Linton, Audrey R. ( 2009 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0413-08
AUDREY R. LINTON, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS
MONTGOMERY COUNTY
C OCHRAN, J., delivered the opinion of the unanimous Court. J OHNSON,
J., filed a concurring opinion.
OPINION
Appellant is deaf. She contends that she did not have adequate deaf-translation
services at trial. In this case, we find that the three deaf interpreters provided by the trial
court were constitutionally sufficient.1 We therefore reverse the court of appeals, which had
1
We granted the State’s Petition, which asked,
1. What is the standard of review in determining whether the trial court took adequate steps
to ensure that the appellant had a minimum understanding of the proceedings?
2. Is the opinion of a defense expert, alone, sufficient to establish that a deaf relay
interpreter was required when the expert did not use a deaf relay interpreter to evaluate
the defendant; neither the defendant, counsel, nor the counsel-table interpreter testified
Linton Page 2
held, in essence, that the trial court reversibly erred in not providing the “best” interpretive
services–including a deaf-relay interpreter–to ensure appellant’s full understanding of the
trial proceedings.2
I.
THE TRIAL AND APPEAL
A. The Motion to Suppress
Early one rainy morning, appellant, while driving down Chateau Woods Parkway,
rear-ended another car. The police investigated the accident and arrested appellant for DWI
after she failed a field sobriety test. She was videotaped at the police station as she and an
officer both read the “DIC-24” form.3 Appellant agreed to take a breath test; its results
showed a blood-alcohol content of .187 and .193.
Appellant filed a motion to suppress the breath-test results, arguing that she did not
understand that she had the right to refuse a breath test. At a pretrial hearing, appellant
that the defendant could not assist counsel; and the record shows that the defendant had a
rational understanding of the charge against her and the facts?
3. What minimum level of comprehension is required to assure a defendant’s constitutional
rights during a trial? In other words, is a fourth grade linguistic comprehension sufficient
if the defendant has a rational as well as factual understanding of the proceedings, has
spontaneously and appropriately responded to testimony, and there is no evidence that the
defendant could not assist counsel in her defense?
2
Linton v. State, 246 S.W.3d 698 (Tex. App.—Corpus Christi 2007).
3
Form DIC-24 is the written component of the statutory warning required in cases where
a peace officer requests a voluntary blood or breath specimen from a person. See TEX . TRANSP .
CODE § 724.015; State v. Neesley, 239 S.W.3d 780, 782 n.1 (Tex. Crim. App. 2007).
Linton Page 3
testified, through a certified American Sign Language interpreter, that she was unable to
communicate with the arresting officer and that she took the breath test only because she
“thought it was a requirement.” She said that she could not understand the papers she was
given to read, and she could not read the officer’s lips because he had a mustache. The judge
then asked her some questions that she answered coherently. She said that she was a high-
school graduate, she has a driver’s license, and she was enrolled in Blinn College,4 but she
had not learned how to read and write very well. The court reporter’s record reveals that
appellant gave several audible responses before the interpreter translated.
Deputy Woodrick then testified about the arrest. He said that it was hard to
communicate with appellant. “The way I communicated with her was I would write notes,
she would read the notes, and then she would answer my questions” orally. She indicated
that she understood his questions, and her verbal answers were “[a]bsolutely” appropriate.
The deputy said that appellant indicated that she understood the language in the DIC-24 form
as well as her Miranda rights.
When the trial judge asked Deputy Woodrick about the circumstances of the accident,
appellant clarified one of the deputy’s answers:
Witness: Well, part of the damage to the other vehicle. She hit the vehicle on the left
corner and caused it to spin, and it slammed into a tree because –
Judge: Okay.
Appellant: I did not hit the tree.
Witness: She didn’t hit the tree. The other vehicle hit the tree.
4
Appellant said that she had failed her classes at Blinn College.
Linton Page 4
The station-house video was played, and the interpreter said that appellant signed “I
don’t understand” on the video five or six times.
The trial judge denied the motion to suppress, pointing out that appellant was a high
school graduate and a college student. He explained that, while he had “heard . . . she’s got
a big hearing problem,” he had not “heard anything about a mental problem.” The trial judge
rejected appellant’s claim that she did not understand her right to refuse a breath test.
B. The Trial on the Merits
By the time the trial began, a new defense attorney, a new trial judge, and new
interpreters were involved. Appellant’s attorney asked the judge to reopen the suppression
hearing, arguing that prior counsel had been ineffective by failing to (1) request an expert
to evaluate appellant, who, he claimed, reads at an elementary-school level, and (2) contest
the reliability of the field tests based on the communications gap. The trial judge deferred
ruling until she had seen the station-house video, and the parties proceeded with voir dire.
After voir dire, the judge called both court-appointed interpreters to the witness stand
for the defense and prosecution to question them. Both testified that they were able to
effectively convey what was being said to appellant. They were using transliteration instead
of ASL,5 because that was what appellant used with them. Defense counsel said that
5
“Transliteration is the means by which spoken English is converted word for word into
visual English. . . . Transliteration conveys the words being spoken. It does not decode the
spoken English–that is, it does not get to the meaning. Rather, it recodes the English, making the
spoken word visible, either in signed form or orally.” Michele LaVigne & McCay Vernon, An
Interpreter Isn’t Enough: Deafness, Language, and Due Process, 2003 WISC. L.REV . 843, 871
(2003). “ASL is frequently thought of as English in signed form. It is not. ASL is frequently
Linton Page 5
transliteration would not work because “she doesn’t understand English.” He said that he
would call his own expert later.
The trial testimony began with Marian Dale Embry explaining that she was rear-ended
by appellant’s car at 6:30 in the morning on November 17, 2003–“a misty kind of light rainy
day.” Ms. Embry helped appellant out of her truck and noticed that she “reeked” of alcohol.
Because it was chilly and wet, Ms. Embry had appellant sit in her car until the police came.
Although Ms. Embry knew that appellant was deaf, they were able to exchange information.
