Case Information
*0 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 6/12/2015 2:08:08 PM VIVIAN LONG CLERK *1 ACCEPTED 07-14-00408-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 6/12/2015 2:08:08 PM Vivian Long, Clerk
CASE NO. 07-14-00408-CR _____________________________________________ IN THE SEVENTH JUDICIAL COURT OF APPEALS AMARILLO, TEXAS _____________________________ JESUS RIVERA DAVILA Appellant v.
THE STATE OF TEXAS Appellee
_____________________________ FROM THE 100 DISTRICT COURT OF CARSON COUNTY; NO. 5158; HONORABLE STUART MESSER, JUDGE __________________________________________ APPELLEE’S BRIEF __________________________________________ ____________________________ Luke McLean Inman 100 TH J UDICIAL DISTRICT ATTORNEY 800 West Avenue, BOX 1 Wellington, TX 79095 State Bar No. 24050806 (806) 447-0055 – Telephone (866) 233-2738 – Facsimile Email: luke.inman@windstream.net A TTORNEY FOR A PPELLEE *2 CASE NO. 07-14-00480-CR TRIAL COURT CASE NO. 5158 _____________________________________________ IN THE SEVENTH JUDICIAL COURT OF APPEALS AMARILLO, TEXAS _____________________________ JESUS RIVERA DAVILA Appellant
v. THE STATE OF TEXAS Appellee
_____________________________ FROM THE 100 th DISTRICT COURT OF CARSON COUNTY; NO. 5158; HONORABLE STUART MESSER, JUDGE __________________________________________ APPELLEE’S BRIEF __________________________________________ Respectfully submitted, ______________________________ Luke McLean Inman 100 Judicial District Attorney State Bar No. 24050806 800 West Avenue, Box 1 Wellington, TX 79095 (806) 447-0055 – Telephone (866) 233-2738 - Facsimile Email: luke.inman@windstream.net A TTORNEY FOR A PPELLEE *3 CERTIFICATE OF INTERESTED PERSONS I hereby certify that the following listed person(s) or entities have rights which may be adversely affected by the outcome of these appeals in this Court so
that the Justices of this Court may review the same to determine the need for
refusal or disqualification, if necessary, herein:
1. The Defendant/Appellant, JESUS RIVERA DAVILA, is currently incarcerated and may be served with process herein at the address of his Counsel
of Record, Mr. Dale A. Rabe, Jr., P.O. Box 1257, Childress, Texas 79201.
2. The Appellee, the STATE OF TEXAS, is represented herein by Luke M.
Inman, District Attorney for the 100 Judicial District, 800 West Avenue, Box 1,
Wellington, Texas 79095, Telephone (806) 447-0055, Facsimile (866) 233-2738,
and may be served with process at his address.
i *4 TABLE OF CONTENTS SUBJECT INDEX SUBJECT: PAGE:
Certificate of Interested Persons……………………………… i
Table of Contents……………………………………………… ii - iii
Subject Index…………………………………………… ii Index of Authorities…………………………………… iii Statement of the Case………………………………………… 1 - 2
Counterpoint of Error………………………………………… 3
Statement of the Facts………………………………………… 3 - 6
Summary of the Arguments…………………………………… 6 - 7
Arguments and Authorities…………………………………… 7 - 10
COUNTERPOINT OF ERROR NUMBER ONE:…………… 7 - 10
THE APPELLANT WAS NOT DENIED HIS DUE PROCESS
RIGHT TO CONFRONT WITNESSES WHEN HE WAS NOT
APPOINTED AN INTERPRETER TO REVIEW THE TERMS OF
HIS COMMUNITY SUPERVISION.
Prayer…………………………………………………………… 11
Certificate of Service…………………………………………… 11
Certificate of Compliance ………………………………………. 12
ii *5 INDEX OF AUTHORITIES Cases Page
Texas Cases
Bustillos v. State
464 S.W.2d 118 (Tex. Crim. App. 1971) ………………………….. 7
Cantu v. State
716 S.W.2d 688 (Tex. App. – Corpus Christi 1986, no pet.) ………. 8
Diaz v. State
491 S.W.2d 166 (Tex. Crim. App. 1973) ………………………….. 8
Nguyen v. State
774 S.W.2d 348 (Tex. App. – Houston[14 Dist.] 1989) ………….. 7,8
Statutes
Texas Code of Criminal Procedure
Tex. Code Crim. Proc. Ann. art. 38.30 (a)(Bender 2014) …………. 7
iii *6
APPELLEE’S BRIEF TO THE HONORABLE SEVENTH COURT OF APPEALS:
THE STATE OF TEXAS, the Appellee in the above-styled and numbered cause, by and through her counsel of record on appeal herein, submits to this Court
her Brief on Appellant’s appeal responding to points of error of fact and law in the
trial court below as follows:
For convenience, the State of Texas, Appellee, will hereinafter be referred to as the State, and the Appellant, Jesus Rivera Davila, will hereinafter be referred to
as the Appellant, throughout the remainder of this brief. References to the
Reporter’s Record are designated as “(R.R. Vol. #, page #, line (s) #)” and the
Clerk’s Record are designated as “(C.R. page #).”
