Lead Opinion
delivered the opinion of the Court
The question in this case is whether the record must contain a waiver colloquy between the trial judge and the defendant before an appellate court may conclude that a defendant has waived his right to an interpreter. We hold that the record does not have to contain such a colloquy, as long as the record otherwise affirmatively reflects that a waiver occurred. Concluding that the record affirmatively reflects a waiver in the present case, we affirm the judgment of the court of appeals.
I. BACKGROUND
A. Trial
Appellant is a native Spanish speaker who does not understand English. The trial judge was aware of this fact at trial but did not appoint an interpreter.
At a motion-for-new-trial hearing, appellant’s trial counsel testified that (1) he is fully bilingual and had conversations with appellant in Spanish, (2) he told appellant that he did not want an interpreter because it would be very distracting for the jury and it would make it harder for him to concentrate on what he was doing,
Appellant also testified at the motion-for-new-trial hearing. He explained that counsel told him that he had a right to an interpreter but that counsel said he would not recommend that because having one would distract him and not let him cоncen
The prosecutor testified that she asked defense counsel before trial, “Aren’t you going to have an interpreter for your client?” According to the prosecutor, defense counsel told her that he did not want one and that he did not really want his client to know what was going on. The prosecutor also stated that the judge was informed by defense counsel that the defendant was not going to need an interpreter.
The trial judge stated, “I find that [appellant] waived the right to an interpreter. He waived it verbally. He never objected to an interpreter not being present, and, I mean, that’s what I recall of the case. He knew about the interpreter and he didn’t want an interpreter and, therefore, we didn’t give him an interpreter.” When asked if that waiver was on the record or off the record, the trial judge responded, “The Court finds that the Court talked to [appellant] and [trial counsel]. I want to say it was up here on the bench where we were talking and he said he didn’t want one, so it’s a waiver.”
B. Appeal
On appeal, appellant contended, inter alia res, that the trial judge erred in failing to sua sponte appoint an interpreter. The court of appeals concluded that there was evidence that trial counsel informed the trial court and the prosecutor that appellant did not want an interpreter.
II. ANALYSIS
In Marin v. State, we held that our system contains three distinct сategories of rules: (1) absolute requirements and
For this statement, the Marin decision cited Goffney v. State.
Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which must show, that an accused was offered counsel but intelligently and understanding^ rejected the offer. Anything less is not waiver.16
The Supreme Court has quoted this exact passage in several of its landmark decisions, including Miranda v. Arizona
This conclusion is supported by subsequent caselaw from the Supreme Court and from us. Miranda v. Arizona requires a waiver of the right to remain silent and the right to counsel prior to custodial interrogation for statements to be admissible in the State’s case-in-chief at trial.
Boykin v. Alabama requires that the record reflect a waiver of certain rights necessary to make a plea of guilty voluntary.
We assumed, without deciding, that a silent record concerning the range of punishment would violate the Boykin requirement that the prerequisites of a voluntary guilty plea be spread on the record.
In line with the holdings in Butler and Davison, we conclude that the record in the present case sufficiently reflects that appellant knowingly, intelligently, and voluntarily waived his right to an interpreter. The record here contains evidence that trial counsel told appellant that he had a .right to an interpreter, that appellant agreed with counsel not to request an interpreter, and that appellant and counsel communicated their desire not to have an interpreter to the trial judge, albeit in an off-the-record bench conference. Under these facts the record on appeal sufficiently reflects that a valid waiver took place.
Notes
. Trial counsel specifically testified that he was concerned that appellant would try to ask the interpreter questions while counsel was trying to concentrate on answers or the next question. In response to the question, “And that decreases your ability to be a good lawyer with all this conversation going on right beside you,” trial counsel replied, "I believe so. It’s also very distracting to the jury."
. The prosecutor said that she informed the judge that some of her witnesses would need an interpreter and would be testifying in Spanish.
. The trial judge also stated that trial counsel did "a very good job under the facts of this case” and was "extraordinary” and referred to the fact that counsel "got a murder case where the only way that the lesser-included got into it was because of the confession.” Appellant was charged with and convicted of murder, but the jury found in his favor on the issue of sudden passion, see Tex. Penal Code § 19.02(a), (d), and assessed a sentence of twenty years and a $10,000 fine. Appellant's motion for new trial included allegations of ineffective assistance of counsel. The ineffective-assistance allegations included counsel's failure to secure an interpreter but also extended to other matters. On appeal, appellant raised an ineffective-assistance claim regarding the failure to secure an interpreter, but the court of appeals's resolution of that claim is not before us.
