                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                 ________________________

                                      No. 07-15-00125-CR
                                  ________________________


                               MARVIN TAYLOR, APPELLANT

                                                 V.

                              THE STATE OF TEXAS, APPELLEE



                            On Appeal from the 211th District Court
                                     Denton County, Texas
              Trial Court No. F-2012-0490-C; Honorable Brody Shanklin, Presiding


                                          March 28, 2017

                                MEMORANDUM OPINION
                     Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       Appellant, Marvin Taylor, was convicted following a jury trial of three counts of

aggravated sexual assault.1 He was sentenced to forty-five years confinement and

assessed a fine of $10,000 on each count, with the three sentences to run concurrently.

In a single issue, Appellant asserts the trial court erred by overruling his objection to

       1
           See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i)-(iii), (2)(iv), (b) (West Supp. 2016).   Each
offense is a first degree felony.
testimony by a Sexual Assault Nurse Examiner (SANE nurse) regarding information

relayed to her by an unidentified translator who was assisting her in obtaining a

description of the assault from the complainant, L.R.,2 whose principle language was

Spanish.3 We affirm.


        BACKGROUND

        In March 2012, a three-count indictment issued alleging that on August 18, 2009,

Appellant intentionally and knowingly caused (1) the penetration of L.R.’s mouth by his

sexual organ, (2) Appellant’s mouth to contact L.R.’s sexual organ, and (3) the

penetration of L.R.’s sexual organ, without her consent, by threatening to use force

against her and by the actual use of physical force, and in the course of the same

criminal episode, he used or exhibited a deadly weapon, to-wit: a knife. In February

2015, a three-day jury trial was held.


        During trial, Paula Fornara, a SANE nurse, testified she examined L.R. the day of

the assault. Recognizing L.R.’s principle language was Spanish, she called

LanguageLine—a translating service provided by the hospital. A translator returned her

call and Fornara explained what she needed, i.e., a word-for-word translation of her

questions to L.R. and L.R.’s responses. Thereafter, Fornara obtained L.R.’s history

including a description of the assault while on speaker phone with the translator.


        Fornara testified that L.R. told her (through the translator) that someone came up

behind her and put a knife to her throat. When she turned around, the knife was put to
        2
            To protect the privacy of the complainant, we refer to her by her initials.
        3
          At trial, Appellant’s attorney objected to admission of the SANE nurse’s testimony and
examination records asserting a violation of his right of confrontation of L.R.’s translator. Appellant’s
attorney sought to find out the translator’s identity and contest her reliability.

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her neck, and she was told to be quiet and remove her pants. The assailant pulled

down his shorts. He told her to perform oral sex on him and placed his penis in her

mouth. Afterwards, he turned her over and penetrated her vagina with his penis. He

continued to threaten her with his knife and penetrated her five or six times. He also put

his mouth on her genitals and rubbed his finger over her rectum. Fornara described

L.R. as tearful and frightened as she recounted the assault. During L.R.’s physical

examination, Fornara observed an abrasion to her genital area and small tear at the

base of her hymen.


      At trial, L.R. testified (through a translator) regarding many, if not all, of the same

facts in addition to giving a more detailed description of the assault and a description of

her assailant. Further, some months after the assault, she identified Appellant as her

assailant from a line-up of six similar-looking persons, paying particular attention to his

long, curly eyelashes. Numerous law enforcement officers who were present at the

scene of the assault testified L.R. was distraught, traumatized, in shock, crying, very

upset, talking extremely fast, and uncontrollably shaking. One officer described her as

someone who had obviously had something very tragic happen to her. DNA consistent

with Appellant was found on L.R.’s vaginal swab taken shortly after the assault.

Samples taken from the floor in the room where the assault occurred tested positive for

L.R.’s blood and DNA. There was also testimony from law enforcement officers and

Fornara corroborating L.R.’s claim that she cut her finger attempting to fend off the knife

used to threaten her into submission.


      Appellant’s testimony contradicted L.R.’s testimony of an assault. In sum, he

testified the acts in question were consensual. Thereafter, the jury found him guilty on

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all three counts of aggravated sexual assault using a deadly weapon and assessed his

sentence. This appeal followed.4


        RIGHT TO CONFRONTATION

        The Sixth Amendment to the United States Constitution guarantees an accused

in a criminal prosecution the right to confront the witnesses against him. See U.S.

CONST. amend. VI. The Confrontation Clause provides a criminal defendant with the

right to physically face those who testify against him and the right to conduct a

meaningful cross-examination. See Delaware v. Fensterer, 474 U.S. 15, 18-19, 106 S.

