Opinion filed August 1, 2013




                                     In The


        Eleventh Court of Appeals
                                   __________

                               No. 11-11-00293-CR
                                   __________

                   PRUDENCIO SIFUENTES, Appellant

                                        V.

                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 106th District Court

                               Gaines County, Texas

                           Trial Court Cause No. 09-4008


                      MEMORANDUM OPINION
      Prudencio Sifuentes appeals the trial court’s decision to revoke community
supervision and adjudicate his guilt for the offense of indecency with a child by
sexual contact. See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011). Upon
adjudication, the trial court assessed punishment at confinement for fifteen years.
We affirm.
                                  I. Background
      Appellant pleaded guilty to the offense of indecency with a child by sexual
contact. In accordance with a plea bargain, the trial court deferred adjudicating
Appellant’s guilt, placed him on community supervision for ten years, and ordered
Appellant to pay court courts as well as a $250 DNA fee.
      Several months later, Appellant missed at least two counseling sessions
required under the terms of his community supervision order; he also failed to pay
the required DNA fee. The State moved to adjudicate his guilt based on those two
grounds; Appellant pleaded “not true.” After a hearing, the trial court found the
allegations to be true, and it revoked Appellant’s community supervision,
adjudicated him guilty of the offense of indecency with a child by sexual contact,
assessed his punishment at confinement for fifteen years, and sentenced him
accordingly.
                                II. Issues on Appeal
      Appellant has asserted three issues on appeal. First, Appellant argues that
the trial court erred in not appointing him an interpreter during the adjudicative
hearing. Second, Appellant argues that defense counsel was ineffective because he
presented no evidence regarding Appellant’s comprehension difficulties and did
not request that the court appoint an interpreter. Third, Appellant argues that he
was unable to comply with the requirements to attend counseling and pay the DNA
fee and was prevented from presenting this defense due to a language barrier.
      A. Necessity for an Interpreter
      In a criminal proceeding, a defendant has a right to an interpreter upon either
party’s motion or the court’s motion if it is determined that the defendant does not
understand or speak English. TEX. CODE CRIM. PROC. ANN. art. 38.30(a) (West
Supp. 2012); Wong Wing v. United States, 163 U.S. 228, 238 (1896); Garcia v.
State, 149 S.W.3d 135, 140–41 (Tex. Crim. App. 2004); Baltierra v. State, 586
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S.W.2d 553, 557 (Tex. Crim. App. 1979); Ex parte Marez, 464 S.W.2d 866, 867
(Tex. Crim. App. 1971); Garcia v. State, 210 S.W.2d 574, 601 (Tex. Crim. App.
1948). Whether the defendant needs an interpreter to understand the proceedings
and to assist in his defense is a matter within the trial court’s discretion. Marin v.
State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993). When determining whether
the trial court took adequate steps to ensure that a defendant sufficiently
understands the criminal proceedings against him and to ensure that he is able to
assist in his defense, we review the record for an abuse of discretion. Linton v.
State, 275 S.W.3d 493, 502 (Tex. Crim. App. 2009).
      If a defendant needs an interpreter, the trial court must be made aware of that
need. Garcia, 149 S.W.3d at 140–41; Baltierra, 586 S.W.2d at 559. In Baltierra,
a court interpreter at the arraignment hearing informed the court that the defendant
needed an interpreter. Baltierra, 586 S.W.2d at 555. The trial court appointed a
defense counsel who could converse with defendant in her native language but did
not appoint an interpreter for subsequent court proceedings. Id. at 555–56. The
Court of Criminal Appeals held that the trial court’s failure to appoint an
interpreter for all court proceedings violated the Confrontation Clause of the Sixth
Amendment to the United States Constitution and reversed and remanded the case.
Id. at 559.
      This case is factually distinguishable.     The record does not reflect that
Appellant had any such difficulty and does not reveal any facts indicating that the
trial court should have been aware that Appellant had difficulty understanding the
English language. In fact, the record affirmatively shows the opposite.
      At the plea hearing, Appellant was represented by counsel and answered in
English all questions put to him.       In addition, Appellant signed all of the
community supervision documents and agreed to the terms of the community
supervision order, and his counsel never requested an interpreter. Likewise, the
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record reflects that Appellant communicated with probation officers, counselors,
and others in English.
      At his adjudicative hearing, Appellant again failed to inform the trial court
that he could not understand English. In fact, he told the trial court that he
understood “pretty well” what was happening. When questioned by the trial court
and counsel, Appellant was able to understand and answer the questions. After
