Opinion issued June 20, 2013




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-10-00697-CR
                          ———————————
                     THE STATE OF TEXAS, Appellant
                                       V.
                ROBERTO ACUNA ANDAVERDE, Appellee



                   On Appeal from the 12th District Court
                          Grimes County, Texas
                        Trial Court Case No. 16670


                      MEMORANDUM OPINION

      This is the State’s appeal from a pretrial order suppressing portions of an

audiotaped interview of appellee, Roberto Acuna Andaverde. 1 In one issue, the

1
     See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (West Supp. 2011); TEX. R.
     APP. P. 25.2(a)(1).
State contends that the trial court abused its discretion in granting appellee’s

motion to suppress certain translated portions of appellee’s statement to police.

We affirm.

                                    Background

      On October 9, 2009, appellee was interviewed by Navasota Police

Department Investigator Amanda Klawinsky and Officer David Ellison following a

report that appellee had engaged in inappropriate conduct with a child. Aleda

Jarvis, a Child Protective Services special investigator, was also present at the

interview. Although most of the interview was conducted in English, appellee

answered some questions in Spanish which Jarvis translated into English for

Officer Ellison, the investigating officer, who did not speak Spanish. Although she

considers herself to be fluent in Spanish, Jarvis is not a certified translator or

interpreter.

      On November 20, 2009, appellee was indicted on two counts of indecency

with a child. On July 7, 2010, the first day of trial, defense counsel moved the trial

court to redact certain portions of the audio and/or videotaped interview on the

grounds that the evidence constituted (1) inadmissible extraneous offense

evidence, (2) hearsay, (3) narrative by the interviewing officer that was not a

present sense impression (hearsay), (4) discussion of a polygraph examination, and

(5) testimony after invocation of appellee’s Sixth Amendment right to counsel.

                                          2
Before the jury was seated, the trial court both orally sustained and overruled

varying portions of the motion. The trial court subsequently dismissed the jury.

On July 22, 2010, the trial court issued an order granting portions of appellee’s

motion to suppress.

                                      Discussion

      In its sole issue, the State contends that the trial court erred in suppressing

the portion of the audio recording designated in appellee’s motion as III.B through

L because there is no requirement that Jarvis be a certified translator. 2 The State

also argues that, rather than redacting the challenged portions of the audiotape, the

Court should have ordered the court-certified interpreter who was present for trial

to provide a simultaneous translation of appellee’s answers in Spanish, or a written

translation for presentation to the jury. Appellee did not file a brief.3

      At the July 7, 2010 hearing on appellee’s motion to suppress, the trial court

orally ruled as follows:

2
      Neither the trial court’s oral ruling nor its written order specifies the portions of
      the audio to be redacted. The specific time designations are present only in
      appellee’s written motion. All eleven of these specific portions of the audiotape
      are designated in the motion as “Translation.”
3
      Trial counsel filed six motions to extend time to file appellee’s brief, four of
      which were granted and two denied as untimely after this Court indicated that
      further motions would not be considered absent extraordinary circumstances.
      Counsel was notified that the case would be set for submission in May 2012, with
      or without a brief from appellee, and ordered to notify his client. The State filed
      two motions to extend time to file its brief, which were granted.

                                            3
      [THE COURT]: Yes. Number 3, dealing with what is referred to as
      inadmissible hearsay, I’m overruling the objection to A, but I’m
      sustaining the objection to B through L, but it refers to the Spanish to
      English translation of the CPS investigator.

      [ASSISTANT DISTRICT ATTORNEY]: And the grounds on that is
      that the translator’s rendition is hearsay?

      [THE COURT]: It’s not a sworn interpretation, okay?

      [DISTRICT ATTORNEY]: So you are not holding it’s hearsay -- if
      she were a sworn interpreter making the statements, I think it would
      be admissible.

      [ANDAVERDE’S COUNSEL]: . . . . The defense would argue these
      are inadmissible. It’s inadmissible hearsay, Your Honor, under the
      Fis[c]her case [252 S.W.3d 375 (Tex. Crim. App. 2008)]4 and in
      addition to that, the 1990 Court of Criminal Appeals on Leal [782
      S.W.2d 844 (Tex. Crim. App. 1989)] 5 and that goes towards anything
      in Spanish on this audio tape is not admissible unless there’s a
      certified translation.

