                                              OPINION
                                        No. 04-11-00567-CR

                                  Neptali Armando ORELLANA,
                                            Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 399th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2009CR10396
                       Honorable Juanita A. Vasquez-Gardner, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: August 15, 2012

AFFIRMED

           After a jury trial, appellant Neptali Armando Orellana was found guilty of murder. The

trial court assessed punishment at forty-five years confinement in the Texas Department of

Criminal Justice–Institutional Division. On appeal, Orellana raises three issues, complaining the

trial court erred in: (1) denying his motion for directed verdict; (2) denying his motion for

mistrial when the State asked an improper, burden-shifting question; and (3) failing to provide

him with a separate Spanish language interpreter. We affirm the trial court’s judgment.
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                                        BACKGROUND

       On the morning of June 20, 2009, several men gathered at the home of Arturo Vallejo

(“Ché”). It was common for men to gather at Ché’s home to talk and drink alcohol. Around

nine that morning, Ché woke up and found people already gathering on his property. The men

were standing near a parked RV that belonged to Jesus Ponce (“Chuy”). Chuy, who was a long-

time friend of Ché, lived in the RV.

       Several men were there that morning, including Chuy, Ricardo Rodriguez (“Ronco”),

Ignacio Benavides (“Nacho”), Juan Jimenez Santana (“Indio”), Javier Tovar (“Pollo”), and

appellant Orellana (“Wero,” “the Honduran,” or “Honduras”). Ché came outside and gave Chuy

some food. Ché then went back inside. The evidence showed that some of the men were

drinking, using drugs, or both. Some men were more intoxicated than others. Eventually an

argument erupted when Orellana seemed to criticize the way Pollo was cleaning Ronco’s boots.

Though the testimony varied somewhat, it seems Orellana told Pollo he was not cleaning the

boots properly, and that in Honduras they had an instrument that would do it better. Pollo

became angry and left without completing the cleaning. Ronco then told Orellana he would have

to finish cleaning his boots because he caused Pollo to leave before the boots were clean. When

Orellana refused, he and Ronco began to argue. Indio and Nacho took Ronco’s side; however,

Chuy interceded on Orellana’s behalf and verbally stopped Ronco from hitting Orellana.

       Apparently, Orellana was not happy that Chuy was defending him, telling Chuy to “shut

up” and “mind his own business.” Having heard the men arguing, Ché came outside and asked

Ronco, Nacho, and Indio to leave. Ché went back inside, but the men did not leave and they

continued to argue with Orellana. Ché came back outside and told Ronco, Nacho, and Indio they

had five minutes to leave. The three men left and went to the home of a neighbor, Ernesto



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Esquivel. Esquivel lived two houses from Ché. Inside Esquivel’s home, the men continued to

drink. Orellana and Chuy were left alone on Ché’s property.

          Ché and his son-in-law were sharing a bottle of wine on Ché’s porch, which was on the

side of the house. From where they were sitting, they could not see the area of the property

where the men had been drinking and arguing. Ché testified that not long after the three men

left, leaving Orellana and Chuy alone, he saw Orellana leave in his green Toyota. Ché stated he

found it unusual that Orellana left so abruptly, without saying good-bye. Ché said Orellana

usually said good-bye before he left.

          Approximately two hours after Ché saw Orellana leave, Ché’s wife and daughter returned

from the hospital where they had visited Ché’s dying brother. As they walked toward the house,

they saw Chuy lying on the ground and yelled for Ché. Ché testified Chuy was lying on the

ground. Ché said he “got very scared” and went into the house. Ché told his wife to call the

police.

          San Antonio Police Officer James Reyna was dispatched to Ché’s home. Officer Reyna

testified he was the first officer to arrive, although EMS and a San Antonio Fire Department fire

engine were already there. When he arrived, he saw “a deceased male” with head trauma, lying

in a fetal position covered in blood. The officer then notified his sergeant and the homicide unit

and also requested a crime scene investigator and a representative from the medical examiner’s

office. Officer Reyna stated he then began canvassing for witnesses. After speaking with

several witnesses, Officer Reyna determined the victim was Jesus Ponce, also known as Chuy.

The officer spoke with Ché, Ché’s wife, and the victim’s wife, Paula Ponce. Later, Officer

Reyna took Ché to police headquarters for questioning by the homicide detectives.




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       Jesse Salame, a homicide detective with the San Antonio Police Department, investigated

Chuy’s death. After receiving notification of the incident, Detective Salame went to the scene

and spoke with Officer Reyna. Detective Salame tried to find possible witnesses, and spoke to

some of the victim’s family members who had arrived after learning Chuy was dead. From

witnesses, the detective learned there were others a couple of houses away that had been drinking

with the victim before he was killed. Detective Salame went to Esquivel’s house and spoke to

Ronco, Pollo, and Nacho. Initially, the three men were uncooperative, but ultimately they gave

statements.