reviewing the record, we conclude that Appellant failed to make the trial court
aware of any difficulty he had in understanding the English language.
      Although Appellant argues that the record shows that he struggled to hear,
the inability to hear does not indicate to the trial court whether a person has an
understanding of the English language. Appellant also contends that the record
shows that he struggled to understand English during counseling sessions. When
asked about his understanding, Appellant told the court that he did not understand
much “because they talk in different—I mean in higher English than what I know.
Part of it, I don’t understand what they’re talking about, like high, low, denial, and
all that stuff. I don’t know what that is. I still don’t.” Evidence that Appellant
struggled to understand psychology concepts during counseling sessions does not
show, however, that he struggled to understand the English language at trial.
Considering that Appellant testified in English and never indicated a lack of
understanding at any of the hearings, there is nothing to show that the trial court
should have been aware of Appellant’s alleged inability to understand the English
language. Appellant’s first issue is overruled.
      B. Ineffective-Assistance-of-Counsel Claim
      Appellant argues in his second issue that court-appointed counsel at the
adjudicative hearing was ineffective in presenting his defense because counsel did
not ask for an interpreter. The test for a complaint of ineffective assistance of
counsel is whether counsel’s conduct “so undermined the proper functioning of the
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adversarial process that the trial cannot be relied on as having produced a just
result.” Strickland v. Washington, 466 U.S. 668, 686, (1984). The Strickland test
has two prongs: (1) a performance standard and (2) a prejudice standard. Id. at
687.
       For the performance standard, we must determine whether Appellant has
shown that counsel’s representation fell below an objective standard of
reasonableness. Id. at 687. There is a strong presumption that trial counsel’s
conduct fell within the wide range of reasonable professional assistance.
Strickland, 466 U.S. at 689; Isham v. State, 258 S.W.3d 244, 250 (Tex. App.—
Eastland 2008, pet. ref’d). To overcome this deferential presumption, an allegation
of ineffective assistance must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d
808, 814 (Tex. Crim. App. 1999). “[T]rial counsel should ordinarily be afforded
an opportunity to explain his actions before being denounced as ineffective.”
Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). When the record
contains no direct evidence of counsel’s reasons for the challenged conduct, we
“will assume that counsel had a strategy if any reasonably sound strategic
motivation can be imagined.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.
App. 2011). We “will not conclude the challenged conduct constituted deficient
performance unless the conduct was so outrageous that no competent attorney
would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.
2001).
       For the prejudice standard, we determine whether there is a reasonable
probability that the outcome would have differed but for counsel’s errors.
Wiggins v. Smith, 539 U.S. 510 (2003); Strickland, 466 U.S. at 686; Andrews v.
State, 159 S.W.3d 98 (Tex. Crim. App. 2005). The reasonable probability must
rise to the level it undermines confidence in the outcome of the trial. Isham, 258
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S.W.3d at 250. A reviewing court need not consider both prongs of the Strickland
test and can dispose of an ineffectiveness claim if the defendant fails to
demonstrate sufficient prejudice. Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim.
App. 2012) (citing Strickland, 466 U.S. at 697).
      In Appellant’s case, his counsel’s alleged failure to request an interpreter did
not prejudice Appellant’s case because, as we have already discussed, the record
does not show that Appellant could not converse and understand the proceedings in
English. Defense counsel questioned Appellant in English, and he responded in
English. At no time did Appellant ever suggest to the court that he could not
understand what was going on or that he could not understand his counsel’s
questions.    Likewise, Appellant did not request an interpreter when he was
questioned by the State. Appellant answered the questions asked, and if he did not
understand, he was given an opportunity to answer revised questions.
      Appellant has not shown that his trial counsel’s representation fell below an
objective standard of reasonableness. Just as the trial court was not on notice of
any inability to understand the English language, neither does the record show that
Appellant’s attorney was aware of any such misunderstanding. Appellant has
failed to meet the first prong of Strickland. Even if we were to conclude that
Appellant satisfied the first prong, he has not shown harm. Appellant’s second
issue is overruled.
      C. Appeal of Probation Term
      In his third issue, Appellant contends that he failed to attend sex-offender
counseling sessions and failed to pay the required fee because of an inability to
pay, but argues that he was unable to develop this defense because of a “language
barrier.”    Appellant argues that “non-compliance could have been due to the
Appellant not affording the counseling” and that the testimony “seemed” to


