Juan Jose Ramirez, Sr. v. State ( 2016 )


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  •                                                                                    ACCEPTED
    03-15-00727-CR
    12913597
    THIRD COURT OF APPEALS
    N O . 03-15-00727-CR                                        AUSTIN, TEXAS
    9/27/2016 8:28:02 AM
    JEFFREY D. KYLE
    CLERK
    I N T H E C O U R T OF APPEALS
    T H I R D D I S T R I C T O F TEXAS I N A U S T I N
    FILED IN
    3rd COURT OF APPEALS
    AUSTIN, TEXAS
    J U A N JOSE R A M I R E Z , SR.,         9/27/2016 8:28:02 AM
    JEFFREY D. KYLE
    Appellant              Clerk
    V.
    T H E STATE O F TEXAS
    Appellee
    Appeal i n Cause N o . 41984 i n the
    424" Judicial District Court o f Burnet County, Texas
    Brief For        Appellee
    Oral Argument Requested
    OFFICE O F D I S T R I C T A T T O R N E Y
    33" and 424'^ J U D I C I A L D I S T R I C T S
    WILEY B. " S O N N Y " McAFEE, D I S T R I C T A T T O R N E Y
    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 E Y FOR APPELLEE
    September 27, 2016
    Identity Of The Parties
    Trial Court
    Honorable Evan Stubbs
    424'^ Judicial District
    Burnet County Courthouse Annex (North)
    1701 East Polk St., Suite 74
    Burnet, T X 78611
    State/Appellee Counsel
    Blake Ewing                                 (Pretrial and Trial)
    Assistant District Attorney (former)
    1701 E. Polk St., Suite 24
    Burnet, T X 78611
    (512) 756-5449
    State Bar N o . 24076376
    Kristen Sharpe                              (Trial)
    Assistant District Attorney
    1701 E. Polk St., Suite 24
    Burnet, T K 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
    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 C J #02032163
    SID #06581167
    Bartlett State Jail
    1018 Arnold D r .
    Bartlett, T X 76511
    iii
    Table Of Contents
    Page
    Index o f Authorities                                                 V
    Statement o f the Case                                                1
    Statement on Oral Argument                                            1
    Response to Issues Presented                                          2
    Statement o f the Facts                                               3
    Summary o f the Argument - Issue N o . 1                              6
    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 o f Word Count                                            15
    Certificate o f Service                                               16
    iv
    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)                       12
    Hernandez v. State,
    
    986 S.W.2d 817
    , 822 (Tex. App. - Austin 1999, pet. ref d)              7, 14
    Constitutions
    None cited
    V
    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 o f the Case as proscribed i n 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 l l 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.       I n such event that this Court should believe that Oral
    Argument would assist the Court, the undersigned w i l l gladly participate.
    1
    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.
    2
    statement       Of TIte Facts
    Appellant has not fully described the Statement o f the Facts i n accordance w i t h
    Tex. R. App. P. Rule 38.1(g).
    Appellant was charged by Indictment w i t h the offense o f Aggravated Assault W i t h
    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.^
    O n the day o f trial the trial court announced for the record that M r . Tomas Leon
    and Mrs. Sophia Leon, each certified Spanish/English interpreters, were present.^
    A t trial State's witness Ana Ramirez, Appellant's ex-wife, testified by way o f an
    interpreter that Appellant called her phone many times sounding drunk and mad."^
    W h e n Ana arrived home from work Appellant grabbed her from behind placing a
    knife to her throat.^ Appellant told Ana that i f she moved Appellant would kill Ana.^
    ^ ICR.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.
    3
    Ana struggled to move the knife away from her and her hand was cut when she was
    finally successful i n 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 n g this struggle Appellant attempted to throw the knife at Ana's
    chest.^     A t some point during the struggle Appellant kicked Ana i n the lower
    stomach area.^°          Appellant had also taken Ana's phone during the struggle and
    threw it down."          I t 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 i n Honduras i f Ana caused trouble for h i m w i t h 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.
    4
    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 o f the Charge and final arguments by both sides the j u r y
    rendered its verdict that Appellant was Guilty o f the offense o f A ^ a v a t e d Assault
    W i t h A Deadly Weapon by Threat as charged i n the Indictment."
    Having elected for the j u r y to assess punishment, the jury's verdict was for
    imprisonment for a period o f 10 years w i t h no fine assessed.
    4 R.R, 169.
    4 R.R. 170-171.
    5 R.R. 26-27.
    6 R.R. 55.
    5
    Summary        Of The Argument         on Issue No, 1
    Appellant here argues that the trial court was obligated to provide Appellant w i t h
    a licensed court interpreter to assist Appellant during the Plea Bargain Deadline
    hearing. Appellant did not request the services o f a licensed court interpreter for
    this hearing, but instead relied upon his o w n understanding o f the English language
    together w i t h 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 o f an interpreter is filed by any party or on
    motion o f the court, i n 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).
    6
    Unless the record otherwise demonstrates the defendant's lack o f understanding
    o f 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 o f the constitutional and
    statutory guarantee o f confrontation under the Constitutions o f the United States
    and o f Texas." However those rights may be waived."
    Where the record shows that the appellant was aware o f the consequences o f his
    entry o f a plea o f nolo contendere, the waiver given by the appellant was "an
    intentional relinquishment or abandonment o f 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 o f witnesses and entered a plea o f 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. C
    rim. 593, 
    210 S.W.2d 574
    (1948).
    23 Briones v. State, 
    595 S.W.2d 546
    , 548 (Tex. Crim. App. 1980).
