Ricardo Huerta v. the State of Texas ( 2023 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-22-00068-CR
RICARDO HUERTA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court
Potter County, Texas
Trial Court No. 76,251-E-CR, Honorable Douglas R. Woodburn, Presiding
February 16, 2023
OPINION
Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
Appellant was charged with murder in the first degree.1 A jury found him guilty as
indicted and, finding two punishment enhancements true, assessed eighty years’
imprisonment. Appellant brings three issues on appeal. By his first issue, he complains
of a pretrial amendment to the indictment. By the remaining issues, he contends that the
court-appointed interpreter was not qualified or was absent during a pretrial hearing and
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TEX. PENAL CODE ANN. § 19.02(c).
portions of the trial. Because our review finds any alleged error was waived, absent, or
harmless, we affirm.
BACKGROUND
In the small hours of July 11, 2018, the body of Latrece Black was discovered
behind a grocery store in Amarillo, Texas. She was killed by apparent strangulation.
Scrape marks indicated she had been killed elsewhere and moved to the alley. Appellant
and Black had exchanged text messages the night before. A few hours before the body
was discovered, Appellant was stopped for an unrelated traffic violation. The officer
observed Black’s purse and identification in the car and learned that Appellant was on his
way out of the country—to Mexico. Unaware of the murder, the import of the items in
Appellant’s possession, and the motivation for his apparent flight from the country, the
officer allowed him to leave the scene. Eventually, law enforcement connected Appellant
to the murder, and he was charged. The original indictment read:
RICARDO HUERTA, on or about the 11th day of July, 2018, and before the
making and filing of this Complaint, in Potter County, Texas, did then and
there, with intent to cause serious bodily injury to an individual, namely,
LATRECE LATELE BLACK, commit an act clearly dangerous to human life
that caused the death of LATRECE LATELE BLACK, by restricting the
breathe [sic] and circulation of Latrece Latele Black.
A few days prior to trial, the State moved to amend the indictment by striking
“restricting the breathe [sic] and circulation of Latrece Latele Black” and replacing it with
“impeding the normal breathing or circulation of the blood of Latrece Latele Black by
applying pressure to her throat or neck.” The trial court denied the first request to amend,
so the State filed a second request five days later with the added stipulation: “Defense
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Counsel has no objection.” This request was granted and a docket entry to that effect
was made; however, the actual order was not filed with the district clerk until two months
after the trial had concluded. At trial, the amended indictment was read to the jury and
Appellant entered a not-guilty plea. The delay in filing the order with the clerk’s office,
Appellant asserts, amounts to structural error because the jury heard the unfiled amended
language, not the original, filed indictment, which he equates to the complete absence of
a valid indictment.
Appellant also required the services of an interpreter throughout trial. The trial
court appointed one, but the record is silent regarding the interpreter’s qualification. No
objection was lodged by Appellant regarding the same. Regarding the interpreter’s
presence, the individual volumes of the reporter’s record all indicate the interpreter was
present at trial, but the volume of the record made in conjunction with the relevant pretrial
hearing does not indicate whether an interpreter was present.
AMENDING THE INDICTMENT
Essentially, this case deals with the procedure for amending an indictment.
Amendments to an indictment are governed by constitutional and statutory provisions.
The Texas Constitution gives a defendant the right to be charged by indictment for felony
offenses. Perez v. State, 429 S.W.3d 639, 641 (Tex. Crim. App. 2014) (citing TEX. CONST.
art. I § 10). An indictment issued by a grand jury protects citizens from arbitrary
accusations by the government and provides a defendant with notice of the pending
charges. Id. A matter of form or substance in an indictment may be amended at any time
before trial on the merits commences after notice to the defendant. TEX. CODE CRIM.
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PROC. ANN. art. 28.10(a). The indictment may not be amended over the defendant’s
objection if the amendment charges him with an additional or different offense. Id. at art.
28.10(c). All amendments of an indictment or information shall be made with the leave
of the court and under its direction. Id. at art. 28.11. Amending an indictment under
articles 28.10 and 28.11 requires three things: “a motion from the State, an order from the
trial court, and documentation in the record reflecting the changes to the indictment
sufficient to give the defendant fair notice of the charges against him.” Fury v. State, 607
S.W.3d 866, 872 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d).
Here, the first two requirements are satisfied. The only issue is if Appellant’s
stipulation to the pretrial amendment and the trial court’s docket entry granting the motion
to amend suffices for “documentation in the record reflecting the changes to the
indictment sufficient to give the defendant fair notice of the charges against him” despite
the order not being filed with the district clerk for over two months. We find it does.
