Concurring opinion issued January 23, 2014




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-12-00601-CR
                            ———————————
                   FRANCISCO J. CASTREJON, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee



           On Appeal from the County Criminal Court at Law No. 1
                            Harris County, Texas
                        Trial Court Case No. 1787812



                            CONCURRING OPINION

      I concur in the court’s judgment, affirming Castrejon’s conviction.

Specifically, I agree that Castrejon waived his complaint about the absence of an

appropriate translator by failing to request one as provided by law. I also agree that
he has failed to demonstrate any harm resulting from the admission of the

recording. Those reasons are fully sufficient to resolve this appeal. See TEX. R.

APP. P. 33.1, 44.2.

      I disagree with the majority’s further analysis—which is pure dicta—

positing that the Spanish-language recording was admissible because the testimony

of Officer Das qualified as a translation of foreign language documents under the

rules of evidence. See TEX. R. EVID. 1009(e). This thoroughly unnecessary frolic is

misguided for at least three reasons.

      First, the analysis completely misses the point about the admissibility of the

foreign language document itself, i.e., the audio recording of the conversation in

Spanish between Castrejon and Das. Rule 1009(e) authorizes the admission of a

“translation” of foreign language documents at trial—it does not address

Castrejon’s complaint about admitting and publishing to the jury the Spanish-

language recording. 1

      Second, Das’s testimony never purported to be a “translation” of the

recording. Instead, she testified in English about her memory and understanding of




1
      The State, in its brief, agrees. The first section of its analysis is titled:
      “Rule 1009 does not apply to appellant’s trial.” State’s Br. at 7.

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what was communicated between her and Castrejon. 2 That is not the same thing as

the “translation of foreign language documents,” which implies transforming a

foreign language document into a restatement of the substance of that document

into the same substance expressed in English. In her testimony, Das distinguished

between her memory of the interaction and what she wrote in her offense report,

which she characterized as a “fairly accurate” “summary of and translation of the

conversation,” though not a “word-for-word transcription.” 4 CR 68. The offense

report was not admitted into evidence, though it was used at trial for impeachment

purposes. The recording was not played during her testimony. Das’s testimony did

include some references to “translation,” such as when she testified, “And then I

said, translation is, ‘Do you want a blow job or a f___?’” However, such references

were expressions in English of what was communicated in Spanish, based on her

first-hand memory of the conversation. They were not translation “of foreign

language documents at trial by live testimony” as contemplated by Rule 1009(e).

That rule is simply inapplicable.




2
      The State, in its brief, agrees. It argues: “Officer Das never translated the
      audio recording,” and that “[s]he only testified from memory regarding what
      appellant told her when he propositioned her.” State’s Br. at 7.

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      Finally, to support its reliance on Rule 1009(e), the majority takes the

additional step of writing the “qualified expert translator” standard out of the rule.3

The majority replaces that standard with article 38.30(a) of the Code of Criminal

Procedure, and thus imposes a much lower standard for the translation of foreign

language documents at trial than the Rule 1009(e) “qualified expert translator”

standard. Although it is not unprecedented to seek guidance from article 38.30 in

this circumstance,4 I respectfully suggest that such an analysis confuses the

different purposes of the two rules. Rule 1009(e) is, self-evidently, a rule of

evidence governing “Expert Testimony of Translator” in the broader context of

3
      The majority is forced to resort to this reasoning to justify its insistence upon
      including the Rule 1009(e) analysis because Officer Das could not possibly
      have served as a “qualified expert translator” as required by the text of the
      rule. She is not “qualified as an expert” in translation from Spanish to
      English “by knowledge, skill, experience, training, or education.” TEX. R.
      EVID. 702. Das admitted at trial that she is not fluent in Spanish. She also
      lacks relevant training or education. On cross-examination she testified that
      she had taken some Spanish classes, though none in the past five years.
4
      See, e.g., Leal v. State, 782 S.W.2d 844, 849 (Tex. Crim. App. 1989). Of the
      three reported instances in which the Court of Criminal Appeals has relied
      upon Leal in a majority opinion, none has been for the proposition discussed
      above concerning the qualifications of interpreters for purposes of adducing
      evidence at trial. See Hacker v. State, 389 S.W.3d 860, 871 n.39 (Tex. Crim.
      App. 2013) (citing Leal in support of proposition that “motive alone is not
      sufficient to corroborate the testimony of an accomplice”); Ex parte
      Goodbread, 967 S.W.2d 859, 864 (Tex. Crim. App. 1998) (quoting Leal for
      proposition that an indictment “may not charge more than one offense”);
      Colella v. State, 915 S.W.2d 834, 856 (Tex. Crim. App. 1995) (citing Leal
      for proposition: “Evidence of motive alone is never sufficient to corroborate
      the testimony of an accomplice witness.”).

                                          4
Rule 1009, which governs “Translation of Foreign Language Documents.” Distinct

from the procedure for translation of foreign language evidence so that it can be

understood by the jury and used in determining guilt or innocence, Article 38.30 of

the Code of Criminal Procedure addresses a completely different need for

courtroom interpreters—the need to accommodate “a person charged or a witness”

who “does not understand and speak the English language.” TEX. CODE CRIM.

PROC. ANN. art. 38.30(a) (West Supp. 2013). In such a circumstance, article 38.30

specifies a procedure by which “an interpreter must be sworn to interpret for the

person charged or the witness.” Id. The interpreter provided under article 38.30

ensures due process 5 by facilitating an understanding of trial proceedings for the

purposes of a defendant or a witness. 6 The rule does not purport to undercut the

standard applicable to translating documents for evidentiary purposes at trial.

Nevertheless, the majority has interpreted Rule 1009(e)—titled “Expert Testimony

5
      See Linton v. State, 275 S.W.3d 493, 500 (Tex. Crim. App. 2009) (“The
      federal constitution ‘requires that a defendant sufficiently understand the
      proceedings against him to be able to assist in his own defense.’” (quoting
      Ferrell v. Estelle, 568 F.2d 1128, 1132 (5th Cir. 1978), withdrawn on
      appellant’s death, 573 F.2d 867); Garcia v. State, 149 S.W.3d 135, 140
      (Tex. Crim. App. 2004) (“The right to be present includes the right to
      understand the testimony of the witnesses.”).
6
      Similarly, section 21.023 of the Civil Practice and Remedies Code allows a
      person “well versed in and competent to speak the Spanish and English
      languages” to serve as a “court interpreter” in certain counties, including
      Harris County. TEX. CIV. PRAC. & REM. CODE § 21.023 (West 2008); see
      also id. § 21.021(4).

                                        5
of Translator”—to authorize the State to use police officers who have no special

knowledge, training, or qualification as interpreters or translators for the purpose of

offering translations of foreign language documents into evidence at trial, even if

the officer admits that she is not fluent in the language. This is an incorrect and

unnecessary interpretation of Rule 1009(e), but at least it can be disregarded as

dicta.

         All of these difficulties would be avoided were the panel majority content to

rely on well-established principles requiring preservation of error and

demonstration of harm to overturn a conviction. See TEX. R. APP. P. 33.1, 44.2.

Because the majority insists on embellishing its analysis, I cannot join its opinion. I

therefore concur only in affirming the judgment of the trial court.




                                               Michael Massengale
                                               Justice

Panel consists of Justices Keyes, Higley, and Massengale.

Publish. TEX. R. APP. P. 47.2(b).

Justice Massengale, concurring.




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