Garcia, Jose Medrano v. The State of Texas--Appeal from 23rd District Court of Brazoria County

Affirmed and Opinion filed November 14, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00949-CR

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JOSE MEDRANO GARCIA , Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 40,064

M E M O R A N D U M O P I N I O N

A jury convicted appellant of sexual assault and sentenced him to eight years confinement following a plea bargain on punishment. The trial court denied his motion for new trial, but granted him the right to appeal, finding he had not knowingly and intelligently waived that right. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.1. The facts of these appeals are known to the parties, so we do not recite them here.

At the hearing on his motion for new trial, appellant established he had very little knowledge of English. His trial counsel testified that an interpreter translated appellant s testimony into English, but did not interpret the rest of the trial into Spanish for him. Counsel explained that he did not request an interpreter because his paralegal could translate what appellant needed to know, and the only issue at trial (consent) presented a simple credibility dispute between appellant and the complainant.

When a trial court learns a defendant does not speak and understand English, an interpreter must be furnished to translate the trial proceedings; otherwise, the defendant s constitutional right of confrontation is denied. Tex. Code Crim. Proc. art. 38.30; Baltierrav. State, 586 S.W.2d 553, 558 (Tex. Crim. App. 1979). But if there is evidence an interpreter was present and available to help the defendant, a trial court does not err in failing to appoint one. Rivera v. State, 981 S.W.2d 336, 338 (Tex. App. Houston [14th Dist.] 1998, no pet.). In this case, the evidence shows that a paralegal fluent in English and Spanish sat next to appellant throughout the trial. Apparently, she translated communications between appellant and his trial counsel, but did not translate the testimony of witnesses because she did not want to be disruptive.[1] Because appellant had a translator available but did not make use of her, the trial court did not err in failing to appoint a second interpreter.

As to appellant s ineffective assistance claim, even assuming counsel was ineffective in failing to ensure that all trial testimony was translated for him, appellant has not shown a reasonable probability that, but for this failure, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2064-65 (1984). Appellant testified the complainant consented to sexual relations; she testified she did not. Appellant does not indicate how further translation would have made his testimony more credible or hers any less. Without such a showing, his ineffectiveness complaint must be denied. See Martins v. State, 52 S.W.3d 459, 469 (Tex. App. Corpus Christi 2001, no pet.) (finding no ineffective assistance when appellant presented no specific evidence how lack of interpreter caused his attorney to commit error or that outcome of trial would have been different); Kan v. State, 4 S.W.3d 38, 43 (Tex. App. San Antonio 1999, pet. ref d) (finding no ineffective assistance when appellant failed to present proof of his inability to confront a particular witness or inability to effectively communicate with counsel).

The judgment is affirmed.

/s/ Scott Brister

Chief Justice

Judgment rendered and Opinion filed November 14, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish Tex. R. App. P. 47.3(b).

[1] At the motion for new trial hearing, the paralegal acknowledged the trial judge had not done anything to lead her to believe translation during the trial would have angered him.