                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-07-070-CR


JUAN AGUILAR LAMBERTO                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE

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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                                   OPINION

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      Appellant Juan Aguilar Lamberto appeals from his conviction and twenty-

year sentence for aggravated assault with a deadly weapon. In three points,

appellant complains about the trial court’s failure to appoint him a Spanish

interpreter for trial, the admission of evidence that a jail disciplinary board had

determined that appellant was guilty of a “disciplinary assaultive infraction,”

and the part of the jury charge incorrectly instructing the jury that appellant
would serve one-fourth of his sentence instead of one-half if the jury made an

affirmative deadly weapon finding. We affirm.

                                Background Facts

      While at a nightclub, appellant saw his former girlfriend, Cheniqua W.,

with another man.       When the man kissed Cheniqua, appellant hit him.

Nightclub personnel had to restrain appellant; they then kicked him out of the

club. The next day, as Cheniqua was trying to open her apartment door after

she got home from work, she saw appellant downstairs holding a gun pointed

in her direction. Appellant shot Cheniqua twice. Although appellant fled, the

police found and arrested him.

      After police arrested appellant, he gave them a statement in which he

denied intending to hurt Cheniqua. Instead, he said he intended only to scare

her. Appellant was subsequently indicted for aggravated assault with a deadly

weapon and convicted by a jury. The jury also assessed appellant’s punishment

at twenty years’ confinement.

                              Denial of Interpreter

      In his first point, appellant contends that he was harmed by the trial

court’s denial of his request for a Spanish interpreter at trial. In support of his

request, appellant’s counsel informed the trial court that an interpreter had been

appointed for him in two prior criminal cases in California. The trial court and

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counsel also elicited testimony from appellant about his ability to understand

English.

       Providing an interpreter to an accused who does not understand English

is required by the Confrontation Clause of the United States Constitution as

well   as     section   38.30   of   the   Texas   Code   of   Criminal   Procedure.

Abdygapparova v. State, 243 S.W.3d 191, 200 (Tex. App.—San Antonio

2007, pet. ref’d); see U.S. C ONST. amend. VI; T EX. C ODE C RIM. P ROC. A NN. art.

38.30 (Vernon Supp. 2007). Under Texas law, the right to an interpreter is

statutory and must be implemented unless waived. Marin v. State, 851 S.W.2d

275, 279 (Tex. Crim. App. 1993), overruled on other grounds, Cain v. State,

947 S.W.2d 262 (Tex. Crim. App. 1997); Fonseca v. State, 163 S.W.3d 98,

100 (Tex. App.—Fort Worth 2005, pet. ref’d).              However, the threshold

determination of whether an interpreter is necessary is within the trial court’s

discretion.    Baltierra v. State, 586 S.W.2d 553, 556–57 (Tex. Crim. App.

1979); Abdygapparova, 243 S.W.3d at 201.

       Article 38.30 provides that if, upon the filing of a motion for the

appointment of an interpreter, the trial court determines that the person charged

or a witness does not understand the English language, an interpreter must be

appointed for that person.           T EX. C ODE C RIM. P ROC. A NN. art. 38.30;

Abdygapparova, 243 S.W.3d at 201; Fonseca, 163 S.W.3d at 100; see also

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T EX. G OV’T C ODE A NN. § 57.002(a) (Vernon Supp. 2007). The mere fact that

an accused is fluent in another language does not, alone, warrant the

appointment of an interpreter. Flores v. State, 509 S.W.2d 580, 581 (Tex.

Crim. App. 1974); Abdygapparova, 243 S.W.3d at 201.              Evidence that a

person is capable of communicating in English on a day-to-day basis is

sufficient to support a trial court’s denial of an interpreter. See Abdygapparova,

243 S.W.3d at 201.

      Here, the evidence supports the trial court’s discretionary ruling. The trial

judge was in the best position to observe appellant and his capability of

communicating in English; indeed, the judge conversed with appellant in English

in the courtroom and had reviewed several pro se letters and motions from

appellant. See id. at 202–03. In the course of the trial court’s colloquy with

appellant, appellant told the trial court, “I don’t understand the way

professionals, . . . the lawyers and the prosecutors talk.      I understand the

English, but the way they speak, they speak very nice and very polite. I call it

refined talk. . . . I don’t understand how they talk. . . . I understand English

but I don’t understand how they talk.”

