                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


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 DIEUDONNE KAZABUKEYE,                                           No. 08-10-00113-CR
                                                 §
                   Appellant,                                       Appeal from the
                                                 §
 V.                                                           371st Judicial District Court
                                                 §
 THE STATE OF TEXAS,                                           of Tarrant County, Texas
                                                 §
                   Appellee.                                       (TC# 1185922R)
                                                  §

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                                          OPINION

       Duiedonne Kazabukeye appeals his convictions for intoxication manslaughter (Count 1)

and manslaughter (Count 2). In four issues, Appellant challenges the trial court’s decision not to

provide him an interpreter for pretrial proceedings, the voluntariness of his waiver of trial by

jury, and the factual sufficiency of the evidence supporting his convictions. In an additional two

issues, Appellant contends that the convictions violate the constitutional prohibition against

double jeopardy. In its appellee’s brief, the State concedes that Appellant’s convictions for

intoxication manslaughter (Count 1) and manslaughter (Count 2) do constitute double jeopardy

violations, and requests that this Court vacate the second conviction.

       On May 2, 2009, Appellant was driving several people to Dallas after an evening visiting

friends. Eighty-six-year-old Sezalia Ntahorutari was one of the passengers in the back seat of the

car. As he exited a freeway, Appellant abruptly turned the vehicle crashing into a highway safety

barrier. Ms. Ntahorutari suffered multiple spinal fractures, a brain hemorrhage, and other broken
bones. Although emergency room physicians initially stabilized Ms. Ntahorutari, her respiratory

function began to fail on May 5, and she died on May 9, 2009 due to complications from her

injuries.

        Appellant was indicted for intoxication manslaughter involving a deadly weapon, and

manslaughter. Appellant plead not guilty, and signed a “Waiver of Jury Trial” for a bench trial.

Fort Worth Police Department Officer E.A. Bently was the State’s first witness. Officer Bently

performed the intoxication investigation at the scene of the collision, and concluded that

Appellant was driving while intoxicated at the time of the crash. In addition to Appellant’s

performance on the field sobriety tests, Officer Bently testified that he located a half-empty bottle

of vodka, and an empty twenty-four ounce beer can in the front passenger floor well of

Appellant’s vehicle. During the investigation, Appellant admitted to the officer that he had a few

drinks that evening. Appellant was subjected to an intoxilyzer test later that evening. Officer

Bently testified that the test indicated Appellant’s blood alcohol level was approximately .260,

and opined that Appellant’s performance on the field sobriety tests was indicative of that level of

intoxication. Tarrant County Medical Examiner Mark Fondren confirmed Officer Bently’s

testimony regarding the level of alcohol in Appellant’s system. Mr. Fondren also testified that

regardless of Appellant’s individual tolerance, the amount of alcohol in Appellant’s system

would have impaired his mental and physical facilities beyond the point where he could safely

operate an automobile.

        Appellant chose to testify in his own defense. According to Appellant, the collision

happened when he tried to pull the car over because the windshield fogged up during a severe

rainstorm. He crashed into the barrier while he was attempting to wipe the moisture off the


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inside of the windshield. He also denied that the vodka bottle and beer can in the car were his,

and testified that he had only consumed two beers that evening.

       The State’s final witness Tarrant County Probation Officer Stephanie Wilson spoke with

Appellant several weeks after the collision. During the interview, Appellant told Ms. Wilson that

he drank “a couple of times a week,” and admitted that he had been drinking the night of the

crash. Appellant told Ms. Wilson that the collision happened after he realized he was about to

pass his exit, and made a last minute attempt to direct the car onto the exit ramp. He did not

mention anything about problems with the windshield or the ventilation system.

       The court convicted Appellant of both offenses, found that a deadly weapon, an

automobile, was used to commit the offenses. The court sentenced Appellant to fifteen years’

imprisonment for each conviction, sentenced to run concurrently.

       In Issues One, Three, and Four Appellant presents several arguments on the basis that he

was denied his right to trial by jury due to the trial court’s failure to provide him with an

interpreter during pretrial proceedings. Although Appellant speaks and understands English, his

native language is Kurundi.1 During trial, on its own motion, the court provided Appellant with a

Kurundi interpreter. Appellant did not have the assistance of an interpreter during pretrial

hearings, and there is no record that he requested an interpreter during any part of the

proceedings. On appeal, Appellant argues that he was denied his right to due process and his

right to trial by jury because he was not provided an interpreter at pretrial, and that because of the



       1
         Appellant was born in Burundi in 1976. He emigrated to the United States with his
family in 2004. Since moving to the U.S., Appellant has worked numerous jobs and obtained his
commercial driver’s license. At the time of trial, Appellant worked for the Central Refrigerator
Company located in Grand Prairie, Texas.