       After Detective Salame and several other detectives spoke to Ronco, Pollo, and Nacho,

they learned there was another person present with the victim that morning. The three witnesses

referred to this person as “Honduras.” Unable to locate the person with only the nickname,

Detective Salame spoke to Ché, who helped them locate “Honduras.”              Ché knew where

Honduras lived, but did not know the address, so he took detectives to the apartment complex.

When the detectives and Ché arrived at the apartment complex, they saw a man look at them

through the blinds of an apartment sliding glass door. Ché told officers it was “Honduras.”

       The person identified as “Honduras” closed the blinds. The detectives knocked on the

door of the apartment identified by Ché as belonging to Honduras. After several minutes,

Veronica Galaviz, who was Orellana’s girlfriend, answered the door. Initially, Galaviz told

detectives “Honduras” was not there. Eventually, she let the detectives into the apartment.

Detective Salame told her he saw the man they were searching for peering through the blinds

when they arrived. She called out and the man identified as “Honduras” came out of the

bathroom. At trial, Detective Salame identified the man as Orellana.




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       Orellana’s girlfriend, Galaviz, testified at Orellana’s trial as a witness for the State.

Galaviz stated that on the day of the murder, she left at about 7:00 a.m. for her job as a

phlebotomist at the South Texas Blood and Tissue Center. According to Galaviz, Orellana, who

was unemployed, was still asleep. Galaviz said she asked Orellana to put a chicken she had

prepared in the oven at 1:00 p.m. so it would be ready when she got home from work. She called

him at 11:00 a.m. to remind him about the chicken, and Orellana told her he was at Ché’s house.

Galaviz said she could tell from his speech that Orellana had been drinking. At approximately

1:00 p.m., she tried to call Orellana again to remind him about the chicken, but he did not

answer. Galaviz testified she tried calling him back ten or fifteen minutes later, but he still did

not answer.

       Galaviz got home between 3:00 p.m. and 4:00 p.m. She said she thought Orellana was

home because his vehicle, the green Toyota 4Runner, was parked in front of their apartment.

However, when she went inside, he was not there. Approximately five minutes later, Orellana

came into the apartment. Orellana told Galaviz he was outside talking on the phone. She

noticed Orellana had not turned on the oven to cook the chicken.

       Galaviz said Orellana grabbed the trash bag to take it outside. As he did, he received a

phone call and told Galaviz he was “going to run an errand and that he would be back later.”

Galaviz told the jury that Orellana left the apartment, but did not get into his vehicle. Galaviz

knew Orellana had been drinking because she could smell the alcohol on his breath. Orellana

returned an hour and a half later.

       While he was gone, Orellana called Galaviz and asked “[h]ad anybody been by the

house.” Galaviz thought this was a peculiar question because “[n]obody ever came to our

house.” Orellana called Galaviz a second time while he was out, about thirty minutes after the



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first call. This time he asked if the chicken was cooked, and again asked if anyone had come to

the apartment. When Galaviz asked why he wanted to know if anyone came by, Orellana said he

received a phone call in which he was told, “[he] got carried away and . . . sent somebody to

another planet.” Orellana claimed not to know what the phone call was about, and advised

Galaviz, “You don’t know anything.”

           When Orellana returned to the apartment, the couple ate dinner. After dinner, Galaviz sat

down at the computer. Orellana came into the bedroom and asked Galaviz to look up the

location of the nearest Honduran consulate, which was in Houston. He also asked her to check

the distance to Little Rock, Arkansas and New York State. Galaviz complied with all of the

requests and gave Orellana the information. Orellana then went back into the living room to

watch television. However, twice on his way to the bathroom, he went to the sliding glass door

and looked outside.

           By 8:30 p.m. or 8:45 p.m., Galaviz had gone into the living room to watch television with

Orellana. At that time, she heard someone pounding on the apartment door. Orellana told her it

was Ché, and instructed her to tell Ché he was not home. Orellana went into the bathroom and

closed the door. Initially, Galaviz said she did not know who the men at the door were, and told

them Orellana was not home. However, after Galaviz discovered the men were detectives, she

let them inside and pointed to the bathroom where Orellana was hiding. When called, Orellana

came out of the bathroom. Galaviz said Orellana was “surprised, shocked” when he saw all of

the officers.

           Galaviz and Orellana gave Detective Salame written consent to search the apartment and

they also gave consent to a search of the green Toyota 4Runner. 1 The vehicle was found three

buildings away from Orellana’s apartment, even though there were empty parking spaces
1
    Galaviz testified that the title to the green Toyota 4Runner was in her name, but only Orellana drove it.

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directly in front of the apartment. Orellana later claimed he had to park away from the apartment

because a truck and trailer were taking up several spaces in front of the apartment. Detective

Salame testified that when he opened the door of the vehicle he was struck by how clean it was.

