      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-08-00028-CR



                                 Miguel Angel Franqui, Appellant

                                                   v.

                                    The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
            NO. 54965, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                             MEMORANDUM OPINION


                The district court accepted Miguel Angel Franqui’s guilty plea and found him

guilty of aggravated assault with a deadly weapon. The court assessed a twelve-year sentence. In

three points of error, Franqui contends that the district court erred by failing to provide him a foreign

language interpreter and by not allowing him to be present when his jail credit was determined. We

affirm the district court’s judgment.


Background

                Franqui was indicted for aggravated assault with a deadly weapon. At a hearing on

January 22, 2004, Franqui, who was represented by counsel, entered a plea of guilty. At Franqui’s

request, the court appointed an interpreter to assist him at the January 2004 hearing. On January 31,

2004, the court entered an order of deferred adjudication for a period of five years.
               The State filed a motion to adjudicate on May 15, 2006, and an amended motion

to adjudicate on October 23, 2007. The motion was heard on October 29, 2007. At this hearing,

although Franqui was represented by the same attorney, no request for an interpreter was made

and no interpreter was appointed. Franqui told the court that although he does not read or write

the English language, he speaks it “a little bit.” He entered a plea of true to the allegations in the

indictment, stating that he understood the indictment and the implication of a guilty plea and that

he entered his plea freely and voluntarily. The court found the evidence sufficient to find Franqui

guilty and reset the case for sentencing.

               At the sentencing hearing on November 27, 2007, Franqui was again represented

by the same attorney. Franqui did not request an interpreter, and none was appointed. After hearing

evidence, the court found Franqui guilty of aggravated assault with a deadly weapon and sentenced

him to twelve years in prison. The court stated that Franqui would be given “credit for the time

that [he] previously served in this case.” Franqui’s attorney told the court that he would provide the

court with a jail time credit form.

               Franqui provided his jail credit request form, which claimed credit for 485 days. On

December 27, 2007, after correcting errors in calculations and subtracting time to which Franqui

was not entitled, the district court granted Franqui credit for 463 days.1




       1
       Time claimed but not granted included time Franqui spent in the Substance Abuse Felony
Punishment facility.

                                                  2
Discussion

                In his first two points of error, Franqui contends that the district court was required

to appoint an interpreter for the hearing to adjudicate and that the failure to do so prevented him from

fully participating in his trial.

                Article 38.30 of the Texas Code of Criminal Procedure provides that in a criminal

proceeding, when “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.” Tex. Code Crim. Proc. Ann. art. 38.30 (West Supp. 2008). When a trial judge is aware

that the defendant has a problem understanding the English language, the judge has an independent

duty to implement this right in the absence of a knowing and voluntary waiver by the defendant.

Garcia v. State, 149 S.W.3d 135, 145 (Tex. Crim. App. 2004). The judge may become aware of the

defendant’s language problem either by being informed of it by one or both parties or by noticing

the problem sua sponte.

                In Garcia, the court of criminal appeals held that Garcia’s Sixth Amendment right

to confront the witnesses against him was violated because Garcia did not knowingly or voluntarily

waive his right to an interpreter. Id. However, in Garcia it was undisputed that Garcia did not speak

English at all. Garcia testified through an interpreter that he did not understand the complainant’s

testimony, which was in English and was not translated for him. In holding that the trial court’s

failure to appoint an interpreter for him at trial violated Garcia’s constitutional rights, the court of

criminal appeals stated that “Garcia ‘deserved more than to sit in total incomprehension as the

trial proceeded.’” Id.



                                                   3
               Here, however, the record indicates that Franqui understood the proceedings. He

answered each of the court’s questions appropriately and in the absence of hesitation or additional

prompting. He answered “Yes, ma’am” to each of the judge’s questions as to his understanding of

the process and the implications of his guilty plea. When asked how to pronounce his name and

how old he was, Franqui answered appropriately. Further, when asked whether he reads and writes

English, Franqui responded: “I speak a little bit, but I don’t write or read it.” The court also asked

whether Franqui had any questions, whether anyone had promised anything to him for his plea or

threatened him for his plea, and he appropriately responded, “No, ma’am.”

               Because the record indicates that Franqui understood the proceedings and because

Franqui did not request an interpreter, the court was not required to appoint one. We overrule

Franqui’s first two points of error.

               In his third point of error, Franqui contends that the district court erred by not

allowing him to be present when his jail credit was determined. A defendant is entitled to have

his sentence pronounced in his presence. Tex. Code Crim. Proc. Ann. art. 42.03(1)(a) (West Supp.

2008). Where a conflict exists between the oral pronouncement and written memorialization of

the sentence, the oral pronouncement controls. See, e.g., Stokes v. State, 688 S.W.2d 539, 542

(Tex. Crim. App. 1985) (where written sentence did not contain jail time credit orally pronounced

in open court, sentence was reformed to give appellant jail credit pursuant to oral pronouncement);

see also Tex. R. App. P. 43.2(b) (where oral pronouncement and written judgment conflict, the

appellate court may reform the written judgment).




                                                  4
                Here, contrary to appellant’s assertion, the oral judgment and written judgment are

consistent. The following was the exchange between the court and defense counsel:


        The Court: Then it’s the sentence of this Court, sir, that you serve 12 years in the
        Institutional Division of the Texas Department of Criminal Justice. I will give you
        time for the credit—for the time that you have served in Bell County jail. Do you
        have the jail credit form, Mr. Magana?

        Defense Counsel: No, Your Honor, if I could supply that after lunch.

        The Court: All right.


                When Franqui submitted his jail credit calculation form, he requested a total of

485 days of jail credit. He listed date ranges and, from these ranges, calculated the number of days

of credit. Some of his calculations were inaccurate. In addition, some of the date ranges noted

included ineligible days. Accordingly, the court granted Franqui only 463 days of jail credit rather

than the requested 485 days.

                Franqui does not challenge the trial court’s jail credit calculation.2 Rather, he

contends that he was denied the right to be present when the credit was determined. The record

shows, however, that Franqui was present when the court pronounced his sentence and stated

that Franqui would receive credit for time served. Because Franqui was present for sentencing

and because the district court’s oral and written judgments are consistent, we overrule Franqui’s

third point of error.




        2
          If Franqui disagreed with the district court’s jail credit calculation, he could have
challenged the judgment by means of a nunc pro tunc proceeding. See Ex parte Ybarra, 149 S.W.3d
147, 148 (Tex. Crim. App. 2004).

                                                 5
                  Having overruled Franqui’s points of error, we affirm the judgment of the

district court.




                                            __________________________________________

                                            G. Alan Waldrop, Justice

Before Justices Patterson, Waldrop and Henson

Affirmed

Filed: February 6, 2009

Do Not Publish




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