. Garcia v. State, No. 13-11-00547-CR,
. Id.
. Id.
. Id. at *5, 2013 Tex.App. LEXIS 2328 at *13.
.
. See Linton v. State,
. Marin,
. Id. (emphasis added).
. Id. (citing Goffney v. State,
. Goffney,
. Id. at 585.
.
. Goffney,
.
.
.
.
. Barker,
. Id. at 526,
.
.
. Id. at 373,
. Id.
. Id. at 373 n. 4,
. Id.
.
.
. Id. at 684-85.
. Id. at 685.
. Id.
. Id. at 692 ("even assuming that a silent record with respect to the appellant’s awareness of the range of punishment is alone sufficient to trigger' Boykin’s appellate presumptions”). See also Boykin,
. Davison,
. Id.
. Id. at 692 n. 60.
. Citing three Supreme Court cases and several lower court cases, the dissent contends that the record shows appellant’s waiver to be involuntary, because he was forced to choose between forgoing an interpreter and giving up his right to the effective assistance of counsel. We note that two of the Supreme Court decisions cited by the dissent are of questionable value, either because the cited opinion was a mere plurality or because the holding appears to have been overruled. See Moltke v. Gillies,
Dissenting Opinion
filed a dissenting opinion in which JOHNSON and COCHRAN, JJ., joined.
The trial-court judge’s single question asking whether Irving Magana Garcia, appellant, wanted a language interpreter was wholly inadequate to establish that he voluntarily waived his federal constitutional right to an interpreter whose assistance would have enabled him to understand the proceedings and confront the witnesses against him. See U.S. Const, amends. VI, XIV. Although I concur with the majority opinion that, in an appropriate case, a record may be sufficient to show a knowing and voluntary waiver despite the absence of a transcript of the actual statements at the time they transpired, I disagree that the record in this case adequately establishes that appellant’s waiver of his right to an interpreter was voluntary. Accordingly, I would reverse the judgment of the court of appeals upholding appellant’s conviction for second-degree murder and remand to the court of appеals for a harm analysis. See Garcia v. State, No. 13-11-00547-CR, 2018 Tex.App. LEXIS 2328,
I. Background
In 2011, a jury convicted appellant of murder, and he was sentenced to twenty years in prison and a fine of $10,000 after the jury determined, in the punishment phase, that he killed the complainant under the immediate influence of sudden passion arising from an adequate cause. See Tex. Penal Code § 19.02(a), (b), (d). At trial, appellant, who speaks and understands only Spanish, was represented by an attorney who was fluent in Spanish and English. No interpreter translated the proceedings into Spanish for appellant. Appellant, however, was able to understand testimony by seven of the twenty witnesses who testified in Spanish with an interpreter translating their testimony into English for the jury. Appellant also testified in his own defense, with his testimony being translated from Spanish into English by an interpreter. For the twelve witnesses who testified in English, counsel gave appellant “a very brief summary of what the witnesses said that was harmful to us.”
After sentencing, appellant filed a motion for new trial asserting that he did not knowingly and voluntarily waive his right to an interpretеr. See Tex.Code Crim. Proc. art. 38.30. The trial court initially denied appellant’s motion for new trial without a hearing. This became one of appellant’s complaints in his brief on direct appeal, prompting an abatement by the court of appeals to allow appellant to introduce evidence at a new-trial hearing. See Garcia,
II. Analysis
Although I agree with the majority opinion that a record of the parties’ actual statements at the time they are made is not a procedural prerequisite to a finding that a waiver is shown in the record,
A. Any Waiver of An Interpreter Must Be Knowing and Voluntary
“When a trial judge is aware that the defendant has a problem understanding the English language, the defendant’s right to have an interpreter translate the trial proceedings into a language which the defendant understands is a category-two Marin right.” Garcia v. State,
B. Record Fails to Establish that Appellant’s Waiver Was Voluntary
Assuming that the record supports a determination that appellant acted knowingly in that he was aware that he was giving up his right to have an interpreter, I would hold that it is inadequate to establish that he executed his waiver voluntarily.