There was no dust in the vehicle, it was very clean. The detective stated even the carpet was

very clean, no gravel or other debris one would expect from a person entering and exiting. The

detective opined that the vehicle had been recently cleaned. However, having previously worked

with the evidence unit, Detective Salame testified he looked for places people typically forget to

clean. Specifically, he looked at the seat belt strap and the buckle. He testified he saw what he

believed to be blood on the seat belt. A photograph of the stain of the seat belt was admitted into

evidence. Subsequent DNA testing established there was blood on the seat belt and the blood

belonged to the victim.

       Orellana was taken to the police station after he agreed to give a statement. Because

Orellana spoke only Spanish, he was questioned by Detective Manuel Arthur Nunez. A redacted

version of the videotaped interview was admitted into evidence and played for the jury. A

transcript of the video was also admitted into evidence.

       Orellana admitted he was at Ché’s home on the day Chuy was killed. He said he was

there drinking beer and hanging out. Orellana first told the detective he left because Ché asked

everyone to leave. Orellana claimed he left as soon as Ché asked. However, he later told the

detective he left because he had to cook a chicken his girlfriend had asked him to cook. He also

changed his story about when he left, stating he left “a little bit after everybody else had left.”

He did admit, however, that at one point only he and the victim remained at the back of the

property. Orellana admitted he argued with some of the men at Ché’s home that day, claiming

the men did not like him because he was Honduran. Orellana said the men “wanted to beat me



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up” because they were crazy and drunk. Orellana agreed with the other witnesses that Chuy

intervened in the argument on his behalf, but contrary to other witnesses’ statements, he denied

any argument or disagreement with Chuy based on the intervention.

       Orellana admitted changing his clothes, specifically his shorts, when he got back to his

apartment. When asked why he changed, Orellana first said his dog “dirtied his shorts,” but later

told the detective he urinated on himself. He then told a third story, stating the shorts he was

wearing at Ché’s “were a little snug” so he changed when he got home. A search of Orellana’s

apartment did not turn up any shorts soiled in either way described by Orellana.

       When specifically asked, Orellana denied knowing Chuy was dead, but admitted he knew

something had happened at Ché’s because someone called him and told him. When Detective

Nunez told Orellana Chuy had been killed on Ché’s property, Orellana acted surprised. When

Detective Nunez suggested that perhaps Orellana had killed Chuy in self-defense, Orellana

adamantly denied it, claiming he was never in a situation with Chuy where he had to defend

himself. Orellana denied killing Chuy, claiming Chuy was friendly and never offended anyone.

       The detective told Orellana they knew he had made several phone calls after he returned

to his apartment, but before police arrived. Orellana explained he called his cousin in New York,

asking about a job. However, he later changed the story behind this call, stating it was to look

into the possibility of moving to New York. Orellana told the detective he called someone in

Corpus Christi to inquire about a job. A third call Orellana could not explain, claiming he had

lent his phone to someone, but he could not recall to whom. With regard to lending the phone,

Orellana said he lent it to someone on Flores Street, where he claimed to be searching for work.

Detective Nunez testified he found the timing of the phone calls “odd,” given they were made to

places outside San Antonio soon after the murder.



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       When the detective questioned him about why he was “hiding” in the bathroom when

they knocked on the door, Orellana claimed he was not hiding, but had been calling the dog.

When the detective confronted him with the fact that he had seen them from the back door and

he quickly removed himself, Orellana denied he was afraid, stating there was nothing wrong with

him seeing the officers and then going to the back to watch television, which conflicted with his

claim that he was calling the dog. When asked why his girlfriend answered the door, Orellana

claimed his girlfriend always answered the door because Orellana does not speak English.

       During his interview with Detective Nunez, Orellana asked the detective, “Tell me why I

would beat up a person who . . . why?” Although the detective had told Orellana the victim was

dead, he never told him how he was killed, that he was beaten as opposed to being shot or

stabbed.

       The Chief Medical Examiner of Bexar County, Dr. Randall Frost, testified Chuy suffered

a significant head injury, stating the victim’s skull was “basically crushed and fractured into

many, many pieces.” The fractures were so significant you could see the brain through the

fractures. Dr. Frost stated “a lot of force” and “multiple impacts” were involved in creating the

fractures. Dr. Frost said the fractures could not have been caused by a simple fall, but were

consistent with the victim suffering multiple blows from a blunt force object.         Dr. Frost

determined the manner of death was homicide.

       When the results came back from the swabs taken from the seatbelt of the Toyota

4Runner, they showed the stain discovered by the detectives was the victim’s blood. Thereafter,

Detective Salame obtained an arrest warrant for Orellana for the murder of Jesus Ponce, who was

known as Chuy. Orellana was subsequently tried and convicted of the murder. After sentencing,

Orellana perfected this appeal.