      [THE COURT]: Okay, essentially, I’m dealing with the ruling in
      Leal, not necessarily Fischer, but in Leal.

      Following the court’s oral ruling, Jarvis testified that she was not certified as

an interpreter, but that she considered herself fluent in Spanish. A review of the

audiotape reveals that when appellee began speaking in Spanish toward the end of

the interview, Jarvis repeated what appellee had said to Officer Ellison in English

as well as asked appellee questions in Spanish. Although Jarvis initially claimed to

4
      Fischer discusses the present-sense impression exception to the hearsay rule. See
      Fischer v. State, 252 S.W.3d 375, 379–87 (Tex. Crim. App. 2008).
5
      Leal discusses the admission of a tape-recorded conversation in a foreign
      language. Leal v. State, 782 S.W.2d 844, 847–50 (Tex. Crim. App. 1989).
                                          4
interpret appellee’s statements in Spanish to the officer “exactly” in English, she

later recanted:

      [THE COURT]: Ms. Jarvis, when I listened to the tape, I had the
      distinct impression that it was not a word for word translation but it
      was more of a paraphrased translation to the officer present of what
      Mr. Andaverde was saying. Am I correct or incorrect?

      [WITNESS]: You’re correct.

      [THE COURT]: Okay, so it wasn’t word for word.

      [WITNESS]: No, sir.

On July 22, 2010, the trial court issued its order which stated as follows:

            The Defendant’s Motion to Require the Prosecuting Attorney to
      Redact Video came on for hearing and Defendant’s objections are
      hereby:
                                    ....

             Granted as to request       ....
                                        III. B
                                              C
                                              D
                                              E
                                              F
                                              G
                                              H
                                              I
                                              J
                                              K
                                              L

      Article 38.30 of the Code of Criminal Procedure governs the use of

interpreters in criminal proceedings. TEX. CRIM. APP. PROC. ANN. art. 38.30(a)

(West 2011). It states, in relevant part, as follows:
                                           5
      When a motion for appointment of an interpreter is filed by any party
      or on motion of the court, in any criminal proceeding, 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 him.

Id.
      In Leal, the Court of Criminal Appeals held that the trial court had erred

when it admitted into evidence the tape-recorded conversation in Spanish between

the defendant and a witness cooperating with law enforcement authorities without

a sworn translation into English.       See 782 S.W.2d at 849–50.           The Court

analogized the situation involving a tape recording of witnesses speaking Spanish

to a non-English-speaking witness testifying in court and held that the safeguards

of article 38.30 apply. See id. “In the face of a proper motion or objection an

interpreter must be sworn to translate the conversation, so long as the interpreter is

‘considered to possess adequate interpreting skills for the particular situation’ and

is ‘familiar with the use of slang’ to the satisfaction of the trial court.” Id. at 849.

Because a sworn interpreter was not called upon by the trial court to translate the

admitted tape-recording containing the conversation, the Court held that the trial

court had failed to comply with article 38.30. See id. at 849–50 (holding trial court

“erred when it admitted the tape recording into evidence without it being translated

from Spanish to English by a sworn interpreter”).




                                           6
      Here, the docket sheet reflects that the trial court granted defense counsel’s

motion for an interpreter on February 22, 2010. 6 Thus, under the clear language of

the statute, appellee’s statements had to be translated by a sworn interpreter. It is

undisputed that Jarvis was not a sworn interpreter. Jarvis further admitted to the

trial court that she had not translated appellee’s statements at the interview word-

for-word but had paraphrased them instead.

      In support of its argument that Jarvis was not required to be a certified

interpreter for her translation of appellee’s statements to be admissible, the State

relies on Rodriguez v. State, No. 2-05-398-CR, 2007 WL 174684 (Tex. App.—

Fort Worth Jan. 25, 2007, pet. ref’d) (memo op., not designated for publication)

and Martinez v. State, No. 08-02-00508-CR, 2004 WL 1576777 (Tex. App.—El

Paso July 15, 2004, pet. ref’d) (memo op., not designated for publication). We

initially note that both of these cases are unpublished and, as such, have no

precedential value. See TEX. R. APP. P. 47.7 & 2008 cmt.; Ferguson v. State, 335

S.W.3d 676, 688 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (noting that

“unpublished cases are not part of Texas jurisprudence and cannot be either

binding or persuasive authority”). Notwithstanding, both Rodriguez and Martinez

are factually distinguishable from the present case.