1. Choice Is Involuntary When Result Of Constitutionally Offensive Options
This Court recently reaffirmed that federal “due process requires that ‘[wjaivers of constitutional rights not only must be done voluntarily but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.’” Davison v. State,
Here, the trial court did not make any factual finding with respect to whether appellant’s waiver was vоluntary or whether it believed appellant and his counsel’s testimony with respect to their reasons for declining an interpreter. The only evidence in the record with respect to appellant’s and trial counsel’s rationale for declining an interpreter was that counsel told appellant that having an interpreter would result in counsel being unable “to concentrate in defending” him because the interpreter was too distracting to counsel and the jury.
It is true that the trial court made what it labeled as a finding of fact stating that there were “valid reasons, pertaining to trial strategy” to explain why appellant did not request an interpreter.
Although it is not dispositive of the question before us in this appeal, I note here that at least one court has deemed trial counsel’s purported strategy in declining the services of an interpreter to be unreasonable. See Ling v. State,
I conclude that the trial court’s determination that the decision to waive an interpreter was based on valid trial strategy does not answer the separate question of whether appellant’s waiver was voluntary, which is the pertinent question for purposes of determining whether that waiver was valid. Marin,
3. Silent Record Inadequate to Establish That Choice Was Voluntary
Even if I were to assume that the trial court disbelieved appellant’s and counsel’s testimony describing this choice, all that would remain is a silent record with respect to whether appellant’s waiver was voluntary and what appellant’s reasons may have been for declining an interpreter. Without facts in the record to show that the waiver was voluntary, this Court should not presume that it was. See Carnley v. Cochran,
4. Federal Courts Provide Guidance on Best Practices
Although I might ordinarily look to factually similar federal case law for guidance as to what would constitute a voluntary waiver of the right to an interpreter, that matter is infrequently litigated in the federal courts because, pursuant to federal statute, a defendant may not waive his right to an interpreter unless certain procedural safeguards are met. See 28 U.S.C. § 1827(f)(1). Section 1827 specifies that a criminal defendant “who is entitled to interpretation ... may waive such interpretation in whole or in part,” but further stipulates that such a waiver
shall be effective only if approved by the presiding judicial officer and made expressly by such individual on the record after opportunity to consult with counsel and after the presiding judicial officer has explained to such individual, utilizing the services of the most available certified interpreter, or when no certified interpreter is reasonably available, as determined by the presiding judicial officer, the services of an otherwise competent interpreter, the nature and effect of the waiver.
Id.
As the United States Court of Appeals for the Fifth Cirсuit has observed in interpreting the federal statutory requirements in this area, the “waiver of an interpreter is not a decision for [a defendant’s] counsel or the Court to make. It is the defendant’s decision, after the Court explains to him the nature and effect of a waiver.” United States v. Tapia,
To ensure that a defendant’s federal right to confront the witnesses against him is protected, federal law has established
III. Conclusion
Although I agree with the State that a record may be adequate in rare cases to show a knowing and voluntary waiver of the right to an interpreter in the absence of a transcription of the actual statements by a defendant waiving that right, this record fails to establish that appellant’s waiver was voluntary. The record conclusively shows that counsel did not want an interpreter for his own reasons and urged appellant to forego his right to an interpreter without fully explaining the nature of the right at stake and the possible consequences of waiving that right. The trial court then compounded the problem by failing to verify that appellant’s waiver was being made freely and voluntarily, with an adequate awareness of his rights and the effect of the waiver. In light of these facts, I would hold that appellant’s waiver was ineffective and that his federal constitutional right to confront the witnesses against him was violated. See Davison,
. After it denied appellant’s motion for new trial, the trial court made six written findings of fact, four of which are discussed within the portion of this opinion to which they are pertinent. See Tex.R.App. P. 21.8(b) (permitting court ruling on motion for new trial to
. For example, at the start of appellant's arraignment, the record indicates that the trial judge asked appellant, "Do you understand English?” to which appellant answered, "No.”
. The trial judge stated orally after the new-trial hearing that he recalled having talked to appellant and appellant’s trial counsel "up here on the bench where we were talking and he said he didn’t want one, so it’s a waiver.” The State’s attorney also recalled a disсussion with the trial judge at the bench, during which appellant’s trial attorney told the judge that they did not want an interpreter. The State’s attorney testified, "I think that it was an informal question by the Judge, are you going to want an interpreter? ... I know that the Judge was informed that he wasn’t going to need an interpreter.” The State’s attorney did not believe that the trial court had ever talked "at all” to appellant himself about whether he wanted an interpreter. Based on this evidence and the trial judge's own recollection, the judge’s third and fourth findings state,
3. Based upon the credible testimony of [the State’s attorney] ... and this Court's recollection of the underlying proceedings, [appellant] waived his right to an interpreter during an unrecorded bench conference.
