REYNALDO GASPAR MESTRE, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 13, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-89-00092-CR
............................
REYNALDO GASPAR MESTRE, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F88-89883-I
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O P I N I O N
Before Justices Whitham, Rowe, and Whittington
Opinion By Justice Rowe
                Reynaldo Mestre appeals from his conviction in a bench trial of the offense of delivery of a controlled substance (cocaine). The trial court assessed punishment at twenty years' confinement and a $1,000 fine. In his one point of error, appellant contends that the trial court committed reversible error in denying appellant's constitutional right of confrontation of witnesses. Appellant asserts that he was denied this right because the trial court failed to provide an interpreter for appellant during the entirety of the trial proceedings. We affirm the trial court's judgment.
        The State's only witness was John L. McGuire, a Dallas police officer. He testified that, while on routine patrol, he observed appellant and another man exchange what McGuire thought was cocaine. The other man placed a package in his left front pocket, and the appellant placed some money in his pocket. When appellant saw McGuire's marked police car, appellant withdrew a clear plastic bag from his pocket and tossed it behind him. McGuire retrieved the plastic bag, and appellant was taken into custody. The State and appellant stipulated that the plastic bag contained crack cocaine. A bag of crack cocaine was also found in the other man's left front pant pocket.
        Appellant was called as a witness for the defense. While testifying, appellant had some difficulty making himself understood when speaking English. Appellant is a Cuban who also speaks Spanish. Some rather lengthy quotations from appellant's testimony are warranted. The following took place during appellant's testimony:
                Q.        Would you state your name.
                A.        My name is Reynaldo Gaspar Mestre.
                [APPELLANT'S COUNSEL]: Go ahead and tell the judge.
                THE WITNESS: I crossed the street. I had gone into the store. When I come out of the store --
                REPORTER: I don't understand him.
                . . . .
                THE COURT: . . . You have a really heavy accent, don't you?
                THE WITNESS: I will speak slower.
                THE COURT: There you go.
                THE WITNESS: I walked into there -- it is a sidewalk --
                REPORTER: I don't know what that was.
                THE WITNESS: He don't say nothing. He say how you doing. He --
                THE COURT: He said, how are you doing, all right.
                THE WITNESS: I say, All right. He said what are you doing on the sidewalk --
                REPORTER: He said what are you doing on the sidewalk --
                THE WITNESS: -- with my motorcycle.
                [APPELLANT'S COUNSEL]: He tells him --
                THE WITNESS: -- my motorcycle broke down. Next thing I know, he is right there with a -- police, open both doors. Police, don't move, okay? He told me to put my hands on the car. I put my hands on the car. He searched me. I got two hundred twenty-five dollars. I got my key over here. I got my cigarette. That police right never talked to me. Another police searched me.
                REPORTER: Police --
                [APPELLANT'S COUNSEL]: -- searched another dude.
                THE WITNESS: I asked the dude --
                REPORTER: I asked the dude --
                [APPELLANT'S COUNSEL]: -- if he threw it, threw the dope behind.
                THE WITNESS: I don't know nothing about it. This police right there, when he find the dope, that police reached into my pocket, pulled the money out of my pocket. I say, I have nothing to do with this. He say -- that police right there never talked to me. That police searched me, and he gave me my money back. He give my money back.
                . . . .
                Okay, that police reached into my pocket. He take my money out of my pocket. He put it with the dope. I don't have nothing to do with it. He said, I don't want to hear it. He put handcuffs on me. He throw me in the car. Got me --
                REPORTER: Got me four --
                [APPELLANT'S COUNSEL]: Got me four persons.
                THE WITNESS: -- tell the policeman I know nothing. He tell me it is me. The police say he don't want to hear it.
                THE COURT: Four people tried to tell him you didn't have anything to do with it. He said he didn't want to hear it?
                THE WITNESS: That is what I told him. Everybody told him. I don't have nothing to do with it. That police, he throw me in the car. That police seat belt me in the car. That police say -- why you taking me in jail for? He said, Because you black, you Cuban. That is what he told me.
                THE COURT: Because you are black and Cuban?
                THE WITNESS: Yeah, that is what he told me in my face. I still don't have the dope.
                REPORTER: I still don't what?
                [APPELLANT'S COUNSEL]: I still don't have any dope.
                . . . .
                REPORTER: I am having a hard time understanding him.
                [PROSECUTOR]: [Appellant's counsel] is doing a pretty good job. You keep interpreting.