Deputy Woodrick then testified much as he had at the hearing on the motion to
suppress. He said that, when he arrived at the accident scene, appellant smelt strongly of
alcohol, her eyes were red, and she was unsteady on her feet. He testified that they were able
to communicate through writing and that appellant could speak to him. When he couldn’t
understand her, he had her write down what she was saying. He said that she failed the “one-
leg-stand” field test: “She just couldn’t balance on one foot.” He arrested her for DWI.
C. The Motion for Mistrial Hearing
At the beginning of the second day of trial, defense counsel moved for a mistrial,
claiming that appellant was not understanding the proceedings: “[T]his goes back to her
level of education and the level of competence one might have to have to go to McDonald’s
thought of as spelling out every English word via the deaf alphabet. It is not. ASL is its own
unique language, one that is far from English. ASL has been likened to written Chinese in that it
is ideographic, meaning that ‘the character correlates directly with the meaning.’ Though one
language is written and one is not, the languages share the common trait of presenting ideas,
thought, and comment in spatial form.” Id. at 875 (footnotes omitted).
Linton Page 6
and order a hamburger.”
The trial judge held a hearing on the mistrial motion, and appellant’s pastor testified
that he had known appellant for more than eleven years. He said that appellant neither signs
straight English nor straight ASL; they communicate in a combination of English and broken
ASL. He said that appellant told him that morning that she had been confused “a lot” during
the preceding day. “My opinion is that there is some concepts, words and vocabulary and
things that needs to be broken down into concepts for Audrey.” He gave an example: the
interpreters had used the sign for “witness” several times the previous day, but appellant
thought that everyone was saying “Willis,” because the sign for the city of Willis is the same.
Next, Dr. Jean Andrews testified that she was the director of graduate programs in
deaf education at Lamar University. She said that appellant is prelingually deaf–she became
deaf before she learned how to speak–and she reads at a 4th grade level. According to Dr.
Andrews, the DIC-24 form is written at a 12th-grade reading level and the Miranda warnings
are at an 8th-grade reading level. She testified that the transliteration used by the two court
translators is essentially finger-spelling, but that does not help someone, like appellant, who
does not understand the meaning of the word being finger-spelled. She testified that deaf
people commonly smile and nod when they do not understand something, and she saw
appellant doing this on the videotape. She also signed three times that she did not understand
“what was going on in that room.” Dr. Andrews said that she was in the courtroom the day
before. Based on her assessment of appellant and the signing that the interpreters were
Linton Page 7
doing, it was her opinion that appellant did not understand what was going on during the trial
because of her deafness, her education level, and her language deprivation. She is
“semi-lingual,” that is, proficient neither in English nor ASL, and therefore, “linguistically
incompetent.”
The trial judge denied the motion for mistrial but, under Article 38.31(b), appointed
a third interpreter to sit at counsel table. Counsel asked for and received more time to
explain to appellant “what’s going on.” Before the jury came back, counsel put on the record
that the table interpreter would be allowed to do more than literally translate:
Counsel: And so I’m clear on the record, Judge, in appointing Ms. Trevino to assist me,
she is allowed, unlike the current two interpreters interpreting for the Court,
where they have to do a literal translation, she is allowed to break down
anything to the level at which Ms. Linton can understand. Is that correct?
Court: That is correct. She can do it in a way so that the defendant can understand.
Of course, this will be done, not simultaneous to the interpreting of the
interpreters, but at the time that the Court takes its breaks.
Counsel: I can live with that.
The prosecutor then questioned Dr. Andrews and she recommended that a deaf interpreter6
be appointed:
Q: Are you asserting to this Court that there would be some other way to interpret for the
defendant where she would be able to comprehend the proceedings of this court?
A: Well, there is a way. That would be to have a deaf interpreter that would work
6
A deaf interpreter functions “in an intermediate capacity between the court interpreter
who can hear and the deaf litigant.” Brief for Registry of Interpreters for the Deaf, Inc. et al. as
Amici Curiae Supporting Appellant, at 1. See Jamie McAlister, Deaf and Hard-of-Hearing
Criminal Defendants: How You Gonna Get Justice If You Can’t Talk to the Judge? 26 ARIZ. ST .
L.J. 163, 184 (1994) (“The deaf interpreter may use rudimentary ASL, pantomime, drama, and
gestures.”).
Linton Page 8
alongside of the hearing interpreter. And when the client did not understand what the
hearing interpreter was doing, the deaf interpreter would be watching the hearing
interpreter and then act it out through mimes, through gestures, to communicate, break
down the concept pantomime and gestures for the deaf client, and this is commonly
used in many deaf cases.
***
Q: So it’s not simply because the defendant is deaf that she cannot understand what’s
going on?
A: Correct. It’s her linguistic background.
Defense counsel again requested to re-open the motion to suppress and argued that
the trial court’s solution of a table interpreter was inadequate because “I’ve been restricted,
as you stated, to communicating with [appellant] on breaks.” The State replied:
[T]here is no requirement that . . . everything that happens in the courtroom
be explained in depth to someone who doesn’t understand because of their
education level . . . . It is entirely possible that someone could sit in this
courtroom without any kind of documented or legally recognized disability and
because of their reading level, their comprehension, their life experiences, not
understand everything that is going on. That doesn’t mean that they are not
competent to stand trial.
The trial court again denied the motion for mistrial and the motion to suppress.
D. The Continuation of Trial
Deputy Woodrick was recalled and testified at length about the arrest at the accident
scene and the tests at the station. The station-house videotape was played in short segments,
and Deputy Woodrick was questioned about each segment. He gave his lay opinion about
appellant’s performance on the field tests; she did “okay” on the walk-and-turn test, but had
balance problems on the other two tests. He said that he did not know what appellant was
signing on the video, but he felt he had “effectively communicated with her.”
