Affirmed and Memorandum Opinion filed October 13, 2015.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00910-CR

         EX PARTE ERIK MONTES DE OCA-OROZCO, Appellant



                    On Appeal from the 185th District Court
                             Harris County, Texas
                       Trial Court Cause No. 1249272-A

                 MEMORANDUM                      OPINION


      This is an appeal from the denial of a post-conviction application for writ of
habeas corpus. Appellant, Erik Montes de Oca-Orozco, argues that his conviction
should be set aside because he did not knowingly, intelligently, and voluntarily
plead guilty to assault–bodily injury. In two issues appellant argues the trial court
abused its discretion in denying habeas relief because (1) appellant was denied the
assistance of a certified interpreter at the time of his plea, and (2) by failing to
request a certified interpreter, appellant’s counsel rendered ineffective assistance.
Finding no abuse of discretion, we affirm the trial court’s order denying habeas
relief.

                                    I. BACKGROUND

          In 2010, appellant was charged with assault of a public servant. In exchange
for a reduction in the charge and his sentence, on February 23, 2010, appellant
entered a plea of guilty to assault–bodily injury. Appellant received the panoply of
admonishments required by article 26.13 of the Code of Criminal Procedure and
placed his initials next to each applicable admonishment, including a paragraph,
which reads as follows:

          I read and write/understand the Spanish language; the foregoing
          Admonishments, Statements, and Waivers as well as the attached
          written Waiver of Constitutional Rights, Agreement to Stipulate, and
          Judicial Confession, were read by me or were read to me and
          explained to me in that language by my attorney and/or an interpreter,
          namely Eduardo P. Sillas before I signed them, and I consulted fully
          with my attorney before entering this plea[.]

Appellant, his attorney, and the trial court signed the admonishments. On the same
day the trial court sentenced appellant, pursuant to the plea bargain agreement, to
50 days in the Harris County Jail, giving appellant credit for time served.

          On June 25, 2014, appellant filed an application for writ of habeas corpus
seeking relief from the final misdemeanor conviction. In his application, appellant
argued his guilty plea was not voluntarily made because he did not understand the
English language, his attorney did not speak Spanish, and no interpreter was
provided to him at the time of the plea. Appellant further argued that he received
ineffective assistance of counsel because his trial counsel failed to request an
interpreter.

          The trial court held a hearing on appellant’s application for writ of habeas

                                            2
corpus at which Sillas, appellant, and appellant’s mother testified. Sillas testified
that he was retained to represent appellant in January 2010 and was aware that
appellant had an immigration/ICE detainer at the time. Sillas spoke in Spanish at
all times when communicating with appellant.

      Prior to the hearing, Sillas signed and filed an “affidavit of facts,” in which
he stated that he represented appellant when he pleaded guilty to the Class A
misdemeanor offense of assault–bodily injury. Sillas was aware that appellant was
not a United States citizen and advised him that he “believed there would be an
immigration proceeding in his future,” and that his plea “might have an effect in
the immigration proceeding.” Sillas believed an interpreter was available to help
appellant during the plea hearing. No record was made of appellant’s plea hearing.

      At the habeas hearing, Sillas testified he could not remember the name of the
interpreter, but remembered there was an interpreter at the time appellant entered
his guilty plea. For the purpose of the admonishments, Sillas, whose first language
is Spanish, acted as interpreter, but did not participate in the translation during the
plea. Both Sillas and the trial court advised appellant of the immigration
consequences of his plea.

      Appellant testified that his attorney explained that he would receive a 50-day
sentence in exchange for a guilty plea and that the plea would have no negative
effect on his immigration status. Appellant testified that the plea information was
explained to his mother. When appellant spoke with Sillas they spoke in Spanish.
Contrary to Sillas’ testimony, appellant testified he signed off on the plea because
Sillas represented there would be no negative immigration consequences.
Appellant testified that despite having initialed and signed the plea papers he did
not understand the immigration consequences of his plea. The trial judge asked
appellant whether he understood her questions at the time of his guilty plea, or

                                          3
whether someone interpreted her questions from English to Spanish. Appellant
responded that he did not remember.

