      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                     Feb 10 2015, 10:13 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Michael D. Gross                                         Gregory F. Zoeller
      Lebanon, Indiana                                         Attorney General of Indiana
                                                               Larry D. Allen
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Jose Eduardo Vazquez-Paz,                                February 10, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               06A01-1407-CR-279
              v.
                                                               Appeal from the Boone Superior
      State of Indiana,                                        Court
                                                               Honorable Rebecca S. McClure,
      Appellee-Plaintiff.
                                                               Judge
                                                               Cause No. 06D02-1402-FD-46




      Robb, Judge.



                                 Case Summary and Issue
[1]   Following a jury trial, Jose Vazquez-Paz was convicted of operating a vehicle

      with an alcohol concentration of at least 0.15, a Class D felony, and resisting
      Court of Appeals of Indiana | Memorandum Decision 06A01-1407-CR-279| February 10, 2015   Page 1 of 8
      law enforcement, a Class A misdemeanor. Vazquez-Paz appeals those

      convictions, raising one issue for review: whether the services provided by an

      interpreter at Vazquez-Paz’s trial were adequate to protect his due process right

      to understand the proceedings. Concluding Vazquez-Paz’s due process rights

      were not violated, we affirm.



                            Facts and Procedural History
[2]   On February 2, 2014, Joshua Mullins and his fiancée, Sarah Jones, were

      driving down State Road 39 in Lebanon, Indiana. A car driven by Vazquez-

      Paz began tailgating Mullins’s vehicle. Vazquez-Paz sped up and slowed down

      several times before finally passing Mullins and almost striking Mullins’s

      vehicle. Vazquez-Paz then turned the wrong way down a one-way street and

      hit a snow embankment. He stopped briefly but then continued driving.


[3]   Mullins followed Vazquez-Paz while Jones called 911 to report a possible drunk

      driver. Lebanon Police Department Officers Taylor Nielsen and Brad Bailey

      responded to Jones’s emergency call. The officers watched Vazquez-Paz pull

      into a parking lot and hit a curb, at which point the officers activated their

      emergency lights and initiated a traffic stop.


[4]   Officer Nielson approached the vehicle, and Vazquez-Paz was in the driver’s

      seat. Officer Nielson noticed a strong odor of alcohol and of cologne coming

      from Vazquez-Paz. Officer Nielson asked Vazquez-Paz where he was heading,

      and he responded in English that he was going to rent a movie. Noticing that


      Court of Appeals of Indiana | Memorandum Decision 06A01-1407-CR-279| February 10, 2015   Page 2 of 8
      Vazquez-Paz was Hispanic, Officer Nielson inquired as to how well Vazquez-

      Paz spoke and understood English, to which he responded that he spoke “good

      English.” Transcript at 179. After obtaining Vazquez-Paz’s identification,

      Officer Nielson asked him to step out of the vehicle to perform field sobriety

      tests.


[5]   Officer Nielson first conducted a horizontal gaze nystagmus test. She then

      began explaining the walk-and-turn test to Vazquez-Paz, at which time he told

      the officer that he needed someone who spoke Spanish. Officer Tyson

      Warmoth, who was on scene, gave Vazquez-Paz instructions in Spanish for the

      walk-and-turn test and also for the one-leg stand test. Believing that Vazquez-

      Paz may be intoxicated, Officer Warmoth informed him of Indiana’s implied

      consent law and provided him with a card written in Spanish. Vazquez-Paz

      refused to give a straight answer as to whether he would consent to a chemical

      test, so the officers began the process of obtaining a warrant.


[6]   While waiting for the officers to secure a warrant, Vazquez-Paz made several

      aggressive movements toward Officer Warmoth, prompting the officers to place

      him in handcuffs. When the officers attempted to handcuff Vazquez-Paz, he

      attempted to pull away and pull his arms back in front of him.


[7]   The officers eventually obtained a search warrant and transported Vazquez-Paz

      to a nearby hospital for a blood draw. Vazquez-Paz yelled at the officers in

      both Spanish and English while riding in the police car on the way to the

      hospital. While at the hospital, Vazquez-Paz was calmer and conversed in


      Court of Appeals of Indiana | Memorandum Decision 06A01-1407-CR-279| February 10, 2015   Page 3 of 8
       English with several of the arresting officers. Vazquez-Paz’s blood was drawn,

       and it was later determined that he had a blood alcohol concentration of 0.17.


[8]    On February 3, 2014, the State charged Vazquez-Paz as follows: Count 1,

       operating a vehicle while intoxicated and endangering another person, a Class

       A misdemeanor; Count 2, operating a vehicle with an alcohol concentration of

       at least 0.15, a Class A misdemeanor; and Count 3, resisting law enforcement, a

       Class A misdemeanor. The State also filed a request to enhance Count 2 to a

       Class D felony due to Vazquez-Paz’s prior conviction for operating a vehicle

       while intoxicated.


[9]    At a pre-trial hearing on February 25, 2014, the trial court recalled that an

       interpreter was present at Vazquez-Paz’s initial hearing but that the interpreter

       was not used because Vazquez-Paz conversed with the trial court in English.

       Vazquez-Paz then told the interpreter at the pre-trial hearing that he

       “understands everything but he doesn’t know how to respond.” Tr. at 3.


