Rodriguez v. State, No. 2-05-398-CR (Tex. App. 1/25/2007)
| Decision Date | 25 January 2007 |
| Docket Number | No. 2-05-398-CR.,2-05-398-CR. |
| Parties | MARIO ALBERTO RODRIGUEZ A/K/A MARIO RODRIGUEZ, Appellant v. THE STATE, OF TEXAS, State. |
| Court | Texas Court of Appeals |
Appeal from the 213th District Court of Tarrant County.
Panel B: LIVINGSTON, GARDNER, and McCOY, JJ.
In seven issues, Appellant Mario Alberto Rodriguez a/k/a Mario Rodriguez appeals his conviction of serious bodily injury to a child. We affirm.
On September 8, 2004, Mario was babysitting his live-in girlfriend Veronica Santos's three-year-old daughter, Diana Santos, so Veronica could go to work. That night while Diana was practicing writing the letters of the alphabet, Mario, angry with Diana for the way she wrote her letters, hit her two to three times on the head with enough force that she fell and hit her head on the floor. Mario claimed that Diana got up from the floor, took a bath, and then ate dinner. However, the medical examiner testified that Diana's head injury would have caused her to lose consciousness within minutes and that there would be no lucid period or interval.
At some point, Diana began vomiting blood. Instead of taking Diana to the hospital, Mario left her alone at the house to go pick Veronica up from work. When Veronica and Mario returned home, Diana was not moving and was unresponsive. Veronica wrapped Diana up in a bed sheet and, along with Mario, took Diana to John Peter Smith Hospital. Shortly thereafter, Diana was transferred to Cook Children's Medical Center.
When Diana arrived at Cook Children's Medical Center, she was intubated and bleeding profusely from her mouth. She was not breathing on her own and an endotracheal tube had to be pumped manually to get air into her lungs. A head-to-toe assessment of Diana revealed bruising on Diana's lip, a large bruise on the right side of her head in the occipital parietal area, and bruises on her back. Diana's eyes were fixed and dilated, which suggested some kind of "major head injury." Moreover, the CAT scan of Diana's head was very abnormal. The CAT scan revealed Diana had diffuse cerebral edema (brain swelling all over), a subarachnoid hemorrhage (blood between the layers of the covering of the brain), blood inside the ventricles of the brain, blood where spinal fluid should be, a skull fracture, and large swelling in the back of her head. There was testimony that injuries such as these are caused by "massive force."
Diana died at 1:21 p.m. on September 9, 2004. The medical examiner testified that Diana's head injuries were consistent with being swung, slammed, or thrown against a hard surface. The type of force required to produce Diana's head injury would be the equivalent of a thirty-mile-per-hour car accident on an unrestrained person. Diana's death was classified as a homicide.
Homicide detective Cheryl Johnson was dispatched to the hospital. Detective Johnson asked Mario and Veronica to accompany her to the police station to determine what had caused Diana's injuries. However, before leaving the hospital, Detective Johnson informed Mario and Veronica that they were not under arrest and were free to leave at any time.
At the police station Detective Jose Hernandez was called in to translate for Mario in Spanish. About twenty minutes into the conversation, Detective Hernandez decided to read Mario the Spanish version of the Miranda warnings. Mario waived his rights and voluntarily spoke with Detective Hernandez. Although Detective Hernandez read Mario his Miranda warnings, he was not under arrest and was free to leave at any time. Because Mario was not under arrest or detention, Detective Hernandez did not notify the Mexican Consulate. During the interview, Mario admitted that he had hit Diana twice on the head and that the force from the first blow caused Diana to fall and hit her head on the floor. After the interview was completed, Detective Johnson placed Mario in custody.
At trial, the jury found Mario guilty of serious bodily injury to a child and assessed punishment at fifty years' confinement.
