            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. PD-0413-08



                             AUDREY R. LINTON, Appellant

                                                 v.

                                  THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE THIRTEENTH COURT OF APPEALS
                         MONTGOMERY COUNTY

       J OHNSON, J., filed a concurring opinion.


                           CONCURRING OPINION


       During my years in practice, I represented a fair number of deaf clients with vastly differing

abilities to communicate with me. Some could adequately communicate without an interpreter. On

at least one occasion, I used the procedure that appellant now asserts would have been appropriate

during her trial. My purpose in writing this concurrence is to pass on some of what I learned from

my clients and their interpreters to judges who find themselves in circumstances similar to those

presented here. If I am not entirely accurate, I hope that the deaf community will forgive my
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ignorance.

        By law, “a person may not interpret for a hearing-impaired individual at a court proceeding

or advertise or represent that the person is a certified court interpreter unless the person holds an

appropriate certificate under this subchapter.” GOV ’T CODE Ch. 57, § 57.026. Interpretation

certificates are issued by the National Registry of Interpreters for the Deaf (RID) or the Board for

Evaluation of Interpreters (BEI). “It should be noted that Texas law requires the use of an interpreter

with BEI Court Interpreter Certification (CIC) or RID SC:L in Criminal or Civil Court proceedings.”

DHHS website: http://www.dars.state.tx.us/dhhs/beilvls.shtml.

        “Relay interpretation,” as used by the court below and the majority opinion, is termed in the

deaf community as certified deaf interpretation or, in Texas, as intermediary interpretation. In such

an interpretation, a communication passes from a hearing person to a hearing interpreter (a hearing

person who interprets) to a deaf interpreter (a deaf person who interprets) to a deaf person. The

response passes from deaf person to deaf interpreter to hearing interpreter to hearing person. It is

absolutely necessary for communication between hearing individuals and some deaf individuals.

Such deaf individuals may have additional challenges, such as mental retardation or mental illness,

cerebral palsy, a low level of competence or a lack of education in commonly used modes of manual

communication,1 or low levels of ability to read or write.2 A need for intermediary interpretation is

not common, but when it exists, it is a necessity, not an option.


        1
         Hearing households that include a hearing-impaired individual frequently create a familial sign language,
commonly known as “home signs.”

        2
            The consensus of those who serve the deaf community appears to be that the mean reading level of deaf
persons in the United States is approximately fourth grade, the level at which Dr. Andrews testified appellant
functions. Having a high-school diploma may or may not indicate an adequate ability to read and understand written
documents, nor may possession of a driver’s license so indicate, as the licensing test may have been interpreted for
the deaf person.
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         The issue for the trial court is how to determine what level of interpretation is appropriate.

Most judges, and prosecutors, have little, if any, experience with deaf culture and are thus

unprepared to accurately evaluate a defendant’s level of understanding on their own. They may also

become frustrated by the necessarily slow pace or misinterpret the deaf person’s assertions.3 Deaf

persons are just like hearing persons, minus the ability to hear sounds. They do not want to be seen

as stupid, so they may conceal their lack of understanding, just as many hearing persons conceal their

illiteracy. Nodding of the head, especially continuous small nodding, does not mean that the deaf

person understands or agrees, only that he is paying attention and trying to understand. A big nod

may indicate understanding. Or not. Deaf persons may mirror another person’s body language, so

body language may or may not be indicative of understanding.

         The first line of investigation is to inquire of the interpreter as to the ease or difficulty and

the efficacy of interpreting for the defendant in question. Taking into account that interpreters have

egos and some may not be comfortable with admitting that their interpretation is not getting through,

a trial judge then has at least some information about the defendant’s level of function. Another

consideration in evaluating the situational level of function is the defendant’s understanding of legal

vocabulary, especially if the defendant is a first-time offender. The ability to understand is markedly

affected by the use of words that are beyond a person’s experience or educational level; a judge with

an undergraduate degree in liberal arts might have problems with comprehension in a discussion

about mesons and quarks. First-time offenders, even hearing ones, may be confused by terms



         3
            On occasion, the original trial judge’s pronouncements lacked sensitivity and, at the hearing on
appellant’s request to re-open the hearing on the motion to suppress, the state misunderstood appellant’s complaint,
saying that she was not incompetent to stand trial rather than addressing her actual complaint–that she did not have
adequate interpretation.
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ingrained in the minds of lawyers and judges and therefore not recognized by them as having the

potential to confuse.4 Care should be taken to ascertain whether any lack of understanding of such

legalese is because of lack of familiarity and context or because of failure of the interpretation, or

both.

         It may assist the trial court in its evaluation to question the defendant directly. Questions

should be open-ended. Yes-or-no questions may mask lack of understanding, especially if both

answers could be correct, e.g., “Did you graduate from high school?” A better question, and a way

to get a more reliable answer, is to ask, “How far did you go in school?” If the answer is “Two

miles,” there may be a problem with comprehension. Another way to gain information on the

efficacy of interpretation is to ask a question, wait for interpretation, then ask the defendant to repeat

the question, as interpreted, back to the questioner. The parroted response may be accurate, or more

similar to the understanding of the last person in a game of “Telephone.” If the latter, there may be

a problem with comprehension. If a court is uncertain about the level of interpretation that is

appropriate and wants to consult with an uninvolved interpreter, it might contact the Texas Office

for Deaf and Hard of Hearing Services (DHHS), which maintains a list of certified court interpreters

and the levels at which each is certified.5

         It is understandable that judges may be reluctant to employ intermediary interpretation. Any

trial involving interpretation for a deaf defendant or witness will be greatly lengthened in time, and

the greater the need for extended explanation to the deaf participant, the greater the increase in time.



         4
            In this case, appellant mistook the sign for the unfamiliar word “witness” for the sign that means the city
of W illis. Maj. op. at 6.

         5
             Certification at Level V or above is preferred for intermediary interpretation.
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The right to a trial must still be honored, but like hearing defendants, deaf defendants are promised

a fair trial, not a perfect one.

        Appellant is hearing-impaired and, according to several interpreters and her pastor, proficient

in neither American Sign Language (ASL) nor signed English.6 She became deaf before learning

to speak. She testified that she could not read the officer’s lips, not because she does not read lips,

but because he had a moustache; she therefore can be assumed to have the ability to read lips.

        Communication with appellant appears to be more difficult than with a hearing person or

with many hearing-impaired persons, but it was demonstrated by her interactions with the other

driver, the officer, and the trial court, to be possible; she exchanged insurance information with the

other driver without interpretation, challenged part of the officer’s testimony in court, and

appropriately answered some of the judge’s questions without interpretation. Based on the record

before us and the broad discretion permitted to trial courts, we cannot find an abuse of discretion.

        I join the opinion of the court.




Filed: January 14, 2009
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        6
           Signed English is a word-for-word translation of English. ASL is a separate language that differs from
English in vocabulary and grammar.
