                                                                                   ACCEPTED
                                                                               03-15-00727-CR
                                                                                     12913597
                                                                    THIRD COURT OF APPEALS
                   N O . 03-15-00727-CR                                        AUSTIN, TEXAS
                                                                          9/27/2016 8:28:02 AM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK
              I N T H E C O U R T OF APPEALS
      T H I R D D I S T R I C T O F TEXAS I N A U S T I N
                                                               FILED IN
                                                        3rd COURT OF APPEALS
                                                            AUSTIN, TEXAS
              J U A N JOSE R A M I R E Z , SR.,         9/27/2016 8:28:02 AM
                                                          JEFFREY D. KYLE
                                         Appellant              Clerk


                              V.


                 T H E STATE O F TEXAS
                                    Appellee


            Appeal i n Cause N o . 41984 i n the
  424^^ Judicial District Court o f Burnet County, Texas



                  Brief For        Appellee

                 Oral Argument Requested



       OFFICE O F D I S T R I C T A T T O R N E Y
       33^^ and 424'^ J U D I C I A L D I S T R I C T S
WILEY B. " S O N N Y " McAFEE, D I S T R I C T A T T O R N E Y

                                   Gary W . Bunyard
                                   Assistant District Attorney
                                   P. O. Box 725
                                   Llano, Texas 78643
                                   Telephone            Telecopier
                                   (325) 247-5755       (325) 247-5274
                                   g.bunyard@co.llano.tx.us
                                   State Bar, N o . 03353500

              A T T O R N E Y FOR APPELLEE

                     September 27, 2016
                            Identity Of The Parties

Trial Court

     Honorable Evan Stubbs
     424'^ Judicial District
     Burnet County Courthouse Annex (North)
     1701 East Polk St., Suite 74
     Burnet, T X 78611




State/Appellee Counsel

     Blake Ewing                                 (Pretrial and Trial)
     Assistant District Attorney (former)
     1701 E. Polk St., Suite 24
     Burnet, T X 78611
     (512) 756-5449
     State Bar N o . 24076376

     Kristen Sharpe                              (Trial)
     Assistant District Attorney
     1701 E. Polk St., Suite 24
     Burnet, T K 78611
     (512) 756-5449
     State Bar N o . 24073482



     Gary W . Bunyard                            (Appellate)
     Assistant District Attorney
     P. O. Box 725
     Llano, Texas 78643
     (325) 247-5755
     State Bar N o . 03353500
     g.bunyard@co.llano.tx.us



                                       ii
Appellant Counsel

      Revis Kanak                      (Pretrial and Trial)
      Public Defender's Office
      1008 N . Water Street
      Burnet, Texas 78611
      Telephone:(512)234-3061
      State Bar N o . 11091500



     Daniel H . Wannamaker             (Appellate)
     1012 Rio Grande St.
     Austin, Texas 78701
     (512) 236-9929
     State Bar N o . 20834300
     dhw@wannamakerlaw.com



Appellant

     Juan Jose Ramirez, Sr.
     T D C J #02032163
     SID #06581167
     Bartlett State Jail
     1018 Arnold D r .
     Bartlett, T X 76511




                                 iii
                               Table Of Contents

                                                               Page

Index o f Authorities                                                 V


Statement o f the Case                                                1

Statement on Oral Argument                                            1

Response to Issues Presented                                          2

Statement o f the Facts                                               3

Summary o f the Argument - Issue N o . 1                              6

   By not requesting a licensed court interpreter Appellant
   has waived his right to have the court appoint a licensed
   interpreter for the Plea Bargain Deadline hearing and
   has further failed to preserve for appellate review any
   error on this issue.