In his first issue, Mario claims the trial court erred by overruling his objections and his motion to suppress evidence due to the police's failure to notify the Mexican Consulate of his arrest and detention. In sum, Mario argues that his confession to police should have been excluded from evidence based on the detective's alleged violations of the Vienna Convention. We have previously addressed this issue in Sierra v. State. 157 S.W.3d 52, 59-60 (Tex. App.-Fort Worth 2004, pet. granted). Because we again hold that the exclusionary rule is not an appropriate enforcement mechanism for Vienna Convention violations, we need not address Mario's contention that the Vienna Convention confers an individual right to consular notification. Likewise, we need not determine whether Mario was detained under the meaning of the Vienna Convention or whether he established a causal connection between the violation of the convention and the making of his statements.
Article 36 of the Vienna Convention provides that when nationals from participating countries are arrested in the United States, the authorities are required to inform the foreign national without delay that he has a right to contact his nation's consulate. Vienna Convention on Consular Relations art. 36(1)(b), Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261. Additionally, the consular officials from the foreign country shall have the right to visit their nationals in custody in the United States. Id. art. 36(1)(c). Appellant argues that his confession should have been suppressed because the police never notified him that, as a Mexican national, he had a right to contact the Mexican Consulate, nor did the police contact the consulate on his behalf. We disagree.
The Texas Court of Criminal Appeals' decision Rocha v. State is the controlling law in this case. 16 S.W.3d 1, 19 (Tex. Crim. App. 2000). The court in Rocha held that the article 38.23(a) exclusionary rule of the Texas Code of Criminal Procedure does not apply to violations of treaties. Id. at 18-19; see also TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (Vernon 2005). Absent contrary directions from the United States Supreme Court, the court of criminal appeals stated that it would not enforce Vienna Convention violations claimed under the federal exclusionary rule. Rocha, 16 S.W.3d at 19. This court is bound by the precedent of the Texas Court of Criminal Appeals and has no authority to disregard or overrule the precedent in Rocha. See Wiley v. State, 112 S.W.3d 173, 175 (Tex. App.-Fort Worth 2003, pet. ref'd). Accordingly, we hold that the trial court did not err by overruling Mario's objections and denying his motion to suppress on this ground. Therefore, we overrule Mario's first issue.
In his second issue, Mario complains that the trial court erred by allowing testimony from an uncertified police interpreter regarding Mario's allegedly incriminating statements. Detective Hernandez interviewed Mario in Spanish and a portion of the interview was tape recorded. The taped portion of the interview was translated by a certified court interpreter. The trial court allowed into evidence Mario's statements made to Detective Hernandez before the recorder was turned on.
Article 38.30(a) of the Texas Code of Criminal Procedure is the relevant statute, which provides in pertinent part:
When 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 [him]. Any person may be subpoenaed, attached or recognized in any criminal action or proceeding, to appear before the proper judge or court to act as interpreter therein, under the same rules and penalties as are provided for witnesses.
TEX. CODE CRIM. PROC. ANN. art. 38.30(a) (Vernon Supp. 2006). By its very terms, article 38.30(a) governs the use of interpreters in court proceedings, not police interviews. What Mario is proposing would require every bilingual police officer to be a certified interpreter in order to testify to a suspect's incriminating statements or to record every conversation with a non-English speaking suspect. The statute simply does not require this. Had the legislature had desired to impose this requirement, it would have done so. "Where the statute is clear and unambiguous[,] the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute." Coit v. State, 808 S.W.2d 473, 475 (Tex. Crim. App. 1991).
Mario also complains that Detective Hernandez was not proven to have the interpretation skills required to admit evidence under Texas law. We disagree. The evidence shows that Detective Hernandez spoke and understood both English and Spanish. Detective Hernandez testified that he had spoken Spanish all of his life, tested out of Spanish in college, and passed a test which enabled him to be a translator for the Fort Worth Police Department. The licensed transcription of the audiotaped portion of the interview establishes that Detective Hernandez was able to converse with Mario in Spanish without an interpreter and then testify in English concerning that conversation.
In summary, Mario has not pointed us to any authority, nor have we discovered any, that would require exclusion of Detective Hernandez's testimony. Accordingly, we overrule Mario's second issue.
In his third issue, Mario asserts that the trial court erred by overruling his motion to suppress evidence and by allowing introduction of incriminating evidence recovered from Mario's residence....
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