Ct. 292, 88 L. Ed. 2d 15 (1985). “[T]he Confrontation Clause guarantees an opportunity

for effective cross-examination, not cross-examination that is effective in whatever way,

and to whatever extent, the defense might wish.”                  See Fensterer, 474 U.S. at 20

(emphasis added). “The Sixth Amendment right to confront witnesses includes the right

to cross-examine witnesses to attack their general credibility or to show their possible

bias, self-interest, or motives in testifying.” Hammer v. State, 296 S.W.3d 555, 561

(Tex. Crim. App. 2009) (citing Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110,

39 L. Ed. 2d 347 (1974)).


            In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177

(2004), the United States Supreme Court held that the Sixth Amendment prohibits the

“admission of testimonial statements of a witness who did not appear at trial unless he

was unavailable to testify, and the defendant had had a prior opportunity for cross-

        4
           Originally appealed to the Second Court of Appeals, this appeal was transferred to this court by
the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001
(West 2013). We are unaware of any conflict between precedent of the Second Court of Appeals and
that of this court on any relevant issue. TEX. R. APP. P. 41.3.


                                                    4
examination.” Id. at 53-54. Generally, a statement is testimonial if it is “[a] solemn

declaration or affirmation made for the purpose of establishing or proving some fact.”

Id. at 51. See Grant v. State, 218 S.W.2d 225, 230 (Tex. App.—Houston [14th Dist.]

2007, pet. ref’d). “In the end, the question is whether, in light of all the circumstances,

viewed objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-

court substitute for trial testimony.’” Ohio v. Clark, ___ U.S. ___, 135 S. Ct. 2173, 2180,

192 L. Ed. 2d 306 (2015) (quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S. Ct.

1143, 179 L. Ed. 2d 93 (2011)).


       We must, therefore, first determine whether the statements by the translator were

testimonial in nature. See Vinson v. State, 252 S.W.3d 336, 338 (Tex. Crim. App. 2008)

(“[T]he [defendant] did not have a prior opportunity to cross-examine [the accuser].

Therefore, the admissibility of these statements through [someone else’s] testimony

hinges on the determination of whether the statements were testimonial or

nontestimonial.”).   Although a trial court’s ruling on an evidentiary matter is viewed

under an abuse of discretion standard, a constitutional legal ruling—such as the nature

of the challenged statement—is reviewed de novo. See Wall v. State, 184 S.W.3d 730,

742 (Tex. Crim. App. 2006). See also Trigo v. State, 485 S.W.3d 603, 610 (Tex. App.—

Houston [1st Dist.] 2016, pet. ref’d). Therefore, we review de novo the determination

regarding whether the translator’s statements were testimonial. Rodriguez v. State, 274

S.W.3d 760, 765 (Tex. App.—San Antonio 2008, no pet.).


       We hold that the translator’s rendition of L.R.’s statements to Fornara were not

testimonial, i.e., the translator was never a witness against Appellant but merely a

conduit or tool used by Fornara to understand Appellant’s statements to her.

                                             5
Appellant’s attorney had the opportunity to perform, and did perform, a vigorous cross-

examination of the actual witnesses against him.          Furthermore, the translator’s

statements were not “solemn declaration[s] or affirmation[s] made for the purpose of

establishing or proving some fact.”    See Crawford, 541 U.S. at 51. There was no

evidence in the record establishing the translator had any self-interest in or bias toward

the proceedings.    In fact, Fornara did not choose the translator or even know the

translator’s identity. The translator was provided by a service normally used by the

hospital, and Fornara advised the translator that she needed verbatim translations of

her questions to L.R. and L.R.’s responses.


      Moreover, even if we were to assume there was error in the admission of L.R.’s

translated communications through Fornara, certain constitutional errors are subject to

a harmless error analysis under Rule 44.2(a) of the Texas Rules of Appellate

Procedure. TEX. R. APP. P. 44.2(a). Violation of the Confrontation Clause of the Sixth

Amendment is a “non-structural” error of constitutional dimension that is subject to

harmless error analysis. See Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct.

1431, 89 L. Ed. 2d 674 (1986); Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim.

App. 2010); Bibbs v. State, 371 S.W.3d 564, 570 (Tex. App.—Amarillo 2012, pet. ref’d).

In making a harmless error determination under Rule 44.2(a), appellate courts should

adhere strictly to the question of whether the error committed in that particular case

contributed to the verdict obtained in that case. Snowden v. State, 353 S.W.3d 815,

821 (Tex. Crim. App. 2011). If the record reveals constitutional error that is subject to

harmless error review, we must reverse the judgment of conviction or punishment




                                              6
unless we are able to determine beyond a reasonable doubt that the error did not

contribute to the conviction or punishment. TEX. R. APP. P. 44.2(a).


      Here, the challenged statements were cumulative of other evidence.               See

Langham, 305 S.W.3d at 582 & n.42.              In addition, L.R.’s testimony, the physical

evidence, and other testimony admitted at trial provided corroboration for the challenged

statements, and the prosecution’s case was otherwise strong. Id. Having reviewed the

entire record, we can determine beyond a reasonable doubt that error, if any, did not

contribute to Appellant’s conviction. Id. As such, the error, if any, would be harmless

under the circumstances. Appellant’s sole issue is overruled.


      CONCLUSION

      The trial court’s judgment is affirmed.




                                                   Patrick A. Pirtle
                                                      Justice


Do not publish.




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