Linton Page 9
After a lunch break, the judge noted for the record that there were two interpreters for
the court with a third sitting at counsel table for appellant and her attorney. She told the
interpreters that “if you need time, tell me . . . I’ll understand that.” Deputy Woodrick
finished testifying, and after calling the intoxilyzer expert, the State rested.
The defense called an expert to testify that appellant was not a proper candidate for
field sobriety tests because of her (1) inability to understand the instructions and (2) balance
difficulties. Dr. Andrews testified before the jury and gave essentially the same testimony
that she had at the earlier hearing: Appellant reads at a 4th-grade level and much of the
courtroom proceedings were above her comprehension level. According to Dr. Andrews,
appellant did not understand the Miranda warnings or the DIC-24 form. About twenty to
twenty-five percent of the transliteration was “incomprehensible to her.” For that twenty
percent, she needed concepts broken down. Appellant had an average IQ, but was
linguistically incompetent. Appellant did not testify.
The jury found appellant guilty, and the trial judge placed her on community
supervision. The entire trial was videotaped, and all of the cassettes of the translations were
entered into evidence for the appellate courts.
E. The Motion for New Trial Hearing
Appellant filed a motion for new trial, and Dr. Andrews testified a third time. She
said “there’s no way that [appellant] could understand what was happening in the courtroom
using the method of transliteration which was used in this Court.” She said, “If she had the
Linton Page 10
right kind of interpreter,” appellant would “possibly” be able to understand the proceedings.
She needed a hearing interpreter, a deaf interpreter, and a table interpreter. Those three
interpreters would need to spend “a minimum of ten hours to talk to her and to get a level of
what she’s understanding and also maybe to go over some of the terminology.” Elaine
Roberts, the legal director for Advocacy Incorporated, testified that the interpreters had
indicated that they could not verify that appellant knew what was going on. Defense counsel
argued that the law requires that the interpretation be “tailor-made” and that once the trial
judge was apprized that appellant was not understanding the proceedings, she had a “duty to
try and correct that. And that wasn’t done.” Defense counsel implied that appellant was
incompetent to stand trial because she did not have the present ability to consult with him.
He analogized this trial to having a “Spanish interpreter not using the same dialect as the
defendant. Spanish has many different dialects.” Here, the right dialect was not used.
Neither appellant nor her attorney testified to specific examples of crucial testimony
that appellant did not comprehend. Nor did they give concrete examples of how appellant
failed to participate in her defense because of her linguistic incompetence.
The State reminded the judge that one of the interpreters had actually said that he was
using a combination of ASL and signed English because that is what appellant was using
with him and that she responded appropriately when he spoke to her.
The judge, after noting that she had carefully considered the record, the testimony on
the motion for new trial, and the arguments that had been made, denied the motion for new
Linton Page 11
trial.
F. The Court of Appeals’ Opinion
On appeal, appellant argued that trial court failed to make proper accommodations for
her hearing impairment. As a result, she was left “linguistically incompetent”–unable to
understand or have a command of the interpreted language presented to her–and therefore
she was entitled to a new trial. The court of appeals agreed. It held,
Based on the record as provided, and under the circumstances of this case only,
we find that the appointment of an additional interpreter to break down
concepts during breaks in trial was insufficient to provide Linton with a
thorough understanding of the proceedings against her. Moreover, given that
the English based transliteration did not account for Linton’s low level
comprehension of the English language, we find that the transliteration
provided was also inadequate.
***
Given the complexity of Linton’s hearing impairment, we believe that the trial
court erred in not providing Linton with the assistance of a deaf-relay
interpreter.7
The court of appeals remanded the case for a new trial.
II.
It is well settled that if a defendant cannot hear or does not speak English well enough
to understand the trial proceedings or communicate with counsel, fundamental fairness and
due process of law require that an interpreter be provided to translate between English and
the accused’s own language.8 Decisions regarding adequate interpretive services depend
7
Linton, 246 S.W.3d at 704.
8
Thomas M. Fleming, J.D., Annotation, Right of Accused to Have Evidence or Court
Proceedings Interpreted, Because Accused or Other Participant in Proceedings Is Not Proficient
Linton Page 12
upon a potpourri of factors, including the defendant’s understanding of the English language
and the complexity of the pertinent law and its procedures, and the testimony. Therefore, the
trial judge–having the defendant in his presence, observing his level of comprehension, and
asking him questions, has wide discretion in determining the adequacy of interpretive
services.9 The question on appeal is not whether the “best” means of interpretive services
were employed, but whether the services that were actually employed were constitutionally
adequate such that the defendant could understand and participate in the proceedings.
A. The Constitutional Requirement
The federal constitution “requires that a defendant sufficiently understand the
proceedings against him to be able to assist in his own defense.” 10 It is the trial judge’s task
to ensure that the defendant has that minimum understanding.11
As a matter of Texas law, Article 38.31(a) of the Code of Criminal Procedure requires
a trial judge to provide an interpreter for a deaf person to interpret “in any language that the
in the Language Used, 32 A.L.R. 5th 149 § 3[a] (1995).
9
See, e.g., Shu Guo Kan v. State, 4 S.W.3d 38, 41 (Tex. App.—San Antonio 1999, pet.
ref’d) (“The competency of an individual to act as an interpreter is a question for the trial court,
and absent a showing of abuse of discretion, that determination will not be disturbed on
appeal.”); Mendiola v. State, 924 S.W.2d 157, 162 (Tex. App.—Corpus Christi 1995, pet. ref'd,
untimely) (“The competence of an interpreter is for the trial court's determination, and we will
reverse such a ruling only for an abuse of discretion”; noting also that “while an interpreter’s
competency is a question of law, the accuracy of an individual translation is a question of fact.”);
Montoya v. State, 811 S.W.2d 671, 673 (Tex. App.—Corpus Christi 1991, no pet.).
10
See the reasoning in Ferrell v. Estelle, 568 F.2d 1128, 1132 (5th Cir. 1978), op.
withdrawn on appellant’s death, 573 F.2d 867 (1978).
