Cruz, Raul Fernando Holguin , 2016 Tex. Crim. App. Unpub. LEXIS 232 ( 2016 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-84,248-01
Ex parte RAUL FERNANDO HOLGUIN CRUZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 55084-168-01 IN THE 168TH DISTRICT COURT
FROM EL PASO COUNTY
K ELLER, P.J.,filed a dissenting opinion.
Grounds one and four of applicant’s application are in English, but grounds two, three, and
five are in Spanish. Applicant does not explain why some of his application is in Spanish. His
grounds seem to allege, some in English and some in Spanish, that he should be released on parole,
or that his lost good time should be restored, or that he should be given a new parole review date.
Applicant asks for mercy, discusses injuries and physical problems he has suffered, refers to an
internal affairs investigation and gang issues, and discusses his losing good time and his parole
status. With his application, he includes a memorandum entitled “Support of Parole Eligibility” that
is written completely in English.
CRUZ DISSENT — 2
I am not entirely persuaded that this Court has the authority to order a trial court to hire a
certified interpreter to translate foreign language portions of a mixed-language habeas application
into English, but even if we could, I would not do so in this case. Before trial, when a person is
presumed innocent, he has the right to an interpreter at trial upon proper request. But once he has
been convicted, the burden shifts to him to establish that he is entitled to relief. Our statutes do not
provide for translators for post-conviction writs of habeas corpus. Furthermore, applicant has not
explained why some of his application is in Spanish, nor has he asked that those portions be
translated to English.1 Finally, applicant does not appear to have alleged, in English or Spanish, a
claim that is cognizable on habeas corpus.2
I think that, in general, when a party has the burden of proof (as in habeas corpus
proceedings) he should, if possible, present his pleading in English. Applicant obviously had the
ability to do so in this case because some of the grounds in his application are in English, and his
memorandum is in English. Even if there may be occasions on which it would be necessary to
1
See Ramos v. Terry, 279 Ga. 889, 893, 622 S.E.2d 339, 343 (2005) (Habeas petitioner
“waived any concern he had about the interpreter’s abilities by failing to object at the habeas hearing.
The failure to interpose a timely objection to an interpreter's qualifications constitutes a waiver of
the issue on appeal.”).
2
See TEX . GOV ’T CODE § 508.141(a)(1) (“A parole panel may consider for release and
release on parole of an inmate who . . . has been sentenced to a term of imprisonment in the
institutional division.”) (emphasis added); Ex parte Palomo, 759 S.W.2d 671, 674 (Tex. Crim. App.
1988) (“This Court has previously refused to consider matters such as loss of good time credit,
disciplinary proceedings and inmate classification by way of writ of habeas corpus.”).
CRUZ DISSENT — 3
appoint an interpreter or translator, this does not appear to be such an instance.3
I respectfully dissent
Filed: March 2, 2016
Publish
3
See Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002) (rejecting claim of equitable
tolling by habeas petitioner who had written letters and habeas petition in English, and even if he had
assistance in doing so, “was clearly able to communicate with the person who helped him”).