Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 9/27/2016 8:28:02 AM JEFFREY D. KYLE Clerk IN T HE C O U RT OF APPEALS N O. 03-15-00727-CR THIRD COURT OF APPEALS 9/27/2016 8:28:02 AM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00727-CR *1 ACCEPTED ^[12913597] CLERK T H I RD D I S T R I CT OF TEXAS IN A U S T IN J U AN JOSE R A M I R E Z, SR., Appellant V.

T HE STATE OF TEXAS Appellee Appeal in Cause N o. 41984 in the 424^^ Judicial District Court of Burnet County, Texas Brief For Appellee Oral Argument Requested OFFICE OF D I S T R I CT A T T O R N EY 33^^ and 424'^ J U D I C I AL D I S T R I C TS WILEY B. " S O N N Y" McAFEE, D I S T R I CT A T T O R N EY Gary W. Bunyard Assistant District Attorney P. O. Box 725 Llano, Texas 78643 Telephone Telecopier (325) 247-5755 (325) 247-5274 g.bunyard@co.llano.tx.us State Bar, N o. 03353500 A T T O R N EY FOR APPELLEE September 27, 2016 *2 Identity Of The Parties Trial Court

Honorable Evan Stubbs

424'^ Judicial District

Burnet County Courthouse Annex (North) 1701 East Polk St., Suite 74

Burnet, TX 78611

State/Appellee Counsel

Blake Ewing (Pretrial and Trial) Assistant District Attorney (former) 1701 E. Polk St., Suite 24

Burnet, TX 78611

(512) 756-5449

State Bar N o. 24076376 Kristen Sharpe (Trial) Assistant District Attorney

1701 E. Polk St., Suite 24

Burnet, TK 78611

(512) 756-5449

State Bar N o. 24073482

Gary W. Bunyard (Appellate) Assistant District Attorney

P. O. Box 725

Llano, Texas 78643

(325) 247-5755

State Bar N o. 03353500

g.bunyard@co.llano.tx.us

ii *3 Appellant Counsel

Revis Kanak (Pretrial and Trial) Public Defender's Office

1008 N. Water Street

Burnet, Texas 78611

Telephone:(512)234-3061

State Bar N o. 11091500

Daniel H. Wannamaker (Appellate) 1012 Rio Grande St.

Austin, Texas 78701

(512) 236-9929

State Bar N o. 20834300

dhw@wannamakerlaw.com

Appellant

Juan Jose Ramirez, Sr.

T D CJ #02032163

SID #06581167

Bartlett State Jail

1018 Arnold D r.

Bartlett, TX 76511

iii *4 Table Of Contents Page Index of Authorities V 1

Statement of the Case 1

Statement on Oral Argument 2

Response to Issues Presented 3

Statement of the Facts 6

Summary of the Argument - Issue N o. 1

By not requesting a licensed court interpreter Appellant

has waived his right to have the court appoint a licensed

interpreter for the Plea Bargain Deadline hearing and

has further failed to preserve for appellate review any

error on this issue.

Argument on Issue N o. 1

lA Principals of Law 6

1.2 Applicable Facts 8

1.3 Discussion and Conclusion 10

Prayer for Relief. 15

Certificate of Word Count 15

Certificate of Service

iv *5 Index Of Authorities Case Law Page

Baltierra v. State,

586 S.W.2d 553, 556-559 (Tex. C r i m. App. 1979) 11

Briones v. State,

595 S.W.2d 546, 548 (Tex. C r i m. App. 1980) 7

Ex parte Marez,

464 S.W.2d 866 (Tex. C r i m. App. 1971) 7

Ex parte Zantos-Cuehas,

429 S.W.3d 83 (Tex. App. - Houston Dist.] 2014, no pet.). 12,14

Garcia v. State,

151 Tex. C r i m. 593, 210 S.W.2d 574 (1948) 7

Garcia v. State,

149 S.W.3d 135, 138-140 (Tex. C r i m. App. 2004)

Hernandez v. State,

986 S.W.2d 817, 822 (Tex. App. - Austin 1999, pet. ref d) 7, 14

Constitutions

None cited

V *6 Statutes/Rules

Tex. Code C r i m. Proc. art. 38.30(a)

Treatises/Publications

None cited

statement Of The Case Appellant has reasonably set forth the Statement of the Case as proscribed in Tex.

R.App. P. Rule 38.1 (d).

Statement on Oral Argument The undersigned requests Oral Argument. The undersigned does not believe

that Oral Argument w i ll be beneficial for this case for the reason that the issues are

straight forward and do not contain complex nuances, however, the Appellant has

requested Oral Argument. In such event that this Court should believe that Oral

Argument would assist the Court, the undersigned w i ll gladly participate.

