Leonel Martinez Ramirez v. The State of Texas--Appeal from 268th District Court of Fort Bend County

Affirmed and Memorandum Opinion filed October 23, 2007

Affirmed and Memorandum Opinion filed October 23, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00811-CR

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LEONEL MARTINEZ RAMIREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 41,994A

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

Appellant, Leonel Martinez Ramirez, was found guilty by a jury of intoxication manslaughter and sentenced to 14 years in prison. On appeal, he raises two points of error: (1) the trial court erred in admitting an unreliable statement that was improperly translated; and (2) the trial court erred in excluding his exculpatory statements. We affirm.

I. BACKGROUND

On the morning of January 29, 2005, Rahat Sher was struck by a white truck speeding through a red light. The impact of the collision split the victim=s vehicle in two and killed him. Immediately after the fatal collision, two Hispanic males were seen exiting the passenger side of the white truck and running away from the scene of the accident. The two Hispanic males were chased down by witnesses and brought back to the scene of the accident, where they were handed over to Missouri City Police Officer Mike Zimmer. Appellant was one of the Hispanic males captured. At the scene of the accident, Officer Zimmer observed beer bottles in the white truck and smelt an odor of alcohol emitting from appellant.

Shortly thereafter, appellant was taken to the emergency room at Hermann Memorial Fort Bend to receive medical attention for physical injuries he sustained in the collision. Sharra Cates, an emergency room nurse at Hermann Memorial, treated appellant when he arrived at the hospital. As part of her medical duties, Nurse Cates began to make a medical assessment of appellant=s injuries; in doing so, she asked appellant a series of questions about the accident. Most of the questioning between Nurse Cates and appellant was translated by the hospital=s security guard, Martin Moreno, because appellant was not fluent in English. During the questioning, appellant told Nurse Cates that he was the driver of the white truck and that he had been drinking the night before the collision. A blood sample was also taken from appellant, which showed his blood alcohol concentration to be .18.

Later the same day, Detective Marcus Montemayor of the Missouri City Police Department went to the hospital to get a statement from appellant in connection with his criminal investigation. After waiving his Miranda rights, appellant told Detective Montemayor that he was not the driver of the white truck. Appellant was later arrested and charged with intoxication manslaughter.

At trial, a number of witnesses testified that there were two Hispanic males in the white truck involved in the fatal collision. However, only one witness, Earl Freeman, was able to identify appellant as the driver of the white truck.[1] Nurse Cates also testified that appellant told her he was the driver of the white truck. Appellant then sought to introduce his statements made to Detective Montemayor that he was not the driver. The trial court excluded those statements.

The jury found appellant guilty of intoxication manslaughter[2] and assessed punishment at 14 years confinement in prison and a $10,000 fine. In his two points of error, appellant argues that (1) the trial court erred in admitting the translated statements made to Nurse Cates because Moreno was not fluent in Spanish, thereby rendering the statements unreliable; and (2) the trial court erred in excluding appellant=s statements made to Detective Montemayor because they were admissible under the rule of optional completeness to explain appellant=s previous statements to Nurse Cates.

II. ANALYSIS

A. Standard of Review

We review a decision admitting or excluding evidence under an abuse of discretion standard. See Osbourn v. State, 92 S.W.3d 531, 537-38 (Tex. Crim. App. 2002); Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998). We will reverse the trial court only if the ruling is outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh=g). We must view the evidence in the light most favorable to the trial court=s ruling, giving the trial court deference on its findings of historical facts that are supported by the record. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). If the evidence exists supporting the decision to admit evidence, there is no abuse, and we must defer to that decision. Osbourn, 92 S.W.3d at 538.

B. Reliability of Translated Statement

In appellant=s first point of error, he argues that the translated statements made to Nurse Cates were unreliable because Moreno was not fluent in Spanish. To support this argument, appellant relies on the testimony of Nurse Cates and Moreno. Nurse Cates testified that she did not speak Spanish and had to rely on Moreno to translate appellant=s statements. Moreno testified that he did not speak Spanish fluently and primarily spoke English at home. Moreno also testified that he had no specific memory of appellant and could not say whether what he told Nurse Cates was accurate. According to appellant, Moreno=s limited fluency in Spanish rendered appellant=s statements to Nurse Cates unreliable.

