Leon v. State

MURRY B. COHEN, Justice,

concurring.

The Court of Criminal Appeals has repeatedly opined that the sole reason to appoint an interpreter is to enable the defendant either to confront witnesses or to waive that right knowingly. Briones v. State, 595 S.W.2d 546, 547 (Tex.Crim.App.1980); Ex parte Marez, 464 S.W.2d 866, 867 (Tex.Crim.App.1971); see also Baltierra v. State, 586 S.W.2d 553, 557 (Tex.Crim.App.1979). I do not agree that that is the sole reason to appoint an interpreter. An interpreter certainly could be needed for someone like appellant, who, even though he pleaded guilty for an agreed punishment and waived the right to confront witnesses, still needed a translator to understand warnings about the range of punishment and the possibility of deportation, among other things.

In this case, appellant actually benefit-ted from a deviation from article 38.30. Article 38.30 provides that when . it is determined that a person charged ... does not understand and speak the English language, an interpreter must be sworn to interpret for him.” Tex.Code Crim. P. Ann. art. 38.30(a) (Vernon Supp. 2000) (emphasis added). In this case, appellant had an interpreter — his own attorney. I believe that provided him better communication than if his attorney had not spoken Spanish and an interpreter had been sworn under article 38.30.

Appellant has never claimed he did not understand the proceedings or that his attorney’s translation was inadequate. Thus, this is not a case about the lack of, or the adequacy of, an interpreter. Appellant’s attorney was his interpreter. Rather, this is a case about the lack of a “sworn” interpreter, as required by article 38.30. Just as appellant did not object about his understanding of the proceedings or his attorney’s translation, he did not object that his attorney was not appointed and sworn in to serve simultaneously as an interpreter. It is customary for attorneys, as officers of the court, to be allowed to testify without taking an oath. See In re Butler, 987 S.W.2d 221, 225 (Tex.App.— Houston [14th Dist.] 1999, no pet.). Appellant’s attorney did so when translating appellant’s responses. Case law also holds that a party must object to an attorney’s unsworn testimony. Banda v. Garcia, 955 S.W.2d 270, 272 (Tex.1997); Beck v. State, 719 S.W.2d 205, 213 (Tex.Crim.App.1986). Appellant did not do so, of course, since he benefitted from his attorney’s unsworn translation.

I agree with the result in Baltierra , but that case is factually different. Baltierra had both a Spanish-speaking attorney and also an interpreter. 586 S.W.2d at 555-56 . The interpreter, while possibly present for at least part of Baltierra’s contested trial and punishment hearings, apparently translated only while Baltierra was testifying. Id. at 558-59 . That was the error that required reversal. The important distinction is that, unlike appellant who pleaded guilty, Baltierra pleaded not guilty and had a contested trial on guilt and punishment. The court was unwilling to hold that Baltierra’s attorney, who was busy defending a contested criminal case, had to serve simultaneously as an interpreter. I agree with the unstated, but implicit, conclusion in Baltierra that, in a contested case, trial counsel cannot effectively serve simultaneously as a translator. See id. at 559 n. 11. In contrast, appellant’s attorney could simultaneously serve effectively as a translator because appellant pleaded guilty for an agreed punishment. Neither guilt nor punishment was contested here. Consequently, appellant’s attorney was not busy translating while simultaneously listening to evidence and preparing to contest it with cross-examination, direct evidence, legal objection, and argument. *845 Thus, the factors that reasonably required reversal in Baltierra are absent here.

Because appellant has never claimed he could not understand the proceedings and he has waived any complaint that his interpreter/attorney was unsworn, I agree the judgment of the trial court should be affirmed.