Saul Perez Guerrero v. State ( 2005 )

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Opinion issued July 21, 2005

    In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00003-CR

SAUL PEREZ GUERRERO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 935,836

MEMORANDUM OPINION

          Saul Perez Guerrero, appellant, pleaded not guilty to aggravated robbery. After appellant waived his right to a trial by jury, the judge found him guilty and assessed punishment at five years’ confinement. In three points of error, appellant contends that (1) the evidence is legally and factually insufficient to support his conviction   and (2) the trial court abused its discretion in refusing to translate and transcribe a taped conversation between the complainant and a private investigator. We affirm.

                                                    BACKGROUND

          On January 10, 2003, after returning from a store, complainant, Fernando Arteaga, went to visit his wife’s uncle at the Sierra Vista apartment complex. As he got out of his truck, two men walked toward him. One of the men called out to him, “Hey, primo,” and asked Arteaga for an apartment number. One man had a shotgun, which was pointed at Arteaga. Arteaga placed his hands in the air. The man with the shotgun was tall, had a beard, long hair, and was wearing a hat.

          The second man searched Arteaga and took his wallet, which contained approximately $60, and $17 from his pocket. This second man had short hair, was not tall, had an earring in his ear, and was wearing a cotton sweater. After the two men robbed Arteaga, Arteaga asked them to return his driver’s license and identification. The second man threw it on the ground. Arteaga flagged down two Houston Police Officers, M. Ferguson and R. Hensarling, who were working as security officers for the complex. Arteaga told the officers that he had been robbed and described his assailants.

          The officers requested a helicopter from Houston Police Department dispatch. The helicopter located two men walking westbound and directed the officers to a nearby apartment complex. After the suspects separated, each officer went after one of the two suspects. Officer Hensarling pursued the second suspect and came upon appellant leaning up against a vehicle. Hensarling, seeing that appellant fit Arteaga’s description of the second robber, took appellant into custody. Both officers noticed appellant was breathing heavily as if he had been running. At the time of his arrest, appellant was wearing a grey hooded sweatshirt and an earring. Hensarling did not find Arteaga’s wallet on appellant.

          Appellant’s brother, Francisco Guerrero, answered the door when Officer Ferguson went to appellant’s apartment. Ferguson believed Francisco matched the description of the first robber and transported him and appellant back to the scene for Arteaga to see them. Arteaga identified appellant as the robber who had searched him and stole his money. Although Arteaga initially identified Francisco as the robber with the shotgun, he later changed his mind and said Francisco was not one of the robbers.

          Before trial, appellant’s counsel asked German Vanegas, a licensed private investigator, to interview Arteaga about the offense. Vanegas testified at trial about what Arteaga told him during that interview. Vanegas recorded that interview, which was conducted in Spanish. During Vanegas’s testimony, appellant’s counsel attempted to play the audiotape of the interview, but the State objected to admission of this evidence and the judge sustained the objection. After the judge refused to admit the audio recording into evidence, appellant requested that it be “transcribed.” The judge told appellant that he “[s]hould have already done that.”

DISCUSSION

          In his first point of error, appellant asserts that the evidence was legally insufficient to support his conviction. Specifically, appellant contends that the trial court’s verdict is contrary to the overwhelming weight of the evidence because the trial court accepted the allegedly unreliable testimony of a single eyewitness who identified appellant as the robber.

          A legal-sufficiency challenge requires us to determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex. App.—Houston [1st Dist.] 1997, no pet.). As the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given their testimony, the trier of fact may believe or disbelieve all or any part of a witness’s testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981).

          A person commits the offense of aggravated robbery if he commits robbery and uses or exhibits a deadly weapon. Tex. Pen. Code Ann. 29.03(a)(2) (Vernon 2003). A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. 29.02(a)(2). “In the course of committing theft” means conduct that occurs in an attempt to commit theft, during the commission of theft, or in immediate flight after the commission of theft. Tex. Pen. Code Ann. 29.01(1). A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of the property. Tex. Pen. Code Ann. 31.03(a).