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language barrier, he did not knowingly waive his right to a jury trial.

       Article 38.30 of the Texas Code of Criminal Procedure provides a criminal defendant

with the right to request that the trial court appointment an interpreter. TEX .CODE CRIM .

PROC.ANN . art. 38.30(a)(West Supp. 2010). The code requires a trial court to appoint an

interpreter when it determines that the defendant does not speak or understand English.

TEX .CODE CRIM . PROC.ANN . art. 38.30(a). However, unless the record affirmatively

demonstrates that the defendant was unable to understand the proceedings due to a language

barrier, a defendant must request an interpreter in order to preserve the complaint for appeal.

Hernandez v. State, 986 S.W.2d 817, 822 (Tex.App.--Austin 1999, pet. ref’d). The fact that a

defendant may be more fluent in a language other than English does not require the trial court to

appoint an interpreter. Flores v. State, 509 S.W.2d 580, 581 (Tex.Crim.App. 1974).

       Despite the appearance of a Kurundi interpreter at trial, there is no record in this case that

Appellant requested the assistance of an interpreter pursuant to Article 38.30(a). Accordingly,

Appellant has waived the issue. See Hernandez, 986 S.W.2d 822. Furthermore, absent

Appellant’s complaint that he was not provided an interpreter, Appellant raises no alternative

bases for this Court to consider his argument that he was deprived of his rights to due process

and trial by jury. Accordingly, Issues One, Three, and Four are overruled.

       In Issue Six, Appellant contends that the evidence is factually insufficient to support his

conviction. However, since Appellant’s brief was filed, the Texas Court of Criminal Appeals has

ruled that the only standard applicable to determine whether the evidence is sufficient to support

each element of a criminal offense is the Jackson v. Virginia legal sufficiency standard. See

Brooks v. State, 323 S.W.3d 893, 913 (Tex.Crim.App. 2010). Therefore, in the interests of


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justice, and in light of the Brooks decision, we will construe Issue Six as a challenge to the legal

sufficiency of the evidence. See id. at 898.

       A legal sufficiency review requires the appellate court to determine whether,

“[c]onsidering all of the evidence in the light most favorable to the verdict was a jury rationally

justified in finding guilt beyond a reasonable doubt.” See Brooks, 323 S.W.3d at 899, citing

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 3789, 61 L.Ed.2d 560 (1979). When

conducting such a review, this Court is required to defer to the jury’s role as the sole judge of

witness credibility, and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899.

       Appellant argues that the evidence is insufficient to support the conviction because the

evidence indicated it was raining and slick driving conditions which were the sole cause of the

collision. Appellant continues by arguing that there was no evidence to support the conclusion

that the collision was caused by intoxication. We disagree with Appellant’s view of the record.

Officer Bentley, who conducted the DWI investigation at the crash site, testified that he was able

to smell alcohol on Appellant’s person, and that Appellant’s eyes appeared bloodshot. The

officer testified that Appellant performed three field sobriety tests, and that based on the results

of those tests, Officer Bentley determined Appellant was intoxicated. Without interfering with

the fact finder’s role as the sole judge of weight and credibility, Officer Bentley’s testimony

constitutes evidence from which a reasonable fact finder could determine beyond a reasonable

doubt that Appellant was intoxicated, and that his impairment caused the collision. Accordingly,

we overrule Issue Six.

       In Issues Two and Five, Appellant contends that his duel convictions for intoxication

manslaughter (Count 1) and manslaughter (Count 2) are, in essence, two convictions for the same


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offense in violation of the constitutional guarantee against double jeopardy. In its reply, the State

conceds that the convictions involved the same incident and the same victim, and are therefore

the same offense for double jeopardy purposes. In light of this error, the State requests that this

Court vacate the manslaughter conviction (Count 2). See Bigon v. State, 252 S.W.3d 360, 372-

73 (Tex.Crim.App. 2008)(When a defendant is subjected to multiple punishments for the same

conduct in violation of double jeopardy, the remedy is to affirm the conviction for the most

serious offense and vacate the other convictions.). We agree with the parties’ arguments. Issues

Two and Five are sustained, and Appellant’s conviction and sentence for manslaughter (Count 2)

will be vacated.

       Having sustained Issues Two and Five, we vacate Appellant’s conviction and sentence for

the manslaughter offense (Count 2). Appellant’s remaining conviction and sentence for

intoxication manslaughter (Count 1) is affirmed.


August 24, 2011
                                      DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)




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