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                                           ANALYSIS

       On appeal, Orellana complains the trial court erred in: (1) denying his motion for directed

verdict; (2) denying his motion for mistrial when the State asked an improper, burden-shifting

question; and (3) failing to provide him with his own Spanish language interpreter. We shall

discuss each issue in turn.

                                        Directed Verdict

       Orellana first contends the trial court erred in failing to grant his motion for directed

verdict because the State failed to prove beyond a reasonable doubt that he murdered Chuy.

More specifically, Orellana claims that although the State may prove the identity of Chuy’s killer

by circumstantial evidence, the evidence in this case was not sufficient to establish Orellana was

the killer. Orellana argues most of the witnesses were “extremely intoxicated,” and the victim

took Orellana’s side during the trivial argument that preceded the murder, giving Orellana no

motive for the murder.

       After the State rested, Orellana moved for a directed verdict, which the trial court denied.

We treat an appellate issue complaining about the denial of a motion for directed verdict as a

challenge to the legal sufficiency of the evidence. Tovar v. State, 165 S.W.3d 785, 789 (Tex.

App.—San Antonio 2005, no pet.) (citing Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim.

App. 1996)). In reviewing a legal sufficiency claim, “the relevant question is whether, after

viewing the evidence in the light most favorable to the verdict, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Mayberry v. State,

351 S.W.3d 507, 509 (Tex. App.—San Antonio 2011, pet. ref’d) (citing Jackson v. Virginia, 443

U.S. 307, 319 (1979)). Reviewing the evidence under this standard takes into account the trier of

fact’s duty “to resolve conflicts in the testimony to weigh the evidence, and to draw reasonable



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inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. Thus, in analyzing the

legal sufficiency of the evidence, this court will determine whether the necessary inferences are

reasonable based on the combined force of the evidence when viewed in the light most favorable

to the verdict. Mayberry, 351 S.W.3d at 509 (citing Clayton v. State, 235 S.W.3d 772, 779 (Tex.

Crim. App. 2007)). The standard of review is the same for both direct and circumstantial cases.

Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).

          Moreover, we must keep in mind that we may not reweigh the evidence or substitute our

judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The

jury is the sole judge of the credibility of the witnesses and the weight to be given their

testimony, and the jury may accept or reject all or any part of a witness’s testimony. Lancon v.

State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). The jury maintains the power to draw

reasonable inferences from basic facts to ultimate facts. Welch v. State, 993 S.W.2d 690, 693

(Tex. App.—San Antonio 1999, no pet.). Moreover, it is for the jury to reconcile any evidentiary

conflicts. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995); Welch, 993 S.W.2d

at 693.

          A criminal offense may be proven by circumstantial evidence. Easley v. State, 986

S.W.2d 264, 271 (Tex. App.—San Antonio 1998, no pet.) (citing Jackson, 443 U.S. at 319).

More specifically, the identity of the alleged perpetrator may be proven by circumstantial

evidence. Welch, 993 S.W.2d at 693. As the Austin Court of Appeals explained in Roberson v.

State:

          The State may prove its case by circumstantial evidence if it proves all of the
          elements of the charged offense beyond a reasonable doubt. The sufficiency of
          the evidence is determined from the cumulative effect of all the evidence; each
          fact in isolation need not establish the guilt of the accused. It is important to
          remember that all the evidence the jury was permitted, properly or improperly, to



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        consider must be taken into account in determining the sufficiency of the
        evidence.

16 S.W.3d 156, 164 (Tex. App.—Austin 2000, pet. ref’d) (internal citations omitted).

        Orellana argues the State failed to prove he killed Chuy, i.e., the State failed to establish

the identity of the killer beyond a reasonable doubt. Orellana asserts there is no direct evidence

he committed the murder. Orellana points out that none of the State’s witnesses claimed to have

seen the murder, and in fact, most of the witnesses were intoxicated at the time of the relevant

events, and some of them were using illegal drugs. He also points out no murder weapon was

found, and not even the medical examiner could identify the exact weapon or type of weapon

used to commit the murder. Orellana concludes that the circumstantial evidence is legally

insufficient.

        We hold there is sufficient credible evidence to support the jury’s finding that Orellana

was the person who murdered the victim. There is evidence of an altercation between Orellana

and the victim a short time before the murder. There is evidence, though contradicted, that

Orellana was alone with the victim and was, in fact, the last person known to be with the victim

before the murder. After the murder, Orellana was acting strangely, telling his girlfriend he

received a phone call in which he was told, “[he] got carried away and . . . sent somebody to

another planet.” He asked his girlfriend to search for the closest Honduran consulate and the

distance to New York. Orellana admitted to detectives he changed clothes when he got home,

but gave three different explanations for why he changed. Orellana parked his vehicle away

from the apartment, and when it was searched, the detectives found it extraordinarily clean,

without even dirt or gravel in the floorboard that one would expect from entering and exiting.

