Vongsavanh Phommathep v. State ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-12-00503-CR
VONGSAVANH PHOMMATHEP, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 251st District Court
Randall County, Texas
Trial Court No. 22,061-C, Honorable Ana Estevez, Presiding
February 11, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant, Vongsavanh Phommathep, appeals his conviction for the offense of
aggravated assault with an affirmative finding of the use of a deadly weapon, 1 and the
resulting sentence of confinement in the Institutional Division of the Texas Department
of Criminal Justice (ID-TDCJ) for 30 years and fine of $4,000. By two issues, appellant
contends that the trial court erred in its appointment of an interpreter, and the statutory
scheme for the appointment of an interpreter is unconstitutional. For the reasons
1
See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011).
expressed below, we will overrule appellant’s contentions and affirm the judgment of the
trial court.
Factual and Procedural Background
Appellant does not contest the factual sufficiency of the evidence; therefore, we
will only address those portions of the record required for our disposition of this matter.
Appellant was accused by indictment of the aggravated robbery of Thovone Kayakone.
Both appellant and Kayakone are Laotian. At the trial of the case, the trial court sua
sponte appointed an interpreter to interpret the testimony of Kayakone.
After the interpreter was sworn in, trial counsel voiced a general concern
regarding not having any information about what the qualifications of the interpreter
were.2 After asking the interpreter a few general questions about his experience, trial
counsel made the following observation, “Your honor, I am not sure he is qualified, if he
has never . . . .” Whereupon the trial court stated, “The law doesn’t require him to have
interpreted before. I mean, if you want to test his qualifications another way, that is up
to you.” Trial counsel then proceeded to ask the interpreter about whether he knew
Kayakone and if they had attended the same church. At the conclusion of this voir dire
examination of the witness, trial counsel simply stated, “That is fine. I still have some
question, I understand the Court’s ruling.”
2
We note that appellant’s brief contends that the first indication that the
interpreter was not competent was revealed when the trial court attempted to get the
interpreter to spell his name. We have reviewed that portion of the record and are
satisfied that the record does not indicate any problem with the interpreter spelling his
name.
2
After the State had concluded its initial direct examination of Kayakone, trial
counsel stated he wished to “re-urge my objection to the interpreter. I feel like, based
upon what he has done so far with Mr. Kayakone, it indicates that he is not competent
to serve as an interpreter in a proceeding like this.” The trial court’s reply was, “Okay,
you need to be specific. Because I didn’t see anything that I would feel he wasn’t
interpreting.” This led trial counsel to suggest that, “there were numerous occasions
where a question was asked by the prosecutor and it was given to Mr. Kayakone, Mr.
Kayakone gave a very long, elaborate response. The interpreter then gave a very short
and abbreviated answer.” The trial court’s response suggested that, if trial counsel felt
that was occurring, he needed to object at that time so that the trial court could address
it timely.
At this juncture of the trial, the trial court made a statement regarding the ability
to obtain a “certified” Laotian interpreter. The trial court advised that it was not aware of
any “certified” Laotian interpreters within five hundred miles of Randall County. After
the trial court’s statement, trial counsel again asked to voir dire the interpreter prior to
bringing the jury back into the courtroom. At this time, trial counsel’s single inquiry was
whether or not the interpreter had simply relayed the witness’s answers to the questions
into English. The interpreter avowed he had done only that. Trial counsel made no
additional objections regarding the interpreter’s qualifications.3
At the conclusion of the evidence, the jury found appellant guilty of the lesser-
included offense of aggravated assault and answered affirmatively to the deadly
3
Trial counsel did object to nonresponsive answers and leading questions;
however, none of these objections relate to the issue presented.
3
weapon special issue. Thereafter, the jury heard punishment evidence and found that
the punishment enhancement portion of the indictment was true and assessed
appellant’s sentence at confinement in the ID-TDCJ for 30 years with a fine of $4,000.
Appellant perfected his appeal and brings two issues before this Court. In his
first issue, appellant contends that the trial court abused its discretion in appointing an
interpreter who was not licensed and incompetent without making the findings required
by section 57.002(e) of the Texas Government Code. See TEX. GOV’T CODE ANN. §
57.002(e) (West Supp. 2013).4 Appellant’s second issue contends that section
57.002(e) violates equal protection and is unconstitutional. We disagree and will affirm.
