Guanche, Erik Santana ( 2015 )

PD-0190-15
March 20, 2015
NO. _____________
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
AUSTIN, TEXAS
ERIK SANTANA GUANCHE § DEFENDANT-APPELLANT
§
V. §
§
THE STATE OF TEXAS § PLAINTIFF-APPELLEE
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
NO. 01-13-00851-CR
IN THE COURT OF APPEALS FOR THE FIRST DISTRICT
CAUSE NO. 1869024
IN HARRIS COUNTY CRIMINAL COURT AT LAW NO. 7
J. Ricardo Soliz and Associates, P.L.L.C.
Rick Soliz
Attorney at Law
Texas Bar Number 00785013
P.O. Box 4051
Houston, Texas 77210
713-228-1900
jrsoliz@att.net
PRO BONO ATTORNEY FOR
APPELLANT
i
TABLE OF CONTENTS
Index of Authorities ii
Statutes and Rules ii
Statement Concerning Oral Argument ii
Statement of the Case iii
Procedural History iv
Issues Presented 5
Argument 5
Statement of Fact 5
Issue One 8
Issue Two 9
Conclusion and Prayer 13
Certificate of Compliance 13
Certificate of Service 13
INDEX OF AUTHORITIES
STATUTES AND RULES
Government Code Sec. 57.022 10
Government Code Sec. 57.049 10
ii
STATEMENT CONCERNING ORAL ARGUMENT
The appellant requests oral argument because of the importance of the issue
presented concerning whether a sitting judge may disregard Texas law with
impunity in the interest of efficiency and to the detriment of the indigent or racial
and ethnic minority defendants.
TO THE JUDGES OF THE COURT OF CRIMINAL APPEALS:
Appellant herein, by and through his attorney, Rick Soliz, and pursuant to
TEX. R. APP. P. 68 files this petition for discretionary review and in support thereof,
would show the Court as follows:
Erik Santana Guanche , Appellant in the above entitled and numbered cause,
respectfully requests that this court reverse the ruling, dated December 16, 2014, of
the First Court of Appeals, thereby reversing the judgment in the trial court, and
removing the Honorable Pam Derbyshire, Judge of Harris County Criminal Court
Number Seven from all proceedings associated from the case including any
hearings, trial, supervisory function during any possible community supervision, or
jurisdiction within 30 days after any plea bargain of incarceration that concludes
the case.
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I. STATEMENT OF THE CASE
Erik Santana Guanche , Appellant in the above entitled and numbered cause,
filed a Motion to Recuse the Honorable Pam Derbyshire, Harris County Criminal
Court Number Seven. Such motion was “Denied without hearing” by the
Honorable Olen Underwood, Presiding Judge of the Second Administrative
Judicial Region of Texas. A one page form ORDER was signed and submitted to
the County Clerk of the Court and is contained in the Clerk’s short record.
Statements in the Order are contradicted by facts and statements in the body of the
Motion to Recuse. A subsequent and timely filed Motion to Recuse the
Administrative Judge from hearing a Motion for Reconsideration pending before
the Administrative Judge was ignored by the Administrative Judge. It is also in
the clerk’s record.
II. PROCEDURAL HISTORY
Appellant, represented by his pro bono attorney of record on appeal, pled guilty to
the offense of driving while intoxicated on July 2, 2013. The trial court assessed
punishment at 15 days confinement in the county jail. A motion for new trial and
notice of appeal were timely filed. The court of appeals affirmed Appellant’s
conviction in an unpublished opinion issued on December 16, 2014. A copy is
iv
attached as Appendix A. A motion for rehearing and motion for reconsideration en
banc were filed and denied on January 15, 2015 and March 17, 2015 respectively.
This Court granted Appellant an extension of time until March 19, 2015, to
file this petition.
III. ISSUES PRESENTED
1. Whether the trial court erred in refusing to recuse itself after multiple open
court efforts by the court to have defense counsel violate Texas criminal law
by interpreting without the required license, for a defendant, before the court
on issues of bail, and whether the Presiding Judge of the Administrative
Region erred in denying the related Motion to Recuse.
