      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-15-00727-CR



                                Juan Jose Ramirez, Sr., Appellant

                                                   v.

                                   The State of Texas, Appellee


    FROM THE DISTRICT COURT OF BURNET COUNTY, 424TH JUDICIAL DISTRICT
           NO. 41984, HONORABLE EVAN C. STUBBS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Juan Jose Ramirez, Sr., was charged with aggravated assault with a deadly weapon,

and the indictment alleged that he “intentionally or knowingly threaten[ed] Ana Marlene Ramirez,

with imminent bodily injury, by holding a knife to her throat” and “use[d] or exhibit[ed] a deadly

weapon, to-wit: a knife, during the commission of said assault.”1 See Tex. Penal Code § 22.02(a)(2)

(setting out elements for offense of aggravated assault); see also id. § 22.01(a) (describing when

person commits assault). During a pretrial hearing, Ramirez’s attorney served as an interpreter, but

a translator was provided during the trial. At the end of the guilt-or-innocence phase of the trial, the

jury found Ramirez guilty of the offense. At the end of the punishment phase, the jury recommended


       1
          The indictment also contained a second count alleging that Ramirez “intentionally,
knowingly, or recklessly cause[d] bodily injury to Ana Marlene Ramirez by cutting her hand with
a knife” and that he “did then and there use or exhibit a deadly weapon, to-wit: a knife, during the
commission of said assault.” Because the jury found Ramirez guilty of the first count, it made no
determination regarding the alternative count.
that Ramirez be sentenced to ten years’ imprisonment. See id. § 12.33(a) (listing permissible

punishment range for second-degree felony). The district court rendered its judgment in accordance

with the jury’s verdicts. In a single issue on appeal, Ramirez contends that he was denied the right

to have the pretrial hearing translated. We will affirm the district court’s judgment of conviction.


                                            DISCUSSION

                In his sole issue on appeal, Ramirez urges that he “was denied his right to have the

plea bargain deadline hearing interpreted as guaranteed” by the Sixth Amendment and by article

38.30 of the Code of Criminal Procedure. See U.S. Const. amend. VI (listing accused’s rights in

criminal prosecutions); Tex. Code Crim. Proc. art. 38.30 (setting out circumstances in which defendant

is entitled to interpreter). Although Ramirez acknowledges that his trial attorney translated the

proceedings, he asserts that his attorney “did not translate verbatim either the court’s statements or

the responses from” him and that his attorney was not a certified interpreter or sworn in by the

district court. Further, Ramirez contends that the record does not show what his attorney said to him

and that the record does not show if he understood what was being told to him. Although Ramirez

concedes that the record indicates that he “did respond to the court’s inquiries,” he asserts that “those

were not necessarily responses born out of a true understanding of the proceedings.” In addition,

Ramirez urges that the presence of a bilingual person, without more, does not comply with the

requirements of the relevant governing law but also argues that the record does not show whether

his attorney was, in fact, bilingual. Similarly, Ramirez insists that “the record shows nothing about

whether [his attorney] had a good grasp of the Spanish language, or whether [he] had any grasp of

the English language.”

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               Both the United States Constitution and the Texas Constitution grant a defendant the

right to be present at a trial to confront the witnesses against him. See U.S. Const. amend. VI; Tex.

Const. art. I, § 10. The right to be present includes not only the right to attend proceedings but also

to comprehend those proceedings. See Garcia v. State, 149 S.W.3d 135, 140-41 (Tex. Crim. App.

2004). For non-English speakers, that right includes the assistance of an interpreter during trial

proceedings. See Cantu v. State, 993 S.W.2d 712, 721 (Tex. App.—San Antonio 1999, pet. ref’d)

(providing that “accused’s constitutional right to confront witnesses encompasses the right to have

trial proceedings interpreted to the accused in a language he can understand”).

               Under article 38.30 of the Code of Criminal Procedure, an interpreter must be

provided when “it is determined that a person charged or a witness does not understand and speak

the English language.” Tex. Code Crim. Proc. art. 38.30. The trial court may become aware that

the defendant does not understand “either by being informed of it by one or both parties or noticing

the problem sua sponte,” Franqui v. State, No. 03-08-00028-CR, 2009 WL 280981, at *1 (Tex.