6
      See Stokes v. State, 277 S.W.3d 20, 24 (Tex. Crim. App. 2009) (finding trial
      court’s docket sheet to be reliable indicator of judge’s decisions and business of
      court).
                                          7
      In Rodriguez, a police detective interviewed the defendant in Spanish and a

portion of the interview was tape recorded. See 2007 WL 174684, at *2. The

taped portion of the interview was translated by a certified court interpreter, but the

trial court also allowed into evidence the defendant’s statements made to the

detective before the recorder was turned on. See id. On appeal, the defendant

argued that the trial court had erred by allowing testimony from an uncertified

police interpreter regarding his allegedly incriminating statements.           See id.

Rodriguez is factually distinguishable from the present case because the detective

in Rodriguez—who had passed a test enabling him to be a translator for the police

department—testified at trial in English concerning his conversation with

defendant in Spanish, thereby subjecting his translations to cross-examination. See

id. at *3; Leal, 782 S.W.2d at 849 (noting fact that individuals who translated

conversation between witnesses speaking Spanish were not called to witness stand

so that accuracy of their work could be subject to cross-examination, in court’s

analysis of whether trial court complied with article 38.30). Additionally, the tape-

recorded portions of the defendant’s conversations with the detective in Spanish

were translated by a certified court interpreter. See Rodriguez, 2007 WL 174684,

at *3. Here, by contrast, the State sought to admit portions of appellee’s tape-




                                          8
recorded interview which were not translated by a certified interpreter and could

not be subject to cross-examination.7

      In Martinez, the defendant argued that the trial court had erred in admitting

his written statement because he had received an inadequate translation of his

Miranda rights into Spanish by the police officer. See 2004 WL 1576777, at *2.

The court of appeals noted that the question of a translation’s accuracy is an issue

of fact to be settled by the trier of fact, and that an appellant must settle the

question at trial by impeaching the translation, either by cross-examination or other

means. See id. (citing to Garcia v. State, 887 S.W.2d 862, 875 (Tex. Crim. App.

1994)). Noting that trial counsel had vigorously questioned the police officer on

his translation, the Martinez court held that the trial court had not abused its

discretion in concluding that the defendant had been properly warned before being

subjected to custodial interrogation. See Martinez, 2004 WL 1576777, at *3.

Here, by contrast, the State is challenging the trial court’s suppression of translated




7
      It is worth noting that the Rodriguez court did not cite to Leal in its discussion of
      the admissibility of the testimony of an uncertified police interpreter. Further, the
      Rodriguez court’s statement that “by its very terms, article 38.30, governs the use
      of interpreters in court proceedings, not police interviews,” implies that article
      38.30 applies only to court proceedings. 2007 WL 174684, at *3. Such a
      conclusion is contrary to the Court of Criminal Appeals’s finding in Leal that
      article 38.30 applied to a tape-recorded conversation between the defendant and a
      witness cooperating with law enforcement authorities. See Leal, 782 S.W.2d at
      847.
                                            9
portions of the audiotape prior to trial for which Jarvis was not subject to cross-

examination.

      Based on appellee’s motion, the pretrial hearing, and the court’s written

order, we conclude that the trial court suppressed only the audio recording of

Jarvis’s translations, not appellee’s testimony in Spanish. Nothing in the court’s

order prevents the State from calling Jarvis as a witness at trial. We therefore

express no opinion concerning the admissibility at trial of appellee’s testimony in

Spanish with appropriate translation, or any testimony by Jarvis. We overrule the

State’s sole issue.8

                                     Conclusion

      We affirm the judgment of the trial court.



                                                Jim Sharp
                                                Justice

Panel consists of Justices Higley, Sharp, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).
8
      The State also contends that the trial court suppressed appellee’s statements
      because it found them to be hearsay. We disagree. The trial court’s oral ruling
      makes clear that it based its ruling on Leal and the fact that appellee’s statements
      were not translated by a sworn interpreter. The State also asserts that, at the
      hearing on the motion to suppress, trial counsel raised constitutional concerns
      regarding the translations. However, a review of the record reveals no mention by
      trial counsel of constitutional grounds supporting the suppression of appellee’s
      statements. Thus, we do not address the State’s arguments concerning hearsay or
      constitutional issues.

                                           10
