Mahyar Arefi v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00234-CR
___________________________
MAHYAR AREFI, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court No. 5
Tarrant County, Texas
Trial Court No. 1473784
Before Gabriel, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Appellant Mahyar Arefi appeals from his conviction for misdemeanor assault,
causing bodily injury to a family or household member, and from his suspended 180-
day sentence. See Tex. Penal Code Ann. § 22.01(a)(1), (b). In three points, Arefi
challenges the denial of his motion for new trial based on alleged inaccuracies in the
Farsi translations occurring at trial, the admission of the complainant’s hospital
records, and the denial of his motion for mistrial during the State’s closing arguments
to the jury. Because none of these points raise reversible error, we affirm the trial
court’s judgment.
I. BACKGROUND
A. THE OFFENSE
Mona Marzbani was married to Arefi; both are from Iran but they moved to
Cincinnati, Ohio, after their marriage. Arefi’s mother lived with them in Cincinnati.
In August 2016, Marzbani and Arefi moved to Arlington, Texas. On September 5,
2016, the two began arguing, and Arefi pushed Marzbani to the ground, breaking her
nose and causing bruising on both of her arms.
Marzbani did not call the police but she asked Arefi to take her to the hospital,
which he did. Chris Chappell, a nurse who was managing patient flow at the
emergency department, talked to Marzbani and Arefi. When Arefi would not allow
Marzbani to answer any questions, Chappell asked Arefi to leave the room. Marzbani
then told Chappell that Arefi had broken her nose and that she did not feel safe at
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home. Chappell called the police who, after speaking to Marzbani and Arefi, arrested
Arefi for assault.
B. THE TRIAL
At trial, Arefi’s defensive theory was that Marzbani was lying about what
happened in an attempt to obtain United States citizenship as a domestic-violence
victim and for financial reasons. Marzbani testified that Arefi forcefully pushed her to
the ground and injured her in September 2016 and that he had similarly physically
abused her three times when they were living in Cincinnati. Arefi testified that when
Marzbani tried to leave their home during the September argument, he grabbed her
purse, which caused her to stumble and fall.1 Arefi’s mother disputed Marzbani’s
testimony and her characterization of Arefi as an abuser.
The jury found Arefi guilty of the charged offense. The trial court sentenced
him to 180 days’ confinement, suspended the term of confinement, and placed him
on community supervision for 18 months.
Arefi filed a motion for new trial, arguing that his constitutional rights were
violated by the three Farsi interpreters’ translation of three witnesses’ trial testimony,
including Marzbani’s, resulting in the jury’s inability to “hear an accurate version of
the defendant’s trial.” At the trial court’s hearing on the motion, Arefi introduced his
1
When initially questioned by police, Arefi stated that Marzbani had accidentally
fallen after tripping over a box. Later in the interview, Arefi stated that he had
grabbed her purse and “may have” pushed her. Arefi denied that he told the officers
Marzbani tripped.
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own translation of selected portions of the trial testimony as Exhibit No. 2, which was
based on what he heard after listening to CD recordings of the trial. Arefi argued to
the trial court that the inaccurate translations affected the jury’s ability to determine
credibility: “In other words, is Mr. Arefi . . . the truthful person in this case or is Ms.
Marzbani? . . . And the translator[s] messed it up.” The trial court stated several
rulings on the record at the end of the hearing:
Here’s what I think is important here. What concerns me a little bit
about the Defendant’s . . . Exhibit No. 2 is that some of the answers
given are on here and some are not.
We all will remember I believe that on the second day of trial
[Tuesday, March 6,] Ms. Marzbani testified all day long. We had an
interpreter. She testified in Farsi and on Thursday [March 8] when she
was called back to the stand [by the State as a rebuttal witness] she spoke
mainly in English. We had an interpreter there and that interpreter
mostly just stood there.
So I’m not really convinced that Ms. Marzbani didn’t understand
everything that was going on. So that’s what concerns me about some
of the answers not being in here in this exhibit.
Mr. Arefi testified in English to this jury . . . who[’s] the sole judge
of credibility of witnesses, and they rejected his testimony. So there
wasn’t a question of understandability as far as he was concerned. And
we all know that translations from one language to another can’t always
be exact.
On the basis of the record and my recollection of the trial, I’m
going to find that any errors that the translators made are not material to
the overall presentation of the evidence to due process, to the right to
confront witness[es,] and to present your defense at the trial. And, thus,
the trial was not constitutionally defective.