          Appellant contends the evidence is legally insufficient to prove that he committed the offense of aggravated robbery because (1) Arteaga did not have a good opportunity to look at the robber’s face; (2) Arteaga’s testimony regarding the type of earrings worn by the robber differs from the type of earring appellant was wearing when he was arrested; (3) Arteaga testified that the robber was short while appellant is one inch taller than Arteaga himself; (4) appellant did not have any money on him when arrested merely 20 minutes after the robbery occurred; and (5) Arteaga’s identification of appellant as the robber was, in part, based on appellant’s silence upon being handcuffed by the police.

          During the robbery, Arteaga had an opportunity to see the face of the man who searched him and took his wallet and money. Based on his observation of this robber, Arteaga provided a description to the police of both the man who searched him as well as the man who held the shotgun. Arteaga indicated that the robber who searched and robbed him was short; appellant is 5'7". Shortly after the robbery, Arteaga identified appellant as the person who searched and robbed him. At trial, testifying in Spanish through an interpreter, Arteaga identified appellant as the same person who had searched him and taken his wallet and money on January 10, 2003. Although Arteaga was the only witness to the robbery, this does not render the evidence insufficient. It is well established that a conviction may be based on the testimony of a single eyewitness. Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Lewis v. State, 126 S.W.3d 572, 575 (Tex. App.—Texarkana 2004, pet. ref’d).

          Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found that appellant committed robbery while using or exhibiting a deadly weapon. Accordingly, we hold that the evidence was legally sufficient to support appellant’s conviction for aggravated robbery.

          We overrule appellant’s first point of error.

Factual Sufficiency

          In his second point of error, appellant asserts that the evidence was factually insufficient to support his conviction. In our factual-sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004)). We must defer to the fact finder to avoid substituting our judgment for the judgment of the fact finder. Zuniga, 144 S.W.3d at 482. Our evaluation may not intrude upon the fact finder’s role as the sole judge of the weight and credibility accorded any witness’s testimony. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). The fact finder alone determines what weight to give contradictory testimonial evidence because that question depends on how the fact finder evaluates credibility and demeanor. Id. As the one who determines the credibility of the witnesses, the fact finder may choose to believe all, some, or none of the testimony presented. See id. at 408.

          In conducting a factual-sufficiency review, we must discuss the evidence that, according to appellant, most undermines the trier of fact’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Appellant contends the evidence is factually insufficient because (1) there is no physical evidence linking appellant to the offense; (2) appellant was never seen in the apartment complex in which the offense occurred; (3) the State relied heavily on the testimony of one eyewitness, whose identification of appellant is highly suspect; (4) appellant had an explanation for his presence in the parking lot where the police encountered him minutes after the robbery occurred; (5) the testimony of Miguel Reyes was consistent with appellant’s explanation as to why he was in the parking lot; (6) the testimony of appellant’s family was consistent with appellant’s explanation; (7) physical evidence was admitted that was consistent with appellant’s explanation; (8) Gerardo Orrozco saw the two men that the police helicopter tracked into appellant’s apartment complex and testified that appellant was not one of those men; and (9) witnesses testified to appellant’s character as a law-abiding person.

          At trial, Officer Ferguson, Officer Hensarling, and appellant testified for the State. Although the State did not present physical evidence that appellant robbed Arteaga, their testimony provided circumstantial evidence that appellant committed the offense. The lack of physical evidence is merely a factor for the trier of fact to consider when weighing the evidence. Johnson v. State, No.01-03-00319-CR, 2004 WL 1472064, at *3 (Tex. App.—Houston [1st Dist.] July 1, 2004, pet. ref’d). The lack of physical evidence alone does not render the evidence factually insufficient to support a conviction. See id.

          Although appellant claims that appellant was never seen in the apartment complex in which the offense occurred, this assertion is inconsistent with the testimony heard at trial. Arteaga testified at trial that appellant was the man who searched him and took his wallet while he was at the Sierra Vista apartment complex on January 10, 2003.