      Appellant seemed most concerned with his inability to understand legal

terminology rather than the English language. Accordingly, we cannot say that

the trial court abused its discretion in denying appellant’s motion for an

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interpreter. See id. at 202–03; Vargas v. State, 627 S.W.2d 785, 787 (Tex.

App.—San Antonio 1982, no pet.) (noting that interpreter not necessary simply

because appellant could communicate better in Spanish than in English). We

overrule his first point.

                Admission of Results of Jail Disciplinary Hearing

      In his second point, appellant complains about the trial court’s ruling

allowing one of appellant’s jailers to testify at punishment that appellant had

been “written up” and found guilty in a subsequent disciplinary hearing for

violating jail rules. The jailer had already testified that he personally witnessed

appellant assault another inmate while in custody. Appellant’s counsel objected

on relevancy grounds; he also requested, and received, a running objection as

to relevance and on the ground of “due process since he was not heard by a

Judge or jury by the -- a standard of beyond a reasonable doubt.” Appellant

challenges the evidence on appeal on relevancy grounds, rule 403 grounds, and

under article 37.07, section 3(a)(1). T EX. C ODE C RIM. P ROC. A NN. art. 37.07, §

3(a)(1) (Vernon Supp. 2007); T EX. R. E VID. 401–03.

      An objection preserves only the specific ground cited. T EX. R. A PP. P.

33.1(a)(1)(A); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998);

Bell v. State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996), cert. denied, 522

U.S. 827 (1997). Because appellant did not object at trial on rule 403 grounds,

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we will not address that part of his argument.            See T EX . R. A PP. P.

33.1(a)(1)(A); Mosley, 983 S.W.2d at 265.

      Appellant argues that the jail administrative body’s decision is totally

irrelevant and was admitted only to “substitute the judgment of an

administrative disciplinary body for that of the jury in the determination of

whether [a]ppellant committed an assault while in jail.” See T EX. C ODE C RIM.

P ROC. A NN. art. 37.07, § 3(a)(1) (requiring State to prove extraneous offenses

at punishment beyond a reasonable doubt); Delgado v. State, 235 S.W.3d 244,

252 (Tex. Crim. App. 2007).

      Here, regardless of the propriety of the evidence, appellant could not have

been harmed. See T EX. R. A PP. P. 44.2(b); Stevens v. State, 234 S.W.3d 748,

784 (Tex. App.— Fort Worth 2007, no pet.).          The trial court’s charge on

punishment included the following instruction:

      You are instructed [that] if there is any testimony before you in this
      case regarding the Defendant’s having committed offenses other
      than the offenses alleged against him in the Indictment in this case,
      you cannot consider said testimony for any purpose unless you find
      and believe beyond a reasonable doubt that the Defendant
      committed such other offenses, if any were committed.

The jailer testified that he personally witnessed appellant’s actions, and

appellant admitted unconditionally that the incident occurred. Thus, there was

other evidence from which the jury could have found beyond a reasonable


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doubt that appellant committed the assault for which the administrative board

found him guilty. We overrule appellant’s second point.

                               Jury Charge Error

      In his third point, appellant claims that the jury charge was defective

because it instructed the jury that appellant would be required to serve a

minimum one-fourth of his sentence rather than one-half if the jury found that

appellant used a deadly weapon in committing the offense. The jury did make

such a finding, which appellant does not challenge.

      The trial court’s charge at punishment instructed the jury as follows:

      Under the law applicable in this case, if the Defendant is sentenced
      to a term of imprisonment, he will not become eligible for parole
      until the actual time served equals one-fourth of the sentence
      imposed, without consideration of any good conduct time he may
      earn. If the Defendant is sentenced to a term of less than four
      years, he must serve at least two years before he is eligible for
      parole. Eligibility for parole does not guarantee that parole will be
      granted.