Most importantly, the detectives found what was later determined to be the victim’s blood on the

seatbelt of Orellana’s vehicle.

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       We hold this evidence, along with that detailed in the background section of this opinion,

though circumstantial, was sufficient to allow the jury to find that Orellana was the perpetrator of

the offense. Accordingly, we overrule Orellana’s challenge to the sufficiency of the evidence.

                                        Motion for Mistrial

       Orellana next complains that the trial court erred when it denied his motion for mistrial.

Specifically, Orellana argues he was entitled to a mistrial because the prosecutor, in a question to

a crime scene investigator, “sought to shift the burden of proof” to the defendant. The State

counters that even if the question was improper, any error was cured by the trial court’s

instruction to the jury that the burden of proof is on the State and never shifts to the defense.

       During its case-in-chief, the State called a crime scene investigator as a witness. The

State questioned the investigator about blood collected from a bag containing a basketball that

was found at the crime scene, and the following occurred:

       Q [Prosecutor]: Now, do you know if blood testing can be requested by the
       district attorney’s office?

       A [Investigator]: I’m not aware.

       Q [Prosecutor]: Are you aware that blood testing can be requested by the defense?

       [Defense Counsel]: Your Honor, we’re going to object. That’s shifting the burden
       of proof. We have no – nothing to prove. That’s shifting the burden to the
       defense. That’s –

       [Prosecutor]: May I respond?

       [Court]: Yes.

       [Prosecutor]: Your Honor, I’m not trying to shift the burden at all. I’m just trying
       to indicate that both the district attorney’s office and the defense have equal
       opportunity to inspect all evidence and test all evidence containing biohazard,
       blood material, DNA at their request.

       [Court]: Okay.



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       [Defense Counsel]: And Your Honor, Counsel well is aware that the burden of
       proof lays [sic] strictly with the State. We have – we don’t have to do anything. I
       think, as you indicated yesterday, we could sit here and read the newspaper. We
       have no burden. They have the burden. They’re the ones making the accusation.

       [Court]: Okay. They’re actually – ladies and gentlemen, they’re both right. The
       defense has the same opportunity to test whatever there might be, but they don’t
       have to. They don’t have to do anything because the entire burden of proof rests
       upon the State to do that.

       [Defense Counsel]: Your Honor, we would ask – at this time we would ask for a
       mistrial.

       [Court]: Denied.

       Orellana insists a mistrial was necessary because the allegedly burden-shifting question

caused incurable prejudice to the defense. Orellana further insists the error was constitutional,

requiring an analysis under Rule 44.2(a) of the Texas Rules of Appellate Procedure. See TEX. R.

APP. P. 44.2(a) (stating that if record reveals constitutional error that is subject to harmless error

review, court of appeals must reverse unless it determines beyond reasonable doubt that error did

not contribute to conviction or punishment). We address this second contention first.

       The error alleged by Orellana is not based on the trial court’s response to his objection,

but its failure to grant the motion for mistrial. Whether a failure to grant a motion for mistrial

requires a constitutional harm analysis was specifically addressed by the court of criminal

appeals in Archie v. State. In Archie, the court held that a harm analysis is employed only when

there is error, and ordinarily, error occurs only when the trial court makes a mistake. 221 S.W.3d

695, 699 (Tex. Crim. App. 2007). If the trial court sustains a defense objection and instructs the

jury to disregard, the only adverse ruling, i.e., the only occasion for making a mistake, was the

denial of the motion for mistrial. Id. Accordingly, the only issue “is whether the refusal to grant

the mistrial was an abuse of discretion,” and an analysis under Rule 44.2(a) is erroneous. Id. at

700.

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       Although the trial court did not specifically sustain Orellana’s objection, from the

colloquy, it is clear the trial court agreed with Orellana’s position that he bore no burden of

proof, that the entire burden was upon the State. Moreover, the trial court sua sponte instructed

the jury that Orellana had no burden and the entire burden of proof was on the State. We find it

of no moment that the trial court agreed that both the State and the defense are entitled to testing

of evidence, because that is beyond dispute. Accordingly, we hold, as the court of criminal

appeals did in Archie, that an analysis under Rule 44.2(a) is improper. See id.