      After closing arguments, the trial court made the following findings on the
record:

           Based on the credible testimony of Sillas, an interpreter was
            present, and “it would be highly unusual for this Court to take a
            plea for any defendant in Spanish where an interpreter was not
            present.”
           Based on the trial court’s recollection of how the court
            normally handles guilty pleas and Sillas’ testimony that there
            was an interpreter, in addition to “the incredible testimony” of
            appellant, there was an interpreter present at the time of
            appellant’s guilty plea.
           Sillas did not render ineffective assistance and appellant’s plea
            was freely and voluntarily made.
      Following the hearing, the trial court signed an order denying appellant’s
application for writ of habeas corpus. In two issues on appeal appellant contends
(1) his plea was involuntary because he was denied the assistance of a sworn,
certified interpreter at the time of his plea; and (2) his counsel rendered ineffective
assistance because he failed to request an interpreter at the plea hearing.

                             II. STANDARD OF REVIEW

      An applicant seeking habeas corpus relief based on an involuntary guilty
plea must prove his claim by a preponderance of the evidence. Kniatt v. State, 206
S.W.3d 657, 664 (Tex. Crim. App. 2006). The trial court sits as the finder of fact in
a habeas proceeding brought under article 11.09 of the Texas Code of Criminal
Procedure. In such cases, the court is the sole judge of credibility and demeanor,
and we may not disturb its ruling absent a clear abuse of discretion. See Ex parte
Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled on other

                                           4
grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). We defer to
the trial court’s findings of fact that are supported by the record, even when no
witnesses testify and all of the evidence is submitted through affidavits. See Ex
parte Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006); Ex parte
Martinez, 451 S.W.3d 852, 856 (Tex. App.—Houston [14th Dist.] 2014, pet.
ref’d). We also infer all implied findings of fact that are necessary to support the
trial court’s ruling. See Chadwick v. State, 309 S.W.3d 558, 561 (Tex. Crim. App.
2010).

                                   III. ANALYSIS

      A. Guilty Plea

      In his first issue, appellant contends his guilty plea was rendered involuntary
because he was denied the assistance of a sworn, certified interpreter at the time of
his plea. The State argues that appellant waived his argument that he is entitled to
habeas relief on the grounds that his attorney and the trial court failed to ensure
that a sworn, certified interpreter was present during his plea because appellant
failed to raise this legal ground in his habeas application or at the hearing. In his
application for writ of habeas corpus and at the habeas hearing appellant alleged
that he was denied the presence of an interpreter. To the extent appellant attempts
to argue on appeal that he had an interpreter, but that interpreter was not sworn or
certified we agree with the State that appellant waived error. See Wilson v. State,
71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (A defendant’s appellate contention
must comport with the specific objection made at trial); see also Rothstein v. State,
267 S.W.3d 366, 373 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). We will
address appellant’s issue that he was denied the assistance of an interpreter at the
time he pleaded guilty.

      If a defendant cannot hear or does not speak English well enough to
                                         5
understand the plea proceedings or communicate with counsel, fundamental
fairness and due process of law require that an interpreter be provided to translate
between English and the accused’s own language. Linton v. State, 275 S.W.3d 493,
500 (Tex. Crim. App. 2009). The right to an interpreter is among a defendant’s
constitutional rights and is a matter of due process. Id. The Code of Criminal
Procedure requires that “[w]hen 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 the person charged or the
witness.” Tex. Code Crim. Proc. Ann. art. 38.30(a) (West Supp. 2014). Moreover,
the trial court has an affirmative obligation to appoint a translator when it is aware
that a defendant has a problem understanding the English language. Garcia v.
State, 149 S.W.3d 135, 145 (Tex. Crim. App. 2004). Thus, absent a knowing and
voluntary waiver made on the record, “the judge has an independent duty to
implement this right,” regardless of whether the matter is raised by the parties. Id.
A failure to do so results not only in a statutory violation but can render a
defendant’s plea constitutionally involuntary, Aleman v. State, 957 S.W.2d 592,
594 (Tex. App.—El Paso 1997, no pet.), or violate his right to confront the
witnesses against him. Garcia, 149 S.W.3d at 145.

      In Aleman, the defendant, who spoke only Spanish, pleaded guilty at a group
arraignment to the charge of driving while intoxicated. 957 S.W.2d at 593. He was
convicted and later moved for a new trial on the grounds that the absence of an
interpreter rendered his plea involuntary. Id. The trial court denied his motion for
new trial, but the El Paso court reversed. Id. at 594.

