             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________
          No. 02-18-00234-CR
     ___________________________

       MAHYAR AREFI, Appellant

                     V.

    THE STATE OF TEXAS, Appellee



On Appeal from County Criminal Court No. 5
           Tarrant County, Texas
         Trial Court No. 1473784


   Before Gabriel, Birdwell, and Bassel, JJ.
  Memorandum Opinion by Justice Gabriel
                           MEMORANDUM OPINION

      Appellant Mahyar Arefi appeals from his conviction for misdemeanor assault,

causing bodily injury to a family or household member, and from his suspended 180-

day sentence. See Tex. Penal Code Ann. § 22.01(a)(1), (b). In three points, Arefi

challenges the denial of his motion for new trial based on alleged inaccuracies in the

Farsi translations occurring at trial, the admission of the complainant’s hospital

records, and the denial of his motion for mistrial during the State’s closing arguments

to the jury. Because none of these points raise reversible error, we affirm the trial

court’s judgment.

                                I. BACKGROUND

                                 A. THE OFFENSE

      Mona Marzbani was married to Arefi; both are from Iran but they moved to

Cincinnati, Ohio, after their marriage. Arefi’s mother lived with them in Cincinnati.

In August 2016, Marzbani and Arefi moved to Arlington, Texas. On September 5,

2016, the two began arguing, and Arefi pushed Marzbani to the ground, breaking her

nose and causing bruising on both of her arms.

      Marzbani did not call the police but she asked Arefi to take her to the hospital,

which he did.       Chris Chappell, a nurse who was managing patient flow at the

emergency department, talked to Marzbani and Arefi. When Arefi would not allow

Marzbani to answer any questions, Chappell asked Arefi to leave the room. Marzbani

then told Chappell that Arefi had broken her nose and that she did not feel safe at
                                          2
home. Chappell called the police who, after speaking to Marzbani and Arefi, arrested

Arefi for assault.

                                    B. THE TRIAL

       At trial, Arefi’s defensive theory was that Marzbani was lying about what

happened in an attempt to obtain United States citizenship as a domestic-violence

victim and for financial reasons. Marzbani testified that Arefi forcefully pushed her to

the ground and injured her in September 2016 and that he had similarly physically

abused her three times when they were living in Cincinnati. Arefi testified that when

Marzbani tried to leave their home during the September argument, he grabbed her

purse, which caused her to stumble and fall.1 Arefi’s mother disputed Marzbani’s

testimony and her characterization of Arefi as an abuser.

       The jury found Arefi guilty of the charged offense. The trial court sentenced

him to 180 days’ confinement, suspended the term of confinement, and placed him

on community supervision for 18 months.

       Arefi filed a motion for new trial, arguing that his constitutional rights were

violated by the three Farsi interpreters’ translation of three witnesses’ trial testimony,

including Marzbani’s, resulting in the jury’s inability to “hear an accurate version of

the defendant’s trial.” At the trial court’s hearing on the motion, Arefi introduced his

       1
        When initially questioned by police, Arefi stated that Marzbani had accidentally
fallen after tripping over a box. Later in the interview, Arefi stated that he had
grabbed her purse and “may have” pushed her. Arefi denied that he told the officers
Marzbani tripped.

                                            3
own translation of selected portions of the trial testimony as Exhibit No. 2, which was

based on what he heard after listening to CD recordings of the trial. Arefi argued to

the trial court that the inaccurate translations affected the jury’s ability to determine

credibility: “In other words, is Mr. Arefi . . . the truthful person in this case or is Ms.

Marzbani? . . . And the translator[s] messed it up.” The trial court stated several

rulings on the record at the end of the hearing:

      Here’s what I think is important here. What concerns me a little bit
      about the Defendant’s . . . Exhibit No. 2 is that some of the answers
      given are on here and some are not.

             We all will remember I believe that on the second day of trial
      [Tuesday, March 6,] Ms. Marzbani testified all day long. We had an
      interpreter. She testified in Farsi and on Thursday [March 8] when she
      was called back to the stand [by the State as a rebuttal witness] she spoke
      mainly in English. We had an interpreter there and that interpreter
      mostly just stood there.

             So I’m not really convinced that Ms. Marzbani didn’t understand
      everything that was going on. So that’s what concerns me about some
      of the answers not being in here in this exhibit.

             Mr. Arefi testified in English to this jury . . . who[’s] the sole judge
      of credibility of witnesses, and they rejected his testimony. So there
      wasn’t a question of understandability as far as he was concerned. And
      we all know that translations from one language to another can’t always
      be exact.