[10]   Vazquez-Paz filed a pre-trial request for a defense interpreter, which the trial

       court granted. A jury trial was set to begin on April 15, 2014, but the defense

       interpreter, Karen Garza, was not present. Garza informed the trial court that

       defense counsel told her that she was not needed at trial, but defense counsel

       denied telling Garza she was not needed. The trial court ordered another

       interpreter who was present to assist Vazquez-Paz by translating during the jury

       trial, and the jury trial continued as scheduled. The interpreter sat at the




       Court of Appeals of Indiana | Memorandum Decision 06A01-1407-CR-279| February 10, 2015   Page 4 of 8
       defense table for the duration of the trial. The jury found Vazquez-Paz guilty of

       all charges.


[11]   On June 3, 2014, the date of the sentencing hearing, Vazquez-Paz made a

       motion for a new trial on the grounds that the services of the interpreter at trial

       were inadequate. The trial court suggested that the motion may not be timely

       because a final judgment had not yet been ordered, and the court then pointed

       out that an interpreter was with Vazquez-Paz during the jury trial. The trial

       court also noted that Vazquez-Paz turned to the interpreter only a few times

       during trial. Vazquez-Paz was sentenced to concurrent terms of three years for

       operating a vehicle with an alcohol concentration of at least 0.15 and 244 days

       for resisting law enforcement. This appeal followed.



                                  Discussion and Decision
                                      I. Standard of Review
[12]   Vazquez-Paz argues that the interpreter’s assistance during his jury trial was

       insufficient to preserve his right to due process. The Due Process Clause of the

       Fourteenth Amendment to the United States Constitution provides that no

       State shall “deprive any person of life, liberty, or property, without due process

       of law.” U.S. Const. amend. XIV, § 1. “The fundamental requisite of due

       process of law is the opportunity to be heard . . . at a meaningful time and in a

       meaningful manner.” Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (citations and

       quotation marks omitted). As it pertains to non-English speaking litigants, our

       supreme court has said that “due process must include not only the opportunity
       Court of Appeals of Indiana | Memorandum Decision 06A01-1407-CR-279| February 10, 2015   Page 5 of 8
       to be heard but also the opportunity to hear.” Ponce v. State, 9 N.E.3d 1265, 1268

       (Ind. 2014) (emphasis in original). “An indigent defendant who cannot speak

       or understand English has a right to have his proceedings simultaneously

       translated to allow for effective participation.” Martinez Chavez v. State, 534

       N.E.2d 731, 736 (Ind. 1989).


[13]   “The court’s decision as to whether an interpreter is needed should be based on

       factors such as the defendant’s understanding of spoken and written English,

       the complexity of the proceedings, issues, and testimony, and whether,

       considering those factors, the defendant will be able to participate effectively in

       his defense.” Arrieta v. State, 878 N.E.2d 1238, 1243 (Ind. 2008) (quoting Nur v.

       State, 869 N.E.2d 472, 479 (Ind. Ct. App. 2007, trans. denied)). A trial court’s

       decision whether to appoint an interpreter is reviewed for an abuse of

       discretion. Nur, 869 N.E.2d at 480.


                               II. Vazquez-Paz’s Interpreter
[14]   In this case, an interpreter was present and sat with Vazquez-Paz at the defense

       table throughout the jury trial. On appeal, however, Vazquez-Paz contends the

       interpreter did not actually perform his duty to interpret the entire proceeding.


[15]   Vazquez-Paz refers us to a comment made by the trial court at sentencing, in

       which the trial court said it noticed Vazquez-Paz turn to the interpreter only six

       times during the trial. He argues that the trial court’s statement implicitly

       indicates that the interpreter “was only there to answer questions and not to

       interpret the proceedings in total for [Vazquez-Paz].” Brief of Appellant at 7.

       Court of Appeals of Indiana | Memorandum Decision 06A01-1407-CR-279| February 10, 2015   Page 6 of 8
       However, the context of the trial court’s remark indicates that the trial court

       was stating its belief that Vazquez-Paz did not need the interpreter during the

       trial. Vazquez-Paz provides no citation to the record demonstrating that the

       interpreter sitting next to him was not actually interpreting, and defense counsel

       never objected or stated a belief that the interpreter’s performance was

       inadequate. Consequently, we do not believe Vazquez-Paz has met his burden

       of showing that the interpreter provided by the trial court was insufficient to

       preserve his right to due process.1


[16]   In addition to the fact that Vazquez-Paz was provided an interpreter, there are

       several portions of the record that suggest an interpreter may not have been

       necessary. There is no question that Vazquez-Paz spoke English. When he

       was first pulled over by police, he told them his English was “good.” Tr. at

       179. He conversed in English with officers at the hospital. He also spoke in

       English with the trial court at an initial hearing without using an interpreter.

       Furthermore, Vazquez-Paz told an interpreter at a pre-trial hearing that he

       understood everything the trial court was saying.




       1
         Vazquez-Paz’s brief relies entirely on our supreme court’s recent decision in Ponce, supra. In Ponce, the
       court granted Ponce’s petition for post-conviction relief after concluding that an interpreter inaccurately
       translated portions of his guilty plea hearing. 9 N.E.3d at 1274. Unlike the circumstances in Ponce, there is
       no evidence that Vazquez-Paz’s interpreter provided inaccurate translation.

       Court of Appeals of Indiana | Memorandum Decision 06A01-1407-CR-279| February 10, 2015              Page 7 of 8
[17]   Considering the circumstances of this case and the lack of evidence showing

       Vazquez-Paz’s interpreter performed deficiently, Vazquez-Paz was not denied

       his right to procedural due process.



                                               Conclusion
[18]   Concluding the interpreter provided to Vazquez-Paz was sufficient to protect

       his due process rights, we affirm.


[19]   Affirmed.


       Bailey, J., and Brown, J., concur.




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