Argument on Issue N o . 1

   lA    Principals of Law                                             6

   1.2 Applicable Facts                                                8

   1.3 Discussion and Conclusion                                      10

Prayer for Relief.                                                    15

Certificate o f Word Count                                            15

Certificate o f Service                                               16




                                         iv
                             Index Of         Authorities


Case Law                                                                 Page

Baltierra v. State,
    586 S.W.2d 553, 556-559 (Tex. C r i m . App. 1979)                      11

Briones v. State,
    595 S.W.2d 546, 548 (Tex. C r i m . App. 1980)                              7

Ex parte Marez,
   464 S.W.2d 866 (Tex. C r i m . App. 1971)                                    7

Ex parte Zantos-Cuehas,
   429 S.W.3d 83 (Tex. App. - Houston           Dist.] 2014, no pet.).   12,14

Garcia v. State,
   151 Tex. C r i m . 593, 210 S.W.2d 574 (1948)                                7

Garcia v. State,
   149 S.W.3d 135, 138-140 (Tex. C r i m . App. 2004)                       12

Hernandez v. State,
   986 S.W.2d 817, 822 (Tex. App. - Austin 1999, pet. ref d)              7, 14




Constitutions

None cited




                                          V
Statutes/Rules

Tex. Code C r i m . Proc. art. 38.30(a)




Treatises/Publications

None cited
                         statement         Of The Case

   Appellant has reasonably set forth the Statement o f the Case as proscribed i n Tex.

R.App. P. Rule 38.1 (d).




                        Statement       on Oral     Argument

   The undersigned requests Oral Argument. The undersigned does not believe

that Oral Argument w i l l be beneficial for this case for the reason that the issues are

straight forward and do not contain complex nuances, however, the Appellant has

requested Oral Argument.       I n such event that this Court should believe that Oral

Argument would assist the Court, the undersigned w i l l gladly participate.




                                            1
                     Response      to issues      Presented

Issue N o . One:

   By not requesting a licensed court interpreter Appellant has waived his right

   to have the court appoint a licensed interpreter for the Plea Bargain Deadline

   hearing and has further failed to preserve for appellate review any error on

   this issue.




                                         2
                             statement       Of TIte Facts

   Appellant has not fully described the Statement o f the Facts i n accordance w i t h

Tex. R. App. P. Rule 38.1(g).

   Appellant was charged by Indictment w i t h the offense o f Aggravated Assault W i t h

A Deadly Weapon.^ Prior to trial the trial court conducted a Plea Bargain Deadline

Hearing wherein Appellant informed the trial court that he declined the plea bargain

offer made by the State.^

   O n the day o f trial the trial court announced for the record that M r . Tomas Leon

and Mrs. Sophia Leon, each certified Spanish/English interpreters, were present.^

   A t trial State's witness Ana Ramirez, Appellant's ex-wife, testified by way o f an

interpreter that Appellant called her phone many times sounding drunk and mad."^

W h e n Ana arrived home from work Appellant grabbed her from behind placing a

knife to her throat.^ Appellant told Ana that i f she moved Appellant would kill Ana.^


       ^ ICR.4-5.

       2   2R.R.4-6.

       ^ 3 R.R. 4. During trial Tomas Leon performed interpretation for Appellant and Sophia
Leon performed interpretation for the witnesses.

       ^ 4 R.R. 15-16, 25.

       ^ 4 R.R. 26-27.

           4 R.R. 57.

                                              3
Ana struggled to move the knife away from her and her hand was cut when she was

finally successful i n getting the knife away from her throat/

   Appellant continued to maintain a hold on Ana preventing her from being able

to escape.^     D u r i n g this struggle Appellant attempted to throw the knife at Ana's

chest.^     A t some point during the struggle Appellant kicked Ana i n the lower

stomach area.^°          Appellant had also taken Ana's phone during the struggle and

threw it down.^^          I t was not until Ana's sister arrived next door that Appellant

released Ana and ran away/^          Ana was so frightened during the struggle that she

urinated on herself

   As Appellant was running away he told Ana that he would get revenge on her

family i n Honduras i f Ana caused trouble for h i m w i t h the police.




      ^ 4 R.R. 29-30.

      ^ 4 R.R. 31.

       ^ 4 R.R. 31.

       1°   4 R.R. 32.

            4 R.R. 43.

      ^2    4 R.R. 31.

      "     4 R.R. 32.

      "     4 R.R. 33.