                                          6
indicate “that the classes cost money and he did not have any money” (emphasis
added).
      When the State alleges that a defendant has violated a condition of
community supervision that the trial court has imposed in an order of deferred
adjudication, the defendant is entitled to a hearing before the trial court determines
whether to adjudicate guilt on the original charge. TEX. CODE CRIM. PROC. ANN.
art. 42.12, § 5(b) (West Supp. 2012). We review a trial court’s order in which the
trial court revoked community supervision for an abuse of discretion. Rickels v.
State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). We review a trial court’s
decision to adjudicate guilt in the same manner that we review the decision to
revoke community supervision after a finding of guilt and suspended sentence. Id.;
Connolly v. State, 983 S.W.2d 738, 745 n.11 (Tex. Crim. App. 1999).
      The trial judge is the sole judge of the credibility of the witnesses and of the
weight to be given to their testimony. Cardona v. State, 665 S.W.2d 492, 493
(Tex. Crim. App. 1984). We review the evidence in the light most favorable to the
trial court's ruling. Id. The State must prove a violation of the conditions of
community supervision by a preponderance of the evidence. Cobb v. State, 851
S.W.2d 871, 873 (Tex. Crim. App. 1993); Antwine v. State, 268 S.W.3d 634, 636
(Tex. App.—Eastland 2008, pet. ref’d). Proof by a preponderance of the evidence
of a single alleged violation of a condition of community supervision sufficiently
supports a revocation order. CRIM. PROC. art. 42.12, § 21(b); Moore v. State, 605
S.W.2d 924, 926 (Tex. Crim. App. 1980). If the State fails to meet the burden of
proof, the trial court’s decision to revoke community supervision is an abuse of
discretion.   Cardona, 665 S.W.2d at 493–94.          Our review is limited to an
assessment of legal sufficiency because reviewing “for factually sufficient
evidence is inappropriate given the trial court’s wide discretion and the unique


                                          7
nature of community supervision revocation proceedings.” Antwine, 268 S.W.3d
at 637.
      Community supervision is the suspension of the sentence or an arrangement
in lieu of the sentence. CRIM. PROC. art. 42.12, § 3(a). In Speth v. State, the Texas
Court of Criminal Appeals held that community supervision is not a right, but a
privilege that includes contractual obligations. Speth v. State, 6 S.W.3d 530, 531
(Tex. Crim. App. 1999).      The trial court’s agreement to enter a community
supervision order includes a set of agreed-upon contractual obligations that the
defendant must perform; if the defendant does not object to those terms, then such
objections are waived. Id. at 535.
      Although Appellant cites to testimony that indicates he may not have
attended counseling sessions or paid the required fee because of an inability to pay,
his community supervision officer testified to other reasons. The officer told the
trial court that Appellant had admitted to him that he had missed his counseling
sessions because he had transportation problems and because he did not think the
counseling was beneficial. This evidence supports the trial court’s conclusion that
Appellant violated a condition of community supervision. Because evidence of
one violation is sufficient to support a revocation order, we conclude that the trial
court did not abuse its discretion in proceeding to adjudicate Appellant’s guilt. See
CRIM. PROC. art. 42.12, § 21(b); Moore, 605 S.W.2d at 926. His final issue is
overruled.




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                              III. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                   MIKE WILLSON
                                                   JUSTICE


August 1, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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