2. Whether appellant’s due process rights were violated by appearing before
a court hostile to his race, and that has violated Texas criminal law hundreds of
times by promoting unlicensed language interpretation in formal court
proceedings.
ARGUMENT
A. STATEMENT OF FACTS
Harris County Criminal Court Number Seven utilizes illegal procedures
regarding the interpretation of the Spanish foreign language for defendants brought
v
before the court. This has the effect of disproportionally affecting mostly indigent
and minority defendants. It is a Class A misdemeanor to interpret before the court
without the appropriate license. For well over 10 years, in contravention of
multiple laws and under the risk of creating perpetuating criminal prosecutions,
Harris County judges including Court Seven, have supervised and promoted illegal
interpreting by both appointed and retained counsel, sheriff deputies of earlier
administrations, assistant district attorneys, court staff, anyone bilingual who
happens to be around and even bilingual judges themselves. Many law violating
actors, since then, have risen to other appointed and elected positions and continue
to perpetuate these crimes. No one has been prosecuted or arrested. The courts
pay appointed attorneys extra public money to violate the law by interpreting
without the approved licenses as well and by supplementing and enhancing
attorney income on pay vouchers for such illegal interpreting . Those appointed
attorneys who refuse to interpret without a license run the very real risk of not
being called upon again to earn pay in those courts while serving the indigent.
These facts and similar events affecting the indigent and racial minorities
repeatedly occur in this Court and all 15 Harris County misdemeanor courts in spite
of Tex. Code Crim. Pro. Art. 38.30 requirements to provide an interpreter at County
expense, Attorney General Opinions, the Texas Government Code, Fair Defense Act
vi
requirements (this judge is bound by Harris County’s selected alternative plan that
clearly states licensed interpreters are available 24 hours – this statement is false, but
if it is not, such interpreters are rarely utilized even upon request), antitrust law, due
process violations, State Bar ethical rules regarding effective assistance of counsel
and violations regarding conflicts and violations of law, equal protection laws, the
Americans with Disabilities Act, Civil Rights law under Title VI of the Civil Rights
Act of 1964, conspiracy laws, potential appellate reversals, whistleblower laws and
requirements under Harris County’s own recent settlement agreement, after litigation,
with the Texas Civil Rights Project.
Such settlement agreement requires this judge to provide interpreters upon
request. Yet there has never been a uniform, formal system in place to utilize
licensed and legal interpreters whether they are requested or not. In the rare
circumstance an interpreter is requested and actually scheduled, it is only after
requesting counsel is chastised, rebuked, threatened or otherwise ridiculed. By
contrast, the 22 Harris County criminal District Courts in the same building currently
have licensed interpreters available immediately and at all times for all Courts. Such
plan was implemented after years of violating Texas law in most of those courts a
well, not out of a sense of justice, but because of appellate reversal(s).
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Additionally, unlicensed interpreters are not sworn prior to interpreting as
required. There are various reasons licensed interpreters are required, but
immigrants in particular require them to ensure an understanding of, for example,
the potential consequences of a guilty plea. It is too easy for an unlicensed, biased
(for example, biased because of the want of additional court pay and future court
appointments) interpreter to skim over or leave out altogether immigration
consequences and warnings, even before the bench. In many instances, the court is
clueless as to what occurred before the bench.
Finally, it goes without saying that these facts expose a highly hypocritical,
paradoxical daily occurrence - criminal law violations, sponsored by the trial judge in
open court in front of a police officer (bailiff) and representatives of the district
attorney’s office on every occurrence. And another oddity: the District Clerk’s
office resisted efforts to make sure the documents in this trial case were available on
the internet to the public just like any other case.
B. ISSUE ONE
The Texas Rules of Civil Procedure, which apply to Texas criminal case recusals,
state the situations in which a trial judge should be recused from presiding over a
particular case. In this case, the trial judge should be recused from presiding
because: in light of the illegalities, the trial judge’s impartiality may reasonably be
viii
questioned, the trial judge has a personal bias prejudice concerning all subject
matter, when a Spanish speaker is involved, defense counsel, or a party, and the
judge has no regard for Texas law, thus leading to a strong appearance of
impropriety.
