                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                     No. 07-12-00503-CR


                      VONGSAVANH PHOMMATHEP, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 251st District Court
                                    Randall County, Texas
                  Trial Court No. 22,061-C, Honorable Ana Estevez, Presiding

                                    February 11, 2014

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


       Appellant, Vongsavanh Phommathep, appeals his conviction for the offense of

aggravated assault with an affirmative finding of the use of a deadly weapon, 1 and the

resulting sentence of confinement in the Institutional Division of the Texas Department

of Criminal Justice (ID-TDCJ) for 30 years and fine of $4,000. By two issues, appellant

contends that the trial court erred in its appointment of an interpreter, and the statutory

scheme for the appointment of an interpreter is unconstitutional.          For the reasons

       1
           See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011).
expressed below, we will overrule appellant’s contentions and affirm the judgment of the

trial court.


                           Factual and Procedural Background


        Appellant does not contest the factual sufficiency of the evidence; therefore, we

will only address those portions of the record required for our disposition of this matter.

Appellant was accused by indictment of the aggravated robbery of Thovone Kayakone.

Both appellant and Kayakone are Laotian. At the trial of the case, the trial court sua

sponte appointed an interpreter to interpret the testimony of Kayakone.


        After the interpreter was sworn in, trial counsel voiced a general concern

regarding not having any information about what the qualifications of the interpreter

were.2 After asking the interpreter a few general questions about his experience, trial

counsel made the following observation, “Your honor, I am not sure he is qualified, if he

has never . . . .” Whereupon the trial court stated, “The law doesn’t require him to have

interpreted before. I mean, if you want to test his qualifications another way, that is up

to you.” Trial counsel then proceeded to ask the interpreter about whether he knew

Kayakone and if they had attended the same church. At the conclusion of this voir dire

examination of the witness, trial counsel simply stated, “That is fine. I still have some

question, I understand the Court’s ruling.”




        2
          We note that appellant’s brief contends that the first indication that the
interpreter was not competent was revealed when the trial court attempted to get the
interpreter to spell his name. We have reviewed that portion of the record and are
satisfied that the record does not indicate any problem with the interpreter spelling his
name.

                                              2
        After the State had concluded its initial direct examination of Kayakone, trial

counsel stated he wished to “re-urge my objection to the interpreter. I feel like, based

upon what he has done so far with Mr. Kayakone, it indicates that he is not competent

to serve as an interpreter in a proceeding like this.” The trial court’s reply was, “Okay,

you need to be specific. Because I didn’t see anything that I would feel he wasn’t

interpreting.” This led trial counsel to suggest that, “there were numerous occasions

where a question was asked by the prosecutor and it was given to Mr. Kayakone, Mr.

Kayakone gave a very long, elaborate response. The interpreter then gave a very short

and abbreviated answer.” The trial court’s response suggested that, if trial counsel felt

that was occurring, he needed to object at that time so that the trial court could address

it timely.


        At this juncture of the trial, the trial court made a statement regarding the ability

to obtain a “certified” Laotian interpreter. The trial court advised that it was not aware of

any “certified” Laotian interpreters within five hundred miles of Randall County. After

the trial court’s statement, trial counsel again asked to voir dire the interpreter prior to

bringing the jury back into the courtroom. At this time, trial counsel’s single inquiry was

whether or not the interpreter had simply relayed the witness’s answers to the questions

into English. The interpreter avowed he had done only that. Trial counsel made no

additional objections regarding the interpreter’s qualifications.3


        At the conclusion of the evidence, the jury found appellant guilty of the lesser-

included offense of aggravated assault and answered affirmatively to the deadly


        3
        Trial counsel did object to nonresponsive answers and leading questions;
however, none of these objections relate to the issue presented.

                                              3
weapon special issue. Thereafter, the jury heard punishment evidence and found that

the punishment enhancement portion of the indictment was true and assessed

appellant’s sentence at confinement in the ID-TDCJ for 30 years with a fine of $4,000.


       Appellant perfected his appeal and brings two issues before this Court. In his

first issue, appellant contends that the trial court abused its discretion in appointing an

interpreter who was not licensed and incompetent without making the findings required

by section 57.002(e) of the Texas Government Code. See TEX. GOV’T CODE ANN. §

57.002(e) (West Supp. 2013).4         Appellant’s second issue contends that section

57.002(e) violates equal protection and is unconstitutional. We disagree and will affirm.