11
Id.
Linton Page 13
deaf person can understand, including but not limited to sign language,” and, when
requested, a second interpreter to “interpret. . .communications concerning the case between
the defendant and defense counsel.” 12 This statute implements the constitutional right of
confrontation, which includes the right to have trial proceedings presented in a way that the
accused can understand.13 Under that statute and the relevant constitutional provisions, the
trial court has a duty to devise a communication solution that provides the particular
defendant with “that minimum level” of understanding that is constitutionally required.14
“Such alternative methods may, for instance, include the use of sign language, finger
12
TEX . CODE CRIM . PROC. art. 38.31(a) & (b).
13
Salazar v. State, 93 S.W.3d 339, 340 (Tex. App.—Texarkana 2002, pet. ref’d). “The
right to have proceedings interpreted finds a ready analogy in the right to be competent at one’s
own trial. Whether a defendant’s failure to understand the proceedings or assist in his defense is
caused by a mental defect or a language barrier, the outcome is largely the same: a trial in which
the defendant lacks the ability to participate in a meaningful way.” Garcia v. State, 149 S.W.3d
135, 146 (Tex. Crim. App. 2004) (Keller, P.J., concurring). Other courts have relied on the test
for mental capacity in analyzing whether a non-English-speaking defendant was deprived of the
right to participate in his or her defense. See United States v. Cirrincione, 780 F.2d 620, 633-34
(7th Cir. 1985); United States ex rel. Negron v. New York, 434 F.2d 386, 389 (2d Cir. 1970);
Gonzalez v. Phillips, 195 F. Supp. 2d 893, 902-03 (E.D. Mich. 2001); Murillo v. State, 163 P.3d
238, 241-42 (Idaho Ct. App. 2007).
14
Adams v. State, 749 S.W.2d 635, 639 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d)
(“it is clear that Baltierra, Ferrell, and the Attorney General of Texas have recognized an
obligation outside the statute, based on state and federal constitutional law, to fashion a remedy
suitable to overcome a particular defendant’s disability”); see Baltierra v. State, 586 S.W.2d 553,
559 n.11 (Tex. Crim. App. 1979) (“Counsel is not obliged to implement the right of
confrontation. That duty is imposed upon the court by the confrontation clause in the Sixth
Amendment and Article I, Section 10.”); Ferrell, 568 F.2d at 1133 (trial court had duty to
explore alternative means to provide defendant with a constitutional minimum understanding of
the proceedings); Op. Tex. Att’y. Gen. No. JM-113 (1983) (“article 38.31 obligates a trial court
to explore alternative methods of communication that are appropriate for each person”). See also
Lincoln v. State, 999 S.W.2d 806, 809 (Tex. App.—Austin 1999, no pet.).
Linton Page 14
spelling, lip reading, written communication, or stenographers to provide simultaneous
transcriptions, or a combination of these methods, depending a person’s proficiency in the
different systems of communication.” 15 The translation must be “true.” That is, it must be
accurate.16 But as the Fifth Circuit noted in Ferrell v. Estelle,17 it need not be “perfect”:
The Constitution does not . . . guarantee every defendant a perfect trial. The
15
Op. Tex. Att’y. Gen. No. JM-113 (1983). See, e.g., Brazell v. State, 828 S.W.2d 580,
581 (Tex. App.—Austin 1992, pet. ref’d) (defendant, who did not know sign language and was
unable to read lips, was allowed to read the proceedings on the court reporter’s monitor–which
translated the transcription into English instantaneously).
16
TEX . CODE CRIM . PROC. art. 38.31(e) requires that the translation be “true” and “in a
language that the [defendant] understands.” For foreign language translation, “true” is
sometimes equated with being simultaneous, continuous, and literal. See e.g. Guzmon v. State,
697 S.W.2d 404, 407 n. 1 (Tex. Crim. App. 1985) (“Attorneys should ask their questions as if no
interpreter was present. The interpreter should translate the question and answer in a literal
manner.”). But in some cases–especially if the defendant is deaf–a simultaneous, continuous,
and literal translation may not be possible. See LaVigne and Vernon, supra note 5, at 876 (“For
the majority of the deaf population . . . the interpreter must make subjective decisions about
linguistic and cultural equivalents and how best to express them to the particular deaf person. On
top of this, the interpreter must adjust for the syntactical differences between ASL and English,
and make constant editorial and structural decisions. Common sense indicates that these
adjustments by the interpreter take considerable skill, intuition, and–most valuably–time.”). Cf.
Ortega v State, 659 S.W.2d 35, 39 (Tex. Crim. App. 1983 ) (translation made from the Spanish
colloquialism, although not literal, was more accurate); United States v. Bell, 367 F.3d 452, 464
(5th Cir. 2004) (though method of translation was not simultaneous, victim’s unique method of
communication–a system of grunts and gestures–limited pool of potential interpreters); Kang v.
State, 899 A.2d 843, 855 (Md. 2006) (“given the varying comprehension levels of defendants for
whom English may be a second language and the intricacies of interpreting different languages,
at this juncture, we shall not proclaim a single bright-line rule requiring simultaneous,
word-for-word translation in all cases in which an interpreter is appointed”). The inherent factual
difficulty of deciding whether a literally “accurate” translation in a particular case should take
precedence over a more “appropriate” translation is yet another reason for granting trial judges,
who can personally view and assess the perceived competence of the speaker and listener, great
deference in these situations.