This instruction is incorrect because the law requires that a convicted defendant

subject to an affirmative deadly weapon finding must serve at least one-half of

his sentence before becoming eligible for parole. T EX. C ODE C RIM. P ROC. A NN.

art. 37.07, § 4(a) (Vernon Supp. 2007).

      Because appellant did not object to the charge at trial, we review the

error for egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.


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App. 1985) (op. on reh’g); Hooper v. State, No. 10-04-00265-CR, 2008 WL

660521, at *7 (Tex. App.—Waco Mar. 12, 2008, no pet. h.); see T EX. C ODE

C RIM. P ROC. A NN. art. 36.19 (Vernon 2006); Hutch v. State, 922 S.W.2d 166,

171 (Tex. Crim. App. 1996). In making this determination, “the actual degree

of harm must be assayed in light of the entire jury charge, the state of the

evidence, including the contested issues and weight of probative evidence, the

argument of counsel and any other relevant information revealed by the record

of the trial as a whole.” Almanza, 686 S.W.2d at 171; see generally Hutch,

922 S.W.2d at 172–74. The purpose of this review is to illuminate the actual,

not just theoretical, harm to the accused.     Almanza, 686 S.W.2d at 174.

Egregious harm is a difficult standard to prove and must be determined on a

case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App.

2002); Hutch, 922 S.W.2d at 171.

      In addressing similar charge error, the Waco Court of Appeals has

observed,

             Numerous cases have addressed egregious harm in the
      context of a punishment charge containing errors and omissions in
      the parole and good-conduct instructions. Several common threads
      run among those cases. First and foremost is the presumption that
      the jury followed the charge’s instructions. Thus, we presume that
      the jury followed the trial court’s instructions and did not consider
      parole: “However, you are not to consider the extent to which
      good conduct time may be awarded to or forfeited by this particular
      defendant. You are not to consider the manner in which the parole

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      law may be applied to this particular defendant.” Absent evidence
      or indications to the contrary, this presumption prevails.

            When there is a note from the jury regarding parole or good
      conduct time, courts are more prone to find egregious harm.
      Another factor is the State’s emphasis in argument on the
      possibility of parole. And courts also sometimes consider the
      assessment of a high or maximum sentence.

Hooper, 2008 WL 66052, at *8 (citations omitted).

      Here, the jury was given the identical instruction set forth above

prohibiting it from considering the effect of parole or good conduct time on

appellant’s sentence. There is no evidence indicating that the jury ignored or

did not follow this instruction.   The jury did not send the judge any notes

regarding parole or good conduct time. And the State did not discuss parole or

good conduct time at all; instead, its closing argument focused on the

impropriety of probation (because of the nature of the offense, appellant’s

anger issues, and his assaultive behavior in jail) and its request that the jury

give appellant the maximum sentence possible, twenty years’ confinement,

which the jury assessed. Although appellant’s counsel discussed the erroneous

instruction during his closing argument, he did so in the context of asking the

jury for probation; not only was the jury not persuaded by the argument, it

assessed the maximum sentence, in keeping with the prosecutor’s request.

Accordingly, we cannot conclude that appellant was egregiously harmed by the


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erroneous charge. See id. at *9 (concluding that any acknowledgment that the

jury may have calculated how much time appellant would have to serve before

being eligible for parole would be speculation leading “only to insufficient

theoretical harm, rather than actual harm”); Love v. State, 909 S.W.2d 930,

934–35 (Tex. App.—El Paso 1995, pet. ref’d); see also Igo v. State, 210

S.W.3d 645, 647–48 (Tex. Crim. App. 2006) (applying same analysis to similar

charge error in sexual assault of a child case). We overrule appellant’s third

point.

                                   Conclusion

         Having overruled appellant’s three points, we affirm the trial court’s

judgment.




                                      TERRIE LIVINGSTON
                                      JUSTICE

PANEL F:      LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: May 22, 2008




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