Response to issues Presented Issue N o. One:

By not requesting a licensed court interpreter Appellant has waived his right

to have the court appoint a licensed interpreter for the Plea Bargain Deadline

hearing and has further failed to preserve for appellate review any error on

this issue.

statement Of TIte Facts Appellant has not fully described the Statement of the Facts in accordance w i th

Tex. R. App. P. Rule 38.1(g).

Appellant was charged by Indictment w i th the offense of Aggravated Assault W i th

A Deadly Weapon.^ Prior to trial the trial court conducted a Plea Bargain Deadline

Hearing wherein Appellant informed the trial court that he declined the plea bargain

offer made by the State.^

On the day of trial the trial court announced for the record that M r. Tomas Leon

and Mrs. Sophia Leon, each certified Spanish/English interpreters, were present.^

At trial State's witness Ana Ramirez, Appellant's ex-wife, testified by way of an

interpreter that Appellant called her phone many times sounding drunk and mad."^

W h en Ana arrived home from work Appellant grabbed her from behind placing a

knife to her throat.^ Appellant told Ana that if she moved Appellant would kill Ana.^

^ I C R . 4 - 5.

2 2R.R.4-6.

^ 3 R.R. 4. During trial Tomas Leon performed interpretation for Appellant and Sophia Leon performed interpretation for the witnesses.

^ 4 R.R. 15-16, 25.

^ 4 R.R. 26-27.

4 R.R. 57.

Ana struggled to move the knife away from her and her hand was cut when she was

finally successful in getting the knife away from her throat/

Appellant continued to maintain a hold on Ana preventing her from being able

to escape.^ D u r i ng this struggle Appellant attempted to throw the knife at Ana's

chest.^ At some point during the struggle Appellant kicked Ana in the lower

stomach area.^° Appellant had also taken Ana's phone during the struggle and

threw it down.^^ It was not until Ana's sister arrived next door that Appellant

released Ana and ran away/^ Ana was so frightened during the struggle that she

urinated on herself

As Appellant was running away he told Ana that he would get revenge on her

family in Honduras if Ana caused trouble for h im w i th the police.

^ 4 R.R. 29-30.

^ 4 R.R. 31.

^ 4 R.R. 31.

1° 4 R.R. 32.

4 R.R. 43.

^2 4 R.R. 31.

" 4 R.R. 32.

" 4 R.R. 33.

Once the State rested its case Appellant rested without calling any witnesses. A

Court's Charge to the Jury was prepared to which neither side had objections.^^

Following the reading of the Charge and final arguments by both sides the j u ry

rendered its verdict that Appellant was Guilty of the offense of A ^ a v a t ed Assault

W i th A Deadly Weapon by Threat as charged in the Indictment.^^

Having elected for the j u ry to assess punishment, the jury's verdict was for

imprisonment for a period of 10 years w i th no fine assessed.

4 R.R, 169.

4 R.R. 170-171.

5 R.R. 26-27.

6 R.R. 55.

Summary Of The Argument on Issue No, 1 Appellant here argues that the trial court was obligated to provide Appellant w i th

a licensed court interpreter to assist Appellant during the Plea Bargain Deadline

hearing. Appellant did not request the services of a licensed court interpreter for

this hearing, but instead relied upon his o wn understanding of the English language

together w i th the interpretation provided by his court-appointed trial counsel. As

such Appellant has waived his right to a licensed court interpreter for the Plea

Bargain Deadline hearing and has further failed to preserve for appellate review any

error on this issue.

Argument On Issue No, 1 1.1 Principals of Law

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.^^

^5 Tex. Code Crim. Proc. art. 38.30(a).

Unless the record otherwise demonstrates the defendant's lack of understanding

of the proceedings, a defendant who does not request an interpreter waives the right

to complain on appeal.^^

The only basis for providing an interpreter is because of the constitutional and

statutory guarantee of confrontation under the Constitutions of the United States

and of Texas.^^ However those rights may be waived.^^

Where the record shows that the appellant was aware of the consequences of his

entry of a plea of nolo contendere, the waiver given by the appellant was "an

intentional relinquishment or abandonment of a known right."^ As such an

interpreter, other than his attorney, would have added nothing to insure that

appellant voluntarily and intelligently waived his right to confrontation and

cross-examination of witnesses and entered a plea of nolo contendere .^"^

2° Hernandez v. State, 986 S.W.2d 817, 822 (Tex. App. - Austin 1999, pet. ref d). 2^ Ex parte Marez, 464 S.W.2d 866 (Tex. Crim. App. 1971). 22 Garcia v. State, 151 Tex. Crim. 593, 210 S.W.2d 574 (1948). 23 Briones v. State, 595 S.W.2d 546, 548 (Tex. Crim. App. 1980). 2^ Id.