C. ISSUE TWO
It is also a due process violation of the Constitutions of this country and state to
fail to provide a licensed interpreter. Such is because failing to do so violates Texas
civil and criminal laws as well as federal laws. This judge has placed efficiency
(more and faster guilty pleas), and cost (of a licensed interpreter) over sound law.
How can a judge who does not know right from wrong, legal from illegal
interpreting, or is indifferent to such, sit in judgment in a fair and impartial manner
for any indigent or minority member of society. Many in both categories require
interpreters, and the defendant here, a minority, has been exposed to this systematic
illegal activity all around him and at every court setting and is at risk of related
system deficiencies which by their nature discriminate against him, as a Hispanic.
Who is it that requires interpreters the great majority of the time? It is Hispanics, of
whom defendant is. As an aside, but a point that should be considered: not one of
the 15 criminal county judges is Hispanic surnamed and none is a Hispanic male.
When one compares that to the percentage of Hispanics and Hispanic males and the
racial makeup of Harris County, it is an abysmal statistic…..one that “piles on” this
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defendant additional unfairness on top of the fact that the judges cannot seem to
abide by existing law regarding Hispanic defendants and interpreters. In other words,
it’s hard enough to get a fair shake when none of the appellant’s minority peers are
sitting in judgment, but then much harder when appellant cannot count on the
system’s units abiding by the mandatory laws that should guide them. Such law
violations cause problems on so many levels. For example, how can certain justices
or this district attorney’s office be involved in appeals such as this and rule or argue
impartially when they are or were once part of this very problem?
Additionally, in order to avoid criminal law penalties for many years, including
well over half a decade while this trial judge sat hearing cases, Texas Attorney
General Opinions JC-0584 and JC-0579, required interpreters to maintain certain
licenses. Texas Government Code (Chapter 57), which happens to be the essence
of these Opinion(s), requires the interpreter maintain the appropriate interpreter
license in order to be qualified to interpret for any Spanish speaker in any case.
Finally, a Defendant in a trial court requires a licensed interpreter so that counsel may
render effective assistance of counsel.
Along those lines and of note is the fact that thousands of guilty pleas from
those accused, for many recent years, were completed illegally in open court in
Harris County, and this court, without licensed interpreters in direct violation of the
x
Texas Government Code and criminal law. Such violations were Class A
misdemeanors on every occasion subject to jail time for up to one year. Not one
interpreter or judge has been prosecuted for violations of criminal law during these
years. In fact, some judges authorized extra payment to court appointed counsel in
many instances to interpret and violate such criminal law and the Constitutions of this
land. The judge of this court has violated multiple civil and criminal laws for many
years. The motion to recuse should have been granted when counsel filed such on
the basis, among other things, that he was being drawn into the criminal conspiracy,
that occurs daily, against his will.
The Department of Assistive and Rehabilitative Services certifies Texas
interpreters. Sec. 57.022 of the Government Code states: The department shall
certify an applicant who passes the appropriate examination prescribed by the
department and who possesses the other qualifications required by rules adopted
under this subchapter.
(b) The executive commissioner of the Health and Human Services
Commission by rule shall provide for:
(1) the qualifications of certified court interpreters;
(2) training programs for certified court interpreters each of which is
managed by the department or by a public or private educational institution;
(3) the administration of examinations;
(4) the form for each certificate and procedures for renewal of a
certificate;
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(5) the fees for training, examinations, initial certification, and
certification renewal;
(6) continuing education programs under this subchapter;
(7) instructions for the compensation of a certified court interpreter
and the designation of the party or entity responsible for payment of compensation;
and
(8) administrative sanctions enforceable by the department.
Sec. 57.049 of the Government Code states: PROHIBITED ACTS. A
person may not advertise, represent to be, or act as a licensed court interpreter
unless the person holds an appropriate license under this subchapter.
Sec. 57.050 states (a) A person commits an offense if the person violates
this subchapter or a rule adopted under this subchapter. An offense under this
subsection is a Class A misdemeanor. The Texas Law of Parties implicates the
judge as if illegally interpreting himself/herself.
Therefore, thousands of Class A misdemeanors have been committed in
open court for years in Harris County. Each court generally disposes of several
cases per day that require a licensed interpreter. This takes into consideration plea
bargains only and not all other formal proceedings before the bench.