STATEMENT OF THE CASE On April 22, 2013, in Cause Number 5158, in Carson County, Texas, the Appellant pleaded guilty to the first degree felony offense of possession of a
controlled substance. R.R. Vol. 1, p. 8, L 22 – p. 9, L 3. The trial court placed
Appellant on deferred adjudication community supervision for a period of five
years and ordered Appellant to pay a fine and lab fees and complete 400 hours of
community service and pay an out-of-state probation transfer fee. R.R. Vol. 1, p.
23, LL 16-18.
On March 7, 2014, the State filed a Motion to Adjudicate, alleging that the Appellant had violated his deferred adjudication community supervision by
committing the offense of possession of cocaine and the offense of possession of
drug paraphernalia on or about October 14, 2013 in Polk, County, Florida; by
consuming cocaine; by failing to report monthly by mail for November 2013; and
by failing to complete the required hours of community service. R.R. Vol. 1, p. 10,
LL 22-25, p. 11, LL 11-25, p. 12, LL 1-3.
On November 19, 2014, the trial court conducted a hearing on the Motion to Adjudicate. R.R. Vol. 1, p. 1, L 13. The Appellant pleaded not true to all of the
allegations. R.R. Vol. 1, p. 14, L 20. At the conclusion of the hearing, the trial
court found that the Appellant had violated the terms of his community supervision
by committing the offense of possession of drug paraphernalia, by failing to report
monthly by mail for the month of November 2013, and by failing to complete the
required hours of community service. R.R. Vol. 1, p. 62, LL 7-14. The trial court
then adjudicated the Appellant guilty of the first degree felony offense of
possession of a controlled substance. R.R. Vol. 1, p. 62, LL 15-17. The trial court
assessed the Appellant’s punishment at incarceration for a term of 55 years and the
remainder of the $2,000 fine. R.R. Vol. 1, p. 96, LL 2-3.
COUNTERPOINT OF ERROR COUNTERPOINT OF ERROR NUMBER ONE:
THE APPELLANT WAS NOT DENIED HIS DUE PROCESS RIGHT TO
CONFRONT WITNESSES WHEN HE WAS NOT APPOINTED AN
INTERPRETER TO REVIEW THE TERMS OF HIS COMMUNITY
SUPERVISION.
STATEMENT OF THE FACTS On March 7, 2014, the State filed a Motion to Adjudicate, alleging that the Appellant had violated his deferred adjudication community supervision by
committing the offense of possession of drug paraphernalia and the offense of
possession of cocaine on or about October 14, 2013; by consuming cocaine on or
about May 25, 2013 and August 3, 2013; by failing to report monthly by mail for
November 2013; and by failing to complete the required community service hours.
R.R. Vol. 1, p. 10, LL 14-25; p. 11, LL 16-25; p. 12, LL 1-3.
On November 19, 2014, the trial court conducted a hearing on the Motion to Adjudicate. R.R. Vol. 1, p. 1, L 13. The trial court appointed an interpreter to
assist the Appellant during the hearing. R.R. Vol. 1, p. 7. The Appellant pleaded
not true to all of the allegations. R.R. Vol. 1, p. 14, L 20.
During the hearing, the State presented the testimony of Mr. Mark White, a Community Supervision Officer with the 100 Judicial District Community
Supervision and Corrections Department. R.R. Vol. 1, p. 16, L 24. Mr. White
testified that on April 22, 2013, he performed the intake interview with the
Appellant after the Appellant pleaded guilty to the first degree felony offense of
possession of a controlled substance. R.R. Vol. 1, p. 18, L 22; p. 20, LL 3-6. Mr.
White testified that during his intake interview with the Appellant, the Appellant
gave no indication that he needed an interpreter to fully understand the terms of his
community supervision. R.R. Vol. 1, p. 21, LL 9-13. Mr. White testified that the
Appellant did not ask for assistance with any translation and did not request the
assistance of an interpreter. R.R. Vol. 1, p. 21, L 16; p. 34, L 25. Mr. White
further testified that there is an interpreter on staff and that he would ask for the
interpreter’s assistance if he felt that it was needed or if the Appellant requested the
interpreter. R.R. Vol. 1, p. 21, LL 9-13; p. 34, L 18. Mr. White testified that he
read each individual condition to the Appellant and that the Appellant indicated
that he understood all of the conditions read to him. R.R. Vol. 1, p. 25, LL 12-13;
p. 26, L 15. Mr. White also testified that the Appellant answered all of the
questions required in the paperwork such as where he lives, how old he is and who
he lives with and that Mr. White was able to understand the Appellant. R.R. Vol.