                                              4
   Once the State rested its case Appellant rested without calling any witnesses.       A

Court's Charge to the Jury was prepared to which neither side had objections.^^

   Following the reading o f the Charge and final arguments by both sides the j u r y

rendered its verdict that Appellant was Guilty o f the offense o f A ^ a v a t e d Assault

W i t h A Deadly Weapon by Threat as charged i n the Indictment.^^

   Having elected for the j u r y to assess punishment, the jury's verdict was for

imprisonment for a period o f 10 years w i t h no fine assessed.




         4 R.R, 169.

         4 R.R. 170-171.

         5 R.R. 26-27.

         6 R.R. 55.

                                            5
                 Summary        Of The Argument         on Issue No, 1

      Appellant here argues that the trial court was obligated to provide Appellant w i t h

a licensed court interpreter to assist Appellant during the Plea Bargain Deadline

hearing. Appellant did not request the services o f a licensed court interpreter for

this hearing, but instead relied upon his o w n understanding o f the English language

together w i t h the interpretation provided by his court-appointed trial counsel. As

such Appellant has waived his right to a licensed court interpreter for the Plea

Bargain Deadline hearing and has further failed to preserve for appellate review any

error on this issue.




                              Argument         On Issue No, 1

1.1      Principals of Law

      When a motion for appointment o f an interpreter is filed by any party or on

motion o f the court, i n any criminal proceeding, it is determined that a person

charged or a witness does not understand and speak the English language, an

interpreter must be sworn to interpret for the person charged or the witness.^^




         ^5 Tex. Code Crim. Proc. art. 38.30(a).

                                                   6
   Unless the record otherwise demonstrates the defendant's lack o f understanding

o f the proceedings, a defendant who does not request an interpreter waives the right

to complain on appeal.^^

   The only basis for providing an interpreter is because o f the constitutional and

statutory guarantee o f confrontation under the Constitutions o f the United States

and o f Texas.^^ However those rights may be waived.^^

   Where the record shows that the appellant was aware o f the consequences o f his

entry o f a plea o f nolo contendere, the waiver given by the appellant was "an

intentional relinquishment or abandonment o f a known right."^                    As such an

interpreter, other than his attorney, would have added nothing to insure that

appellant voluntarily and intelligently waived his right to confrontation and

cross-examination o f witnesses and entered a plea o f nolo contendere .^"^




      2 ° Hernandez v. State, 986 S.W.2d 817, 822 (Tex. App. - Austin 1999, pet. ref d).

      2^ Ex parte Marez, 464 S.W.2d 866 (Tex. Crim. App. 1971).

      22 Garcia v. State, 151 Tex. Crim. 593, 210 S.W.2d 574 (1948).

      23 Briones v. State, 595 S.W.2d 546, 548 (Tex. Crim. App. 1980).

      2^   Id.

                                              7
1,2     Applicable Facts

      O n October 13,2015, the trial court called this cause for a Plea Bargain Deadline

Hearing.         For the record the trial court announced the presence o f Appellant and

his trial counsel and that his trial counsel was interpreting for Appellant.^^         This

hearing begins w i t h the trial court asking Appellant to verify that he is Juan Jose

Ramirez, Senior to which Appellant answers affirmatively.^"^ The trial court then

explains the range o f punishment, both prison and probation, for a second degree

felony.^^       I n response to this Appellant, through his trial counsel acting as his

interpreter, asks to clarify that the fine is i n addition to the prison time.^^ The trial

court acknowledges the clarification to which Appellant responds 'Yts. So after all

that, yes."^° I t is at this point that the trial court makes the following inquiry:

      "THE COURT:             Okay. Y o u understand that i f you want to w o r k out an
                              agreement, today is your day to do an agreement?




         2^   2R.R. 1.

         26   2. R.R. 4.

         2^   2 R.R. 4.

         2«   2 R.R. 4.

         29   2 R.R. 4.

         3°   2 R.R. 4.

                                             8
   "MR. KANAK:            Okay. Yes, he understands that, and, no, he's wanting to
                          proceed.

   "THE COURT:            Okay. Then we w i l l be here on October the 19th at 8:30

                          a.m.