                THE WITNESS: He --
                [APPELLANT'S COUNSEL]: He got me in the car.
                THE WITNESS: He told me -- send an investigator man. And he said, I don't need no investigator.
                THE COURT: Do you speak Spanish?
                THE WITNESS: Yes.
                THE COURT: Let me help you out because in all sincerity, I promise you I will try to pay a little more attention to you, but I can't.
                . . . .
                THE COURT: Can we do this, maybe try to see if we can finish this up Monday, and I will get him a translator because I am having a difficult time, and I hate to do an injustice.
                THE WITNESS: I will try to talk slower.
At this point, appellant continued testifying in a narrative manner, with some help being given as before. Then appellant also testified in a question and answer format:
                [APPELLANT'S COUNSEL]: Were you working at this time?
                THE WITNESS: Yeah. I was working for Davie Alvarez.
                [APPELLANT'S COUNSEL]: . . . Had you been paid that day for work?
                THE WITNESS: Same day I got two hundred fifty dollars. I pay twenty-five dollars. The money he got was the twenty-five dollars.
                [APPELLANT'S COUNSEL]: Did you know the other man who was arrested out there?
                THE WITNESS: No. He know me because my motorcycle. And he asked me -- because my clutch is broken.
                . . . .
                REPORTER: I am not understanding him.
At this point, the trial judge postponed the proceedings because of the court reporter's difficulties in transcribing appellant's testimony and because of the judge's difficulties in understanding appellant. The judge also expressed concern that the record had to be adequate for purposes of appeal. When trial was resumed, appellant testified in Spanish through an interpreter.
        Appellant argues that the right to confront witnesses against him includes the right to be mentally present, which involves the ability to consult with his attorney with a reasonable degree of rational understanding and the ability to rationally and factually understand the proceedings against him. See Baltierra v. State, 586 S.W.2d 553, 556 (Tex. Crim. App. 1979) (op. on reh'g). We will not quarrel with appellant's characterization of the right of confrontation. However, we determine that appellant was not deprived of the right of confrontation. The record simply does not show that appellant was unable to consult with his attorney or that he was unable to understand the proceedings against him.
        When being questioned in English, appellant had no unusual difficulty responding. The following exchanges (quoted at length) took place at the beginning of the proceedings:
                THE COURT: Cause number F-8782223-i, style, the State of Texas versus Reyaldo Gaspar Mestre, M-e-s-t-r-e. How do you pronounce your last name?
                THE WITNESS: My last name, Mestre.
                THE COURT: Mr. Mestre, you stand before this court on a motion to proceed with adjudication of guilt. Do you understand why you are before the Court today in that cause matter?
                THE WITNESS: Yes.
                THE COURT: Okay. Are you one and the same Reynaldo Mestre that is placed on deferred adjudicated probation on or about October the 7th, 1987, with unlawful possession of a controlled substance, to wit, cocaine?
                THE WITNESS: Yes.
                THE COURT: Subsequent to your being placed on probation, the state filed a motion to proceed with adjudication of guilt, wherein they alleged you violated certain terms and conditions of your probation.
                They allege you violated condition A, violating the laws of the state of Texas, that on or about October the 21st, 1988, in Dallas County, Texas, you did unlawfully, knowingly, and intentionally possess a controlled substance, namely cocaine, in an amount by aggregate weight including any adulterants or pollutants of less than 28 grams.
                They allege this violation occurred after October the 7th, 1987, and during the term of your probation. Do you understand the allegation, sir?
                THE WITNESS: October the 28th --
                THE COURT: Pardon?
                THE WITNESS: October 28 --
                THE COURT: All I am saying, October 21, 1988, they are saying you were in possession of cocaine. Do you understand what they are saying? Do you understand that?
                THE WITNESS: I understand that.
                THE COURT: I did receive a copy of the state's motion to proceed with adjudication of guilt. Is that your signature there? Did you sign that?
                THE WITNESS: Yes.
                . . . .
                THE COURT: Sir, I will let you talk about this case later. Do you understand what I am trying to tell you? You have a right to have witnesses come down to testify for you. You also have a right to cross examination witnesses that accused you of this offense. Do you understand you have that right?
                THE WITNESS: Yes.
                THE COURT: You further have a right to plead true or untrue to the allegations. I warn you if you plead true to them, then I will find the allegations to be true and therefore make a determination to proceed with adjudication of guilt, revoke your probation, and sentence you to the penitentiary. Do you understand that?