1,2 Applicable Facts

On October 13,2015, the trial court called this cause for a Plea Bargain Deadline

Hearing. For the record the trial court announced the presence of Appellant and

his trial counsel and that his trial counsel was interpreting for Appellant.^^ This

hearing begins w i th the trial court asking Appellant to verify that he is Juan Jose

Ramirez, Senior to which Appellant answers affirmatively.^"^ The trial court then

explains the range of punishment, both prison and probation, for a second degree

felony.^^ In response to this Appellant, through his trial counsel acting as his

interpreter, asks to clarify that the fine is in addition to the prison time.^^ The trial

court acknowledges the clarification to which Appellant responds 'Yts. So after all

that, yes."^° It is at this point that the trial court makes the following inquiry:

" T HE C O U R T: Okay. Y ou understand that if you want to w o rk out an

agreement, today is your day to do an agreement?

2^ 2R.R. 1.

[26] 2. R.R. 4.

2^ 2 R.R. 4.

2« 2 R.R. 4.

[29] 2 R.R. 4.

3° 2 R.R. 4.

" M R. K A N A K: Okay. Yes, he understands that, and, no, he's wanting to

proceed.

" T HE C O U R T: Okay. Then we w i ll be here on October the 19th at 8:30

a.m.

" M R. K A N A K: Okay. Yes."^^

Following this discussion the prosecutor offered to recite the plea bargain offer

for the record, that being two years confinement in the Institutional Division or an

alternative offer of ten years deferred adjudication and either of those would be

accepted by the State "today".^^ To this recitation the Appellant personally

responded "Okay. Yes. I understand that and I 'm not accepting that."^^

The trial court made the following further admonishment:

" T HE C O U R T: Okay. M r. Ramirez, what I want you to understand is that

after today we're not going to have a plea agreement and if you go to trial the j u ry can give you anywhere from two to 20 years in prison. A nd if you get a 20-year sentence, you won't being eligible for parole until after you've served at least ten of that. So that's your choice, but I want to make sure that you understand the risk that you are taking.

" T HE D E F E N D A N T: Yes, I understand.

[31] 2 R.R. 4.

[32] 2 R.R. 5.

[33] 2 R.R. 5.

3^ 2 R.R. 5.

IJ Discussion and Conclusion

As described by the Court of Criminal Appeals in Ex parte Marez, the purpose of

art. 38.30(a) is to guarantee a defendant's right to confrontation of the witnesses

against him. Further, the protection of art. 38.30(a) is not triggered unless or until

any party requests the trial court to appoint an interpreter or until the trial court sua

sponte believes that a defendant is not able to understand the proceedings. More

importantly to this case is that because Appellant did not request the appointment

of an interpreter his ability to complain on this issue on appeal is waived unless the

record establishes that Appellant could not understand the proceedings.

It is very important to note that the entire complaint is centered around perhaps

a five minute hearing in which the trial court sought to establish whether a plea

bargain was possible. There was no witness called nor any exhibits offered for any

reason. Therefore the confrontation issue was never at play in this hearing.

No request was made for an interpreter to be present for this hearing. A

presumption can be made that the trial court would be aware of Appellant's trial

counsel's familiarity w i th the Spanish language as counsel was a member of the local

public defender's office and would have appeared before the trial court on a number

of occasions. Careful consideration as to the appropriateness of Appellant's

responses to the questions posed by the trial court would give further confidence

that between the trial counsel's interpretation and Appellant's even rudimentary

understanding of the English language Appellant had a sufficient comprehension of

what was being said during this hearing and the implications of his rejection of the

plea bargain offer. Although Appellant started the hearing by answering through

his court-appointed counsel, when the prosecutor described the plea bargain offer

Appellant began directly answering himself w i th well-worded comments.

Following this when the date of trial arrived one interpreter was present for

Appellant while a second interpreter was present for the witnesses. The interpreter

for Appellant was present at trial from start to finish.