       Now, we turn to the question of whether the trial court erred in denying Orellana’s

motion for mistrial. We hold that it did not. In reviewing a trial court’s ruling on a motion for

mistrial, we must determine whether the trial court abused its discretion. Id. at 699. A trial court

abuses its discretion if its decision was outside the zone of reasonable disagreement. Id. “Only

in extreme circumstances, where the prejudice is incurable, will a mistrial be required.” Id. And

although we do not conduct a Rule 44.2(a) analysis, “‘whether a mistrial should have been

granted involves balancing most, if not all, of the same considerations that attend a harm

analysis” under Rule 44.2(a):

       •   The severity of the misconduct, i.e., the magnitude of the prejudicial effect of
           the prosecutor’s remarks;

       •   The measures adopted to cure the misconduct, i.e., the efficacy of any
           cautionary instruction by the judge; and

       •   The certainty of conviction absent the misconduct, i.e., the strength of the
           evidence supporting the conviction.

Id.; see Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (balancing foregoing

factors to determine whether improper jury argument warranted mistrial).

       In balancing these factors, we first observe that it is generally permissible for the State to

comment on a defendant’s failure to present favorable evidence, and such comments do not shift

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the burden of proof. We find Jackson v. State analogous. See 17 S.W.3d 664 (Tex. Crim. App.

2000).

         In Jackson, the appellant argued the State had impermissibly shifted the burden of proof

to the defense when it told the jury during closing argument that “the defense would have called

its expert to the stand if it had seriously disputed the State’s evidence.” 17 S.W.3d at 674. The

court of criminal appeals held “the challenged comments did not impermissibly shift the burden

of proof to the defense, particularly given the prosecutor’s repeated reminders to the jury that the

defense was not required to present any evidence.” Id.; see also, e.g., Pope v. State, 207 S.W.3d

352, 365 (Tex. Crim. App. 2006) (stating party may always comment on fact that opponent

failed to call available witness and argue witness was not called because testimony would be

unfavorable); Bible v. State, 162 S.W.3d 234, 249 (Tex. Crim. App. 2005) (holding prosecutor’s

argument that defendant failed to produce evidence he was model prisoner did not impermissibly

shift the burden of proof); Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995)

(holding argument that points to defendant’s failure to produce evidence other than his own

testimony is proper); Torres v. State, 979 S.W.2d 668, 673-74 (Tex. App.—San Antonio 1998,

no pet.) (holding prosecutor could comment on defendant’s failure to call defense expert).

         Based on the cases cited above, as well as the trial court’s instruction, we hold the

complained of question was likely not improper, given that the State may comment on a

defendant’s failure to produce evidence, see id., but even if the question was improper, the

magnitude of any prejudicial effect the question might have had on the jury was slight. See

Archie, 221 S.W.3d at 699.

         As to the measures adopted to cure the misconduct and the effectiveness of such

measures, the trial court, sua sponte, specifically instructed the jury that although it was true that



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both the State and the defense were entitled to test evidence, it was the State that bore the burden

of proof, the defense was not required to prove anything. Although the trial court did not

specifically instruct the jury to disregard, it did advise the jury on the proper burden of proof,

clearing up any potential confusion that might have been caused by the prosecutor’s question and

the colloquy that followed. And, the jury is presumed to listen to and heed such statements from

the court. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009) (holding court

generally presumes jury will follow judge’s instructions).       Thus, we hold the trial court’s

statement to the jury was sufficient to cure any harm or prejudice that might have occurred. See

id. (holding instructions to jury are generally considered sufficient to cure improprieties that

occur during trial); Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (“Ordinarily, a

prompt instruction to disregard will cure error associated with an improper question and answer

. . . .”); Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (holding that in most

instances, instruction to disregard remarks will cure any error). Orellana has not cited any

authority, nor have we found any, holding the alleged error complained of here is the type that

could not be cured, mandating a mistrial. See Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim.

App. 2004) (“A mistrial is the trial court’s remedy for improper conduct that is so prejudicial that

expenditure of further time and expense would be wasteful and futile.”).

       Finally, with regard to the last factor, i.e., the strength of the evidence supporting the

conviction, when we look at the record as a whole, we hold that although circumstantial, the

evidence produced by the State established Orellana’s guilt. It is likely Orellana would have

been convicted even if the prosecutor had never asked the question at issue. Moreover, the trial

court and the State reminded the jury several times throughout the trial, that it was the State who

bore the burden to establish Orellana’s guilt beyond a reasonable doubt.



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       A mistrial is reserved for those rare circumstances when the objectionable action was “so

emotionally inflammatory that curative instructions are not likely to prevent the jury from being

unfairly prejudiced against the defendant.” Young v. State, 137 S.W.3d 65, 77 (Tex. Crim. App.

2004) (quoting Young v. State, 73 S.W.3d 482, 485 (Tex. App.—Houston [1st Dist.] 2002)).

Because a mistrial is an extreme remedy, it should be granted only when prejudice remains even

after less drastic measures, including curative instructions, are used. Ocon v. State, 284 S.W.3d

880, 885-86 (Tex. Crim. App. 2009). We hold the error, if any, caused by the prosecutor’s

question, was not so inflammatory that the trial court’s reminder to the jury about the burden of

proof could not cure any prejudicial effect. Accordingly, we hold the trial court did not err in

denying Orellana’s motion for mistrial and overrule this complaint.

