                               NUMBER 13-11-00547-CR

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


IRVING MAGANA GARCIA,                                                                     Appellant,

                                                    v.

THE STATE OF TEXAS,                                                                        Appellee.


                       On appeal from the 139th District Court
                             of Hidalgo County, Texas.


                               MEMORANDUM OPINION1

   Before Chief Justice Valdez and Justices Rodriguez and Longoria
             Memorandum Opinion by Justice Rodriguez
        A jury found appellant Irving Magana Garcia guilty of murder. See TEX. PENAL

CODE ANN. § 19.02 (West 2011). After finding that death was caused under the influence

        1
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
of sudden passion, a felony of the second degree, the jury sentenced Garcia to twenty

years in the Institutional Division of the Texas Department of Criminal Justice and

assessed a $10,000 fine. See id. § 19.02(d). Garcia filed a motion for new trial based

on the trial court’s alleged failure to appoint an interpreter to translate the trial

proceedings into Spanish for Garcia’s benefit and on claims of ineffective assistance of

counsel. The motion was overruled by operation of law. This appeal followed.

       By seven issues and nine supplemental issues, which we reorganize as six, Garcia

complains that: (1) the trial court erred in failing to conduct a hearing on his motion for

new trial with Garcia present; (2) the trial court abused its discretion when it determined

that Garcia waived his right to an interpreter and did not provide an interpreter to Garcia;

(3) the trial court abused its discretion when it found that Garcia’s trial counsel provided

effective assistance; (4) the reporter’s record is inaccurate because it fails to indicate that

an interpreter was used when Garcia communicated with the trial court on January 18,

2011; (5) the $10,000 fine was “illegally included in the signed judgment” when it was not

included in the trial court’s oral pronouncement of Garcia’s sentence; and (6) the trial

court erred in denying Garcia’s motion for new trial. We affirm, as modified.

             I. GARCIA’S PRESENCE AT THE MOTION FOR NEW TRIAL HEARING

       By his first issue, Garcia complains that the trial court erred when it allowed his

motion for new trial to be overruled by operation of law without hearing the motion in his

presence. Article 33.03 of the Texas Code of Criminal Procedure requires that in all

prosecutions for felonies, the accused must be personally present at trial, except when

the accused voluntarily absents himself after pleading to the indictment or information, or

after the jury has been selected. TEX. CODE CRIM. PROC. ANN. art. 33.03 (West 2006);

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see Adanandus v. State, 866 S.W.2d 210, 217 (Tex. Crim. App. 1993); Hodges v. State,

116 S.W.3d 289, 296 (Tex. App.—Corpus Christi 2003, pet. ref’d). This right to be

present extends to a hearing on a motion for new trial. Coons v. State, 758 S.W.2d 330,

339 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d); see also Kotara v. State, No.

13-08-00519-CR, 2009 Tex. App. LEXIS 5020, at *5–7 (Tex. App.—Corpus Christi, May

21, 2009, no pet.) (mem. op., not designated for publication). However, a defendant may

waive his right to be present at a motion for new trial. Coons, 758 S.W.2d at 339 (citing

Phillips v. State, 163 Tex. Crim. 13, 288 S.W.2d 775 (1956)); see also Kotara, 2009 Tex.

App. LEXIS 5020, at *6.

       It is undisputed that Garcia desired to be present at the motion-for-new-trial

hearing and did not waive this right. He filed a motion to delay his transfer to prison so

that he could appear before the trial court. Nonetheless, Garcia was transferred and was

unavailable for the hearing. Ultimately, Garcia’s motion was overruled by operation of

law.

       On appeal, the State conceded, and we agreed, that Garcia should have had the

opportunity to appear at the motion-for-new-trial hearing. Accordingly, on October 2,

2012, we abated the appeal and remanded the case to the trial court so that it could

conduct a hearing with Garcia present. See Hobbs v. State, 298 S.W.3d 193, 203 (Tex.

Crim. App. 2009) (reversing the judgment of the court of appeals and remanding with

instructions to abate the appeal and return the case to the trial court to conduct a hearing

on appellant’s motion for new trial that was properly filed and presented and that raised

matters, upon which relief could be granted, that are not determinable from the record);

Coons, 758 S.W.2d at 339.