4. That it was based on this waiver that this Court determined that the appointment of an interpreter was not needed.
. In discussing how a Marin category-two right is waived, this Court has stated that this occurs "always on the record.” Marin v. State,
. The trial court did not make any express finding that appellant acted knowingly in waiving his right to an interpreter. Although the record does show that appellant was aware of his right to an interpreter, I do not reach the question of whether his waiver was executed knowingly in the sense that it was made with sufficient awareness of both the relevant circumstances and likely consequences of waiving that right. See Joseph v. State,
. Appellant testified at the hearing on the motion for new trial that trial counsel did not “recommend” an interpreter because "that would distract him and not let him concentrate very well.” The record shows the following:
[State's attorney] Did you agree — again, you agree[d] not to request an interpreter and you did not want one present?
[Appellant]: Yes, because he told me that he was not going to be able to concentrate in defending me.
Trial counsel similarly testified that having an interpreter would be too distracting for counsel. The record shows the following:
[Appellate counsel]: So in your affidavit, ... [you state that t]he "accused and I agreed not to ask for an interpreter.” What else goes in — in your and his decision-making to support that sentence?
[Trial counsel]: Well, I just told him I didn’t want an interpreter and he says whatever you want.
Trial counsel further explained to appellant that he thought that an interpreter "would be very distracting for the jury” because the jury might be looking at appellant and the interpreter "as opposed to concentrating on the evidence in this case.” Trial counsel also thought that an interpreter would be distracting to counsel because appellant might be "asking the interpreter questions while [trial counsel was] trying to listen to answers, or thinking about the following question.”
. The trial court made two fact findings, numbers two and five, determining that appellant was "aware of his right to an interpreter and for valid reasons, pertaining to trial strategy, did not request an interpreter,” and that counsel discussed with appellant his “right to an interpreter and had a valid strategy in recommending that they not seek the appointment of an interpreter.” Although he did not expressly state whether he believed appellant’s and counsel’s testimony describing their reasons for declining an interpreter, the judge implicitly credited that testimony by deciding that it formed the basis of a valid trial strategy-
Dissenting Opinion
OPINION DISSENTING FROM THE DENIAL OF REHEARING
filed an opinion dissenting from the denial of rehearing, in which JOHNSON and COCHRAN, JJ., joined.
It seems that, despite the great strides that Texas’s criminal-justice system has made in ensuring that all people will have fair trials, for every two steps forward there is one step back. The Court’s holding in this case represents that step back and affects not only the Hispanic population in Texas, but all Texans who expect that their State’s courts will consistently abide by the requirements of the United States Constitution. See U.S. Const, amends. VI, XIV. Non-English speakers and those with only a poor grasp of English comprise approximately nine percent of the population in Texas, or roughly two million people. See Camille Ryan, Language Use in the United States: 2011 American Community Survey Reports, U.S. Census BuReau, Aug. 2013, at 3, 11, availablе at http://www.census.gov/prod/2013pubs/acs-22.pdf (noting that roughly nine percent of those Texans surveyed in 2010 who spoke a non-English language at home rated their English-speaking ability as “not at all,” the highest of any state). Assuming that the same proportion of non-English speakers will appear as criminal defendants in Texas state courts, that means that this Court’s majority opinion will likely affect tens of thousands of defendants who, like Irving Magana Garcia, appellant, are unable to speak or understand the English language and are entirely dependent on courts to provide language translators for them.
I. The Majority Opinion Never Addressed Appellant’s Ground in His Petition
This Court’s majority opinion began by setting up high hopes that appellant’s complaint would be addressed. In a single paragraph at the beginning of the analysis section, the majority opinion accurately set forth the law for waiver of an interpreter. See Garcia v. State, No. PD-0646-13,
After the single paragraph correctly describing the applicable law, the majority opinion went astray by focusing in its remaining pages solely on the meaning of the above italicized phrase, “always on the record.” See id. at *3-4. This Court then affirmed appellant’s conviction through a single conclusory sentence that states, “The record here contains evidence that trial counsel told appellant that he had a right to an interpreter, that appellant agreed with counsel not to request an in
Did the court of appeals correctly fail to analyze the issue of whether appellant Garcia made an intelligent, knowingly [sic] and voluntary waiver of his rights to confrontations, equal protection, and due process under Amendments VI and XIV, United States Constitution, to be knowingly present with and hear in the Spanish Language from a qualified interpreter all said in the English language during рroceedings in the cause’s critical stages at the pretrial hearings and the jury trial?