      The Aleman court pointed out that while there was some provision for
Spanish–English interpretation at the group proceeding when the appellant entered

                                           6
his plea, such translation facilities were inadequate. Id. Although a court interpreter
had been present, her sole task was to assist the group of Spanish–speaking
defendants in completing a form entitled “Renuncia de los Derechos por
Demandado Criminal sin Representation,” which in English translates as “Waiver
of the Rights of a Criminal Defendant without Representation.” Id. at 593 & n.2.
The defendant told the interpreter that he could not afford an attorney but was
dissatisfied with the jail time recommendation contained in the plea agreement. Id.
at 593–94. The interpreter, however, made no effort to communicate the
defendant’s position to the trial court, and these concerns did not otherwise reach
the court’s attention. Id. at 594.

      When the Aleman defendant entered his plea of guilty, the court interpreter
was no longer present and the county prosecutor doubled as translator. Id. The
prosecutor was negotiating plea bargains with appellant and the other Spanish-
speaking defendants as he was translating the court’s explanation of their due
process rights. Id. Given the failure of the prosecutor or court interpreter to relay
the defendant’s concerns about his plea to the trial court, the court of appeals ruled
that his plea had been involuntary. Id. The Aleman court recognized that adhering
to the requirements of the Code of Criminal Procedure with respect to translation
services would have averted the violation of the defendant’s constitutional rights.
Id.

      Appellant argues that like the defendant in Aleman, he was deprived of the
assistance of an interpreter at his guilty plea hearing. The record reflects, however,
that appellant received the services of an interpreter at his plea hearing. The trial
court found Sillas’ testimony credible, that Sillas reviewed the plea papers with
appellant in Spanish, and that an interpreter was present at the time appellant
entered his plea. The record further reflects that appellant understood when he

                                          7
entered his plea that the felony offense would be reduced to a misdemeanor charge,
which permitted his immediate release from jail with a sentence of time served.
The trial court, as the sole trier of fact, rejected appellant’s argument that an
interpreter was not present. This case is distinguishable from Aleman in that the
record reflects that appellant had an interpreter and there is no evidence that
appellant’s wishes were not communicated to the trial court. Under these
circumstances, we cannot say appellant’s guilty plea was rendered involuntary due
to the lack of an interpreter or that the trial court abused its discretion in denying
habeas relief. We overrule appellant’s first issue.

      B. Ineffective-Assistance of Counsel Argument

      In his second issue appellant contends that trial counsel’s failure to request
an interpreter constitutes prejudicial error. Appellant argues that he received
ineffective assistance of counsel in that his trial counsel failed to request an
interpreter at the plea hearing. Appellant argues that trial counsel’s deficient
performance deprived him of his right to confront witnesses against him, to
understand the nature and substance of proceedings, and to assist in his defense.

      We examine claims of ineffective assistance of counsel under the standard
set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland,
appellant must prove that his trial counsel’s representation was deficient, and that
the deficient performance was so serious that it deprived him of a fair trial. Id. at
687. Counsel’s representation is deficient if it falls below an objective standard of
reasonableness. Id. at 688. This deficiency will only deprive appellant of a fair trial
when counsel’s performance prejudices appellant’s defense. Id. at 691–92. To
demonstrate prejudice, appellant must show a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. at 694. Failure to make the required showing of either deficient

                                           8
performance or sufficient prejudice defeats the claim of ineffectiveness. Id. at 697.
This test is applied to claims arising under both the United States and Texas
Constitutions. See Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim. App.
1986).

      In determining whether appellant has established that his counsel was
ineffective, we apply the procedural law applicable to writs of habeas corpus. See
Ex parte Cockrell, 424 S.W.3d 543, 545–46 (Tex. Crim. App. 2014). We defer to
the habeas court’s fact findings that are supported by the record. See Ex parte
Flores, 387 S.W.3d 626, 634–35 (Tex. Crim. App. 2012); Ex parte Reed, 271
S.W.3d 698, 727 (Tex. Crim. App. 2008).

      In this case, there is no evidence that trial counsel failed to request an
interpreter. In fact, the habeas court found that Sillas’ testimony that an interpreter
was present was credible, and that the trial court as a matter of practice employs an
interpreter any time a defendant does not speak English as the defendant’s first
language. Based on the habeas court record, we conclude that appellant failed to
demonstrate his counsel rendered ineffective assistance. We overrule appellant’s
second issue.

      We affirm the trial court’s judgment.




                                        /s/       Tracy Christopher
                                                  Justice


Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).



                                              9