          Appellant claims that the State’s case relied entirely on Arteaga, whose testimony was highly suspect and whose identification of appellant was unreliable. However, as stated above, the testimony of one eyewitness may be sufficient to uphold a conviction. Lewis, 126 S.W.3d at 575.

          Appellant’s remaining contentions under this point of error merely address facts that are not inconsistent with appellant having committed the offense in question. Examining all of the evidence neutrally, we conclude that the proof of guilt was not so obviously weak as to undermine confidence in the trier of fact’s determination, nor was the contrary evidence so strong that it greatly outweighed the proof of guilt.

          Accordingly, we overrule appellant’s second point of error.

Transcribed Taped Interview

          In his third point of error, appellant asserts that the trial court abused its discretion in refusing to translate and transcribe the taped interview between private investigator, Vanegas, and complainant, Arteaga, from Spanish to English after appellant attempted to admit the audiotape of the interview into evidence. Specifically, appellant contends that Arteaga’s words as recorded on the audiotape constituted the best impeachment evidence available on the issue of appellant’s identity as one of the robbers. But, at trial, appellant did not object on this theory of law. In fact, appellant did not object at trial, but merely responded to the State’s relevancy objection to the admission of the audio recording. After sustaining the State’s objection, the trial court excluded the evidence.

          Article 38.30 of the Code of Criminal Procedure governs the use of interpreters in criminal proceedings. It states, in relevant 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.

Tex. Code Crim. Proc. Ann. art. 38.30(a) (Vernon 2005) (emphasis added). In applying this statute to a non-English-speaking witness, the Court of Criminal Appeals has stated

In the face of a proper motion or objection an interpreter must be sworn to translate the conversation, so long as the interpreter is ‘considered to possess adequate interpreting skills for the particular situation’ and is ‘familiar with the use of slang’ to the satisfaction of the trial court.

Leal v. State, 782 S.W.2d 844, 849 (Tex. Crim. App. 1989). The Court has emphasized the importance of a sworn interpreter both in translating a non-English conversation for the finder of fact and in translating the testimony of a witness on the stand so as to be subject to cross-examination by the non-offering party. See id. (holding that trial court erred in admitting Spanish tape recording without recording having been translated into English by a sworn interpreter, despite presence of English transcript provided by the State and relied upon by the jury). In Leal, the Court analogized a situation involving a tape recording of witnesses speaking Spanish that had been admitted into evidence to a non-English-speaking witness testifying in court. Id. at 849-50; see Garza v. State, 996 S.W.2d 276, 281 (Tex. App.—Dallas 1999, pet. ref’d) (“When a tape recording of a conversation in a foreign language is admitted into evidence, the situation is analogous to when a non-English speaking witness testifies, and the safeguards of code of criminal procedure article 38.30 apply.”). Because a sworn interpreter was not called upon by the trial court to translate the admitted tape recording containing the conversation, the trial court in Leal did not comply with Article 38.30. Id. at 849. Therefore, the trial court in Leal “erred when it admitted the tape recording into evidence without it being translated from Spanish to English by a sworn interpreter.” Id. at 849-50.

  Use of Interpreter

          Here, appellant’s private investigator, Vanegas, recorded an interview with Arteaga on May 7 and 8 in Spanish. Appellant attempted to offer the audiotape into evidence, but the court sustained the State’s relevancy objection to admission of the entire audiotape after confirming that the interview was in Spanish. Whereas the tape recording in Leal was admitted into evidence, here the audiotape of Vanegas and Arteaga was excluded. When appellant sought to have a transcript of the interview translated into English made, the court responded that appellant “[s]hould have already done that.” Even after appellant sought to admit an English transcript that he had already prepared, albeit with inaccuracies, the court refused to admit the inaccurate English transcript of the interview into evidence.