This Court should grant rehearing to answer the question it left unanswered previously, namely, whether the communication from counsel representing to the trial court that appellant did not desire an interpreter could be characterized as an intelligent, knowing, and voluntary waiver of appellant’s federal constitutional rights.
As pointed out in this motion for rehearing, the “record in this case affirmatively shows that the trial judge and the attorneys for both the State and the defense knew that Appellant could speak and understand only Spanish” and that “the trial judge did not make any inquiries beyond merely asking Appellant’s counsel if appellant wanted an interpreter.” Furthermore, the motion for rehearing observes that “the record is also exceedingly clear that Appellant’s attorney never explained to his client that he had a personal and constitutional, state and federal, right to have an interpreter, and to have him interpreting for him at all phases of trial, and that it really was not his lawyer’s right at all.” The motion explains that “it is undisputed that nobody (not the trial judge, not the prosecutors, not the interpreter, and not defense counsel) ever informed Appellant he had both federal and state constitutional rights which he would have to expressly waive.” The motion concludes that the record “certainly does not demonstrate that such waiver was a voluntary, knowing and intelligent waiver.”
The motion for rehearing accurately observes that the majority opinion wholly failed to answer the pertinent questions in this appeal with respect to whether the appellant’s waiver was made knowingly and voluntarily. It states,
These undisputed truths regarding Appellant and his ability to have any understanding of the testimony of the majority of trial witnesses leads to two questions which this Court failed to fully answer. First, whose rights were explained to Appellant? Second, what did Appellant’s acquiescence to his lawyer’s desires mean in the context of a waiver of personal rights? It is fundamentally clear that, when trial counsel told Appellant he could have an interpreter, but that he (defense counsel) did not want one, counsel was not exрlaining the defendant’s right to an interpreter. It is this failure which goes unrecognized in the Court’s opinion.
As I observed in my dissenting opinion in this case, because he was aware of appellant’s language barrier, “ ‘the judge has an independent duty to ensure that the proceedings are interpreted for the defendant, absent the defendant’s knowing and intelligent waiver.’ ” See Garcia,
The Texas criminal-justice system has recently taken two steps forward with respect to providing for language access in courts. First, according to the Office of Court Administration (OCA), the Texas Legislature has recently provided funding for a Language Access Program to “help reduce linguistic barriers to meaningful justice in Texas courts.”
By doing nothing apart from asking trial counsel if appellant wanted an interpreter, the trial court judge was either uninformed of his absolute duty to obtain an effective waiver from appellant or unwilling to do so. This problem was compounded by the conduct of trial counsel, who apparently believed himself to be so inept that he would be unable to concentrate on witness testimony merely because of the presence of an interpreter. In light of the fact that the interpreter translated the testimony of many of the Spanish-speaking witnesses into English for the jury, trial counsel’s reasoning that he would be unable to concentrate if the interpreter also translated the testimony of English-speaking witnesses into Spanish for appellant lacked any logical foundation and was misguided. Based on the absence of information from the trial court judge and the misguided representations by trial counsel, appellant cannot rationally be characterized as having been adequately informed of his rights so as to have been аble to make an intelligent, knowing, and voluntary waiver of his federal constitutional right to an interpreter. This is not a problem caused by a lack of funding or inadequate access to interpreters, but is instead one that implicates a judicial failure to enforce federal constitutional rights. Because this Court’s majority opinion refused to even address appellant’s federal constitutional complaint on the grounds that he presented in his appeal, I respectfully dissent from this Court’s denial of his motion for rehearing.
. According to the Office of Court Administration, in fiscal year 2013, Texas criminal dis
.' Texas Court Remote Interpreter Seivice Completes 157 Hearings, CourTex Newsletter (Texas Office of Court Administration, Austin, T.X.), April 2014, http://archive.constant contact, com/fs 126/111032278485 8/archive/ 1117290237285. html; see also Texas Judicial Council, Director’s Report 9-10 (Feb.2014), available at http://www.courts.state.tx.us/tjc/ meetings/022114/ Directors ReportFeburary 2014.pdf.
. See Office of Court Administration, Remote Interpreter Service, http://archive.constant contact.eom/fsl26/l 110322784858/archive/ 1117290237285. html.