App.—Austin Feb. 6, 2009, no pet.) (mem. op., not designated for publication), and if a trial court

is aware that the defendant has a problem understanding the English language, the court is obligated

to implement this right unless the defendant knowingly and voluntarily waives the right, Garcia,

149 S.W.3d at 145. “Decisions regarding adequate interpretive services depend upon a potpourri

of factors, including the defendant’s understanding of the English language and the complexity

of the pertinent law and its procedures, and the testimony.” Linton v. State, 275 S.W.3d 493, 500

(Tex. Crim. App. 2009). Accordingly, because the trial court has the defendant in its presence,

“observ[es] his level of comprehension, and ask[s] him questions,” it “has wide discretion in



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determining the adequacy of interpretive services.” Id.; see also State v. Story, 445 S.W.3d 729, 732

(Tex. Crim. App. 2014) (explaining that under abuse-of-discretion standard, trial court’s “judgment

will be reversed only if it is arbitrary, unreasonable, or ‘outside the zone of reasonable disagreement’”

(quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006))). In addition, as with

evidentiary determinations, an attack on the competency of an interpreter is reviewed for an abuse

of discretion. See Castrejon v. State, 428 S.W.3d 179, 184 (Tex. App.—Houston [1st Dist.] 2014, no

pet.); Shu Guo Kan v. State, 4 S.W.3d 38, 41 (Tex. App.—San Antonio 1999, pet. ref’d) (providing

that “[t]he competency of an individual to act as an interpreter is a question for the trial court, and

absent a showing of abuse of discretion, that determination will not be disturbed on appeal”).2

                As an initial matter, we note that the district court announced at the beginning of the

very short pretrial hearing that Ramirez’s attorney would be “interpreting everything into Spanish,”

and nothing in the record from that hearing, which is only a little over two-pages long, reveals that

Ramirez or the State objected or requested that a different interpreter be used. See Medina v. State,




        2
           In its brief, the State contends that Ramirez has waived his complaints regarding his right
to an interpreter because Ramirez did not request an interpreter for the proceeding. However, in his
arguments on appeal, Ramirez is essentially asserting that the record shows that although the district
court initially allowed Ramirez’s attorney to serve as an interpreter, it became aware that he was
unable to understand the proceedings and needed an interpreter and that he did not waive his right
to an interpreter. See Hernandez v. State, 986 S.W.2d 817, 822 (Tex. App.—Austin 1999, pet. ref’d)
(stating that “[a] defendant who does not request an interpreter waives the right to complain on
appeal, unless the record otherwise demonstrates the defendant’s lack of understanding of the
proceedings”); see also Garcia v. State, 429 S.W.3d 604, 607 (Tex. Crim. App. 2014) (providing
that if trial court knows that defendant cannot understand English, court must appoint interpreter
unless defendant waives appointment and that defendant may only waive right if waiver is made
“‘plainly, freely, intelligently, sometimes in writing and always on the record’” (quoting Marin v.
State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State,
947 S.W.2d 262 (Tex. Crim. App. 1997) (emphasis added in Garcia))).

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No. 14-97-00859-CR, 1999 WL 587657, at *1 (Tex. App.—Houston [14th Dist.] Aug. 5, 1999, no

pet.) (not designated for publication) (providing that “[i]t is well settled law that an attorney may

serve as an interpreter for his client”). Moreover, nothing in the record indicates that Ramirez’s

attorney was unable to adequately serve as a translator or that Ramirez was unable to understand the

proceedings. See Rivera v. State, 981 S.W.2d 336, 338 (Tex. App.—Houston [14th Dist.] 1998, no

pet.) (explaining that “[w]here there is evidence an interpreter was present and available to help the

defendant, then a trial court does not err by failing to appoint an interpreter” and that this also holds

true “when the defendant’s counsel is capable of interpreting for the defendant”); cf. Leon v. State,

25 S.W.3d 841, 843 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (stating that “[a]bsent any

showing to the contrary, we assume regularity in the proceedings”).

                On the contrary, the record shows that Ramirez understood the proceedings because

it documents that Ramirez answered all of the questions posed to him by the court and similarly

responded to statements made by the State. For example, when the district court asked Ramirez if

he was the person who had been charged in this case and if he understood that the trial was

scheduled to start in six days, at which time a jury would be chosen, he answered, “Yes,” to both

questions. Next, after Ramirez’s attorney informed the district court that Ramirez understood that

the hearing was being convened to determine if the parties could agree to a plea-bargain agreement

but that Ramirez wanted to proceed to trial and after the State read what the terms of the plea offer

were, Ramirez stated, “Okay. Yes. I understand that and I’m not accepting that.” Moreover, after

the court informed Ramirez about the range of punishment that he could face if no plea agreement

was reached and also warned Ramirez regarding potential consequences to his eligibility for parole



                                                   5
if he were to be given a twenty-year sentence, Ramirez responded, “Yes, I understand.” Finally, the

court informed Ramirez that it would see him in six days, and Ramirez responded, “Okay.” Cf.