   "MR. KANAK:            Okay. Yes."^^

   Following this discussion the prosecutor offered to recite the plea bargain offer

for the record, that being two years confinement i n the Institutional Division or an

alternative offer o f ten years deferred adjudication and either o f those would be

accepted by the State "today".^^       T o this recitation the Appellant personally

responded "Okay. Yes. I understand that and I ' m not accepting that."^^

   The trial court made the following further admonishment:
   "THE COURT:            Okay. M r . Ramirez, what I want you to understand is that
                          after today we're not going to have a plea agreement and i f
                          you go to trial the j u r y can give you anywhere from two to
                          20 years i n prison. A n d i f you get a 20-year sentence, you
                          won't being eligible for parole until after you've served at
                          least ten o f that. So that's your choice, but I want to make
                          sure that you understand the risk that you are taking.

   "THE DEFENDANT:               Yes, I understand.



      31   2 R.R. 4.

      32   2 R.R. 5.

      33   2 R.R. 5.

      3^   2 R.R. 5.

                                          9
IJ      Discussion and Conclusion

     As described by the Court o f Criminal Appeals i n Ex parte Marez, the purpose o f

art. 38.30(a) is to guarantee a defendant's right to confrontation o f the witnesses

against him. Further, the protection o f art. 38.30(a) is not triggered unless or until

any party requests the trial court to appoint an interpreter or until the trial court sua

sponte believes that a defendant is not able to understand the proceedings.       More

importantly to this case is that because Appellant did not request the appointment

o f an interpreter his ability to complain on this issue on appeal is waived unless the

record establishes that Appellant could not understand the proceedings.

     It is very important to note that the entire complaint is centered around perhaps

a five minute hearing i n which the trial court sought to establish whether a plea

bargain was possible. There was no witness called nor any exhibits offered for any

reason. Therefore the confrontation issue was never at play i n this hearing.

     N o request was made for an interpreter to be present for this hearing.           A

presumption can be made that the trial court would be aware o f Appellant's trial

counsel's familiarity w i t h the Spanish language as counsel was a member o f the local

public defender's office and would have appeared before the trial court on a number

o f occasions.      Careful consideration as to the appropriateness o f Appellant's

responses to the questions posed by the trial court would give further confidence

                                           10
that between the trial counsel's interpretation and Appellant's even rudimentary

understanding o f the English language Appellant had a sufficient comprehension o f

what was being said during this hearing and the implications o f his rejection o f the

plea bargain offer. Although Appellant started the hearing by answering through

his court-appointed counsel, when the prosecutor described the plea bargain offer

Appellant began directly answering himself w i t h well-worded comments.

   Following this when the date o f trial arrived one interpreter was present for

Appellant while a second interpreter was present for the witnesses. The interpreter

for Appellant was present at trial from start to finish.

   The case authority cited by Appellant can be distinguished as the holding o f the

Baltierra case and the Garcia case points to the constitutional right to confront the

witnesses against h i m . I n Baltierra^^ the Court o f Criminal Appeals reviewed the

history o f cases involving persons unable to understand the English language. This

history was completely and totally focused on the need o f the defendant to

understand the trial proceedings i n order to protect the defendant's constitutional

and statutory guarantees o f confrontation under the Constitution o f Texas and o f the

United States.       The Court noted that a court interpreter was present but only




         Baltierra   v. State, 586 S.W.2d 553, 556-559 (Tex. Crim. App. 1979).

                                               11
interpreted for the defendant when the defendant personally took the stand as a

witness. Since the court interpreter did not interpret for the defendant during the

testimony o f the other witnesses the Court held that the defendant's right to

confront the witnesses had been violated.           The Court further noted that because

that trial court had been made aware at the beginning o f the trial that the defendant

was not able to understand the English language that trial court had a duty to appoint

an interpreter for the defendant during the entire trial process.

   I n the Garcia case^^ the facts under scrutiny were that Garcia could not

understand the English language to any appreciable degree. The trial court "hired"

the legal assistant o f Garcia's trial counsel as the interpreter.        However, while the

legal assistant interpreted Garcia's testimony for the jury, she did not interpret the

testimony o f any o f the other witnesses for Garcia.