          Assuming without deciding that the trial court erred in not translating the audiotape from Spanish to English, we must determine if the error was harmless. In our review of nonconstitutional error, we are to disregard errors, defects, irregularities, or variances that do not affect substantial rights of the accused. Tex. R. App. P. 44.2(b). To determine whether an error “affect[ed] substantial rights,” we consider whether a party had a right to that which the error denied. Johnson v. State, 72 S.W.3d 346, 348 (Tex. Crim. App. 2002).

          Appellant wanted to use an English translation of the “actual words of the complainant” for impeachment purposes on the issue of identity. Appellant does not contend that Arteaga’s comments on identity were not admitted at trial through the testimony of Vanegas, but only that the exact words used by Arteaga when he spoke to Vanegas on identity were not heard by the trial court. Appellant believes this is an important distinction because “[w]hat the tape reveals the complainant said is more persuasive than what someone says the complainant said.” Because the trial court heard Vanegas’s testimony as to what Arteaga told him on the issue of identity, the trial court was still able to weigh any differences between Arteaga’s trial testimony and the testimony of Vanegas as to what he was told by Arteaga during their tape-recorded interview in Spanish. Because the trial court heard both Vanegas’s testimony and that of Arteaga, error, if any, from the trial court’s refusal to have a sworn interpreter translate the audiotape did not have any more than a slight effect, and was thus harmless. See Sanchez v. State, 122 S.W.3d 347, 352 (Tex. App.—Texarkana 2003, pet. ref’d).

Confrontation Clause

          Moreover, appellant argues in his brief that the trial court’s refusal to order the interpreter to translate or transcribe the audiotape violated appellant’s fundamental right to confrontation under the United States Constitution.

          In Baltierra v. State, the Court of Criminal Appeals acknowledged that the Confrontation Clause requires that the court provide an interpreter to a non-English speaking accused. 586 S.W.2d 553, 556-59 (Tex. Crim. App. 1979). More recently, in Miller v. State, this Court held that the Confrontation Clause requires that an interpreter be provided to “an accused to confront a material witness who does not understand English . . . .” Nos. 01-03-01035-CR, 01-03-01038-CR, 2004 WL 2538286, at *4 (Tex. App.—Houston [1st Dist.] Nov. 10, 2004, no pet.). Once a trial court becomes aware of a material witness’ language problem, it has an independent duty to implement a defendant’s confrontation rights by securing an interpreter to translate for the material witness. Id. at *6.

          Here, Arteaga was a material witness and he had difficulty speaking English. However, all Arteaga’s trial testimony on the stand was translated by a sworn interpreter. Even Arteaga’s cross-examination by appellant’s counsel was conducted in English with the aid of the interpreter. The only exhibit that was not translated was the audiotape of the Spanish interview of Arteaga by Vanegas. Assuming without deciding that the trial court erred in not implementing appellant’s confrontation rights under the Sixth Amendment to the United States Constitution, we must determine if there was harm.

          In regard to harm, the record does not reflect what questions appellant would have asked Arteaga on cross-examination had the audiotape been translated into English. However, the record does reflect that appellant cross-examined Arteaga when Arteaga took the stand to testify on behalf of the State. Because it was appellant’s own exhibit that contained the Spanish interview and because appellant had an English transcript of the interview, appellant should have known its substance. Knowing the substance of the interview, appellant should have been able to cross-examine Arteaga when he first took the stand. Appellant was able to cross-examine Arteaga once, but chose not to address his interview with Vanegas during that cross-examination. Appellant cannot complain that he was deprived of his constitutional right to cross-examination because appellant was responsible for failing to cross-examine Arteaga through the sworn interpreter when Arteaga took the stand at trial. Therefore, we find beyond a reasonable doubt that the trial court’s error, if any, in not implementing appellant’s confrontation rights did not contribute to appellant’s conviction. Tex. R. App. P. 44.2(a).

           Accordingly, we overrule appellant’s third point of error.

                                                                  CONCLUSION

          We affirm the judgment of the trial court.

                                                             Sherry Radack

                                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Bland.

Do not publish. Tex. R. App. P. 47.2(b).