Watson v. State
| Decision Date | 27 February 1980 |
| Docket Number | No. 62864,No. 2,62864,2 |
| Citation | 596 S.W.2d 867 |
| Parties | J. C. WATSON, Jr., Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
George Scharmen (Court-appointed), David K. Chapman (Court-appointed), San Antonio, for appellant.
Bill M. White, Dist. Atty., Raymond C. Angelini, Raymond DeLeon, Sharon MacRae and Monica L. Donahue, Asst. Dist. Atty., San Antonio, Robert Huttash, State's Atty., Austin, for the State.
Before DOUGLAS, ROBERTS and CLINTON, JJ.
This is an appeal from a conviction for the offense of murder. Appellant, having been tried as an habitual offender under the ambit of V.T.C.A. Penal Code, § 12.42(d), was sentenced to confinement for life in the Texas Department of Corrections.
Though appellant presents some eleven grounds of error for our consideration, we need not reach each of these contentions. In his second ground of error, the contention is advanced that the trial court erred in permitting, over timely objection, an incompetent witness to testify. Further, as appellant contends in his third ground of error, the error was compounded by the trial court's appointment of an interpreter who was unqualified to "translate" the witness's testimony and who was something less than neutral and detached vis a vis the outcome of the proceedings. We agree and now reverse the judgment below.
The State's case consisted primarily of the testimony of one Jerry Lewayne Thomas, an accomplice to the offense, which was ostensibly corroborated by the testimony of George Keilmann, Sr., husband of the deceased. The elder Keilmann had been incapacitated by a stroke which left him unable to speak save for the expression "uh-huh." 1 Keilmann was unable to write; though he retained the ability to hear, his capacity to understand questions asked of him was shown to be impaired.
Outside of the presence of the jury, Keilmann was examined by the respective parties and the trial court to determine if in fact he was competent to testify. The witness was first asked a series of routine leading questions to which he responded with the same answer, "uh-huh," to questions calling for an affirmative answer. However the witness displayed some difficulty in attempting to communicate a negative response, responding with the same "uh-huh" when asked by the trial court how he communicated such a negative response.
As the examination progressed, the witness failed to respond, either audibly or at all, to a series of questions propounded by the prosecutor. The witness was asked if he had been driving the family pickup truck on the day of the offense, to which he responded "uh-huh." However, the son of the witness, George Keilmann, Jr., definitely feeling that his father had answered the question in the affirmative, advised the court that his father had not been driving the vehicle on that day.
As the witness continued to have difficulty in responding to the prosecutor's leading questions, the following exchange occurred:
At this juncture, the brother-in-law of the witness volunteered the fact that the witness would be able to respond to "yes" or "no" questions with the aid of two cards labelled "yes" and "no." However this system of interrogation ran aground quickly when the witness pointed to the "yes" card while shaking his head to seemingly indicate "no," as well as indicating in the affirmative that his name was Steve Keilmann. As the prosecutor observed that "I don't think he (the witness) understands," the trial court noted:
"But the problem is, in my opinion, at this point there is a serious question as to whether he can testify about this . . . (I) want to be sure whatever witnesses there are to that, it is clear that those witnesses understand what they are testifying to."
Sometime later, Keilmann, Sr., again was examined outside the hearing of the jury, accompanied at this time by a woman who "had been taking care" of him for some six months. In attempting to explain to the trial court how in fact she was able to distinguish Keilmann's "yes" answers from his "no" answers, the witness recounted:
The woman did admit, however, that the two really did not talk as such but could "communicate."
Still outside the presence of the jury, and with his "interpreter" at his side, the witness responded in the affirmative to several leading questions and then at the behest of the trial court communicated what the interpreter felt to be "correct" negative answers to several other questions.
At the conclusion of this examination, the following colloquy ensued between the trial court and defense counsel:
After the jury had been brought back into the courtroom, defense counsel renewed his initial objection and additionally noted:
"That this lady, there has been no foundation laid for the appropriateness of her testimony, nor do we have any evidence that she is in fact able to interpret his "
The trial court overruled this objection pointing out that he would eventually charge the jury that they were the sole judges of the credibility of the witnesses and the weight to be given their testimony.
The interpreter was sworn and in the presence of the jury, the trial court permitted Keilmann, Sr. to "testify" about the events on the day of the offense. It was thereby brought out that the witness and his late wife went to the Finney ranch on July 21, 1977 in the family pickup truck. Upon arriving at the ranch, the witness was apparently pulled out of the truck by a black man with a gun. Though the witness first denied that the gun was in fact a rifle, he later indicated that his assailant pointed a rifle at him. The witness was said to have communicated that after his wife got out of the truck, he did not see where she went nor did he see anyone strike her.
When asked if he could point out his assailant in the courtroom, the interpreter noted that the witness did not seem to understand the question. 3 The prosecution suggested that appellant stand to facilitate the identification process to which appellant objected. The trial court sustained the objection. The witness was then asked if he remembered what the man who pulled him out of the truck looked like to which he responded no. The witness then pointed at someone and in response to whether that someone was the man he saw at the Finney ranch, the interpreter noted the answer was yes. The record, however, is unclear as to whom he was pointing.
On cross examination, the witness was asked to point to the man he saw at the Finney ranch and the following exchange occurred:
The witness then contradicted the earlier interpretation by agreeing that he in fact saw a man strike his wife. When asked if there were two men at the Finney ranch that day, the interpreter responded that the witness did not know. Finally, the witness indicated that the man who pulled him out of the truck later moved the truck from where it had been parked.
Appellant filed two formal Bills of Exception, one of which recorded the fact that when called upon to point out his assailant, the witness first pointed to a man in a red jacket and then pointed to appellant, and that the trial court failed to let the record reflect this occurrence. The Bill further noted that counsel for appellant was in a much better position to see where the witness was pointing inasmuch as the trial court sat at an oblique angle to the witness's line of sight. The trial court disapproved the Bill noting that:
"Who the defendant pointed to when the defendant and another black man were placed together reflects in the record and having happened in open court on the record is not proper subject (sic) of bill of exception."
Appellant then filed a Bystander's Bill of Exception duly signed and sworn to by three witnesses and which comported with the requisites...
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