Texas allows admission of translated testimony in appropriate circumstances assuring its reliability, on the theory that the interpreter serves as an agent of, or a language conduit for, the declarant. See Gomez v. State, 49 S.W.3d 456, 459-60 (Tex. App.CHouston [1st Dist.] 2001, pet. ref=d). In determining whether the interpreter=s statements should be attributed to the defendant either under the agency or conduit theory, Texas courts have utilized the following factors listed in United States v. Nazemian, 948 F.2d 522, 527 (9th Cir. 1991): (1) which party supplied the interpreter; (2) whether the interpreter had any motive to mislead or distort; (3) the interpreter=s qualifications and language skill; and (4) whether actions taken subsequent to the conversation were consistent with the statements as translated. See United States v. Martinez-Gaytan, 213 F.3d 890, 892-93 (5th Cir. 2000); Gomez, 49 S.W.3d at 459-60.

In this case, neither party Asupplied@ Moreno as an interpreter; rather, he was a security officer who was employed by Hermann Memorial Fort Bend and assisted the nurses in communicating with Spanish-speaking patients. Also, it can be inferred from the record that appellant acquiesced to Moreno=s acting as interpreter. See Gomez, 49 S.W.3d at 460. Second, appellant does not dispute that there is no evidence in the record of any motive Moreno might have had to mislead Nurse Cates or distort what was being said between Nurse Cates and appellant. Id.

Third, the record shows that while Moreno may not be a certified translator, he was qualified to translate the particular information at issue in the instant case. At trial, Moreno testified that (1) he was frequently used to translate for English-speaking nurses who could not communicate with Spanish-speaking patients, (2) he did not have problems communicating with Spanish-speaking patients, (3) he was able to effectively communicate with appellant regarding the particular information he translated, and (4) he had translated the identical information to numerous Spanish-speaking patients previously. Nurse Cates testified that she had previously used Moreno a number of times in the five years she was employed at the hospital to translate the same information to other Spanish-speaking patients. Nurse Cates also testified that appellant appeared to understand Moreno. Appellant did not assert or point to any evidence indicating that Moreno=s translation was inaccurate at the time it occurred. See id. This evidence is sufficient to show that Moreno possessed enough fluency in Spanish to carry on conversation with appellant regarding the particular statements at issue. Appellee also presented evidence that appellant spoke Abroken English@ and was able to answer some of Nurse Cates= questions without a translator. Moreover, Moreno was present at trial and subject to cross-examination, which supports the admissibility of the translated statement. See id.; see also Martinez-Gaytan, 213 F.3d at 893 (holding that the absence of the interpreter from a suppression hearing or trial so that his testimony or translation is subject to cross-examination renders the translated statement unreliable and inadmissible).

Appellant argues that the translated statement is inadmissible based on Moreno=s failure to specifically remember translating that appellant was driving the white truck. However, whether Moreno remembers the specific substance of the translation at trial is not determinative of the statement=s admissibility. See Gomez, 49 S.W.2d at 461. (any discrepancy in testimony goes only to the weight of evidence and not its admissibility). The fourth Nazemian factor, whether subsequent actions were consistent with the translated statements, is not directly applicable here. We do note, however, that Nurse Cates= account of the accident and testimony that appellant was the driver is consistent with the eye-witness testimony presented at trial, while Detective Montemayor=s account of events through appellant=s second statement directly contradicts eye-witness testimony.[3]

Viewing the evidence in the light most favorable to the trial court=s ruling and giving the trial court deference on its findings supported by the record, we find that the trial court did not abuse its discretion in admitting appellant=s translated statement to Nurse Cates. We overrule appellant=s first point of error.

