Solis v. State

Decision Date16 February 1983
Docket NumberNo. 04-81-00285-CR,04-81-00285-CR
Citation647 S.W.2d 95
PartiesReynaldo SOLIS a/k/a El Diablo, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Oscar J. Pena, Laredo, for appellant.

Julio A. Garcia, Dist. Atty., Zapata, for appellee.

Before BUTTS, TIJERINA and DIAL, JJ.

OPINION

DIAL, Justice.

This appeal arises out of a conviction for rape of a child, wherein the punishment was assessed at twenty (20) years' confinement in the Texas Department of Corrections. We affirm.

Appellant was indicted by a grand jury impaneled in Webb County, Texas, for knowingly having sexual intercourse with a female younger than 17 years of age who was not his wife. The offense was alleged to have occurred in Zapata County, Texas. Appellant moved that the case be transferred to Zapata County for trial, which motion was granted.

Appellant brings five grounds of error. The first ground of error complains of the court allowing the alleged victim, a mentally retarded girl, to testify at the trial or even to be exhibited before the jury. The appellant filed a motion prior to trial alleging that he had been informed by the district attorney's office that the prosecuting witness in the case was mentally retarded and asked for a hearing outside the presence of the jury before trial to determine whether or not the witness was competent to testify and could understand the nature of her oath. The careful trial judge did conduct a hearing outside the presence of the jury. Many questions directed to the victim went unanswered, but to the question as to whether she understood that in court she had to tell the truth, the witness answered "Yes."

Article 38.06, Tex.Code Crim.Pro.Ann. (Vernon 1979) provides

All persons are competent to testify in criminal cases except the following:

* * *

* * *

2. Children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated, or who do not understand the obligation of an oath.

In determining a person's competency to testify it has been said that the first element to be considered is a capacity to observe intelligently at the time of the events in question. The other element is the capacity to narrate. This involves on the one hand, both an ability to understand the questions asked and to frame intelligent answers and, on the other hand, a moral responsibility to tell the truth. See 1 Texas Practice, §§ 271, 252-253, Evidence (2d ed.), McCormick & Ray. If a person afflicted with a physical or mental disability possesses sufficient intelligence to receive correct impressions of events he sees, retains clear recollection of them and is able to communicate them through some means, there is no reason for rejecting his testimony. Watson v. State, 596 S.W.2d 867, 871 (Tex.Cr.App.1980).

The issue of a witness's competency is generally a question for the trial court, and its ruling in that regard will not be disturbed on appeal unless an abuse of discretion can be shown. Martini v. State, 629 S.W.2d 253, 254 (Tex.App.--Dallas 1982). The rule was stated by the United States Supreme Court in Wheeler v. United States, 159 U.S. 523, 525, 16 S.Ct. 93, 40 L.Ed. 244 (1895):

"The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record, the decision of the trial judge will not be disturbed on review, unless from that which is preserved it is clear that it is erroneous."

An examination of the witness's testimony, including that related in the presence of the jury, that related in the court's chambers, and that permitted to be repeated by other witnesses as excited utterances, compels us to hold that there was no abuse of discretion by the trial court in permitting the witness to testify. Villarreal v. State, 576 S.W.2d 51, 57 (Tex.Cr.App.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 176, 62 L.Ed.2d 114 (1979). Appellant's first ground of error is overruled.

In his second ground of error, appellant contends that the trial court permitted witnesses to testify with the aid of an interpreter who had not taken the necessary oath. Appellant made no objection to the testimony on this ground at the time of trial. Tex.Code Crim.Pro.Ann. art. 38.30 (Vernon Supp.1982) provides that if

... 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. [Emphasis ours.]

We interpret this language to mean that an interpreter, like a witness, must be sworn under oath before allowed to interpret testimony. Therefore, when an interpreter testifies at trial without first taking the necessary oath, the testimony should be reviewed by the same standard used when a witness testifies without taking the necessary oath. It is well settled that a party, who permits without objection a witness to testify who has not been sworn, waives all objections to his testimony on that ground, Porter v. State, 137 Tex.Cr.R. 473, 131 S.W.2d 964, 965 (Tex.Cr.App.1939); Vogt v. Lee, 32 S.W.2d 688, 689 (Tex.Civ.App.--Austin 1930, no writ); Stair v. Smith, 299 S.W. 660, 661 (Tex.Civ.App.--Austin 1927, no writ).

Appellant cites Perez v. State, 490 S.W.2d 847 (Tex.Cr.App.1973) as authority that the failure to have the interpreter sworn in before he interprets would be error. In Perez it was conceded that the interpreter had been previously sworn when she assisted another witness but was not resworn before the testimony complained of. The court held that the interpreter could be recalled without the necessity of again taking an oath. Id. at 848. The record in the present trial shows that the interpreter used had been appointed as the official court interpreter for the 49th Judicial District in January of 1979. At the time of his appointment the interpreter was administered an oath by which he swore to truthfully and accurately translate testimony from the Spanish into the English language. He remained as the official court interpreter from the time of his appointment to the time of this trial in 1981.

We hold that where an official court interpreter has been appointed and was administered the requisite oath at the time of his appointment and no objection is timely made specifically to his failure to being resworn at time of trial, no error is preserved. Black v. State, 634 S.W.2d 356, 358 (Tex.App.--Dallas 1982); Thomas v. State, 624 S.W.2d 296, 297 (Tex.App.--Dallas 1981); Cooper v. State, 578 S.W.2d 401, 404 (Tex.Cr.App.1979). Appellant's second ground of error is overruled.

The appellant contends in his third ground of error that he was indicted in one county for an offense alleged to have been committed in another county. The indictment does in fact show that it was returned by a grand jury impaneled in Webb County at the March term, 1980, of the 49th District Court, and the offense is alleged to have occurred in Zapata County, Texas. Webb County and Zapata County are both in the 49th Judicial District of Texas. Article 13.15 Tex.Code Crim.Pro.Ann. (Vernon Supp.1982) authorizes the procedure that was followed in this case. The statute says in part,

... When it shall come to the knowledge of any district judge whose court has jurisdiction under this Article that rape has probably been committed, he shall immediately, if his court be in session, and if not in session, then, at the first term thereafter in any county of the district, call the attention of the grand jury thereto; ...

This statute is not intended to deprive an accused of any basic right, but rather it is designed to give an opportunity for the matter to be disposed of with the greatest possible dispatch. The authorities in this case complied with the law strictly. In Salinger v. Loisel, 265 U.S. 224, 237, 44 S.Ct. 519, 524, 68 L.Ed. 989 (1924) the Supreme Court was discussing the propriety of the prevailing federal practice of impaneling a grand jury for an entire United States district at a session in some division of that district and then remitting indictments to the several divisions in which the offenses were committed. The Court said

That practice was attended with real advantages which should not be lightly regarded as put aside. In many divisions only one term is held in a year. If persons arrested and committed for offenses in those divisions were required to await the action of a...

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