   I n the case o f Ex parte Zantos-Cuehas^^ the defendant was charged w i t h the

misdemeanor offense o f terroristic threat/dating relationship.                 The defendant

brought his 17 year old friend to act as an interpreter.              The defendant waived

counsel and plead guilty as part o f a plea bargain. Adjudication o f guilt was deferred

and the defendant was placed on community supervision. The defendant was later


       36 Garcia v. State, 149 S.W.3d 135,138-140 (Tex. Crim. App. 2004).

       3^ Ex parte Zantos-Cuebas,   429 S.W.3d 83 (Tex. App. - Houston [1'* Dist.] 2014, no pet.).

                                               12
detained and subjected to deportation proceedings.        The defendant fded an art.

11.072 application for w r i t o f habeas corpus complaining that his friend did not

translate the portion o f the plea papers informing h i m that a plea o f guilty could

result i n his being deported.   The trial court held the application to be frivolous

without making any written findings o f fact and conclusions o f law.

   The First Court o f Appeals held that i n order to waive a constitutional right the

defendant must be aware o f the right. The court also held that the trial court could

only determine that an application is frivolous without filing findings o f fact and

conclusions o f law i f the application on its face showed the claim to be without

merit. The court pointed out that the 17 year old friend signed an affidavit stating

that she did not interpret that part o f the papers that discussed the potential impact

o f a plea o f guilty on the defendant's immigration status. The court further pointed

out that the application also contained the defendant's affidavit that a plea o f guilty

could have an impact on his immigration status and he would never have pleaded

guilty had he known that he could be deported. As such the First Court o f Appeals

determined that the application was not frivolous on its face and remanded the case

to the trial court to conduct an evidentiary hearing and to make findings o f fact and

conclusions o f law.




                                          13
   I n the present case, the record establishes that the only right that Appellant was

waiving was his right to request a court-appointed interpreter at the Plea Bargain

Deadline Hearing. There is nothing i n this record to show that Appellant did not

have a clear understanding that i f he did not accept one o f the two plea bargain offers

on that day his case would go to trial on the next j u r y date.

   The basic theory o f law i n the Zantos-Cuebas^^ case is not different from the

holding i n the Hernande^^^ case and as such, without a clear record showing

Appellant had no understanding o f the proceedings, Appellant failed to preserve

error for appellate review when he did not request a court-appointed interpreter for

the Plea Bargain Deadline Hearing.

   Therefore Appellant's first and only issue should be denied and the judgment and

sentence i n this cause should be affirmed.




          Supra.

          Hernandez v. State, 986 S.W.2d at 822.

                                             14
                             PRAYER FOR R E L I E F

   WHEREFORE, PREMISES C O N S I D E R E D , Appellee prays the Court deny

the relief requested by Appellant and affirm the judgment of conviction and sentence

entered against Appellant.

                                       Respectfully submitted,

                                       OFFICE OF D I S T R I C T A T T O R N E Y
                                       33^^ and 424'^ J U D I C I A L D I S T R I C T S
                                       Wiley B. McAfee, District Attorney
                                       P. O. Box 725
                                       Llano, Texas 78643
                                       Telephone             Telecopier
                                       (325) 247-5755       (325) 247-5274

                                       By:_^:^^^^^^^^^!lri__
                                          G^W./gunyard^
                                          Assistant District Attorney
                                          State Bar N o . 03353500
                                          g.bunyard@co.llano.tx.us
                                       A T T O R N E Y FOR APPELLEE




                     C E R T I F I C A T E OF WORD C O U N T

   This is to certify that the pertinent portions o f this brief, including footnotes,
contains 2,544 words printed in Aldine401BT 14 font (footnotes are printed i n
Calibri 12 font), according to the WordPerfect™ X 8 word count tool.




                                         15
                          C E R T I F I C A T E OF SERVICE

      This is to certify that a true copy o f the above and foregoing instrument, together
w i t h this proof o f service hereof, has been forwarded on the 27th day o f September
2016, to Daniel H . Wannamaker, Attorney for Appellant, by EServe.




                                                Assistant District Attorney




                                           16