17
Ferrell v. Estelle, 568 F.2d 1128 (5th Cir. 1978), op. withdrawn on appellant’s death,
573 F.2d 867 (1978).
Linton Page 15
rights vouchsafed are practical, reasonable rights rather than ideal concepts of
communication, and even these pragmatic rights may not be exercised without
limit. The Constitution does not require that every defendant comprehend the
English language with the precision of a Rhodes Scholar or appreciate the
nuances of a witness’ expressions or behavior with the skill of a doctor of
psychology. Nor may a defendant press the exercise of his right to the point at
which he disrupts the public’s right to an orderly trial.18
B. The Standard of Review
Appellate courts must apply an abuse of discretion standard in reviewing whether the
trial court took adequate steps to ensure that a deaf defendant sufficiently understands the
proceedings to be able to assist in his own defense. In Garcia v. State,19 we held that
when a trial judge is aware that the defendant has a problem understanding the
English language, the defendant’s right to have an interpreter translate the trial
proceedings into a language which the defendant understands is a category-two
Marin right. In these circumstances, the judge has an independent duty to
implement this right in the absence of a knowing and voluntary waiver by the
defendant.20
The question, then, is how much discretion does the trial court have in handling the
issue of interpretive services? The Eleventh Circuit, in Valladares v. United States,21 stated,
“Because the proper handling of translation hinges on a variety of factors, including the
defendant’s knowledge of English and the complexity of the proceedings and testimony, the
18
Id. at 1131.
19
149 S.W.3d 135 (Tex. Crim. App. 2004).
20
Id. at 145. See also Baltierra v. State, 586 S.W.2d 553, 559 (Tex. Crim. App. 1979)
(“when it is made known to the trial court that an accused does not speak and understand the
English language an interpreter must be furnished to translate to the accused the trial
proceedings”).
21
871 F.2d 1564 (11th Cir. 1989).
Linton Page 16
trial judge, who is in direct contact with the defendant, must be given wide discretion.” 22 We
agree with the many courts addressing foreign language and deaf interpretation, that
decisions regarding interpretive services are within the sound discretion of the trial court.23
This may be especially true in deaf interpretation because evaluating whether a hearing-
22
Id. at 1566.
23
See State v. Lopez-Navor, 951 A.2d 508, 513 (R.I. 2008) (trial court has “large
discretion” in selection, appointment, and retention of an interpreter); Vui Gui Tsen v. State, 176
P.3d 1, 7-8 (Alaska Ct. App. 2008) (“the decision whether to order word-for-word interpretation
of the trial testimony necessarily hinges on many variables. Chief among these variables are (1)
the extent to which the defendant can comprehend spoken English (i.e., understand the English
speech of other people), (2) the extent to which the defendant can express himself or herself in
English, and (3) the degree to which the trial testimony will present complex or subtle issues of
fact that will require the defendant’s input (i.e., the defendant’s participation in formulating the
defense case and in devising the cross-examination of adverse witnesses)”); State v. Johnson, 899
P.2d 1050, 1056 (Kan. 1995) (“The choice of procedure to help a hearing-impaired defendant
rests in the sound discretion of the trial court. The ultimate consideration is whether the
defendant’s constitutional rights to confrontation, to be present, and to a fair trial were
preserved.”); Shook v. State, 552 So. 2d 841, 845 (Miss. 1989) (“In a case of this character, one
where the defendant is suffering from the serious handicap of deafness, the court should exercise
great care to see to it that the defendant is accorded his constitutional rights. The trial judge, on
the scene and observing the defendant and the witnesses, must be allowed considerable
discretion, and where it is apparent that the judge has demonstrated an awareness of the issues
involved and concern for the protection of the rights of the defendant, as here, his judgment must
be accorded great weight and respect by this Court.”); People ex rel. Myers v. Briggs, 263
N.E.2d 109, 113 (Ill. 1970) (“If [the defendant] is deaf, such opportunity as may be necessary
should be allowed for communication to him of the testimony of the witnesses to insure him a
full and fair exercise of his legal rights. The exact manner in which this result should be arrived
at must depend on the circumstances of the case and, to a considerable extent, be left to the sound
discretion of the court.”); People v. Guillory, 178 Cal. App. 2d 854, 861 (1960) (trial court
“cannot restore . . . hearing to the deaf . . . . He need only give such aid to intelligent appreciation
of the proceeding as a sound discretion may suggest”). See also Fleming, supra note 8, at § 82
(collecting federal and state case–most dealing with foreign language interpretation–that have
“held or recognized that decisions regarding arrangements for the delivery of interpretive services
. . . are generally within the presiding judge’s discretion”).
Linton Page 17
impaired defendant truly comprehends what is spoken is more art than science.24
A trial court should not be reversed absent a clear abuse of discretion, that is, only
when his ruling lies outside the zone of reasonable disagreement.25 The ultimate question
is whether any inadequacy in the interpretation made the trial “fundamentally unfair.”26 With
that general background, we turn to the trial court’s exercise of discretion in this case.
III.
The court of appeals correctly set out the trial court’s duty upon learning that appellant
was deaf: Once the disability is fully exposed, as it was in this case, the trial court is
responsible for taking whatever steps are necessary to ensure minimum understanding.27 It
also correctly stated what minimum understanding means: The Constitution requires that a
defendant sufficiently understand the proceedings against him such that he is able to assist
in his own defense. 28 The court then stated that, because the Constitution contemplates more
than just a “post hoc” understanding of trial proceedings, “in dealing with a deaf defendant,
the true measurement of ‘understanding’ must occur at the time live testimony is given.” 29
24
Jamie McAlister, Deaf and Hard-of-Hearing Criminal Defendants: How You Gonna
Get Justice If You Can’t Talk to the Judge? 26 ARIZ. ST . L.J. 163, 180 (1994).
25
Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); Cantu v. State, 842
S.W.2d 667, 682 (Tex. Crim. App. 1992).
26
United States v. Huang, 960 F.2d 1128, 1136 (2d Cir.1992) (“the ultimate question is
whether the translator’s performance has rendered the trial fundamentally unfair”).
27
Linton, 246 S.W.2d at 702.
28
Id. at 703.
29
Id.
