRIM. PROC. ANN. art. 62.301(b) (West Supp. 2016).
Article 42.017 of the Texas Code of Criminal Procedure provides:
In the trial of an offense under Section 21.11 or 22.011, Penal Code, the
judge shall make an affirmative finding of fact and enter the affirmative finding in
the judgment in the case if the judge determines that:
(1) at the time of the offense, the defendant was not more than four years
older than the victim or intended victim and the victim or intended victim was at
least 15 years of age; and
2
Further, during the plea hearing, Morales confirmed that his attorney and the court-provided interpreter explained the
plea agreement to him and that he understood the nature and content of the documents when he signed them. Morales
further informed the trial court that he made the decision to plead guilty because he was, in fact, guilty of the offense.
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(2) the conviction is based solely on the ages of the defendant and the victim
or intended victim at the time of the offense.
TEX. CODE CRIM. PROC. ANN. art. 42.017(a) (West Supp. 2016).
The trial court’s judgment contains the following language referencing Article 42.017:
The Court FINDS that at the time of the offense, Defendant was younger than
nineteen (19) years of age and the victim was at least thirteen (13) years of age. The
Court FURTHER FINDS that the conviction is based solely on the ages of
Defendant and the victim or intended victim at the time of the offense. [TEX. CODE
CRIM. PROC. ANN. art. 42.017].
Morales argues that this language should be deleted from the judgment because the record
conclusively established that Morales was thirty-three years old at the time of the offense. The
State concedes the error. We have the authority to modify the judgment to make the record speak
the truth when the matter has been called to our attention by any source. French v. State, 830
S.W.2d 607, 609 (Tex. Crim. App. 1992); see TEX. R. APP. P. 43.2(b). Because we conclude that
the language referencing Article 42.017 must be deleted from the judgment, we sustain Morales
second point, although we note that the heading in the judgment under which the Article 42.017
language is contained—”LIFETIME REGISTRY AS A SEX OFFENDER”—must remain.
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III. Conclusion
We modify the trial court’s judgment to remove the language referencing Article 42.017
and affirm the trial court’s judgment, as modified.
Bailey C. Moseley
Justice
Date Submitted: December 8, 2016
Date Decided: February 1, 2017
Do Not Publish
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