The crux of the issue here appears to be the late filing of the order granting the
amendment. Our review indicates this issue has been addressed by at least one of our
sister courts. In Perez v. State, the Dallas Court of Appeals addressed whether an order
granting an amended indictment approved before trial began, but not filed with the clerk
until the day the verdict was rendered, was proper. Perez v. State, No. 05-15-00163-CR,
2016 Tex. App. LEXIS 9620, at *15–16 (Tex. App.—Dallas Aug. 30, 2016, no pet.) (mem.
op., not designated for publication). Much like the case currently before this Court, Perez
did not object to the amendment, entered a plea to the amended indictment and the
amendment was read in open court to the jury. Also, much like the case at bar, Perez
argued that the amendment was ineffective because it was not filed with the clerk until
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after the trial commenced. The Perez Court rejected the argument that the amendment
was not effective because it was not filed with the clerk until after the trial commenced by
noting that—prior to trial—the record showed the trial court had received the motion to
amend, “filed” it, granted the motion, and signed an order reflecting the same. Id. at *16.
The court noted that a document is considered “filed” when delivered into the “custody of
a proper official.” Id. (citing Garza v. State, 919 S.W.2d 788, 789 (Tex. App.—Houston
[14th Dist.] 1996, no pet.); TEX. R. CIV. P. 74; TEX. R. APP. P. 9.2(a)(2)).
Here, the record reflects the trial court received a motion to amend in which
Appellant, on its face had no objection, granted it, and made a docket entry showing the
same. The amended language was read in open court to Appellant, and he entered a
not-guilty plea. There is no indication that Appellant or his counsel did not actually agree
to the amendment and no indication that anyone was surprised by the slight change. We
overrule issue one.
INTERPRETER QUALIFICATIONS AND PRESENCE DURING PROCEEDINGS
A defendant who cannot understand English is entitled to a court-appointed
interpreter. Garcia v. State, 429 S.W.3d 604, 607 (Tex. Crim. App. 2014). To preserve
error regarding an issue with the interpreter’s qualification, an objection must be raised at
trial. See TEX. R. APP. P. 33.1(a). See also Ordonez v. State, No. 07-21-00175-CR, 2022
Tex. App. LEXIS 1558, at *6–7 (Tex. App.—Amarillo March 7, 2022, no pet.) (mem. op.,
not designated for publication) (stating complaint regarding qualifications of interpreter
waived without proper objection); Phommathep v. State, No. 07-12-00503-CR, 2014 Tex.
App. LEXIS 1526, at *7–8 (Tex. App.—Amarillo Feb. 11, 2014, no pet.) (mem. op., not
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designated for publication) (same). No objection to the interpreter’s qualifications was
raised here and we find any potential error waived. Issue two is overruled.
Concerning Appellant’s complaint that the interpreter was absent during a pretrial
hearing, we likewise, but for different reasons, overrule the issue. The volumes of the
record pertaining to the trial itself all note under “Appearances” the presence of the
interpreter, Elvira Johnson. The volume of the record relating to the pretrial hearing lacks
this language and the record is otherwise silent regarding whether an interpreter was
present. No objection was lodged by Appellant and he does not claim he could not
understand the proceedings. Without proof to the contrary, we presume regularity of the
proceedings. Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000); Ridge v. State,
205 S.W.3d 591, 597 (Tex. App.—Waco 2007, pet. ref’d). See Talley v. State, 909
S.W.2d 233, 235 (Tex. App.—Texarkana 1995, pet. ref’d) (holding where record does not
affirmatively show the trial court’s compliance with code of criminal procedure, but no
objection raised, appellate court must presume compliance); Morales v. State, No. 14-95-
01299-CR, 1997 Tex. App. LEXIS 2708, at *2–3 (Tex. App.—Houston [14th Dist.] 1997,
no pet.) (not designated for publication) (holding error regarding the failure to swear in the
interpreter was waived because the appellant failed to object at trial).
We will not assume error from a silent record. Rayme v. State, 178 S.W.3d 21, 29
(Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). Appellant bears the burden of
overcoming this presumption. Marras v. State, 741 S.W.2d 395, 407 (Tex. Crim. App.
1987). See Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986) (explaining
there “is the presumption of the regularity of the judgment of conviction and the
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proceedings absent a showing to the contrary” and “the burden is on the defendant to
overcome the presumption”). Appellant has not carried his burden with respect to the
interpreter’s potential absence during specific portions of the trial.
As far as the pretrial hearing is concerned, even assuming for the sake of argument
that the interpreter was absent during this hearing, the absence and record would need
to show harm to secure reversal. Pineda v. State, 176 S.W.3d 244, 247 (Tex. App.—
Texarkana 2004, pet. ref’d) (citing Routier v. State, 112 S.W.3d 554, 576 (Tex. Crim. App.
2003)). At the hearing in question, the State asked for a continuance of a few months to
garner evidence and contact witnesses. Appellant objected and the trial court, siding with
Appellant, denied the continuance. Appellant then took up some “standard motions”
which—from a review of the record—granted all relief requested by Appellant. We cannot
ascertain from our review of the record what harm Appellant did suffer, or could have
theoretically suffered by prevailing on every issue at the pretrial hearing. Issue three is
overruled.
CONCLUSION
Overruling all of Appellant’s issues, we affirm the trial court’s judgment.
Alex L. Yarbrough
Justice
Publish.
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