Garcia, Irving Magana, 2014 Tex. Crim. App. LEXIS 540

Defendant Irving Magana Garcia is a native Spanish speaker who does not understand English; the trial judge knew this but did not appoint a court interpreter at trial.
Defense counsel is bilingual, testified he recommended against an interpreter as distracting to counsel and the jury, summarized Spanish testimony for Garcia during breaks, and said Garcia replied, in Spanish, "Whatever you want."
At an unrecorded bench conference before testimony, counsel told the prosecutor and judge that Garcia did not want an interpreter; the bench colloquy was not transcribed.
After conviction for murder, Garcia moved for a new trial alleging the judge erred in failing to appoint an interpreter and that any waiver was not knowing/voluntary; the court held an evidentiary hearing.
The trial judge found Garcia waived the interpreter right (based on the bench conference and testimony) and denied the new-trial motion; the court of appeals and the Court of Criminal Appeals affirmed.

Issue	Plaintiff's Argument (Garcia)	Defendant's Argument (State)	Held
Whether a waiver of the right to a court-appointed interpreter must be on-the-record via a colloquy to be valid on appeal	Waiver of this Marin category-two right must be knowing and voluntary and cannot be presumed from an off-the-record bench colloquy; the record here is insufficient	The record need not contain a formal on-the-record colloquy if other record evidence (testimony, judge’s recollection) affirmatively shows a waiver	Court: No formal on-the-record colloquy is required; waiver may be shown by other affirmative record evidence and was shown here
Whether Garcia's waiver was knowing and voluntary or coerced by counsel's strategic advice	Garcia: Counsel pressured him to choose between an interpreter and effective counsel, rendering the choice involuntary/coerced	State: Counsel advised strategically; Garcia was informed and agreed — waiver was voluntary	Court: Evidence showed counsel told Garcia of the right, Garcia agreed, and the judge could infer a voluntary waiver; dissent would have found the choice coercive and involuntary

Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) (distinguishes three rule categories; category-two rights must be implemented unless expressly waived)
Goffney v. State, 843 S.W.2d 583 (Tex. Crim. App. 1992) (presuming waiver from a silent record is impermissible; waiver must be shown by record or allegation and evidence)
Carnley v. Cochran, 369 U.S. 506 (U.S. 1962) (record must allow assessment that defendant knew dangers of self-representation)
Miranda v. Arizona, 384 U.S. 436 (U.S. 1966) (waiver of rights need not always be express; can be inferred from conduct)
North Carolina v. Butler, 441 U.S. 369 (U.S. 1979) (an express oral or written waiver is strong proof but not always necessary)
Boykin v. Alabama, 395 U.S. 238 (U.S. 1969) (record must reflect voluntary waiver of certain rights when pleading guilty)
Johnson v. Zerbst, 304 U.S. 458 (U.S. 1938) (waiver is an intentional relinquishment of a known right; preferable that trial court put waiver on the record)
Davison v. State, 405 S.W.3d 682 (Tex. Crim. App. 2013) (record may otherwise affirmatively disclose waiver even without a contemporaneous transcription)