                                             3
       On November 1, 2012, the trial court held a hearing on Garcia’s motion for new

trial. Garcia appeared in person and through his appointed counsel.2 After receiving

evidence and hearing testimony and argument of counsel, the trial court commented, in

relevant part, that,

       [Garcia] waived the right to [an] interpreter. He waived it verbally. He
       never objected to an interpreter not being present . . . . He knew about the
       interpreter and he didn’t want an interpreter . . . . It was a waiver. . . . The
       [c]ourt finds that the [c]ourt talked to [Garcia and his counsel]. I want to say
       it was up here on the bench where we were talking and he said he didn’t
       want one, so it’s a waiver.

       On November 5, 2012, the trial court entered its written order denying Garcia’s

motion. It also entered the following findings of fact:

       1.      That the central claim in this motion for new trial is that this [c]ourt
               failed to sua sponte appoint Defendant Garcia an interpreter upon
               learning that Defendant Garcia did not speak or understand English
               under Article 38.30(a) of the Texas Code of Criminal Procedure.

       2.      Based on the credible testimony of . . . trial counsel for the
               Defendant[ ] and Defendant Garcia, Defendant Garcia was aware of
               his right to an interpreter and for valid reasons, pertaining to trial
               strategy, did not request an interpreter.

       3.      Based upon the credible testimony of Assistant Criminal District
               Attorney . . . , lead counsel for the State in this case, and this [c]ourt’s
               recollection of the underlying proceedings, Defendant Garcia waived
               his right to an interpreter during an unrecorded bench conference.

       4.      That it was based on this waiver that this [c]ourt determined that the
               appointment of an interpreter was not needed.

       5.      That trial counsel . . . provided effective assistant [sic] of counsel
               during a difficult case.

               a.      That [c]ounsel had valid trial strategy in allowing the jury to
                       consider the confession as this allowed testimony and
                       evidence that allowed the jury to make a ‘sudden passion’

       2
          Garcia’s appointed appellate counsel, not his trial counsel, represented him throughout the
motion for new trial proceedings.
                                                 4
                       finding.

               b.      That counsel discussed defendant Garcia’s right to an
                       interpreter and had a valid trial strategy in recommending that
                       they not seek the appointment of an interpreter.

       6.      Having reviewed the case and all testimony presented this [c]ourt
               finds no merit in any other claim raised in the motion for new trial.

       On November 19, 2011, after receiving a copy of the trial court’s order denying

Garcia’s motion for new trial and a copy of the reporter’s record of the motion for new trial

proceedings, we reinstated the appeal. Now, because the trial court heard Garcia’s

motion for new trial in his presence, we overrule the first issue as moot.

                             II. APPOINTMENT OF AN INTERPRETER

       By his second issue, Garcia complains that the trial court erred in failing to sua

sponte appoint an interpreter to interpret from English into Spanish, once it determined

that Garcia did not understand or speak English.3 See TEX. CODE CRIM. PROC. ANN. art.

38.30 (West Supp. 2011); Garcia v. State, 149 S.W.3d 135, 143–45 (Tex. Crim. App.

2004) (discussing the constitutional right to an interpreter and the trial court’s duty to

appoint an interpreter sua sponte when the right to an interpreter has not been validly

waived and the trial court becomes aware the accused requires an interpreter). Garcia

also contends that the trial court erred in finding he waived his right to an interpreter.

Garcia asserts that the trial court’s inaction violated his federal and state constitutional

rights, including his right to confront witnesses against him, to aid in obtaining fair and

impartial jurors, to be free from deprivation of liberty without due process, and to receive

equal protection of the laws of Texas. See U.S. CONST. AMENDS. VI & XIV.

       3
           The record indicates that an interpreter was provided to translate from Spanish to English.
Garcia does not complain that he was not provided any interpreter, but that he was not provided an
interpreter to translate from English to Spanish.
                                                  5
A.       Applicable Law and Standard of Review

         Article 38.30 of the Texas Code of Criminal Procedure provides, in relevant part,

that “[w]hen a motion for appointment of an interpreter is filed by any party or on motion of

the court, in 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.” See TEX. CODE CRIM. PROC. ANN. art.

38.30. However, even when the trial court is aware that a defendant has difficulty

understanding English, the defendant can waive the trial court’s appointment of an

interpreter if he knowingly or voluntarily waives his right to an interpreter. Garcia, 149

S.W.3d at 143–45.

