Garcia v. State

• Decision Date: 07 March 2013
• Docket Number: NUMBER 13-11-00547-CR
• Parties: IRVING MAGANA GARCIA, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

IRVING MAGANA GARCIA, Appellant,

v.THE STATE OF TEXAS, Appellee.

NUMBER 13-11-00547-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

Delivered and filed: March 7, 2013

On appeal from the 139th District Court

of Hidalgo County, Texas.

MEMORANDUM OPINION¹

Before Chief Justice Valdez and Justices Rodriguez and Longoria

Memorandum Opinion by Justice Rodriguez

A jury found appellant Irving Magana Garcia guilty of murder. See TEX. PENAL CODE ANN. § 19.02 (West 2011). After finding that death was caused under the influenceof sudden passion, a felony of the second degree, the jury sentenced Garcia to twenty years in the Institutional Division of the Texas Department of Criminal Justice and assessed a $10,000 fine. See id. § 19.02(d). Garcia filed a motion for new trial based on the trial court's alleged failure to appoint an interpreter to translate the trial proceedings into Spanish for Garcia's benefit and on claims of ineffective assistance of counsel. The motion was overruled by operation of law. This appeal followed.

By seven issues and nine supplemental issues, which we reorganize as six, Garcia complains that: (1) the trial court erred in failing to conduct a hearing on his motion for new trial with Garcia present; (2) the trial court abused its discretion when it determined that Garcia waived his right to an interpreter and did not provide an interpreter to Garcia; (3) the trial court abused its discretion when it found that Garcia's trial counsel provided effective assistance; (4) the reporter's record is inaccurate because it fails to indicate that an interpreter was used when Garcia communicated with the trial court on January 18, 2011; (5) the $10,000 fine was "illegally included in the signed judgment" when it was not included in the trial court's oral pronouncement of Garcia's sentence; and (6) the trial court erred in denying Garcia's motion for new trial. We affirm, as modified.

I. GARCIA'S PRESENCE AT THE MOTION FOR NEW TRIAL HEARING

By his first issue, Garcia complains that the trial court erred when it allowed his motion for new trial to be overruled by operation of law without hearing the motion in his presence. Article 33.03 of the Texas Code of Criminal Procedure requires that in all prosecutions for felonies, the accused must be personally present at trial, except when the accused voluntarily absents himself after pleading to the indictment or information, or after the jury has been selected. TEX. CODE CRIM. PROC. ANN. art. 33.03 (West 2006);see Adanandus v. State, 866 S.W.2d 210, 217 (Tex. Crim. App. 1993); Hodges v. State, 116 S.W.3d 289, 296 (Tex. App.—Corpus Christi 2003, pet. ref'd). This right to be present extends to a hearing on a motion for new trial. Coons v. State, 758 S.W.2d 330, 339 (Tex. App.—Houston [14th Dist.] 1988, pet. ref'd); see also Kotara v. State, No. 13-08-00519-CR, 2009 Tex. App. LEXIS 5020, at *5-7 (Tex. App.—Corpus Christi, May 21, 2009, no pet.) (mem. op., not designated for publication). However, a defendant may waive his right to be present at a motion for new trial. Coons, 758 S.W.2d at 339 (citing Phillips v. State, 163 Tex. Crim. 13, 288 S.W.2d 775 (1956)); see also Kotara, 2009 Tex. App. LEXIS 5020, at *6.

It is undisputed that Garcia desired to be present at the motion-for-new-trial hearing and did not waive this right. He filed a motion to delay his transfer to prison so that he could appear before the trial court. Nonetheless, Garcia was transferred and was unavailable for the hearing. Ultimately, Garcia's motion was overruled by operation of law.

On appeal, the State conceded, and we agreed, that Garcia should have had the opportunity to appear at the motion-for-new-trial hearing. Accordingly, on October 2, 2012, we abated the appeal and remanded the case to the trial court so that it could conduct a hearing with Garcia present. See Hobbs v. State, 298 S.W.3d 193, 203 (Tex. Crim. App. 2009) (reversing the judgment of the court of appeals and remanding with instructions to abate the appeal and return the case to the trial court to conduct a hearing on appellant's motion for new trial that was properly filed and presented and that raised matters, upon which relief could be granted, that are not determinable from the record); Coons, 758 S.W.2d at 339.

On November 1, 2012, the trial court held a hearing on Garcia's motion for new trial. Garcia appeared in person and through his appointed counsel.² After receiving evidence and hearing testimony and argument of counsel, the trial court commented, in relevant part, that,

[Garcia] waived the right to [an] interpreter. He waived it verbally. He never objected to an interpreter not being present . . . . He knew about the interpreter and he didn't want an interpreter . . . . It was a waiver. . . . The [c]ourt finds that the [c]ourt talked to [Garcia and his counsel]. I want to say it was up here on the bench where we were talking and he said he didn't want one, so it's a waiver.

