Baltierra v. State
| Decision Date | 19 September 1979 |
| Docket Number | No. 54487,54487 |
| Citation | 586 S.W.2d 553 |
| Parties | Rosa BALTIERRA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
David Escobar, Raymond C. Caballero (on appeal only on the State's motion for rehearing en banc), El Paso, for appellant.
George N. Rodriguez, Jr., County Atty. and Todd D. Chenoweth, Asst. County Atty., El Paso, Robert Huttash, State's Atty., Austin, for the State.
Before the Court en banc.
OPINION ON STATE'S MOTION FOR REHEARING
The Court granted the State's motion for leave to file a motion for rehearing in this cause in order to consider a matter of first impression that was accorded constitutional dimension by the panel opinion. After the motion for rehearing was filed the Clerk of this Court received a "Supplemental Transcript" duly approved by counsel for the parties and judge of the court below and properly certified by its clerk. The supplemental transcript contains materials in addition to the original record that so alter the posture of the case and change the context in which issues were presented to the panel that we are impelled to withdraw the original opinion and substitute for it this one.
Appellant was convicted in a trial before the court, after waiving a jury, of the offense of theft of property having a value of over five ($5) dollars and less than twenty ($20) dollars. The court assessed punishment at sixty days confinement in the county jail; however, appellant was placed on unsupervised probation for a period of 180 days.
In her first two grounds of error appellant challenges admissibility of a confession which she signed in the basement of a security office of the store in which she was alleged to have committed the theft; her third ground of error contends the evidence is insufficient to sustain the verdict as to value of the property alleged in the information. We do not reach these grounds of error because we perceive unassigned fundamental error that dictates our disposition of the cause.
The record reflects that appellant is a Mexican national who had recently moved to Juarez from a ranch near Chihuahua, both within the Republic of Mexico. Interrogation of appellant at the time she was arrested by the security officer was conducted in Spanish. The security officer testified that he obtained assistance of a Spanish speaking employee to converse with appellant and interpret a confession into Spanish so that appellant could read and understand it. Thereafter, the arresting police officer spoke to appellant only in Spanish.
The offense is alleged to have occurred October 9, 1976 in El Paso, El Paso County. Immediately after her arrest appellant was confined to the El Paso County Jail. Complaint and information were filed October 13, 1976 and on October 14, 1976 appellant was arraigned in County Court at Law No. 2, on which occasion the record reflects, in pertinent part the following:
No response.
COURT INTERPRETER:
Your honor, the defendant, Rosa Baltierra, is from Mexico and does not understand or speak the English language.
Very well, the Court Interpreter will translate for the Defendant. How do you plead, guilty or not guilty to the charge of theft. . . .
Upon inquiry the court ascertained that appellant was not represented by an attorney and did not have funds to employ one and then stated:
"Very well, the bailiff, who understands Spanish, will help the Defendant fill out an application for appointment of counsel."
The application completed, the court reviewed it and designated counsel to be appointed for appellant, stating:
"Mr. Escobar is fluent in the Spanish language and I appoint Spanish-speaking attorneys for defendants from Mexico who do not understand English, and I am appointing David Escobar inasmuch as you do not understand or speak the English language and only understand and speak the Spanish language. * * * "
October 20, 1976 the case came on to be heard first on a motion to suppress the alleged confession of appellant and, subject to ruling on that motion, for trial on the merits. The State properly assumed the burden on the motion and called as its only witness Security Officer Robert L. Anthony who, as already indicated, required assistance from a Spanish speaking employee to converse with appellant. 2
Examination, cross-examination and re-direct examination, during the course of which there were offered and introduced two exhibits, 3 then consumed 20 pages of the record. The motion to suppress was denied.
On the merits the State offered two witnesses, the same security officer that testified on the motion and the manager of the department from which the merchandise was allegedly stolen. During the course of their examination State's Exhibits 3 through 9, being the items of merchandise, were identified and admitted; the State's case in chief consumed some 33 pages of the record. The defense called for brief testimony the arresting police officer, primarily to show willingness of appellant to pay for the merchandise and money in her possession to do so, and the custodian of records of the El Paso County Jail to show the amount of money in her property account that was sufficient to pay for the merchandise. Then the defense called appellant herself who, according to the record, testified through an interpreter. During the course of her testimony, when asked if the security officer yelled at her, she answered that he only got mad "because I could not understand English."
Under these circumstances we are presented with the question of whether the appellant was denied the right to confront witnesses against her under provisions of the Sixth Amendment to the Constitution of the United States and Article I, Section 10 of the Bill of Rights in the Constitution of Texas. Because this question is one of constitutional dimension and would open this conviction to attack by a post-conviction writ of habeas corpus, 4 we review it in the interest of justice. Article 40.09, Section 13, V.A.C.C.P.
It is basic that the right of confrontation includes, as "an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal," 5 the right to cross-examine those witnesses. Also, within the scope of the right of confrontation is the absolute requirement that a criminal defendant who is threatened with loss of liberty be physically present at all phases of proceedings against him, Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), absent a waiver of that right through defendant's own conduct as in, e. g., Illinois v. Allen,397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). In a real sense, as well as the right to be physically present, one must also be mentally present to confront and be confronted by and cross-examine witnesses, for a defendant is not to be tried unless possessed of "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and "a rational as well as factual understanding of the proceedings against him." Article 46.02, Section 1(a)(1) and (2), V.A.C.C.P.; Jackson v. State, 548 S.W.2d 685, 691 (Tex.Cr.App.1977); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).
Physical presence and competency, essential requisites of confrontation, are personal to the accused and without affirmative action or assent by the accused those imperatives may not be disregarded or ignored by the courts. 6 But even presence and competency do not suffice to provide confrontation where the accused does not understand the language of the forum. Over the years this Court has altered earlier views 7 and in Garcia v. State, 151 Tex.Cr.R. 593, 210 S.W.2d 574 (1948) reviewed authorities from other jurisdictions and discerned, 210 S.W.2d at 579, "the generally accepted rule governing the question here presented is that the right of an accused who does not speak or understand the English language to have an interpreter appointed to interpret to him the testimony of the English-speaking witnesses rests largely in the discretion of the trial court," and found,210 S.W.2d at 580:
Pointing out that Garcia had timely requested appointment of an interpreter the court concluded that "in denying to appellant an interpreter, the trial court abused his discretion and appellant was thereby denied a right granted by the Constitution."
Close on the heels of Garcia came Field v. State, 155 Tex.Cr.R. 137, 232 S.W.2d 717 (1950) and Williams v. State, ...
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