Hernandez v. State, 986 S.W.2d 817, 822-23 (Tex. App.—Austin 1999, pet. ref’d) (determining that

there was no basis in record upon which to conclude “that the district court should have appointed

an interpreter for appellant on its own motion” where record showed that appellant “answered

several of the court’s questions”).

               Furthermore, although Ramirez noted that his attorney was not a certified interpreter,

the relevant provision of the Code of Criminal Procedure governing the use of interpreters

in criminal proceedings does not require that an interpreter be licensed or certified in order to

serve as a translator. See Tex. Code Crim. Proc. art. 38.30(a); Nois v. State, No. 05-15-00203-CR,

2016 WL 891086, at *8-9 (Tex. App.—Dallas Mar. 9, 2016, no pet.) (mem. op., not designated for

publication). The district court determined that Ramirez’s attorney could adequately serve as an

interpreter, and there is nothing in the record before this Court that contradicts that conclusion.

Cf. Ramos v. Terry, 622 S.E.2d 339, 343 (Ga. 2005) (stating that “[t]he failure to interpose a timely

objection to an interpreter’s qualifications constitutes a waiver of the issue on appeal”).

               When arguing that his rights were violated, Ramirez primarily relies on Garcia v.

State, 149 S.W.3d 135 (Tex. Crim. App. 2004), and Ex parte Zantos-Cuebas, 429 S.W.3d 83 (Tex.

App.—Houston [1st Dist.] 2014, no pet.), but we believe that both cases are distinguishable. In

Garcia, the record established that Garcia did not “speak, read, or write English to any appreciable

degree,” that Garcia’s lawyer did not speak Spanish, and that Garcia and his attorney communicated

through his attorney’s “bilingual legal assistant.” 149 S.W.3d at 136-37. When determining that



                                                  6
Garcia’s Sixth Amendment rights were violated, the court of criminal appeals explained that although

the legal assistant was bilingual and sat next to Garcia during the trial, the assistant “was not sworn

in by the court to interpret the trial for Garcia, . . . was not told to interpret the trial for Garcia, and

. . . did not interpret the trial for Garcia.” Id. at 143, 145.

                In Ex parte Zantos-Cuebas, the appellate court determined that the trial court erred

when it determined that Zantos-Cuebas’s application for writ of habeas corpus was frivolous.

429 S.W.3d at 91. In reaching this determination, the appellate court explained that the application

and the accompanying affidavits “indicate that he entered his plea without an awareness of the

constitutional rights he was waiving thereby,” including possible immigration consequences, because

they set out that Zantos-Cuebas did “not speak English,” “that he relied on a 17-year old friend to

translate for him in the courtroom,” and “that his amateur interpreter” translated some of the

proceedings but “‘did not translate the admonishments of pleading guilty to the offense and the

resulting immigration consequences of a plea. [His friend] did not translate Applicant’s waiver of

constitutional rights, stipulation of evidence, and judicial confession to appellant.’” Id. at 89-90.

                Unlike the cases discussed above, in the present case, the district court sanctioned

the use of Ramirez’s attorney as an interpreter, and nothing in the record indicates that his attorney

failed to translate all or any part of the proceeding for Ramirez. Moreover, the record establishes

that Ramirez understood that the purpose of the hearing was to determine whether he would accept

a plea deal and that Ramirez personally rejected the offered deal.

                In light of the preceding, we cannot conclude that the district court abused its

discretion when it determined that Ramirez’s attorney could properly serve as an interpreter during



                                                     7
the hearing or that Ramirez’s constitutional and statutory rights were violated by the district court’s

decision to not appoint another interpreter to translate the hearing. Accordingly, we overrule

Ramirez’s sole issue on appeal.


                                          CONCLUSION

               Having overruled Ramirez’s sole issue on appeal, we affirm the district court’s

judgment of conviction.



                                               __________________________________________

                                               David Puryear, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed

Filed: October 21, 2016

Do Not Publish




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