Hernandez, Juan Carlos v. The State of Texas--Appeal from 194th Judicial District Court of Dallas County (memorandum opinion )

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A [ FiRM; and Opinion tiled March 1, 2013. In The Qnurt uf Apprats .Fift1! 1iitrict nf rxzu at 1a1ta No. 05-1 1-00826-CR JUAN CARLOS [IERNANDEZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F09-60943-M MEMORANDUM OPINION I3efore Justices Moseley. Francis, and Lang Opinion By Justice Lang Juan Carlos Hernandez appeals from a conviction of aggravated robbery with a deadly weapon. In a single issue on appeal. Hernandez contends the trial court abused its discretion by permitting a police detective to testify, over objection, respecting the Spanish statements made by Hernandez in his audio-recorded confession. We decide against Hernandez on this issue. The trial court s judgment is affirmed. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See TEx. R. App. P. 47.4. 1. FACTUAL AND PROCEDURAL BACKGROUND Hemandez was charged by indictment with aggravated robbery with a deadly weapon. After pleading not guilty, he was convicted by ajury, ordered to pay a $10,000 fine, and sentenced to fitly- two years imprisonmenL At trial, Detective (iilherto Martinez. HI. testified that he interviewed I Iernandez and recorded his confes sioii. According to the detecti\ e there were some points in the interview when he spoke Spanish with Flernandez. Portions of the audiorecorded statement were played durinr the detective s testimony, and he testi tied regarding the English portion ot the conversation between himself and I-fernandez. Then, before the detective started to testi iv to what Hernandez said in the parts of the statement he made in Spanish. definse counsel objected to the detective serving inj the capacity ota translator. The objection was overruled, and the detective continued his testimony. II. STANDARD OF REVIEW AND APPLICABLE LAW On appellate review, and pursuant to Texas Rule of Appellate Procedure 44.2(b), a non- constitutional error must be disregarded unless it affects the defendant s substantial rights. Barshaw v. State, 342 S.W.3d 91,93 (Tex. Crim. App. 2011) (citing TEx. R. App. P.44.2(b) ( Other errors. Any other error, detect, irregularity, or variance that does not affect substantial rights must he disregarded. )). We will not overturn a criminal conviction for non-constitutional error if, after examining the record as a whole, we have fair assurance the error did not influence the jury, or influenced the jury only slightly. Id. (citing Schulz v. State, 63 S.W.3d 442, 444 (Tex. Crirn. App. 2001)). In considering the potential to harm, the focus is not on whether the outcome of the trial was proper despite the error, but whether the error had a substantial or injurious effect or influence on the jury s verdict. Id. at 93-94 (citing Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000)). A conviction must be reversed for non-constitutional error if the reviewing court has grave doubt that the result of the trial was free from the substantial effect of the error. Id. at 94 (citing Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002)). Grave doubt means that in the judge s mind. the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error. Id (quoting Burnett, 88 S.W.3d at 637-38). [ljn cases of grave doubt as to the harmlessness the petitioner must win. Id. (quoting Burnett, 88 S. W.3d at 638). In assessing the likelihood that the jurY s decision was improperly influenced, we must consider everything in the record, including any testimony or physical evidence admitted for the jury s consideration, the nature of the evidence supporting the verdict, and the character of the alleged error and how it might be considered in connection with other evidence in the case. Id. (citing Morales v. State. 32 S.W.3d 862, 867 (Tex. Crim. App. 2000); Haley v. State, 173 S.W .3d 510, 518-19 (Tex. Crim. App. 2005)). The reviewing court may also consider the jury instruction given by the trial judge, the state s theory, defensive theories, closing arguments, voir dire, and whether the state emphasized the error. Id. (citing Morales, 32 S.W.3d at 867; Haley, 173 S.W.3d at 518-19; Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002)). Additionally, the presence of overwhelming evidence of guilt plays a determinative role in this analysis. Neal v. State, 256 S.W.3d 264. 285 (Tex. Crirn App. 2008) (citing Mod/la, 7$ S.W.3d at 356). B. Application of Law to Facts Hernandez argues the trial court erred in permitting the detective to translate the Spanishlanguage portions ofhis recorded confession, contending the testimony was hearsay and the detective was a witness for the State who (lid not establish his qualifications to translate. The State responds Hernandez s objection at trial was not specific enough to preserve the issue, the trial court did not abuse its discretion in permitting the detective to translate Hernandcz s Spanish statements, and any error was harmless. Assuming, without deciding, the trial judge erred by admitting the detective s testimony regarding Hcrnandez s Spanish statements when defense counsel interposed his objection that the detective was serving the capacity of a translator and we have a translation issue, we must analyze whether that error affected Hcrnandez s substantial rights. See Wx. R. Api. P. 44.2(b): Barshaw, 342 S.W.3d at 93. The record reflects that before the detective testified and any part ofthe recording was played for the jury. evidence of Hernandez s guilt was admitted without objection. Another police officer, Officer Christopher Biggs, testified he stopped Hernandez in the complainant s vehicle for speeding. The police officer s testimony, video ofthat traffic stop, and still photographs from the video established liemandez was the driver of the vehicle the police officer stopped. The evidence showed the complainant was the registered owner ofthe vehicle stopped, and not Hernandez. The police officer s testimony and the traffic citation he issued to Hemandez established Hemandez was driving the complainant s vehicle a few hours after the vehicle was reported stolen. Then the detective testified. The record shows that before Heniandez raised the issue ofthe translation, the detective had already testified that Hernandez admitted he was there when the complainant was robbed, his homeboy used a screwdriver to steal the complainant s vehicle, and Hernandcz took off in the complainant s vehicle. The detective testified that being a Spanish speaker he would use occasional Spanish to establish rapport during the interview and that this interview contained some Spanish language. The complete audio recording was admitted into evidence, and no request was made to have any Spanish portions translated into English. The prosecution played the portion of the recording containing Hernandez s statements in English wherein he admitted he and his homeboy took the complainant s vehicle, but that his homeboy was the one with the screwdriver. Then, when the State began to play the portion of the recording containing Spanish and asked the detective what Hernandez said, the defense interposed its objection. After the trial court s ruling, the detective continued his testimony. Defense counsel did -4-- not crossexarnine the (letective on his Interpretation, and he did not ask the courtroom interpreter to yen iv the accuracy of the detective s testinonv. We conclude any error in admitting the comphunedot testimony was harmless in light of the overwhelming evidence ot guilt shown by other evidence in the record. See Neal, 256 S.W3d at 285. IV. CONCLUSION We decide against Hernandez on his sole issue on appeal. The trial court s judgment is a ttirnicd. /1 2J D6iG[.AS. LANG JUSH(F Do Not Publish Tix. R. App. P. 47 I 108261 .UOS 1 0 (nitrI Lif Appri1i !fift1i Jfttrirt tit XLtI5 Lit JLt11Lt JUDGMENT .I[AN CARL.( )S HERNANDEZ. Appellant No. 05-1 1-00826-CR V. fl IF STATE OF: TE\AS Appellee Appeal from the 194th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09-60943-fv1), Opinion delivered 1w Justice Lang. .lusticcs Mosclev and Francis participating. l3ased on the (fourt s opinion of this date, the judgment of the trial court is AFFiRM El), Judgment entered March 1 2() 13. 7/ - - - -. OOUGL. S. LAN(i JUST I c4 - I

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