The trial court denied the motion.
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II. DISCUSSION
A. ACCURACY OF TRANSLATION
In his first point, Arefi argues as he did in the trial court that the inaccuracies in
the translations, “some” of which were pointed out in his Exhibit No. 2, gave the jury
incorrect impressions of three witnesses’ testimony.2 He posits that by failing to be
“verbatim and complete,” the translations denied him the right to fully confront and
cross-examine those witnesses and to present his defense.
When a trial court appoints an interpreter under article 38.30(a), our standard
of review depends on the complaint raised. See Tex. Code Crim. Proc. Ann. art.
38.30(a); Garcia v. State, 887 S.W.2d 862, 875 (Tex. Crim. App. 1994), abrogated on other
grounds by Hammock v. State, 46 S.W.3d 889, 893 (Tex. Crim. App. 2001); Martins v.
State, 52 S.W.3d 459, 470 (Tex. App.—Corpus Christi–Edinburg 2001, no pet.).
Complaints arising from the appointment procedure or competency of an appointed
translator are legal questions that are reviewable on appeal for an abuse of discretion.
See Baltierra v. State, 586 S.W.2d 553, 557–58 (Tex. Crim. App. 1979) (op. on reh’g);
2
To the extent he attempts to attack the competency of one or all of the
interpreters by referring in his brief to article 38.30, requiring interpreters to have
“adequate . . . skills,” such an argument is inadequately briefed even if liberally
construed. Tex. Code Crim. Proc. Ann. art. 38.30(a); see Tex. R. App. P. 38.9.
Further, Arefi did not object to the interpreters’ competency during the trial or as part
of his motion for new trial, forfeiting this possible argument for our review. See, e.g.,
Franco v. State, No. 04-16-00090-CR, 2017 WL 781033, at *2 (Tex. App.—San
Antonio Mar. 1, 2017, pet. ref’d) (mem. op., not designated for publication)
(collecting cases).
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Franco, 2017 WL 781033, at *1; Martins, 52 S.W.3d at 470. But questions regarding
alleged inaccuracies in a translation are issues of fact for the fact-finder that are not
reviewable by this court. See Garcia, 887 S.W.2d at 875; Calixto v. State, 66 S.W.3d 505,
509–10 (Tex. App.—Austin 2011, pet. ref’d); Martins, 52 S.W.3d at 471; Kan v. State,
4 S.W.3d 38, 43 (Tex. App.—San Antonio 1999, pet. ref’d).
Arefi’s complaint attacks alleged inaccuracies and omissions from the
translations, which he claims led to the jury’s failure to appropriately weigh those
witnesses’ credibility as compared to his own. Not only was Arefi’s attempt to
partially impeach the translations insufficient and incomplete, which the trial court
noted at the new-trial hearing, we cannot review the highly fact-intensive and
discretionary credibility determinations inherent in Arefi’s argument. See Green v.
Stephens, No. H-14-1017, 2015 WL 809569, at *11 (S.D. Tex. Feb. 25, 2015) (mem. &
op.); Garcia, 887 S.W.2d at 875; State v. Andaverde, No. 01-10-00697-CR, 2013 WL
3155929, at *4 (Tex. App.—Houston [1st Dist.] June 20, 2013, no pet.) (mem. op.,
not designated for publication). “We, as an appellate court, can no more determine
whether a translation is accurate or which of two translations is more accurate, than
we can determine which of two witnesses is telling the truth, or which of the two is
more truthful; these are questions for the factfinder.” Garcia, 887 S.W.2d at 875. We
overrule point one.
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B. ADMISSION OF HOSPITAL RECORDS
In his second point, Arefi argues that the trial court’s admission of Marzbani’s
hospital records from September 5, 2016, through Chappell’s testimony was an abuse
of discretion because Chappell was not “qualified to sponsor” the records. He
contends Chappell was not qualified because he was no longer employed by the
hospital at the time of trial and, thus, was not a custodian of the records and because
he could not verify the records’ accuracy. We review the admission of evidence for an
abuse of discretion. See Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006).
Records of a regularly conducted activity, such as Marzbani’s hospital records,
are admissible as an exception to the hearsay rule if the required reliability conditions
are “shown by the testimony of the custodian or another qualified witness.” Tex. R.
Evid. 803(6)(D).3 To be considered qualified, the sponsoring witness must have
personal knowledge of the manner in which the records were prepared. See Brooks v.
