Peralta v. State

• Decision Date: 30 November 2010
• Docket Number: No. 08–09–00006–CR.,08–09–00006–CR.
• Citation: 338 S.W.3d 598
• Parties: Daniel PERALTA, Appellant,v.The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

338 S.W.3d 598

Daniel PERALTA, Appellant,

v.The STATE of Texas, Appellee.

No. 08–09–00006–CR.

Court of Appeals of Texas, El Paso.

Nov. 30, 2010.

James D. Lucas, El Paso, TX, for Appellant.Jaime E. Esparza, District Attorney, El Paso, TX, for State.Before McCLURE, J., RIVERA, J., and ANTCLIFF, Judge.

OPINION

ANN CRAWFORD McCLURE, Justice.

We are again presented with a videotaped confession conducted in the Spanish language and the legal requirements for admitting the tape and an English translation. The procedures employed are critical because many jurors are fluent in Spanish and may interpret statements differently than a court interpreter or an official English translation. Even more problematic is the risk of Spanish-speaking jurors relating their own versions to other members of venire that speak only English. Today we strive to offer a protocol that will provide parallel consistency among the trial courts and allow the State and defense counsel to know what is expected. While the issue must occur routinely throughout Texas, it is most prevalent in border cities. Indeed, the two prominent decisions which have addressed the subject originated in Hidalgo County and El Paso County.

A jury found Daniel Peralta guilty of sexually assaulting his wife both anally and vaginally and assessed punishment of ten years' imprisonment together with a $10,000 fine. Upon jury recommendation, the court suspended the confinement and placed Appellant on community supervision. This appeal follows.

FACTUAL SUMMARY

On Monday, March 12, 2007, at 9:24 a.m., Appellant's wife, Sonia Peralta, placed a 911 call from her neighbor's apartment. Sonia told the operator she had managed to get away from Appellant and needed help. Appellant had sexually assaulted her and threatened her with a knife; he would not let her leave or use the phone. Sonia described Appellant as a 45–year–old Hispanic male weighing approximately 180 pounds, with short black hair and last seen wearing a jean shirt, jeans, and a black cowboy hat. At trial, the 911 operator testified Sonia sounded scared and feared her husband was still outside and “going to get her.” The operator entered all this information into the Computer Aided Dispatch (CAD), a system which allows officers to view the information from the computers in their vehicles. The audio recording and a transcript of the 911 call were admitted into evidence.

Officers were then dispatched to the location on a family disturbance call. Officer Chavez was the first on the scene and he proceeded to Maria Fonseca's apartment, where the 911 call had originated. He located Sonia and identified her as the caller. He described her as hysterical, shaken up, and crying. She blurted out “I was assaulted,” and then told Officer Chavez her husband had sexually assaulted her over the two previous days.

When Officer Ojeda arrived a few minutes later, Chavez was still interviewing Sonia outside her friend's apartment. Ojeda also testified the woman was shaken up and crying. He heard her say, “He's going to kill me” and “he has a knife.”

After speaking with the victim for five to ten minutes, the officers escorted her to her own apartment. She was reluctant to go inside because she feared Appellant was there and was “going to kill her.” The officers convinced her to open her apartment and they established that Appellant was not inside. At this point, Officer Ojeda waited outside while Officer Chavez remained with the victim and continued to question her about the events which led to the 911 call. During that time, Sonia broke down and cried again. Appellant had torn off her clothes and raped her in the bedroom. Officer Chavez noticed that her arms and neck were bruised. Sonia described how Appellant had grabbed her and bitten her. She felt pain and soreness in her buttocks and was having trouble walking and sitting down.

Sonia provided Officer Chavez with a description of her husband and his vehicle. Chavez relayed the information to Officer Ojeda who left the apartment complex to search for Appellant. The information included the make, model, and color of the car and a description of Appellant. After Ojeda left, Chavez put out a spot broadcast:

[P]ossible aggravated sexual assault, subject used a pocketknife, might be in possession of a weapon; use caution; driving a primer old Camaro-type vehicle; was last seen within 10, 15 minutes of this location at this time; no other information.

Approximately five minutes later and just a few blocks away from the apartment complex, Officer Ojeda observed Appellant in a red Camaro. The car looked like the one Officer Chavez had described. Ojeda had also seen Appellant through the window. Based on the totality of the known facts and his own experience, Ojeda stopped the car. He identified Appellant by his driver's license. Ojeda then asked Appellant to step out of the vehicle and informed him he was under arrest for sexual assault. He read Appellant his rights and transported him to the Crimes Against Persons office (CAP).

