                                                                                       AP-77,036
                                                                 COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                               Transmitted 10/6/2015 12:12:57 PM
                                                                 Accepted 10/6/2015 12:37:53 PM
                               No. AP-77,036                                      ABEL ACOSTA
                                                                                          CLERK

                                    In the
                      Court of Criminal Appeals of Texas
                                   At Austin
                            ♦
                                                                     October 6, 2015
                                No. 1412826
                          In the 179th District Court
                           Of Harris County, Texas
                            ♦
                      JUAN BALDERAS aka APACHE
                               Appellant
                                  v.
                         THE STATE OF TEXAS
                               Appellee

                        ♦
            STATE’S LIST OF SUPPLEMENTAL AUTHORITIES
                          ♦

To the Honorable Court of Appeals:

      This case is set for oral argument on October 7, 2015. The issues that

will be argued revolve around the appellant’s claims that the trial court erred

in allowing a State’s witness to testify through an interpreter when there was

evidence in the record that the witness could speak English.

      The State’s pre-argument research has not uncovered any additional

authority on the statutory or constitutional claims made by the appellant. The

State has found a small number of federal cases interpreting Federal Rule of

Criminal Procedure 28, which relates to the appointment of interpreters by
the trial court. The State does not believe these cases are binding, but,

considering the paucity of cases addressing whether a trial court erred in

appointing an interpreter, they may be of some assistance to this Court.



United States v. Salsedo, 607 F.2d 318, 320 (9th Cir. 1979). The Ninth Circuit
upheld a trial court’s decision to appoint an interpreter for a State’s witness
over defense objection. The Court determined the matter by deferring to the
trial court’s conclusion, made after a hearing, that the witness was “not fluent
in English.”

United States v. Frank, 494 F.2d 145, 157-58 (2d Cir. 1974). In this case, a
prosecution witness testified in English on direct examination but testified
through an interpreter on cross-examination. Judge Friendly, writing for the
Second Circuit overruled the appellant complaint but expressed disapproval of
the trial tactic. Judge Friendly noted that the jury observed the procedure and
the defense used the tactic to attack the witness’s credibility.

United States v. Cheung Kin Ping, 555 F.2d 1069, 1078 (2d Cir. 1977). In this
case a prosecution witness who spoke English “fairly well” testified through an
interpreter. The trial court specifically instructed the jury that “[i]f a witness
were to pretend or feign ignorance of the English language, you may consider
it in the same manner as you would a false statement of a witness in
determining whether or not to believe his testimony.” The defendant raised a
Confrontation Clause claim on appeal, but that argument was overruled
because it had not been raised in the trial court.

United States v. Petrosian, 126 F.3d 1232, 1234-35 (9th Cir. 1997). After
Petrosian admitted that he would have a hard time testifying in English, the
trial court forced him, over objection, to testify through an interpreter. The
Ninth Circuit upheld this impingement on the defendant’s right to testify
based on the trial court’s “legitimate interest” in excluding unreliable
evidence. The Ninth Circuit explicitly noted that Petrosian had been “afforded
the opportunity to convey his sincerity to the jury by his physical reaction as
the interpreter repeated questions and by the tone of his voice and his facial
expression as he responded.”
                                                  Respectfully submitted,


                                                  /s/ C.A. Morgan
                                                  CLINTON A. MORGAN
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin, Suite 600
                                                  Houston, Texas 77002-1923
                                                  (713) 755-5826
                                                  morgan_clinton@dao.hctx.net
                                                  TBC No. 24071454



                            CERTIFICATE OF SERVICE

      I certify that I have requested that efile.txcourts.gov electronically serve

a copy of this motion to:

      R. Scott Shearer
      shearerlegal@yahoo.com
      Counsel for Appellant




                                                  /s/ C.A. Morgan
                                                  CLINTON A. MORGAN
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin, Suite 600
                                                  Houston, Texas 77002-1923
                                                  (713) 755-5826
                                                  morgan_clinton@dao.hctx.net
                                                  TBC No. 24071454

Date: October 6, 2015