Linton Page 18
Here, the court noted, this instantaneous understanding did not take place because the
English-based transliteration did not account for appellant’s low-level comprehension of
English, and the third interpreter was allowed to explain legal and factual concepts only
during breaks.30 Further, the court held that this understanding could have taken place if the
trial court had exercised the viable option of providing appellant with the assistance of a
deaf-relay interpreter.31
The court of appeals relied, in part, on the trial court’s statement that the table
interpreter could explain things to appellant, “not simultaneous to the interpreting of the
interpreters, but at the time that the Court takes its breaks.” 32 Here the court of appeals erred.
First, “simultaneous interpretation is not always the gold standard,” especially when the
defendant is, as in this case, linguistically deficient and in need of having concepts explained
30
Id. There was no contention that the transliteration was not itself simultaneous,
continuous, or literal.
31
The parties disagree on whether the trial court was adequately notified about the
translation problems and need for a deaf-relay interpreter. The State asserts that “appellant never
asked the trial court to appoint a deaf relay interpreter until the hearing on her motion for new
trial.” Brief for the State at x. At the motion for mistrial hearing, when the trial court said she
would appoint a table interpreter, counsel said he could “live with that.” But after Dr. Andrews
testified about the need for a deaf interpreter, counsel objected to proceeding (presumably
without a deaf-relay interpreter). Regardless, the question for the court of appeals was whether
the appellant provided an appellate record establishing that the trial judge abused her discretion
in denying the motion for new trial. State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App.
2007); State v. Gonzalez, 855 S.W.2d 692, 695-96 (Tex. Crim. App. 1993).
32
Linton, 246 S.W.3d at 703-04 (“Rather than address Linton’s inability to understand the
immediate flow of information, the trial court merely appointed a second standard interpreter to
assist Linton during breaks.”).
Linton Page 19
to her.33 This explanative function belongs to the attorney who normally explains legal
concepts and the significance of the facts to his client (whether impaired or not) before trial
or during breaks. Second, even if simultaneous interpretation and explanation were the gold
standard, the reviewing court must determine whether that (or any other) inadequacy in the
interpretation made the trial fundamentally unfair by denying the defendant due process.
In this context, the Seventh Circuit stated that “a defendant in a criminal proceeding
is denied due process when: (1) what is told him is incomprehensible; (2) the accuracy and
scope of a translation at a hearing or trial is subject to grave doubt; (3) the nature of the
proceeding is not explained to him in a manner designed to insure his full comprehension;
or (4) a credible claim of incapacity to understand due to language difficulty is made and the
district court fails to review the evidence and make appropriate findings of fact.” 34
The State points to the following facts to support the trial court’s implicit finding that,
with the interpreters provided, appellant adequately understood the trial proceedings:
C At the hearing on the motion to suppress, appellant testified rationally and
often answered questions orally before the interpreter translated;
33
LaVigne and Vernon, supra note 5, at 883 (“the requirement of simultaneous
interpretation is often in direct conflict with the communication needs of many deaf people in the
legal system and often inflicts a distinct hardship. The language of the courtroom is so far beyond
the range of linguistically deficient deaf and hard-of-hearing people that we cannot possibly
expect an interpreter to keep pace with the spoken language without sacrificing comprehension.
Simultaneous interpretation has also been associated with a high rate of interpreter error, which
further increases the potential for miscommunication and confusion. While simultaneous
interpretation will be appropriate in certain situations, its limitations and its effects on the quality
of interpretation should be carefully weighed.”) (footnotes omitted).
34
United States v. Cirrincione, 780 F.2d 620, 634 (7th Cir. 1985).
Linton Page 20
C Appellant spontaneously participated during that hearing;
C The station-house videotape reflects that appellant understood her right to
refuse a breath test and was able to communicate with Deputy Woodrick;35
C The interpreter, after voir dire, testified that he used a mixture of ASL and
transliteration because that is how she communicated with him, and he said
that she had not indicated that she was having any trouble;
C At the motion for mistrial hearing, both appellant’s pastor and Dr. Andrews
testified that they communicated with appellant by using a mixture of ASL and
transliteration, just as the court interpreters were using;
C The trial court appointed a table interpreter to “break things down” during trial
breaks, and said he would give breaks when they were needed. Counsel said
“I can live with that,” but never requested any such breaks;
C Neither appellant nor her counsel (or the interpreters) alerted the trial judge to
any further difficulties or testified at the motion for new trial hearing about
additional specific misunderstandings; and
C Appellant had a coherent exchange with the trial court after the motion for new
trial hearing.
We add to that list: This was not a complicated case, it was a simple DWI trial. The
level of linguistic competency necessary to participate in one’s defense is directly related to
the complexity, both factually and legally, of the case. Here, the facts and the law were not
complicated: There was no traffic stop to contest, as appellant caused an accident and
35
We have reviewed the videotape and agree with this characterization. Appellant was
not shy about getting Office Woodrick’s attention and asking him questions when she did not
understand something. When she did that, he would write her a note, and she would express that
she understood. The clearest example of this is when she told the deputy that she did not know
what the word “request” meant. He stated out loud–to no avail–that it means “ask” or “ask for”
and he then wrote that down on a piece of paper. She read the note, acknowledged that she
understood, and then went back to reading the DIC-24 form.
Linton Page 21
remained at the scene, exchanging information with the accident victim. The issue in this
case was whether appellant could communicate with Deputy Woodrick well enough to
understand her Miranda rights and her right to refuse to give a breath sample. As the State
notes, appellant herself effectively testified–through the ASL interpreter–to these matters at
the motion to suppress:
Q: Please state your name for the record.
A: My name is Audrey Linton.
Q: And you are the Audrey Linton that’s currently charged with a DWI in this case
today?
A: Yes.
Q: Okay. And you were arrested on or about November 17 th 2003.
A: Yes.
Q: The night you were arrested, do you remember giving a breath specimen?
A: Yes.
Q: When you gave your breath specimen, were you informed of your right to refuse to
take–to give the breath specimen?
A: I didn’t know about that. I thought it was a requirement that I had to.
Q: Were you able to communicate with the officer?
A: No.
Q: Did you–did he give you anything that you could read personally?