State, 901 S.W.2d 742, 746 (Tex. App.—Fort Worth 1995, pet. dism’d & pet. ref’d)
(op. on pet. for discretionary review). The witness need not have personal knowledge
of the specific contents of the records sought to be admitted nor does he have to be
the creator of the record or an employee of the business that holds the records. See id.
3
Such records are considered admissible despite the hearsay rule if the records
are accompanied by a compliant affidavit. See Tex. R. Evid. 803(6), 902(10). But the
State concedes that although the hospital records were accompanied by a business-
records affidavit, it cannot rely on this path to admissibility because it did not give
Arefi the required 14-day notice. See Tex. R. Evid. 902(10)(A).
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Although Chappell recognized that he was not the custodian of Marzbani’s
records, he testified that he was familiar with the records, that the hospital kept the
records for seven years in the normal course of its business activities, that the records
had been made for diagnostic purposes, and that the records had been created at or
near the time of the alleged offense. The testimony demonstrated for the trial court
that Chappell had sufficient knowledge of the trustworthiness of the proffered
records such that we cannot say the trial court abused its discretion by admitting the
records over Arefi’s hearsay objection. See Biggs v. State, No. 06-18-00177-CR, 2019
WL 2017271, at *2 n.1 (Tex. App.—Texarkana May 8, 2019, no pet.) (mem. op., not
designated for publication); Brooks, 901 S.W.2d at 746–47. We overrule point two.
C. JURY ARGUMENT
In his third point, Arefi argues that the trial court abused its discretion by
denying his motion for mistrial based on the State’s allegedly improper jury argument:
“[Arefi] has all the resources in the world compared to [Marzbani] . . . and he can talk
his way through anything. And he’s going to make her get up here and he’s going to
drag her through this. And he’s going to make her relive all those instances over and
over.” Arefi objected that the argument attempted to penalize him for exercising his
right to a jury trial. The State responded, “That’s fair.” The trial court sustained the
objection and instructed the jury to disregard the argument, but it denied Arefi’s
motion for mistrial.
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When the trial court denies a mistrial motion in response to allegedly improper
jury argument, our question is whether the trial court abused its discretion by doing
so. See Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Newby v. State,
252 S.W.3d 431, 438 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). Almost any
improper argument may be cured by an instruction to disregard. See Newby,
252 S.W.3d at 438. Only extreme circumstances, such as when the prejudice arising
from the argument is incurable, require a trial court to grant a mistrial. Hawkins v.
State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004). We weigh three factors to
determine if the trial court abused its discretion in denying a mistrial: (1) the severity
of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the
certainty of conviction absent the misconduct. See Archie, 221 S.W.3d at 700.
Here, the comment was not severe—any prejudicial effect arising from the
comment was not of a large magnitude. The State did not stress the argument, and
the prosecutor expressed his agreement with Arefi’s objection. The trial court took
swift action by instructing the jury to disregard the remark, and the prosecutor then
immediately corrected any impropriety arising from his statement: “[Arefi] absolutely
has a right to a fair trial. But when he has . . . committed a criminal offense, it’s our
turn to step in and get involved.” And the State’s case, based on Marzbani’s and the
arresting officers’ testimony was not so weak that the State’s isolated comment
suggested a verdict on an improper basis. See, e.g., Hendon v. State, No. 14-08-00927-
CR, 2010 WL 1956623, at *3 (Tex. App.—Houston [14th Dist.] May 18, 2010, no
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pet.) (mem. op., not designated for publication); Smith v. State, No. 01-04-00604-CR,
2005 WL 824155, at *3 (Tex. App.—Houston [1st Dist.] Apr. 7, 2005, pet. ref’d)
(mem. op., not designated for publication).
We conclude, after balancing the appropriate factors, that the trial court did not
abuse its discretion by denying Arefi’s mistrial motion. See, e.g., Hendon, 2010 WL
1956623, at *3–4; Smith, 2005 WL 824155, at *2–3. We overrule point three.
III. CONCLUSION
The trial court did not abuse its discretion by admitting Marzbani’s hospital
records through Chappell’s testimony or by denying Arefi’s motion for mistrial after
the State’s allegedly improper jury argument. We cannot review Arefi’s attacks to the
accuracy of the translations of several witnesses’ testimony. Accordingly, we affirm
the trial court’s judgment. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
Lee Gabriel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 22, 2019
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