Meanwhile, Officer Chavez accompanied Sonia to Sierra Medical Center where she was admitted for a rape analysis exam. Stacey Adams, the attending nurse, testified that Sonia reported Appellant had “repeatedly had sex with her against her will.” Sonia had also reported that her husband accused her of cheating and, when she denied it, he forced himself on her both anally and vaginally multiple times throughout the night.

After Officer Ojeda escorted Appellant to the CAP office, Detective Chavarria sent him to relieve Chavez at the hospital. Chavez then returned to the station to give his statement. Detective Chavarria informed Appellant of his Miranda rights for the second time and obtained his confession. Appellant's confession was conducted completely in Spanish.

In his confession, Appellant admitted to both the anal and vaginal rape of his wife. He described in detail the events of the two proceeding days. He admitted throwing his wife into a bedroom, forcibly removing her clothes, aggressively telling her to lay down on the bed, and penetrating her anally and vaginally. She was very scared and did not want to engage in sex. He knew he was hurting her but that he did it anyway because he was angry. Appellant also described a conversation whereby Sonia repeatedly told him she wanted him to let her go. He became enraged and decided to have sex with her “for the last time.”

The confession was admitted into evidence. Both the audio and video portions of the tape were played for the jury. The written English translation was admitted and it was then read into the record with the prosecutor asking the questions and Officer Chavez reading the answers. Appellant's counsel objected to the introduction of the confession both in a pretrial suppression hearing and at trial.

Patricia Ortiz also testified for the prosecution. Ortiz is a friend of Sonia who works at the Peralta's apartment complex. She spoke with Sonia several times throughout the weekend in question. Sonia was afraid and crying because he wouldn't let her out. Appellant did not object to this testimony. The following exchange then took place:

Mr. Schultz: What did she tell you that Sunday morning?

Mr. Lucas: Objection, hearsay, Your Honor.

Mr. Schultz: She's emotional. She's afraid. She established that the thing she's afraid of had just recently happened. All the elements of excited utterance have been met.

Mr. Lucas: Your Honor, this is an interrogation going on from some conversation. There's nothing excited about it. There's nothing spontaneous about it. Classic hearsay.

The Court: Overruled. Go ahead.

Mr. Schultz: Thank you.

Q (By Mr. Schultz): What did she tell you?

A: She had told me that she was afraid of him because he had gotten her through the back.

SPANISH LANGUAGE VIDEOTAPED CONFESSION

Because of its significance, we begin with Issue Two in which Appellant challenges the admission of his videotaped confession. State's Exhibit 34 was the Spanish-language video. Exhibit 35 was a transcribed English translation of the video. It was accompanied by a sworn affidavit detailing the interpreter's qualifications. Both exhibits were admitted over Appellant's objections. On appeal, Appellant focuses his argument on the admission of the videotape itself.

Appellant argues that because the video was entirely in Spanish, it was error to play it to the jury without a qualified interpreter providing a contemporaneous translation either by simultaneous in-court translation or by embedding a translation into the video via subtitles. The State responds the video was properly admitted since no contemporaneous translation was necessary and the video was properly authenticated.

A trial judge is afforded wide discretion in determining the adequacy of interpretive services. Linton v. State, 275 S.W.3d 493, 500 (Tex.Crim.App.2009); Flores v. State, 299 S.W.3d 843, 855 (Tex.App.-El Paso 2009, pet. ref'd). On appeal, the question is whether the services employed were constitutionally adequate, such that the defendant could understand and participate in the proceedings. Linton, 275 S.W.3d at 500. The issue is not whether the “best” interpretive services were employed. Id. The translation must be true or accurate, but need not be perfect. Id. at 501–02. An abuse of discretion standard is applied to determine whether the trial court erred. Id. at 502.

In support of his contention that a contemporaneous translation was required, Appellant directs us to Leal v. State, 782 S.W.2d 844 (Tex.Crim.App.1989). There, the Court of Criminal Appeals determined that the admission of a recorded conversation in a foreign language is analogous to testimony by a non-English speaker such that the safeguards of Article 38.30 of the Code of Criminal Procedure apply. There was no testimony as to who actually translated the conversation. No one was positively identified as the translator in court and no one was sworn by the...