              On the basis of the record and my recollection of the trial, I’m
      going to find that any errors that the translators made are not material to
      the overall presentation of the evidence to due process, to the right to
      confront witness[es,] and to present your defense at the trial. And, thus,
      the trial was not constitutionally defective.

The trial court denied the motion.

                                            4
                                  II. DISCUSSION

                          A. ACCURACY OF TRANSLATION

      In his first point, Arefi argues as he did in the trial court that the inaccuracies in

the translations, “some” of which were pointed out in his Exhibit No. 2, gave the jury

incorrect impressions of three witnesses’ testimony.2 He posits that by failing to be

“verbatim and complete,” the translations denied him the right to fully confront and

cross-examine those witnesses and to present his defense.

      When a trial court appoints an interpreter under article 38.30(a), our standard

of review depends on the complaint raised. See Tex. Code Crim. Proc. Ann. art.

38.30(a); Garcia v. State, 887 S.W.2d 862, 875 (Tex. Crim. App. 1994), abrogated on other

grounds by Hammock v. State, 46 S.W.3d 889, 893 (Tex. Crim. App. 2001); Martins v.

State, 52 S.W.3d 459, 470 (Tex. App.—Corpus Christi–Edinburg 2001, no pet.).

Complaints arising from the appointment procedure or competency of an appointed

translator are legal questions that are reviewable on appeal for an abuse of discretion.

See Baltierra v. State, 586 S.W.2d 553, 557–58 (Tex. Crim. App. 1979) (op. on reh’g);


      2
        To the extent he attempts to attack the competency of one or all of the
interpreters by referring in his brief to article 38.30, requiring interpreters to have
“adequate . . . skills,” such an argument is inadequately briefed even if liberally
construed. Tex. Code Crim. Proc. Ann. art. 38.30(a); see Tex. R. App. P. 38.9.
Further, Arefi did not object to the interpreters’ competency during the trial or as part
of his motion for new trial, forfeiting this possible argument for our review. See, e.g.,
Franco v. State, No. 04-16-00090-CR, 2017 WL 781033, at *2 (Tex. App.—San
Antonio Mar. 1, 2017, pet. ref’d) (mem. op., not designated for publication)
(collecting cases).

                                            5
Franco, 2017 WL 781033, at *1; Martins, 52 S.W.3d at 470. But questions regarding

alleged inaccuracies in a translation are issues of fact for the fact-finder that are not

reviewable by this court. See Garcia, 887 S.W.2d at 875; Calixto v. State, 66 S.W.3d 505,

509–10 (Tex. App.—Austin 2011, pet. ref’d); Martins, 52 S.W.3d at 471; Kan v. State,

4 S.W.3d 38, 43 (Tex. App.—San Antonio 1999, pet. ref’d).

      Arefi’s complaint attacks alleged inaccuracies and omissions from the

translations, which he claims led to the jury’s failure to appropriately weigh those

witnesses’ credibility as compared to his own. Not only was Arefi’s attempt to

partially impeach the translations insufficient and incomplete, which the trial court

noted at the new-trial hearing, we cannot review the highly fact-intensive and

discretionary credibility determinations inherent in Arefi’s argument. See Green v.

Stephens, No. H-14-1017, 2015 WL 809569, at *11 (S.D. Tex. Feb. 25, 2015) (mem. &

op.); Garcia, 887 S.W.2d at 875; State v. Andaverde, No. 01-10-00697-CR, 2013 WL

3155929, at *4 (Tex. App.—Houston [1st Dist.] June 20, 2013, no pet.) (mem. op.,

not designated for publication). “We, as an appellate court, can no more determine

whether a translation is accurate or which of two translations is more accurate, than

we can determine which of two witnesses is telling the truth, or which of the two is

more truthful; these are questions for the factfinder.” Garcia, 887 S.W.2d at 875. We

overrule point one.




                                           6
                       B. ADMISSION OF HOSPITAL RECORDS

      In his second point, Arefi argues that the trial court’s admission of Marzbani’s

hospital records from September 5, 2016, through Chappell’s testimony was an abuse

of discretion because Chappell was not “qualified to sponsor” the records. He

contends Chappell was not qualified because he was no longer employed by the

hospital at the time of trial and, thus, was not a custodian of the records and because

he could not verify the records’ accuracy. We review the admission of evidence for an

abuse of discretion. See Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006).

      Records of a regularly conducted activity, such as Marzbani’s hospital records,

are admissible as an exception to the hearsay rule if the required reliability conditions

are “shown by the testimony of the custodian or another qualified witness.” Tex. R.

Evid. 803(6)(D).3 To be considered qualified, the sponsoring witness must have

personal knowledge of the manner in which the records were prepared. See Brooks v.