         We review a trial court’s decision on whether to appoint an interpreter for an abuse

of discretion. See Linton v. State, 275 S.W.3d 493, 500 (Tex. Crim. App. 2009)

(addressing adequacy of interpretive services provided for a deaf defendant);

Abdygapparova v. State, 243 S.W.3d 191, 201 (Tex. App.—San Antonio 2007, pet. ref’d).

We also review the denial of a motion for new trial under an abuse of discretion standard.

Cueva v. State, 339 S.W.3d 839, 856–57 (Tex. App.—Corpus Christi 2011, pet. ref’d).

The test for abuse of discretion is whether the trial court acted without reference to any

guiding rules or principles. State v. Herndon, 215 S.W.3d 901, 907–08 (Tex. Crim. App.

2007).

         We defer to the trial court’s right to weigh the credibility of the testimony at the

hearing on the motion for new trial. See Salazar v. State, 38 S.W.3d 141, 148 (Tex.

Crim. App. 2001); Etter v. State, 679 S.W.2d 511, 515 (Tex. Crim. App. 1984); see also

Morris v. State, 696 S.W.2d 616, 620 (Tex. App.—Houston [14th Dist.] 1985), aff’d, 739

                                              6
S.W.2d 63 (Tex. Crim. App. 1987). “Because the trial judge is the sole judge of the

credibility of the witnesses, a trial court does not abuse its discretion by denying a motion

for new trial based on conflicting evidence.” Cueva, 339 S.W.3d at 857. In assessing

the evidence presented at the new trial hearing, the trial court, sitting as the trier of fact,

may also consider the interest and bias of any witness. Messer v. State, 757 S.W.2d

820, 828 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d) (per curiam) (citing Costello v.

State, 98 Tex. Crim. 406, 266 S.W. 158 (Tex. Crim. App. 1924)). Deference to the trial

court is required even if we would weigh the testimony differently than the trial court did.

See Salazar, 38 S.W.3d at 148.

         Thus, we review the evidence in the light most favorable to the trial court’s ruling

and presume that all reasonable findings that could have been made against the losing

party were so made.           See Alexander v. State, 282 S.W.3d 701, 706 (Tex.

App.—Houston [14th Dist.] 2009, pet. filed); Acosta v. State, 160 S.W.3d 204, 210 (Tex.

App.—Fort Worth 2005, no pet.). Only when no reasonable view of the record could

support the trial court’s ruling do we conclude the trial court abused its discretion by

denying the motion for new trial. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App.

2006).

B. Analysis

         It is apparent from the record, and undisputed on appeal, that the trial court was

aware that Garcia did not understand and did not speak the English language. Thus, the

trial court was required to appoint an interpreter to translate the proceedings into Spanish

for Garcia, absent waiver. See TEX. CODE CRIM. PROC. ANN. art. 38.30; Garcia, 149

S.W.3d at 143–45.

                                              7
       At the motion-for-new-trial hearing, Garcia’s trial counsel testified that (1) he is fully

bilingual and had conversations with Garcia in Spanish; (2) he informed Garcia that he did

not want an interpreter because it would be very distracting for the jury and it would make

it harder for him to concentrate on what he was doing with a conversation going on right

beside him; (3) he told Garcia that after the witnesses testified or during a break, he would

provide Garcia with a very brief summary of the witnesses’ harmful testimony, which he

did; and (4) he acknowledged that his affidavit set out that “[t]he accused and I agreed not

to ask for an interpreter.” Counsel also testified he could not recall or did not believe that

Garcia waived his right to have an interpreter.

       Garcia testified that his counsel told him that he “had the right to an interpreter,

but . . . wouldn’t recommend that because . . . that would distract him and not let him

concentrate very well.” Garcia testified that he agreed not to request an interpreter.

Nonetheless, Garcia and his counsel, through their affidavits entered into evidence at the

hearing, avowed that Garcia did not waive the services of an interpreter.

       Testifying for the State, the prosecuting attorney explained that she was present

during all hearings and bench conferences. She testified that counsel told her that he did

not want an interpreter, and she understood this to be a waiver. According to the

prosecutor, before trial began, defense counsel also informed the court that he was not

going to need an interpreter. She explained that the trial court asked counsel if he

wanted an interpreter, and counsel said, “[N]o.”

       In sum, there is evidence that Garcia and his counsel agreed not to request an

interpreter as part of their trial strategy. There is also evidence that defense counsel

informed the trial court and the prosecutor that Garcia did not want an interpreter. In

                                               8
addition, although there is conflicting testimony, the trial court could have determined that

Garcia voluntarily and knowingly waived the appointment of this interpreter because

Garcia knew he had the right to an interpreter, understood counsel’s reasons for waiving

that right, and agreed with him. Moreover, the trial court recollected that Garcia waived

his right to an interpreter during an unrecorded bench conference.