                THE WITNESS: Yes.
                THE COURT: Cause number F-8889883-i, style, State of Texas versus Reynaldo Gaspar Mestre. Is that your true and correct name in that cause matter?
                THE WITNESS: Yes.
                THE COURT: You stand charged with the offense of unlawful delivery of a controlled substance, to wit, cocaine. Do you understand that charge?
                THE WITNESS: Yes.
                THE COURT: Are you suffering from any type of mental illness or mental disease that will cause you not to understand what is going on?
                THE WITNESS: No.
                THE COURT: You are advising the court you are mentally competent to stand trial?
                THE WITNESS: Yes.
                . . . .
                THE COURT: Mr. Mestre, this particular offense carries a penalty range anywhere from five years to ninety-nine years or life in the penitentiary as well as a twenty thousand dollar fine to be assessed in this cause matter. Do you understand that punishment range?
                THE WITNESS: Yes.
                THE COURT: You have an absolute right to have a trial by jury. Do you understand that?
                THE WITNESS: Yes.
                THE COURT: You and your lawyer signed a waiver jury trial saying you don't want a trial by jury. You want to proceed today before the Court; is that correct?
                THE WITNESS: Yes.
                THE COURT: You understand if the Court finds you guilty, it will have to assess your punishment within the range of law. Do you understand that?
                THE WITNESS: Yes.
                THE COURT: Understanding that, you still wish to waive your right to trial by jury and enter a plea of not guilty; is that correct?
                THE WITNESS: I am not guilty.
                . . . .
                THE COURT: How do you plead on the indictment, guilty or not guilty?
                THE WITNESS: I am not guilty.
                THE COURT: How do you plead on the motion to proceed with adjudication of guilt, true or untrue?
                THE WITNESS: Not true.
Furthermore, as shown previously, appellant was able to respond to the questions asked in English by his attorney. At no time during the proceedings did appellant or his counsel indicate that appellant could not understand what was happening. During appellant's testimony given through an interpreter, appellant had to be reminded to speak in Spanish rather than English. Appellant also stated that he recalled the testimony of the police officer given during presentation of the State's case. Based on our examination of the entire record, we conclude that appellant was able to understand the proceedings.
        With respect to appellant's ability to consult with his attorney, the record shows that the trial judge asked appellant about the fact that appellant and his attorney had signed a waiver of jury trial, and appellant responded that he wished to proceed before the court. Appellant's attorney advised the court that appellant was mentally competent to stand trial. The questioning of appellant by his counsel indicates that they had communicated with each other about the circumstances of the alleged offense. When others had difficulty understanding appellant, appellant's counsel was able to explain what appellant had said. The record does not support appellant's contention that he was unable to consult with his attorney; in fact, the record suggests otherwise.
        When it is made known to a trial court that an accused does not speak and understand the English language, an interpreter must be provided to translate to the accused the trial proceedings, including particularly the testimony of witnesses for the State. Baltierra, 586 S.W.2d at 559; see Tex. Code Crim. Proc. Ann. art. 38.30 (Vernon Supp. 1989). Further, when a defendant can neither speak or understand the English language, he does not waive the right to have the proceedings translated by failing to request that the court interpreter do so. Id. at 558-59. However, the mere fact that an accused may be more fluent in Spanish than in English does not require a trial court to appoint an interpreter for a defendant who speaks and understands the English language. Flores v. State, 509 S.W.2d 580, 581 (Tex. Crim. App. 1974); see Baltierra, 586 S.W.2d at 558. Based on the facts of this case, we determine that Flores is controlling. The record shows that the participants at trial had difficulty understanding appellant when he spoke in English, apparently because of his heavy accent. However, the record does not show that appellant had difficulty understanding any of the proceedings. In other words, the misunderstanding was one-way as opposed to two-way; others had difficulty understanding appellant, but appellant was able to understand what was said by others. Moreover, the record establishes that appellant's attorney could understand appellant when others could not; thus, the record does not show that appellant's accent interfered with his ability to communicate and consult with his counsel. Therefore, we hold that appellant was not denied his constitutional right of confrontation of witnesses. We overrule appellant's sole point of error.
        We affirm the judgment of the trial court.
 
 
 
                                                          
                                                          GORDON ROWE
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
 
890092F.U05
 
 
File Date[12-13-89]
File Name[890092F]