Regarding the ruling from the Administrative Judge of the Region, his
ruling as described in Appellant’s “Motion For Reconsideration Of Denial of
Defendant’s Motion to Recuse Trial Judge Pam Derbyshire” that is part of the trial
court’s record, has absolutely has no rhyme or reason and does not apply to the
xii
facts in the original Motion to Recuse at all. It is as if some form was used to try
and apply boiler plate language to this case. While appellant has no yearning to
make efforts to police the judiciary, particularly since his camp is not being paid,
like every other person dealing with this document, something must be done since
things have gotten completely out of hand when laws are flouted in open court
daily by public servants on the public payroll. Someone must do something and
the dozens of public officials (and their attorney), and the many government
employees who witness this crime do nothing but perpetuate it.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court
grant discretionary review, order full briefs and oral argument and reverse the court of
appeals.
CERTIFICATE OF COMPLIANCE
I certify that the above document consists of about 2,548 words.
/S/
/S/ Rick Soliz
xiii
CERTIFICATE OF SERVICE
I certify that the above document was served on the State of Texas by delivering
copies, to the Harris County District Attorney’s Office, 1201 Franklin, 6th Floor,
Houston, Texas 77002 and the State Prosecuting Attorney, P.O. Box 13046, Austin,
Texas 78711 on this 19th day of March 2015.
Respectfully submitted,
J. Ricardo Soliz and Assoc., P.L.L.C.
/S/________________________
/S/ Rick Soliz,
T.B.N. 00785013
P.O. Box 4051
Houston, Texas 77210
713-228-1900
jrsoliz@att.net
Pro Bono Attorney for Appellant
xiv
JUDGMENT
Court of Appeals
First District of Texas
NO. 01-13-00851-CR
ERIK SANTANA GUANCHE, Appellant
V.
THE STATE OF TEXAS, Appellee
Appeal from the County Criminal Court at Law No. 7 of Harris County.
(Tr. Ct. No. 1869024).
This case is an appeal from the final judgment signed by the trial court on July 2,
2013. After submitting the case on the appellate record and the arguments properly raised
by the parties, the Court holds that the trial court’s judgment contains no reversible error.
Accordingly, the Court affirms the trial court’s judgment.
The Court orders that this decision be certified below for observance.
Judgment rendered December 16, 2014.
Panel consists of Chief Justice Radack and Justices Bland and Huddle. Opinion delivered
by Justice Huddle.
3/20/2015 Envelope Details
Print this page
Case # PD­0190­15
Case Information
Location Court Of Criminal Appeals
Date Filed 03/19/2015 11:38:33 PM
Case Number PD­0190­15
Case Description
Assigned to Judge
Attorney
Firm Name Individual
Filed By Rick Soliz
Filer Type Not Applicable
Fees
Convenience Fee $0.00
Total Court Case Fees $0.00
Total Court Filing Fees $0.00
Total Court Service Fees $0.00
Total Filing & Service Fees $0.00
Total Service Tax Fees $0.00
Total Provider Service Fees $0.00
Total Provider Tax Fees $0.00
Grand Total $0.00
Payment
Account Name Rick Soliz
Transaction Amount $0.00
Transaction Response
Transaction ID
Order #
Petition for Discretionary Review
Filing Type EFileAndServe
Filing Code Petition for Discretionary Review
Filing Description PDR
Reference Number
Comments PDR
Status Rejected
Fees
Court Fee $0.00
Service Fee $0.00
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3/20/2015 Envelope Details
Rejection Information
Rejection
Time Rejection Comment
Reason
The petition for discretionary review does not contain a copy of the court of
03/20/2015
appeals opinion. The petition for discretionary review does not contain the
Other 09:21:14
identity of Judge, Parties and Counsel [Rule 68.4(a)]. You have ten days to tender
AM
a corrected petition for discretionary review.
Documents
Lead Document Appellant's (Santana's) PDR.pdf [Original]
Attachments Judgmentof the Court 12­16­14.pdf [Original]
eService Details
Date/Time
Name/Email Firm Service Type Status Served
Opened
Jessica Akins 03/20/2015
EServe Sent Yes
akins_jessica@dao.hctx.net 08:52:13 AM
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