State, 901 S.W.2d 742, 746 (Tex. App.—Fort Worth 1995, pet. dism’d & pet. ref’d)

(op. on pet. for discretionary review). The witness need not have personal knowledge

of the specific contents of the records sought to be admitted nor does he have to be

the creator of the record or an employee of the business that holds the records. See id.


      3
        Such records are considered admissible despite the hearsay rule if the records
are accompanied by a compliant affidavit. See Tex. R. Evid. 803(6), 902(10). But the
State concedes that although the hospital records were accompanied by a business-
records affidavit, it cannot rely on this path to admissibility because it did not give
Arefi the required 14-day notice. See Tex. R. Evid. 902(10)(A).

                                           7
      Although Chappell recognized that he was not the custodian of Marzbani’s

records, he testified that he was familiar with the records, that the hospital kept the

records for seven years in the normal course of its business activities, that the records

had been made for diagnostic purposes, and that the records had been created at or

near the time of the alleged offense. The testimony demonstrated for the trial court

that Chappell had sufficient knowledge of the trustworthiness of the proffered

records such that we cannot say the trial court abused its discretion by admitting the

records over Arefi’s hearsay objection. See Biggs v. State, No. 06-18-00177-CR, 2019

WL 2017271, at *2 n.1 (Tex. App.—Texarkana May 8, 2019, no pet.) (mem. op., not

designated for publication); Brooks, 901 S.W.2d at 746–47. We overrule point two.

                                 C. JURY ARGUMENT

      In his third point, Arefi argues that the trial court abused its discretion by

denying his motion for mistrial based on the State’s allegedly improper jury argument:

“[Arefi] has all the resources in the world compared to [Marzbani] . . . and he can talk

his way through anything. And he’s going to make her get up here and he’s going to

drag her through this. And he’s going to make her relive all those instances over and

over.” Arefi objected that the argument attempted to penalize him for exercising his

right to a jury trial. The State responded, “That’s fair.” The trial court sustained the

objection and instructed the jury to disregard the argument, but it denied Arefi’s

motion for mistrial.


                                           8
      When the trial court denies a mistrial motion in response to allegedly improper

jury argument, our question is whether the trial court abused its discretion by doing

so. See Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Newby v. State,

252 S.W.3d 431, 438 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). Almost any

improper argument may be cured by an instruction to disregard.                See Newby,

252 S.W.3d at 438. Only extreme circumstances, such as when the prejudice arising

from the argument is incurable, require a trial court to grant a mistrial. Hawkins v.

State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004). We weigh three factors to

determine if the trial court abused its discretion in denying a mistrial: (1) the severity

of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the

certainty of conviction absent the misconduct. See Archie, 221 S.W.3d at 700.

      Here, the comment was not severe—any prejudicial effect arising from the

comment was not of a large magnitude. The State did not stress the argument, and

the prosecutor expressed his agreement with Arefi’s objection. The trial court took

swift action by instructing the jury to disregard the remark, and the prosecutor then

immediately corrected any impropriety arising from his statement: “[Arefi] absolutely

has a right to a fair trial. But when he has . . . committed a criminal offense, it’s our

turn to step in and get involved.” And the State’s case, based on Marzbani’s and the

arresting officers’ testimony was not so weak that the State’s isolated comment

suggested a verdict on an improper basis. See, e.g., Hendon v. State, No. 14-08-00927-

CR, 2010 WL 1956623, at *3 (Tex. App.—Houston [14th Dist.] May 18, 2010, no
                                            9
pet.) (mem. op., not designated for publication); Smith v. State, No. 01-04-00604-CR,

2005 WL 824155, at *3 (Tex. App.—Houston [1st Dist.] Apr. 7, 2005, pet. ref’d)

(mem. op., not designated for publication).

      We conclude, after balancing the appropriate factors, that the trial court did not

abuse its discretion by denying Arefi’s mistrial motion. See, e.g., Hendon, 2010 WL

1956623, at *3–4; Smith, 2005 WL 824155, at *2–3. We overrule point three.

                                III. CONCLUSION

      The trial court did not abuse its discretion by admitting Marzbani’s hospital

records through Chappell’s testimony or by denying Arefi’s motion for mistrial after

the State’s allegedly improper jury argument. We cannot review Arefi’s attacks to the

accuracy of the translations of several witnesses’ testimony. Accordingly, we affirm

the trial court’s judgment. See Tex. R. App. P. 43.2(a).


                                                       /s/ Lee Gabriel

                                                       Lee Gabriel
                                                       Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 22, 2019




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