       Reviewing the evidence in the light most favorable to the trial court’s ruling and

presuming that all reasonable findings that could have been made against Garcia, the

losing party, were so made, see Alexander, 282 S.W.3d at 706, we conclude that this

reasonable view of the record supports the trial court’s ruling. See Holden, 201 S.W.3d

at 763. The record of the hearing on Garcia’s motion for new trial established that Garcia

effectively made an express waiver of his right to a translator. Deferring to the trial

court’s determination of the credibility of the testimony and its consideration of the interest

and bias of the witnesses, although there was conflicting evidence, we conclude that the

trial court did not abuse its discretion when it determined that Garcia waived his right to an

interpreter. See Salazar, 38 S.W.3d at 148; Messer, 757 S.W.2d at 828; see also

Cueva, 339 S.W.3d at 857. And, in light of that waiver, the trial court did not abuse its

discretion when it did not appoint an interpreter to interpret from English into Spanish.

See Salazar, 38 S.W.3d at 148; Messer, 757 S.W.2d at 828. We overrule Garcia’s

second issue.

                         III. INEFFECTIVE ASSISTANCE OF COUNSEL

       By his third issue, Garcia contends that the trial court erred in finding that his trial

counsel provided effective assistance. Specifically, Garcia complains of the trial court’s

finding that counsel had a valid trial strategy when he recommended that they not seek

                                              9
the appointment of an interpreter.

A.     Standard of Review and Applicable Law

       The trial court’s determination of a motion for new trial on the ground of ineffective

assistance of counsel is a matter entirely within the trial court’s discretion. Cueva, 339

S.W.3d at 856–57. Therefore, under the facts of this case, we will review the prongs of

Strickland v. Washington, set out below, through this abuse of discretion standard of

review, reversing only if the trial court’s decision was arbitrary or unreasonable. See id.

at 857. Again, we are mindful of the requirement that we are to defer to the trial court’s

right to weigh the credibility of the testimony before the court at the motion-for-new-trial

hearing. See Salazar, 38 S.W.3d at 148.

       To establish ineffective assistance of counsel, Garcia must show that: (1) his

attorney’s representation was deficient; and (2) there is a reasonable probability that, but

for his attorney’s errors, the result of the proceeding would have been different. See

Strickland v. Washington, 466 U.S. 668, 684 (1984); Salinas v. State, 163 S.W.3d 734,

740 (Tex. Crim. App. 2005); Cueva, 339 S.W.3d at 857. “An appellant’s failure to satisfy

one prong of the Strickland test negates a court’s need to consider the other prong.”

Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). Because Strickland’s

first prong is dispositive of this issue, we will analyze it first. See TEX. R. APP. P. 47.1.

              Counsel’s performance is deficient when his representation falls
       below an objective standard of reasonableness. In determining whether
       there is a deficiency, we afford great deference to trial counsel’s ability,
       indulging “a strong presumption that counsel’s conduct falls within the wide
       range of reasonable professional assistance” and that counsel’s actions
       were the result of sound and reasonable trial strategy. Decisions rooted in
       strategy do not constitute deficient performance. Unless a defendant can
       show in the record that counsel’s conduct was not the product of a strategic
       decision, “a reviewing court should presume that trial counsel’s
       performance was constitutionally adequate ‘unless the challenged conduct
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       was so outrageous that no competent attorney would have engaged in it.”

Cueva, 339 S.W.3d at 857–58 (citations omitted).

B.     Analysis

       Garcia contends that his trial counsel was ineffective because he did not ask for an

interpreter to translate from English to Spanish. He argues that his strategy was not

reasonable. Relying on United States v. Holmes, Garcia acknowledges that defense

counsel can waive a defendant’s constitutional right to confrontation for valid, tactical

purposes. See 620 F.3d 836, 843 (8th Cir. 2010). Garcia does not challenge counsel’s

strategy in not wanting an interpreter because it would distract the jury or because it

would make it harder for him to concentrate. Rather, Garcia argues that counsel’s

strategy “to choose to keep [Garcia] in the dark and unaware of what his accusers were

testifying to in the English language against him” was not a valid, reasonable trial

strategy; it was ineffective assistance of counsel. We disagree.