    2^   
    Id. 7 1,2
        Applicable Facts
    O n October 13,2015, the trial court called this cause for a Plea Bargain Deadline
    Hearing.         For the record the trial court announced the presence o f Appellant and
    his trial counsel and that his trial counsel was interpreting for Appellant."         This
    hearing begins w i t h 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 o f punishment, both prison and probation, for a second degree
    felony."       I n response to this Appellant, through his trial counsel acting as his
    interpreter, asks to clarify that the fine is i n addition to the prison time." The trial
    court acknowledges the clarification to which Appellant responds 'Yts. So after all
    that, yes."^° I t is at this point that the trial court makes the following inquiry:
    "THE COURT:             Okay. Y o u understand that i f you want to w o r k 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.
    8
    "MR. KANAK:            Okay. Yes, he understands that, and, no, he's wanting to
    proceed.
    "THE COURT:            Okay. Then we w i l l be here on October the 19th at 8:30
    a.m.
    "MR. KANAK:            Okay. Yes.""
    Following this discussion the prosecutor offered to recite the plea bargain offer
    for the record, that being two years confinement i n the Institutional Division or an
    alternative offer o f ten years deferred adjudication and either o f those would be
    accepted by the State "today"."       T o 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:
    "THE COURT:            Okay. M r . Ramirez, what I want you to understand is that
    after today we're not going to have a plea agreement and i f
    you go to trial the j u r y can give you anywhere from two to
    20 years i n prison. A n d i f you get a 20-year sentence, you
    won't being eligible for parole until after you've served at
    least ten o f that. So that's your choice, but I want to make
    sure that you understand the risk that you are taking.
    "THE DEFENDANT:               Yes, I understand.
    31   2 R.R. 4.
    32   2 R.R. 5.
    33   2 R.R. 5.
    3^   2 R.R. 5.
    9
    IJ      Discussion and Conclusion
    As described by the Court o f Criminal Appeals i n Ex parte Marez, the purpose o f
    art. 38.30(a) is to guarantee a defendant's right to confrontation o f the witnesses
    against him. Further, the protection o f 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
    o f 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 i n 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 i n this hearing.
    N o request was made for an interpreter to be present for this hearing.           A
    presumption can be made that the trial court would be aware o f Appellant's trial
    counsel's familiarity w i t h the Spanish language as counsel was a member o f the local
    public defender's office and would have appeared before the trial court on a number
    o f occasions.      Careful consideration as to the appropriateness o f Appellant's
    responses to the questions posed by the trial court would give further confidence
    10
    that between the trial counsel's interpretation and Appellant's even rudimentary
    understanding o f the English language Appellant had a sufficient comprehension o f
    what was being said during this hearing and the implications o f his rejection o f 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 t h well-worded comments.
    Following this when the date o f 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 o f the
    Baltierra case and the Garcia case points to the constitutional right to confront the
    witnesses against h i m . I n Baltierra" the Court o f Criminal Appeals reviewed the
    history o f cases involving persons unable to understand the English language. This
    history was completely and totally focused on the need o f the defendant to
    understand the trial proceedings i n order to protect the defendant's constitutional
    and statutory guarantees o f confrontation under the Constitution o f Texas and o f 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).
    11
    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 o f 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 o f 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.
    I n 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 o f 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 o f any o f the other witnesses for Garcia.
    I n the case o f Ex parte Zantos-Cuehas" the defendant was charged w i t h the
    misdemeanor offense o f 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 o f a plea bargain. Adjudication o f 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.).
    12
    detained and subjected to deportation proceedings.        The defendant fded an art.
    11.072 application for w r i t o f habeas corpus complaining that his friend did not
    translate the portion o f the plea papers informing h i m that a plea o f guilty could
    result i n his being deported.   The trial court held the application to be frivolous
    without making any written findings o f fact and conclusions o f law.
    The First Court o f Appeals held that i n order to waive a constitutional right the
    defendant must be aware o f the right. The court also held that the trial court could
    only determine that an application is frivolous without filing findings o f fact and
    conclusions o f law i f 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 o f the papers that discussed the potential impact
    o f a plea o f guilty on the defendant's immigration status. The court further pointed
    out that the application also contained the defendant's affidavit that a plea o f 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 o f 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 o f fact and
    conclusions o f law.
    13
    I n 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 i n this record to show that Appellant did not
    have a clear understanding that i f he did not accept one o f the two plea bargain offers
    on that day his case would go to trial on the next j u r y date.
    The basic theory o f law i n the Zantos-Cuebas" case is not different from the
    holding i n the Hernande"^ case and as such, without a clear record showing
    Appellant had no understanding o f 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 i n this cause should be affirmed.
    Supra.
    Hernandez v. 
    State, 986 S.W.2d at 822
    .
    14
    PRAYER FOR R E L I E F
    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 C T A T T O R N E Y
    33" and 424'^ J U D I C I A L D I S T R I C T S
    Wiley B. McAfee, District Attorney
    P. O. Box 725
    Llano, Texas 78643
    Telephone             Telecopier
    (325) 247-5755       (325) 247-5274
    By:_^:""""^!lri__
    G^W./gunyard^
    Assistant District Attorney
    State Bar N o . 03353500
    g.bunyard@co.llano.tx.us
    A T T O R N E Y FOR APPELLEE
    C E R T I F I C A T E OF WORD C O U N T
    This is to certify that the pertinent portions o f this brief, including footnotes,
    contains 2,544 words printed in Aldine401BT 14 font (footnotes are printed i n
    Calibri 12 font), according to the WordPerfect™ X 8 word count tool.
    15
    C E R T I F I C A T E OF SERVICE
    This is to certify that a true copy o f the above and foregoing instrument, together
    w i t h this proof o f service hereof, has been forwarded on the 27th day o f September
    2016, to Daniel H . Wannamaker, Attorney for Appellant, by EServe.
    Assistant District Attorney
    16