                             Failure to Provide Separate Interpreter

       Lastly, Orellana complains the trial court erred when it failed to provide him with his

own Spanish language interpreter, separate from the interpreter used to translate the testimony of

the Spanish speaking witnesses. Essentially, Orellana contends he was entitled to an interpreter

who would sit with him and translate for him at all times, including objections or discussions

apart from witness testimony.

       “It is well settled that if a defendant cannot hear or does not speak English well enough to

understand the trial proceedings or communicate with counsel, fundamental fairness and due

process of law require that an interpreter be provided to translate between English and the

accused’s own language.” Linton v. State, 275 S.W.3d 493, 500 (Tex. Crim. App. 2009). The

right to an interpreter is part of an accused’s constitutional right to confrontation and a matter of

due process. Kan v. State, 4 S.W.3d 38, 41 (Tex. App.—San Antonio 1999, pet. ref’d); see U.S.

CONST. amends. VI, XIV; TEX. CONST. art. I, § 10. In Texas, the defendant also has a statutory



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right to an interpreter. See TEX. CODE CRIM. PROC. ANN. art. 38.30(a) (West Supp. 2011)

(stating there is right to interpreter upon either party’s motion or court’s motion if it is

determined accused does not understand and speak English).

       Whether an accused receives adequate interpretive services is a matter within the trial

court’s discretion because it depends on “a potpourri of factors.” Linton, 275 S.W.3d at 500.

The trial court’s discretion is “wide” and “[t]he question on appeal is not whether the ‘best’

means of interpretive services were employed, but whether the services that were actually

employed were constitutionally adequate such that the defendant could understand and

participate in the proceedings.” Id. Therefore, whether there was an error with regard to the

provision of interpretive services is reviewed under an abuse of discretion standard. Id. at 502.

As we noted above, an abuse of discretion occurs only when a trial court’s ruling is outside the

zone of reasonable disagreement. See id. at 503.

       Although Orellana did not file a motion requesting a Spanish language interpreter, and

there is no express finding by the trial court on the record that Orellana could not understand or

speak English, a Spanish-language interpreter was present at the beginning and throughout the

trial. And, during jury selection, the trial court advised the venire the interpreter was there to

translate for Orellana. When the State called Ronco as a witness, it informed the court that

Ronco was “more comfortable in Spanish” and asked for a second interpreter. The court did not

believe a second interpreter was necessary as the current interpreter would translate Ronco’s

testimony for the benefit of Orellana. Orellana objected, stating he had “the right to have an

interpreter at all times.” Orellana argued a situation might arise “where there may be a question,

an objection, something that may be discussed other than from [Ronco], Mr. Orellana’s not

going to have the benefit of that being translated.” The trial court asked the current interpreter if



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there was a second interpreter available. The interpreter advised one was available and the court

recessed for lunch, believing the second interpreter would appear at that time.

        When proceedings resumed, however, the trial court stated it had been informed by court

administration that two interpreters are never provided. The court also noted Orellana’s counsel

spoke “beautiful Spanish” and had no problems communicating with Orellana.                               Orellana

renewed his objection, urging the court to provide two interpreters.

        Orellana admits he has found no authority holding that separate interpreters are required

when both a witness and the defendant do not speak English. The State agrees there is no

authority requiring separate interpreters, and we have found none. 2 Accordingly, the issue is

whether the trial court abused its discretion in deciding the services provided to Orellana by a

single interpreter were constitutionally adequate, allowing him to understand and participate in

the proceedings. See Linton, 275 S.W.3d at 500, 502.

        The record establishes the interpreter was present during the entire trial. The interpreter

translated for Orellana throughout the trial. Even when she was translating for a witness, this

translation inured to Orellana’s benefit as it was in Spanish and was the same translation he

would have received from his own separate interpreter. We hold that just because the interpreter

did not translate exclusively for Orellana when she was translating for a witness did not deprive

Orellana of any understanding or participation in the proceedings. See id. at 504-05 (holding

simultaneous understanding is not required).

        In addition, the trial court knew that during the time the interpreter was interpreting for a

witness, Orellana’s counsel could assist him as well, having noted counsel’s fluency in Spanish.

Orellana never suggested his counsel was so busy translating that it affected counsel’s ability to


2
  We do not hold that a separate, exclusive interpreter might never be required. Rather, the necessity of a separate
interpreter must be judged on a case by case basis.