1, p. 38, LL 1-4.
During the hearing, the State also presented the testimony of Ms. Carol Holcomb, the Assistant Director and Community Supervision Officer with the
100 Judicial District Community Supervision and Corrections Department. R.R.
Vol. 1, p. 41, L 15-16. Ms. Holcomb testified that she was the indirect
supervision officer for the Appellant in Texas and that the Appellant saw a
probation officer directly in Florida. R.R. Vol. 1, p. 43, LL 12-20. Ms. Holcomb
testified that the Appellant was on probation for less than eight months when she
filed a violation report. R.R. Vol. 1, p. 44, L 3. Ms. Holcomb testified that the
Appellant failed to report by mail for the month of November 2013. R.R. Vol. 1,
p. 55, LL 4-6. Ms. Holcomb also testified that the Appellant failed to complete
100 hours of community service by October 1, 2013, as required in the conditions
of his community supervision. R.R. Vol. 1, p. 55, LL 9-11. Ms. Holcomb testified
that the Appellant had only completed 67.5 hours of community service. R.R. Vol.
1, p. 55, L 23. Ms. Holcomb also testified that she did not need an interpreter
when she spoke with the Appellant. R.R. Vol. 1, p. 58, LL 16-18.
Ms. Holcomb also testified that she had received an offense report from the Appellant’s probation officer in Florida. R.R. Vol. 1, p. 45, L 20. The Court
admitted State’s Exhibit 3, which contained court documents from Polk County,
Florida with the charges of possession of cocaine and possession of drug
paraphernalia against the Appellant. R.R. Vol. 1, p. 49, LL 11-13; State’s Exhibit
3. State’s Exhibit 3 also contained a Memo of Sentence/Order of the Court, which
sentenced the Appellant to 120 days in jail for possession of drug paraphernalia.
R.R. Vol. 1, p. 52, LL 12-15; State’s Exhibit 3. Ms. Holcomb testified that the
Appellant’s probation officer in Florida told her that the Appellant admitted in
writing on two occasions that he used cocaine. R.R. Vol. 1, p. 54, LL 18-25.
After the presentation of the evidence, the State waived the violation that the Appellant possessed cocaine and the violation that the Appellant consumed
cocaine. R.R. Vol. 1, p. 61, LL 13-19. The trial court then found that the
Appellant had violated the terms of his community supervision by committing the
offense of possession of drug paraphernalia; by failing to report by mail for the
month of November 2013; and by failing to complete the required community
service hours. R.R. Vol. 1, p. 62, LL 7-14. The trial court adjudicated the
Appellant guilty of the first degree felony offense of possession of a controlled
substance. R.R. Vol. 1, p. 62, LL 15-17. The trial court assessed the Appellant’s
punishment at incarceration for a term of 55 years. R.R. Vol. 1, p. 96, LL 2-3.
SUMMARY OF THE ARGUMENTS The trial court did not violate the Appellant’s due process right to confront witnesses by not appointing an interpreter to review the terms of the Appellant’s
community supervision. Under Article 38.30 of the Code of Criminal Procedure,
the trial court is not required to appoint an interpreter to assist with the community
supervision intake interview as it is not part of a criminal proceeding. In addition,
an interpreter was not necessary for the review of the Appellant’s terms of
community supervision as the Appellant communicated successfully in English
with the community supervision officer and never requested an interpreter.
Furthermore, the Appellant fails to affirmatively state that he did not understand
the terms of his community supervision.
Therefore, this case should be affirmed for the State.
ARGUMENTS AND AUTHORITIES COUNTERPOINT OF ERROR NUMBER ONE:
THE APPELLANT WAS NOT DENIED HIS DUE PROCESS RIGHT TO
CONFRONT WITNESSES WHEN HE WAS NOT APPOINTED AN
INTERPRETER TO REVIEW THE TERMS OF HIS COMMUNITY
SUPERVISION.
When 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)(Bender 2014). In general, the appointment of
an interpreter is reviewed for an abuse of discretion. Bustillos v. State , 464 S.W.2d
118, 126 (Tex. Crim. App. 1971).
In Nguyen v. State , the Appellant was convicted of murder and appealed in part that the trial court erred in refusing to appoint an interpreter to assist defense
counsel. Nguyen v. State , 774 S.W.2d 348 (Tex. App. – Houston[14 Dist.] 1989).
In affirming the conviction, the Nguyen court held that where all testimony was
interpreted, the appellant’s right to confrontation was satisfied and the trial judge
did not abuse his discretion in refusing to appoint a second interpreter. Id. at 350.