       At the hearing on Garcia’s motion for new trial, counsel, himself, clearly articulated

his reasons for his decision not to request an English-to-Spanish interpreter.           He

explained that he did not want an interpreter because the interpreter would distract both

him and the jury. The prosecutor did testify that counsel informed her that he did not

want an interpreter for Garcia because he did not “really want him to know what’s going

on.” However, except for this testimony, the record is silent regarding counsel’s tactical

decision, if for this reason. See Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001)

(setting out that when the record is silent on the motivations underlying counsel’s tactical

decisions, appellant usually cannot overcome the strong presumption that counsel’s

conduct was reasonable). No one elicited specific testimony from counsel or further

                                             11
testimony from the prosecutor regarding this alleged motivation for counsel’s strategic

decision. And the trial court did not appear to consider the prosecutor’s testimony in its

determination of the effectiveness of counsel’s assistance. Instead, the trial court based

its finding that counsel’s assistance was effective on counsel’s credible testimony. The

trial court further found that counsel “had a valid trial strategy in recommending that they

not seek the appointment of an interpreter.”

       Based on the reasoning provided by trial counsel and our deference to the trial

court’s right to weigh the testimony that comes before it at the hearing on the motion for

new trial, see Salazar, 38 S.W.3d at 148, we conclude that trial counsel’s decision was

reasonably professional and motivated by sound trial strategy. It was a decision that did

not fall below an objective standard of reasonableness.           Thus, Garcia failed to

demonstrate, on this record, deficient performance by his trial counsel. Furthermore, the

trial court’s determination that trial counsel’s assistance was not ineffective was not

arbitrary or unreasonable; it did not abuse its discretion in this regard. See Cueva, 339

S.W.3d at 857. We overrule this third issue.

                                IV. REPORTER’S RECORD

       By his fourth issue, Garcia argues that the reporter’s record of a pre-trial

proceeding on January 18, 2011 erroneously fails to indicate that an interpreter was used

when Garcia communicated with the trial court. He claims that “[t]his is a very important

omission by the reporter [because] whether Mr. Garcia needed and had an interpreter is

an ultimate issue on appeal.” Having determined that the trial court did not abuse its

discretion in determining not to appoint an interpreter to translate the English trial

proceedings into Spanish for Garcia, we need not address this issue, as it is not

                                            12
dispositive of this appeal. See TEX. R. APP. P. 47.1.

                                 V. ASSESSMENT OF A FINE

       By his fifth issue, Garcia contends that the $10,000 fine was “illegally included in

the signed judgment, after the trial court failed to orally pronounce any fine in Mr. Garcia’s

presence.” The record confirms that the trial court omitted the $10,000 fine assessed by

the jury when it orally pronounced Garcia’s sentence.

       A defendant has the right to have his sentence, including the assessment of any

fines, pronounced in his presence. See TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1(a)

(West Supp. 2011); Abron v. State, 997 S.W.2d 281, 282 (Tex. App.—Dallas 1998, pet.

ref’d). “‘When the oral pronouncement of the sentence and the written judgment vary,

the oral pronouncement controls’ because ‘the written sentence or order simply

memorializes’ the oral pronouncement.” State v. Davis, 349 S.W.3d 535, 538 (Tex.

Crim. App. 2011) (quoting Ex Parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App.

2002)). An intermediate appellate court may reform a trial court’s judgment to make the

record speak the truth when it has the necessary data and information to do so. See

TEX. R. APP. P. 43.2(b) (“The court of appeals may . . . modify the trial court’s judgment

and affirm it as modified.”).

       The State concedes that the judgment should be modified. We, therefore, sustain

Garcia’s fifth issue and modify the trial court’s judgment to delete the $10,000 fine from

the trial court’s judgment.

                                VI. MOTION FOR NEW TRIAL

       Garcia’s sixth and final issue recasts previous issues by generally alleging the trial

court abused its discretion in overruling his motion for new trial.          It is based on

                                             13
contentions made in his motion for new trial and argued on appeal in his second and third

issues. Because we have concluded that the trial court did not abuse its discretion on

those issues, we likewise overrule Garcia’s sixth issue. See TEX. R. APP. P. 47.1.

                                   VII. CONCLUSION

       We affirm the judgment, as modified.



                                                             NELDA V. RODRIGUEZ
                                                             Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
7th day of March, 2013.




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