                                   Preservation of Error


       Before turning to the merits of appellant’s arguments, this Court must first

ascertain whether the issues now argued by appellant were properly preserved for

appeal. To preserve error, the record before the Court must show that appellant made

a timely request, objection, or motion, and that the trial court ruled upon it. TEX. R. APP.

P. 33.1(a);5 Garza v. State, 126 S.W.3d 79, 81-82 (Tex. Crim. App. 2004). The reason

for this requirement, as applicable to the case before the Court, is to inform the trial

court the basis for the objection and give it the opportunity to make a ruling. Garza, 126

SW3d at 82. Therefore, we turn first to the issues raised by the State’s brief regarding

the questions of procedural default and issue preservation.


       4
         Further reference to the Texas Government Code will be by reference to
“section ____” or “§ ____.”
       5
         Further reference to the Texas Rules of Appellate Procedure will be by
reference to “Rule ____.”

                                             4
General Objection and Timeliness of Objection


       Appellant’s first issue may be segregated into two parts and, indeed, it must.

The first part seems to go to the qualifications of the interpreter. At trial, counsel simply

averred a general concern about the qualifications of the interpreter. This first attempt

at an objection is too general to provide the trial court with any basis upon which it could

rule. See Rule 33.1(a)(1); Wilson v. State, 541 S.W.2d 174, 175 (Tex. Crim. App.

1976). Subsequently, appellant’s counsel simply re-urged his objection. Again, this

provides nothing for the trial court to rule upon. Id. Counsel did make a statement to

the trial court, after he re-urged his objection, that seemed to again voice concern about

the interpreter’s qualifications; however, even if we were to conclude that this was a

sufficient objection, he never requested a ruling from the trial court and did not get one.

Again, there is nothing preserved for appeal. Finally, trial counsel attempted to set forth

an objection at this juncture of the trial; however, this objection was a reference to some

earlier, unspecified portion of the trial where counsel felt the answers given by the

witness were long and involved and the answers given by the interpreter were short and

direct. The trial court urged counsel to make those objections, if they were needed, at

the time of the incident and not later. Again, there was no ruling by the trial court and, in

fact, when an objection such as this is made, the trial court would, because of a lack of

timeliness of objection, be forced to speculate about to what questions appellant was

referring. See Rule 33.1(a); see also Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim.

App. 2012) (holding that no hyper-technical or formalistic words are required to preserve

error by way of objection, the objecting party must let the trial court know what they

                                             5
want it to rule on at a time when the trial court is in position to do something about it).

Because appellant’s objections were of a general nature that did not properly apprise

the trial court of the perceived error and were made, not at the time of the alleged error,

but later in the trial, we hold that the error, if any, was not preserved for appeal. The

first part of appellant’s first issue is overruled.


Failure to Comport


       The second part of appellant’s first issue contends that the trial court abused its

discretion by appointing the interpreter without making the findings required by section

57.002(e). Our review of the record reveals that this objection was never placed before

the trial court. Rather, at trial, the objection, as reflected above, went to a question of

the general competency of the interpreter. As such, appellant’s trial objection does not

comport with this portion of his first issue. See Rule 33.1(a)(1); see also Swain v. State,

181 S.W.3d 359, 367 (Tex. Crim. App. 2005) (en banc).             Accordingly, nothing is

preserved for appeal regarding section 57.002(e). Id. The second portion of appellant’s

first issue is overruled.


Failure to Object


       Next, we turn our attention to appellant’s second issue. In this issue, appellant

contends that section 57.002(e) violates equal protection and is unconstitutional. We

initially note that appellant presents no clear issue about whether he is contesting

section 57.002(e) as facially unconstitutional or as unconstitutional as applied. In this

case, it matters not because appellant made neither argument at trial. If his argument is

that the statute is facially unconstitutional, such an argument is required to be made


                                                 6
before the trial court. See Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App.

2009). If however, appellant is making an allegation that the statute is unconstitutional

as applied to him, such an argument must also be preserved by presentation to the trial

court. Cartier v. State, 58 S.W.3d 756, 759 (Tex. App.—Amarillo 2001, pet. ref’d) (citing

Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995)). Because appellant

failed to make his complaint known to the trial court, nothing is preserved for appeal.

See Rule 33.1(a)(1). Accordingly, appellant’s second issue is overruled.


                                        Conclusion


         Having overruled both of appellant’s issues, we affirm the judgment of the trial

court.




                                          Mackey K. Hancock
                                              Justice


Do not publish.




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