Preservation of Error
Before turning to the merits of appellant’s arguments, this Court must first
ascertain whether the issues now argued by appellant were properly preserved for
appeal. To preserve error, the record before the Court must show that appellant made
a timely request, objection, or motion, and that the trial court ruled upon it. TEX. R. APP.
P. 33.1(a);5 Garza v. State, 126 S.W.3d 79, 81-82 (Tex. Crim. App. 2004). The reason
for this requirement, as applicable to the case before the Court, is to inform the trial
court the basis for the objection and give it the opportunity to make a ruling. Garza, 126
S.W.3d at 82. Therefore, we turn first to the issues raised by the State’s brief regarding
the questions of procedural default and issue preservation.
4
Further reference to the Texas Government Code will be by reference to
“section ____” or “§ ____.”
5
Further reference to the Texas Rules of Appellate Procedure will be by
reference to “Rule ____.”
4
General Objection and Timeliness of Objection
Appellant’s first issue may be segregated into two parts and, indeed, it must.
The first part seems to go to the qualifications of the interpreter. At trial, counsel simply
averred a general concern about the qualifications of the interpreter. This first attempt
at an objection is too general to provide the trial court with any basis upon which it could
rule. See Rule 33.1(a)(1); Wilson v. State, 541 S.W.2d 174, 175 (Tex. Crim. App.
1976). Subsequently, appellant’s counsel simply re-urged his objection. Again, this
provides nothing for the trial court to rule upon. Id. Counsel did make a statement to
the trial court, after he re-urged his objection, that seemed to again voice concern about
the interpreter’s qualifications; however, even if we were to conclude that this was a
sufficient objection, he never requested a ruling from the trial court and did not get one.
Again, there is nothing preserved for appeal. Finally, trial counsel attempted to set forth
an objection at this juncture of the trial; however, this objection was a reference to some
earlier, unspecified portion of the trial where counsel felt the answers given by the
witness were long and involved and the answers given by the interpreter were short and
direct. The trial court urged counsel to make those objections, if they were needed, at
the time of the incident and not later. Again, there was no ruling by the trial court and, in
fact, when an objection such as this is made, the trial court would, because of a lack of
timeliness of objection, be forced to speculate about to what questions appellant was
referring. See Rule 33.1(a); see also Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim.
App. 2012) (holding that no hyper-technical or formalistic words are required to preserve
error by way of objection, the objecting party must let the trial court know what they
5
want it to rule on at a time when the trial court is in position to do something about it).
Because appellant’s objections were of a general nature that did not properly apprise
the trial court of the perceived error and were made, not at the time of the alleged error,
but later in the trial, we hold that the error, if any, was not preserved for appeal. The
first part of appellant’s first issue is overruled.
Failure to Comport
The second part of appellant’s first issue contends that the trial court abused its
discretion by appointing the interpreter without making the findings required by section
57.002(e). Our review of the record reveals that this objection was never placed before
the trial court. Rather, at trial, the objection, as reflected above, went to a question of
the general competency of the interpreter. As such, appellant’s trial objection does not
comport with this portion of his first issue. See Rule 33.1(a)(1); see also Swain v. State,
181 S.W.3d 359, 367 (Tex. Crim. App. 2005) (en banc). Accordingly, nothing is
preserved for appeal regarding section 57.002(e). Id. The second portion of appellant’s
first issue is overruled.
Failure to Object
Next, we turn our attention to appellant’s second issue. In this issue, appellant
contends that section 57.002(e) violates equal protection and is unconstitutional. We
initially note that appellant presents no clear issue about whether he is contesting
section 57.002(e) as facially unconstitutional or as unconstitutional as applied. In this
case, it matters not because appellant made neither argument at trial. If his argument is
that the statute is facially unconstitutional, such an argument is required to be made
6
before the trial court. See Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App.
2009). If however, appellant is making an allegation that the statute is unconstitutional
as applied to him, such an argument must also be preserved by presentation to the trial
court. Cartier v. State, 58 S.W.3d 756, 759 (Tex. App.—Amarillo 2001, pet. ref’d) (citing
Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995)). Because appellant
failed to make his complaint known to the trial court, nothing is preserved for appeal.
See Rule 33.1(a)(1). Accordingly, appellant’s second issue is overruled.
Conclusion
Having overruled both of appellant’s issues, we affirm the judgment of the trial
court.
Mackey K. Hancock
Justice
Do not publish.
7