Javier Galindo Pacheco v. State ( 2015 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: Javier Galindo Pacheco v. The State of Texas
Appellate case number: 01-14-00156-CR
Trial court case number: 1341972
Trial court: 262nd Judicial District Court of Harris County
On February 26, 2015, this Court granted the appellant’s pro se motion requesting
access to a copy of the appellate records, ordered the trial clerk to provide a copy of the
record to appellant, and granted appellant a 45-day extension of time to file his pro se
response to his appointed counsel’s Anders brief. See Anders v. California, 386 U.S. 738,
744, 87 S. Ct. 1396, 1400 (1967); Kelly v. State, 436 S.W.3d 313, 315, 318–20 (Tex.
Crim. App. 2014). On March 2 and April 7, 2015, the appellant filed two handwritten
letters, but only in Spanish. On April 14, 2015, the trial clerk filed a certification in this
Court confirming that a copy of the appellate records had been delivered to appellant on
March 30, 2015.
The Texas Court of Criminal Appeals has held that while “. . . the court of appeals
is not required to review the merits of each claim raised in an Anders brief or a pro se
response,” the appellate court’s “duty is to determine whether there are any arguable
grounds and if there are, to remand to the trial court so that new counsel may be
appointed to brief the issues.” Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App.
2005). However, the Texas Court of Criminal Appeals more recently has held that a
court of appeals erred in granting an appointed counsel’s motion to withdraw in an
Anders case “without first satisfying the appellant’s express request to gain access to the
appellate record in order to meaningfully respond to the Anders brief.” Kelly, 436 S.W.3d
at 322 (emphasis added). Here, although this Court is not required to review the merits of
appellant’s pro se letters, we are unable to fulfill our duty to determine whether any
arguable grounds are raised in his pro se responses because they are in Spanish, and we
first have to request certified translations to be filed in this Court to determine whether
these are appellant’s pro se Anders responses and then if any arguable grounds are raised.
Though directed at the trial courts, Article 38.30 of the Criminal Code provides
that “[w]hen a motion for appointment of an interpreter is filed by any party or on motion
of the court, in 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.” TEX. CODE CRIM. PROC. ANN.
§ art. 38.30(a) (West Supp. 2014); see also Linton v. State, 275 S.W.3d 493, 500 (Tex.
Crim. App. 2009) (noting that, if a defendant cannot speak English well enough to
understand the trial proceedings, “fundamental fairness and due process of law require
that an interpreter be provided to translate between English and the accused’s own
language.”). Based on the reporter’s records for the plea and pre-sentencing investigation
hearings, a certified Spanish-English interpreter was appointed to interpret for the
appellant during these trial proceedings because he did not speak English.
Accordingly, we sua sponte abate and remand the cause to the trial court for the
appointment of a certified Spanish-English translator for the limited purpose of
translating into English appellant’s two pro se Anders responses, filed in this Court on
March 2 and April 7, 2015, which are attached to this order, and to file the translator’s
affidavit or unsworn declaration certifying the translator’s qualifications and that the
translations are accurate. See TEX. R. EVID. 1009(a) (West Supp. 2014). The trial court
clerk is directed to file a supplemental clerk’s record containing the order of appointment
and the certified translations and translator’s affidavit/unsworn declaration with the Clerk
of this Court within 30 days of the date of this order, which will become part of the
appellate record. See TEX. R. APP. P. 34.5(c)(3).
This appeal is abated, treated as a closed case, and removed from this Court’s
active docket. This appeal will be reinstated on this Court’s active docket when a
supplemental clerk’s record that complies with this order is filed with the Clerk of this
Court. Although the State filed a waiver of its right to file an appellee’s brief in response
to appointed counsel’s Anders brief, the State’s appellee’s brief in response to appellant’s
two pro se Anders responses, if any, will be due within 30 days after this appeal is
reinstated. See TEX. R. APP. P. 2, 38.6(b).
It is so ORDERED.
Judge’s signature: /s/ Laura C. Higley

Date: May 5, 2015