 C. Rule of Optional Completeness and Defendant=s Exculpatory Statements

In appellant=s second point of error, he argues that the trial court erred in excluding appellant=s statements made to Detective Montemayor because they were admissible under the rule of optional completeness to explain appellant=s previous statements to Nurse Cates. Rule 107 is properly invoked when an opposing party reads part, but not all, of a statement into evidence. Livingston v. State, 739 S.W.2d 311, 331-32 (Tex. Crim. App. 1987); Araiza v. State, 929 S.W.2d 552, 555-56 (Tex. App.CSan Antonio 1996, pet. ref=d). In such a case, the remainder of the statement Aon the same subject@ is admissible to Areduce the possibility of the fact finder receiving a false impression.@ Livingston, 739 S.W.2d at 331-32; Araiza, 929 S.W.2d at 555-56; Roman v. State, 503 S.W.2d 252, 253 (Tex. Crim. App. 1974).

In the instant case, in order to invoke the rule of optional completeness appellant must show that the portion of the statement he seeks to admit is part of the same statement previously admitted by the opposing party. See Livingston, 739 S.W.2d at 331-32. Appellant=s statement to Detective Montemayor was not part of his statement to Nurse Cates; the statement to nurse Cates and the statement to Detective Montemayor were separate and independent. Furthermore, the statement given to Nurse Cates was for the purpose of medical assessment, while the statement made to Detective Montemayor was for the purpose of a criminal investigation. It is improper to rely upon the authority of this rule for the introduction of a separate and independent statement taken at two different periods of time and for two different purposes. See id. Therefore, the rule of optional completeness has no application in this case.

Additionally, when the accused does not take the stand, self-serving statements are ordinarily inadmissible where they merely contradict some declaration first proferred by the prosecution. There are certain exceptions, such as (1) part of the res gestae of the offense or arrest, (2) part of the statement or conversation previously proved by the State, or (3) necessary to explain or contradict acts or declarations first offered by the State. Singletary v. State, 509 S.W.2d 572, 576 (Tex. Crim. App. 1974); Jones v. State, 963 S.W.2d 177, 182 (Tex. App.CFort Worth 1998, pet. ref=d). Appellant makes no contention that his statements were part of the res gestae of the offense. As discussed above, appellant=s statement to Detective Montemayor was not previously proferred by the State. The statement to Nurse Cates and the statement to Detective Montemayor are two separate statements, and the record does not show that the State offered appellant=s statements made to Detective Montemayor. Therefore appellant is unable prove the second exception. See Allridge v. State, 762 S.W.2d 146, 153 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1040 (1989). Lastly, there is no showing that the statements made to Detective Montemayor were necessary to correct a false or incorrect impression created by appellant=s statements to Nurse Cates. The fact that exculpatory or explanatory testimony favoring appellant was not presented by the State=s case-in-chief does not equate to misleading the jury or leaving the jury with only a partial or incomplete version of the facts. Id. Appellant did not testify in this case; therefore, no opportunity was provided to cross-examine him on his statement to Detective Montemayor. To admit such self-serving hearsay into evidence would allow any defendant to place his version of the facts before the jury without being subject to cross examination. We therefore hold that appellant=s self-serving statement to Detective Montemayor does not fall within the rule of optional completeness. Accordingly, we conclude that the trial court did not abuse its discretion in excluding the self-serving statements made to Detective Montemayor. We overrule appellant=s final point of error.

We affirm the trial court=s judgment.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed October 23, 2007.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Appellant attempted to impeach Freeman=s testimony by presenting evidence that Freeman gave a false last name to the police at the scene of the accident. Freeman testified that he later told police he had given a false last name because he had an outstanding traffic ticket.

[2] A person commits the offense of intoxication manslaughter if the person: (1) operates a motor vehicle in a public place; (2) was intoxicated; and (3) by reason of that intoxication caused the death of another by accident or mistake. See Tex. Penal Code Ann. ' 49.08 (Vernon 2003).

[3] One eye-witness testified that appellant was the driver, and the majority of eye-witnesses testified that there were two Hispanic males in the white truck, while appellant told Detective Montemayor there were three men in the truck. Appellee also presented evidence that the white truck belonged to appellant=s employer. However, appellant told Detective Montemayor that he did not know the driver of the white truck and had by chance asked the driver for a ride on the day of the accident.