A: He gave me a paper, but I didn’t understand the language.
Q: Can you describe what the paper looked like?
A: It was a little note. A small note.
Q: Okay. Was that the only thing you received?
A: Yes.
Q: At the time you took–you gave the breath specimen, just so we’re clear, did you feel
that you had no other choice but to give the breath specimen?
A: Yes. I felt I had to. I didn’t know. I thought it was a requirement. I felt I had to.
In this colloquy, appellant does not appear to be “linguistically incompetent.”
Appellant cogently testified to her legal contention–she did not understand her Miranda
rights or her right to refuse a breath test–but the trial judge, based upon all of the evidence,
Linton Page 22
rejected that claim. Appellant fully presented it, but both the pretrial and trial judges acted
within their discretion in declining to credit it.36
Direct exchanges with the trial judge also reflected appellant’s ability to communicate
effectively. First, at the motion to suppress hearing, appellant testified to her background
information coherently and without difficulty.37 And second, after the trial judge denied the
36
See, e.g., Nathan v. Municipality of Anchorage, 955 P.2d 528, 531 (Alaska Ct. App.
1998) (upholding trial court’s ruling that deaf defendant adequately understood his right to an
independent blood test when under arrest for D.W.I.; although testimony was conflicting on this
issue, trial judge had a reasonable basis for concluding that defendant’s ability to read and
write–albeit at a fourth grade level–as well as his ability to obtain a driver’s license and to work
at a job sufficed to ensure that defendant could intelligently waive his right to an independent
test; “On this issue of historical fact, we must affirm the trial judge’s ruling unless it is shown to
be clearly erroneous.”).
37
The trial court asked her basic questions:
Q. What school system did you attend.
A. Oak Ridge High School
Q. Oak Ridge High School?
A. Yes.
Q. What year would have been your graduating class or when did you graduate from - -
A. 2001.
Q. Did you ever have training in deaf education in school?
A. Yes.
Q. So do you know Ms. Sally Keeshan Maxwell, Sally Maxwell?
A. Yes.
Q. You do?
A. I do.
Q. And did you learn how to read and write?
A. High school did not teach me well, no, sir
Q. Did she learn how to read and write? Did you learn how to read and write?
A. No, sir. Not really.
Q. Do you write letters?
A. I write. I can write, yes, sir, but people don’t understand the language how I write.
Q. Do you ever read books?
A. I do. I read books, but I would always ask the teacher what the words mean.
Q. Do you have a driver’s license?
Linton Page 23
motion for new trial, she explained why the interlock device on her car had recently
registered a high level of alcohol around 3:00 in the morning.38 These exchanges suggest that
appellant’s understanding was not, as the court of appeals put it, unconstitutionally “post
A. It’s in my car. Yes, I have one.
Q. Did you have to pass a driving test to get your license?
A. Yes.
Q. What sort of occupation have you had since high school?
A. I’m in college.
Q. In college?
A. Yes, sir.
Q. What type of classes?
A. I took reading, writing and english.
Q. What college?
A. Blinn by Texas A&M.
38
The trial court first addressed defense counsel, then appellant:
Q. Okay. Ms. Linton, do you understand what I’m asking of your attorney.
A. That was my boyfriend. It wasn’t mine.
Q. It was brought to my attention that she explained to the probation officer that it was her
boyfriend who blew into the device; is that correct.
A. That’s correct.
Q. Okay. And, but this was like at 3:00 o’clock in the morning; is that correct?
A. Yes.
Q. Okay. Had he in fact been drinking?
A. I was sleeping. And he thought he was playing with a game. Then I woke up, and I saw
him and I told him it wasn’t a game.
Q. Okay. I understand that then someone blew into the device like ten minutes later or so.
A. That was me.
Q. And then the vehicle did start? It’s just of some concern to the Court. Maybe I think it
was recommended that maybe you need a new boyfriend or something. I’m not telling
you that, but please be careful of the people that you associate with.
A. I told him it’s not a game, and he needs to learn not to use my vehicle and not to blow
into the device.
Q. Okay. All right.
At oral argument before this Court, defense counsel stated that he had an “immense
conversation” with appellant before they went in to talk to the court–prepping her for this
exchange. Defense counsel always has the obligation to explain legal and factual concepts to his
client in advance of any trial proceeding. That is counsel’s duty, not the duty of an interpreter.
Linton Page 24
hoc” rather than contemporaneous.39 Nor is this a case in which the interpreters themselves
said that they did not know what language the defendant was speaking.40 In this case the
interpreters’ testimony shows that they used the same “language” that she used to
communicate with them:
This young lady doesn’t appear to know American Sign Language. So
the more we talked–she knows American Sign Language vocabulary to a point.
And when she responds to me, she talks and signs more in English word order,
so that is what we’re calling sign supported speech. If you want to call it that,
but we try to find a happy way of getting together. I have told the Judge as
well that I have asked a few times was there understanding, was I going too
fast. Was I clear with articulation of signs, was my mouth okay. That kind of
thing. And she said everything is fine. She asked me one time what a sign
meant. Other than that, she hasn’t indicated anything different.
***
What she signs to me, I sign back in a way that is more like signed
English because that’s what she is using, so I am matching the mode of
communication she’s chosen. But I am not going to be able to say that she
understands it.
***
I even asked do you want to slow down. She never said no, so.
Dr. Andrews testified that, in her opinion, appellant did not understand 20 to 25% of
the words. The trial judge was not required to accept her opinion. Even so, 100%
39
Linton, 246 S.W.3d at 703.
40
Compare Kelly v. State, 118 So. 1 (Fla. 1928). In that case, the defendant (as best the
trial court could tell) spoke “the Spanish language, or such Spanish as is currently spoken in
Cuba, or by the Cuban population in Key West and Tampa.” Id. at 3. The trial court therefore
called in “Two boys . . . who testified that they were familiar with the Spanish or Cuban
language.” One of them testified, “I have tried to talk to this defendant in these different
languages . . . he didn’t understand any of them.” The other boy stated: “I don’t know what
language he understands.” Id. at 2-3. Not surprisingly, the Florida Supreme Court reversed and
remanded for a new trial.