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participate in the trial, and given that the witnesses spoke Spanish, we cannot see how it would

be necessary for counsel to translate to such an extent that it affected his ability to properly

defend Orellana. The trial court also protected Orellana’s constitutional rights with regard to the

interpreter by authorizing Orellana’s attorney to alert the court if at any point he felt Orellana

needed the interpreter while she was interpreting for a witness. The trial court specifically stated

it would halt the proceedings and allow Orellana to use the interpreter or speak to his attorney

privately.

        Based on the interpreter’s presence and availability to Orellana throughout the trial, as

well as the actions taken by the trial court to protect Orellana’s rights in the absence of separate

interpreters, we hold the trial court provided Orellana with constitutionally adequate interpretive

services so that he understood and was able to fully participate in the trial. Accordingly, we hold

the trial court did not abuse its discretion in failing to require a separate interpreter for Orellana.

        However, even if the failure to provide a separate interpreter was constitutionally infirm,

there is nothing in the record to establish such error was harmful. The Texas Court of Criminal

Appeals has adopted the “reasonably substantial relationship” test to satisfy Fourteenth

Amendment due process and Sixth Amendment Confrontation Clause concerns. Routier v. State,

112 S.W.3d 554, 576 (Tex. Crim. App. 2003). This test focuses on the effect of the error on the

advancement of the defendant’s defense. Adanandus v. State, 866 S.W.2d 210, 219 (Tex. Crim.

App. 1993).

        We agree with the State that there is nothing in the record to demonstrate that at any time

during the trial there was a matter not translated for Orellana that affected his opportunity to

confront witnesses and defend himself. There is nothing in the record to suggest Orellana was

unaware of any material matter that occurred during the trial. If Orellana’s trial counsel did have



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to interpret certain events during the trial, there is nothing in the record to suggest such a

diversion affected his ability to advocate for Orellana or properly defend him.                See

Abdygapparova v. State, 243 S.W.3d 191, 202 (Tex. App.—San Antonio 1997, pet. ref’d)

(noting that period of time defense counsel had to interpret is factor to consider in determining

whether defendant was provided proper interpretive services).

       Orellana did not file a motion for new trial claiming he did not understand key portions of

the trial and that this denied him the right to confront the witnesses against him or prevented him

from assisting in his defense. Orellana does not state what he might have done differently but for

the denial of an exclusive interpreter. In fact, even on appeal, Orellana gives but one concrete

example of a portion of the proceeding that was not translated for his benefit. He relies upon this

to support his claim that he was harmed and his rights were violated because he was not given an

interpreter for his exclusive use. The one example given involves a bench conference that took

place after Paula Ponce, the victim’s widow, was called to testify.

       Immediately after the State announced Ponce was its next witness, Orellana’s attorney

asked to approach the bench. Orellana’s attorney advised the court that if the State was calling

Ponce to identify the victim, the defense would stipulate that the victim was Jesus Ponce. The

State advised the court it had three or four questions for Ponce.          Orellana’s attorney was

concerned because Ponce had not been excluded from the trial under the rule under an apparent

agreement that she would only testify as to identity.        The State argued this was not the

agreement; Orellana’s counsel objected to Ponce testifying.           The trial court overruled the

objection, and called Ponce to the witness stand. The bench conference continued, with the

attorneys arguing about the limits of Ponce’s testimony and discussing her need for an




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interpreter. Thereafter, Ponce testified she was married to the victim, Jesus Ponce, for twenty-six

years, and she identified two photographs of him. She was then excused.

       First, there is nothing in the record to support Orellana’s claim that this bench conference

was not interpreted for him–the record shows an interpreter was in the courtroom. Second, this

bench conference exchange was immaterial to Orellana’s understanding of the proceedings and

his ability to present a defense. Even if he was not told what occurred at the bench conference, it

was fairly immaterial to the overall case. The bench conference did not require Orellana’s input.

The bench conference concerned a single subject, the parameters of Ponce’s testimony, and her

testimony was fairly limited to identification, which is what Orellana’s counsel had asked for.

       Orellana attempts to avoid his failure to point out the specific deprivations caused by the

absence of an exclusive interpreter, other than the immaterial bench conference, by arguing it is

impossible to know how the use of a single interpreter affected his ability to defend himself

“[b]ecause of the privileged nature of lawyer-client communications.” However, Orellana does

not explain how the attorney-client privilege precludes him from explaining how a single

interpreter affected his interaction with his attorney. If there had been an effect, surely Orellana

could have explained it without divulging privileged information, e.g., the attorney was too busy

interpreting to explain an objection or a ruling.

       We hold, therefore, under the reasonably substantial relationship test, any error in failing

to provide Orellana with an exclusive interpreter did not affect the outcome of the trial and thus,

was harmless. We overrule Orellana’s complaint.




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                                          CONCLUSION

       Based on our review of the arguments, the record, and the applicable law, we overrule

Orellana’s points of error. Accordingly, we affirm the trial court’s judgment.


                                                       Marialyn Barnard, Justice

Publish




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