On November 5, 2012, the trial court entered its written order denying Garcia's motion. It also entered the following findings of fact:

1. That the central claim in this motion for new trial is that this [c]ourt failed to sua sponte appoint Defendant Garcia an interpreter upon learning that Defendant Garcia did not speak or understand English under Article 38.30(a) of the Texas Code of Criminal Procedure.

2. Based on the credible testimony of . . . trial counsel for the Defendant[ ] and Defendant Garcia, Defendant Garcia was aware of his right to an interpreter and for valid reasons, pertaining to trial strategy, did not request an interpreter.

3. Based upon the credible testimony of Assistant Criminal District Attorney . . . , lead counsel for the State in this case, and this [c]ourt's recollection of the underlying proceedings, Defendant Garcia waived his right to an interpreter during an unrecorded bench conference.

4. That it was based on this waiver that this [c]ourt determined that the appointment of an interpreter was not needed.

5. That trial counsel . . . provided effective assistant [sic] of counsel during a difficult case.

a. That [c]ounsel had valid trial strategy in allowing the jury to consider the confession as this allowed testimony and evidence that allowed the jury to make a 'sudden passion'finding.

b. That counsel discussed defendant Garcia's right to an interpreter and had a valid trial strategy in recommending that they not seek the appointment of an interpreter.

6. Having reviewed the case and all testimony presented this [c]ourt finds no merit in any other claim raised in the motion for new trial.

On November 19, 2011, after receiving a copy of the trial court's order denying Garcia's motion for new trial and a copy of the reporter's record of the motion for new trial proceedings, we reinstated the appeal. Now, because the trial court heard Garcia's motion for new trial in his presence, we overrule the first issue as moot.

II. APPOINTMENT OF AN INTERPRETER

By his second issue, Garcia complains that the trial court erred in failing to sua sponte appoint an interpreter to interpret from English into Spanish, once it determined that Garcia did not understand or speak English.³ See TEX. CODE CRIM. PROC. ANN. art. 38.30 (West Supp. 2011); Garcia v. State, 149 S.W.3d 135, 143-45 (Tex. Crim. App. 2004) (discussing the constitutional right to an interpreter and the trial court's duty to appoint an interpreter sua sponte when the right to an interpreter has not been validly waived and the trial court becomes aware the accused requires an interpreter). Garcia also contends that the trial court erred in finding he waived his right to an interpreter. Garcia asserts that the trial court's inaction violated his federal and state constitutional rights, including his right to confront witnesses against him, to aid in obtaining fair and impartial jurors, to be free from deprivation of liberty without due process, and to receive equal protection of the laws of Texas. See U.S. CONST. AMENDS. VI & XIV.

A. Applicable Law and Standard of Review

Article 38.30 of the Texas Code of Criminal Procedure provides, in relevant part, that "[w]hen a motion for appointment of an interpreter is filed by any party or on motion of the court, in any criminal proceeding, it is determined that a person charged or a witness does not understand and speak the English language, an interpreter must be sworn to interpret for the person charged or the witness." See TEX. CODE CRIM. PROC. ANN. art. 38.30. However, even when the trial court is aware that a defendant has difficulty understanding English, the defendant can waive the trial court's appointment of an interpreter if he knowingly or voluntarily waives his right to an interpreter. Garcia, 149 S.W.3d at 143-45.

We review a trial court's decision on whether to appoint an interpreter for an abuse of discretion. See Linton v. State, 275 S.W.3d 493, 500 (Tex. Crim. App. 2009) (addressing adequacy of interpretive services provided for a deaf defendant); Abdygapparova v. State, 243 S.W.3d 191, 201 (Tex. App.—San Antonio 2007, pet. ref'd). We also review the denial of a motion for new trial under an abuse of discretion standard. Cueva v. State, 339 S.W.3d 839, 856-57 (Tex. App.—Corpus Christi 2011, pet. ref'd). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles. State v. Herndon, 215 S.W.3d 901, 907-08 (Tex. Crim. App. 2007).

We defer to the trial court's right to weigh the credibility of the testimony at the hearing on the motion for new trial. See Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001); Etter v. State, 679 S.W.2d 511, 515 (Tex. Crim. App. 1984); see also Morris v. State, 696 S.W.2d 616, 620 (Tex. App.—Houston [14th Dist.] 1985), aff'd, 739S.W.2d 63 (Tex. Crim. App. 1987). "Because the trial judge is the sole judge of the credibility of the witnesses, a trial court does not abuse its discretion by denying a motion...