The case authority cited by Appellant can be distinguished as the holding of the

Baltierra case and the Garcia case points to the constitutional right to confront the

witnesses against h i m. In Baltierra^^ the Court of Criminal Appeals reviewed the

history of cases involving persons unable to understand the English language. This

history was completely and totally focused on the need of the defendant to

understand the trial proceedings in order to protect the defendant's constitutional

and statutory guarantees of confrontation under the Constitution of Texas and of the

United States. The Court noted that a court interpreter was present but only

Baltierra v. State, 586 S.W.2d 553, 556-559 (Tex. Crim. App. 1979). *18 interpreted for the defendant when the defendant personally took the stand as a

witness. Since the court interpreter did not interpret for the defendant during the

testimony of the other witnesses the Court held that the defendant's right to

confront the witnesses had been violated. The Court further noted that because

that trial court had been made aware at the beginning of the trial that the defendant

was not able to understand the English language that trial court had a duty to appoint

an interpreter for the defendant during the entire trial process.

In the Garcia case^^ the facts under scrutiny were that Garcia could not

understand the English language to any appreciable degree. The trial court "hired"

the legal assistant of Garcia's trial counsel as the interpreter. However, while the

legal assistant interpreted Garcia's testimony for the jury, she did not interpret the

testimony of any of the other witnesses for Garcia.

In the case of Ex parte Zantos-Cuehas^^ the defendant was charged w i th the

misdemeanor offense of terroristic threat/dating relationship. The defendant

brought his 17 year old friend to act as an interpreter. The defendant waived

counsel and plead guilty as part of a plea bargain. Adjudication of guilt was deferred

and the defendant was placed on community supervision. The defendant was later

36 Garcia v. State, 149 S.W.3d 135,138-140 (Tex. Crim. App. 2004). 3^ Ex parte Zantos-Cuebas, 429 S.W.3d 83 (Tex. App. - Houston [1'* Dist.] 2014, no pet.). *19 detained and subjected to deportation proceedings. The defendant fded an art.

11.072 application for w r it of habeas corpus complaining that his friend did not

translate the portion of the plea papers informing h im that a plea of guilty could

result in his being deported. The trial court held the application to be frivolous

without making any written findings of fact and conclusions of law.

The First Court of Appeals held that in order to waive a constitutional right the

defendant must be aware of the right. The court also held that the trial court could

only determine that an application is frivolous without filing findings of fact and

conclusions of law if the application on its face showed the claim to be without

merit. The court pointed out that the 17 year old friend signed an affidavit stating

that she did not interpret that part of the papers that discussed the potential impact

of a plea of guilty on the defendant's immigration status. The court further pointed

out that the application also contained the defendant's affidavit that a plea of guilty

could have an impact on his immigration status and he would never have pleaded

guilty had he known that he could be deported. As such the First Court of Appeals

determined that the application was not frivolous on its face and remanded the case

to the trial court to conduct an evidentiary hearing and to make findings of fact and

conclusions of law.

In the present case, the record establishes that the only right that Appellant was

waiving was his right to request a court-appointed interpreter at the Plea Bargain

Deadline Hearing. There is nothing in this record to show that Appellant did not

have a clear understanding that if he did not accept one of the two plea bargain offers

on that day his case would go to trial on the next j u ry date.

The basic theory of law in the Zantos-Cuebas^^ case is not different from the

holding in the Hernande^^^ case and as such, without a clear record showing

Appellant had no understanding of the proceedings, Appellant failed to preserve

error for appellate review when he did not request a court-appointed interpreter for

the Plea Bargain Deadline Hearing.

Therefore Appellant's first and only issue should be denied and the judgment and

sentence in this cause should be affirmed.

Supra.

Hernandez v. State, 986 S.W.2d at 822.

PRAYER FOR R E L I EF WHEREFORE, PREMISES C O N S I D E R E D, Appellee prays the Court deny

the relief requested by Appellant and affirm the judgment of conviction and sentence

entered against Appellant.

Respectfully submitted, OFFICE OF D I S T R I CT A T T O R N EY 33^^ and 424'^ J U D I C I AL D I S T R I C TS Wiley B. McAfee, District Attorney P. O. Box 725 Llano, Texas 78643 Telephone Telecopier (325) 247-5755 (325) 247-5274 B y : _ ^ : ^ ^ ^ ^ ^ ^ ^ ^ ^ ! l r i __

G ^ W . / g u n y a r d^ Assistant District Attorney State Bar N o. 03353500 g.bunyard@co.llano.tx.us A T T O R N EY FOR APPELLEE C E R T I F I C A TE OF WORD C O U NT This is to certify that the pertinent portions of this brief, including footnotes,

contains 2,544 words printed in Aldine401BT 14 font (footnotes are printed in

Calibri 12 font), according to the WordPerfect™ X8 word count tool.

C E R T I F I C A TE OF SERVICE This is to certify that a true copy of the above and foregoing instrument, together

w i th this proof of service hereof, has been forwarded on the 27th day of September

2016, to Daniel H. Wannamaker, Attorney for Appellant, by EServe.

Assistant District Attorney