Linton Page 25
comprehension is the goal–not the constitutional requirement.41
Thus, in keeping with the notion that the question on appeal is whether the defendant
received due process rather than a perfect translation, American courts have held that a
defendant received a fair trial even when there were glitches in the signing;42 no interpreter
was provided for “big” words;43 the interpretation was not continuous;44 the interpreter was
not personal to the defendant;45 the translation was in Spanish instead of Quiche,46 French
instead of the African dialect of Djerma,47 a northern dialect of Haitian Creole instead of a
southern dialect,48 Navajo, but not of the Alamo reservation,49 or Spanish instead of
41
Amici argue that this does not mean that appellant had 80% comprehension because the
words missed are the “content” words. Brief for Advocacy, Inc. et al. as Amici Curiae
Supporting Appellant, at 3. Of course, full comprehension is not a realistic goal for any
defendant, hearing-impaired or not. A study tracking the prison education experiences of 32,020
inmates released from Texas prisons in fiscal years 1997 and 1998 showed that “44% (10,485)
were functionally illiterate (functioning at less than a 6th grade level). . . . Of the functionally
illiterate inmates, 36% (3,774) were nonreaders (functioning at less than a 4th grade reading
level).” TONY FABELO , EDUCATIONAL ACHIEVEMENT OF INMATES IN THE WINDHAM SCHOOL
DISTRICT , Criminal Justice Policy Council I (2000).
42
State v. Tok, 945 A.2d 558, 567 (Conn. App. Ct. 2008).
43
State v. Hernandez, 820 P.2d 380, 383 (Idaho Ct. App. 1991) .
44
United States v. Joshi, 896 F.2d 1303, 1309 & n.6 (11th Cir. 1990).
45
State v. Nguyen, 185 P.3d 368, 373-74 (N.M. Ct. App. 2008).
46
People v. Warcha, 792 N.Y.S.2d 627, 628-29 (N.Y. App. Div. 2005) .
47
Gado v. State, 882 N.E.2d 827, 831 (Ind. Ct. App. 2008).
48
State v. Jeudis, 772 A.2d 715, 719 (Conn. App. Ct. 2001).
49
State v. Guerro, 974 P.2d 669, 674 (N.M. Ct. App. 1998).
Linton Page 26
Portuguese.50 In these cases, the courts acknowledged that the defendant may not have
received “the best” interpretive service, but “the best” is not constitutionally required unless
the defendant also shows that, without it, he was unable to understand the nature and
objective of the proceedings against him and to assist in his own defense.51
The same is true here. We might agree that a deaf-relay interpreter would have been
“the best” service provider. But here, where the record shows that appellant responded
coherently and cogently to questions asked (sometimes verbally, before the translation),
graduated from high school and was admitted to a college (although she failed her college
courses), could understand sufficient English to obtain a driver’s license, could communicate
sufficiently with her accident victim to exchange pertinent information, and could follow
Deputy Woodrick’s instructions, the trial court did not abuse its discretion in denying
appellant’s motion for new trial.
This is not an instance in which the trial judge did not understand or appreciate the
defendant’s communication problem. The record is replete with instances in which both the
pre-trial and trial judges stopped the proceedings to inquire into appellant’s understanding,
50
Costa v. Williams, 830 F. Supp. 223, 224-26 (S.D.N.Y. 1993).
51
In State v. Ramirez-Dominguez, 165 P.3d 391 (Wash. Ct. App. 2007), for example, the
defendant–an illiterate field worker–was convicted in a bench trial. On appeal, he challenged the
adequacy of the interpretation, which was in Spanish instead of his native Mixteco language. The
trial court made a finding that any “[p]roblems with Spanish conjugation or syntax don’t impact
the substantive content of that statement or make the substantive content of it any less reliable.”
Id. at 398. The court of appeals, reviewing the appointment of the Spanish interpreter for an
abuse of discretion, held that the defendant’s right to a fair trial was protected by the Spanish
interpretation: “Given Ramirez-Dominguez’s illiteracy and the fact that Spanish was his second
language, his responses to the questions were in context and appropriate.” Id. at 398-99.
 Linton Page 27
to provide additional resources and services, and to offer additional time for appellant to
consult with her attorney and her interpreters.
In this case, the record reflects that appellant understood the proceedings well enough
to assist in her own defense; moreover, whatever communication difficulties might have
existed between appellant and her trial counsel were not apparent in the record. The record
reflects that the defense thoroughly and competently challenged every aspect of the State’s
case. Appellant failed to set out, at the motion for new trial hearing, any specific instances
in which (1) she failed to understand crucial testimony during the trial, or (2) she was not
able to communicate adequately with her counsel during the trial or how either of those
failures led to a fundamentally unfair trial and a violation of her due-process rights.52
Although the court of appeals may be right that a deaf-relay interpreter could have been “the
best” solution to appellant’s lack of hearing, it erred in concluding that the three interpreters
that the trial judge did use were constitutionally insufficient to ensure her due process rights.
We therefore reverse the judgment of the court of appeals and remand the case to that
court to address appellant’s remaining points of error.
52
See, e.g., Montoya v. State, 811 S.W.2d 671, 673 (Tex. App.—Corpus Christi 1991, no
pet.) (Spanish-speaking defendant who failed to direct reviewing court “to any part of the record
where alleged errors in translation occurred which prevented him from confronting the
witnesses” waived his right to complain of the use of a bailiff as a translator); Frescas v. State,
636 S.W.2d 516, 518 (Tex. App.—El Paso 1982, no pet.) (non-English-speaking defendant did
not establish harm where he failed to show, from the record, specific misunderstandings or
inability to confront a witness).
Linton Page 28
Delivered: January 14, 2009
Publish