The Nguyen court stated that plainly, the first sentence of article 38.30 does not
provide for appointment of an interpreter to act as an intermediary between a
defendant and his counsel. Id . The Nguyen court held that the only basis for the
trial court’s providing an interpreter to an accused is the constitutional and
statutory guarantees of confrontation under the state and federal constitutions. Id .,
citing Diaz v. State , 491 S.W.2d 166 (Tex. Crim. App. 1973); Cantu v. State , 716
S.W.2d 688 (Tex. App. – Corpus Christi 1986, no pet.).
In the current case, the Appellant received the assistance of an interpreter during his plea hearing and during his revocation hearing but complains that the
court erred in not appointing an interpreter for his community supervision intake
interview. See Appellant’s Brief. Article 38.30 of the Texas Code of Criminal
Procedure provides for the appointment of an interpreter during a criminal
proceeding. As stated in Nguyen , the only basis for the trial court’s providing an
interpreter to an accused is the constitutional and statutory guarantees of
confrontation under the state and federal constitutions. The community
supervision intake interview is not a criminal proceeding. The Appellant will not
be confronting witnesses or hearing testimony during the intake interview when the
terms of his community supervision are explained to him. Thus, the appointment
of an interpreter is not required under Article 38.30 for intake interviews. Since
the intake interview is not a criminal proceeding, the trial court is not required to
appoint an interpreter to assist with the intake interview.
Furthermore, in the case at hand, the Appellant did not need an interpreter to review the terms of his community supervision. Mr. White, the community
supervision officer who conducted the Appellant’s intake interview, testified that
the Appellant was able to communicate in English, answered questions in English,
completed paperwork in English and indicated that he understood the terms of his
community supervision. R.R. Vol. 1, p. 35, LL 6-9; p. 36, LL 2-5; p. 38, LL 1-4.
In addition, the Appellant never requested an interpreter or asked for any assistance
with translation during the intake interview. R.R. Vol. 1, p. 21, L 16; p. 34, L 25.
The 100 District Community Supervision and Corrections Department has an
interpreter on staff, who would have assisted the Appellant if the Appellant had
requested an interpreter or if Mr. White thought that an interpreter was necessary.
R.R. Vol. 1, p. 21, LL 9-13; p. 34, L 18. Thus, the community supervision officer
had no indication that the Appellant needed an interpreter to review the terms of
his community supervision and the Appellant never requested an interpreter.
In addition, while the Appellant was appointed an interpreter for his plea and for his revocation hearing, the Appellant indicated his ability to speak English in
court as he was able to answer the court in English during his revocation hearing.
R.R. Vol. 1, p. 13, LL 11-12. Also, Ms. Holcomb, the Appellant’s indirect
probation officer, testified that she spoke to the Appellant in English and did not
need an interpreter when communicating with him. R.R. Vol. 1, p. 58, LL 16-18.
Lastly, the Appellant does not affirmatively state in his brief that he did not understand the terms of his community supervision nor did he complain of not
understanding the terms of his community supervision during his revocation
hearing. The Appellant complains in general in his brief that he was not given an
interpreter to review the terms of his community supervision but he does not state
that he did not understand the terms of his community supervision. See
Appellant’s Brief.
Therefore, in the case at hand the trial court did not violate the Appellant’s due process right to confront witnesses by not appointing an interpreter to review
the terms of the Appellant’s community supervision. Under Article 38.30 of the
Code of Criminal Procedure, the trial court is not required to appoint an interpreter
to assist with the community supervision intake interview as it is not part of a
criminal proceeding. In addition, an interpreter was not necessary for the review of
the terms of community supervision as the Appellant communicated successfully
in English with the community supervision officer and never requested an
interpreter. Finally, the Appellant fails to affirmatively state that he did not
understand the terms of his community supervision.
PRAYER FOR RELIEF The State of Texas respectfully requests this Honorable Court to affirm the Trial Court’s adjudication as well as the conviction of Appellant in all respects.
Respectfully Submitted by, ____________________________________ L UKE MC L EAN I NMAN 100 TH J UDICIAL DISTRICT ATTORNEY 800 West Avenue, BOX 1 Wellington, TX 79095 State Bar No. 24050806 (806) 447-0055 – Telephone (866) 233-2738 – Facsimile Email: luke.inman@windstream.net CERTIFICATE OF SERVICE I, Luke M. Inman, hereby certify that a true and correct copy of the foregoing Brief was on this the 12 day of June, 2015, forwarded to counsel of
record by the United States Postal Service in accordance with the Texas Rules of
Appellate Procedure.
______________________________ Luke M. Inman, District Attorney *17 CERTIFICATE OF COMPLIANCE I, Luke M. Inman, hereby certify that the above and foregoing Appellee’s Brief is 2,598 words in its completion, signed on this the 12 day of June, 2015, in
accordance with the rules governing same.
______________________________ Luke M. Inman, District Attorney