Binh Hung Nguyen v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00106-CR
___________________________
BINH HUNG NGUYEN, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 396th District Court
Tarrant County, Texas
Trial Court No. 1643148D
Before Birdwell and Bassel, JJ.; and Lee Gabriel (Senior Justice, Retired,
Sitting by Assignment)
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Appellant Binh Hung Nguyen appeals his conviction and sentence for his third
driving while intoxicated offense. Nguyen pleaded guilty with no plea bargain
agreement. He elected to go to the trial court for punishment. The trial court
sentenced Nguyen to imprisonment for five years in the Institutional Division of the
Texas Department of Criminal Justice. Nguyen appeals his conviction and sentence
claiming, in three issues, that he does not understand or speak English and that the
trial court erred by failing to sua sponte appoint an interpreter. We affirm.
I. BACKGROUND1
Nguyen was arrested for driving while intoxicated on May 14, 2020. He
appeared before a magistrate on the same day and it was determined that he was
indigent. Nguyen was appointed an attorney to represent him. His bond was set at
$3,500 with bond conditions. Nguyen signed the form acknowledging that he
understood his rights and that he had received his bond conditions. He was indicted
on June 25, 2020, for the offense of driving while intoxicated. The indictment
contained a felony repetition enhancement alleging two prior convictions for driving
while intoxicated and a repeat offender notice alleging a prior conviction for
aggravated assault with a deadly weapon. A bond was posted on August 31, 2020.
1
Because this opinion deals only with Nguyen’s claim that the trial court should
have appointed an interpreter, we will dispense with a discussion of the factual
allegations that led to the charges.
2
While on bond, Nguyen was supervised by Brandon Velasco, who at the time was a
pre-trial officer for the Tarrant County Community Supervision and Corrections
Department. A violation report alleged Nguyen failed to abide by the terms of his
bond conditions and his bond was held insufficient, which resulted in Nguyen’s going
back to jail.
The record reflects that while in jail awaiting trial, Nguyen spoke to the trial
court on three occasions. Since this was in the midst of the COVID-19 restrictions, it
appears that the first appearance before the trial court was by Zoom. Nguyen
appeared in person before the trial court on June 14, 2021. At that time, Nguyen’s
counsel explained to him the three remaining options he had to resolve his case—
accept the State’s offer of four years in the Texas Department of Criminal Justice,
plead guilty and go open to the judge, or go to a jury trial. Nguyen expressed that he
wanted a three-year sentence instead. The trial judge then entered the conversation
and asked Nguyen if he remembered that they had previously discussed his case: “Do
you remember that, when we were on the TV?” Nguyen replied that he did. The trial
court explained to Nguyen: “The last time we were on the TV they offered you a
three-year deal and you turned it down. You didn’t - - you said you didn’t want it. So
when they – now it’s not three. It’s four.” The trial court went on to discuss the
other available options—a jury trial or an open plea—at which time Nguyen asked
again if three years was available. When told by the court that “[i]t’s not available
from the State,” Nguyen appeared to ask the prosecutor if he could still offer three
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years. The trial court redirected the conversation indicating that the prosecutor “can’t
talk to [him] while [he has] a lawyer.” Soon thereafter Nguyen’s counsel asked him if
he wanted to talk to counsel privately and Nguyen said he did.
When Nguyen and his counsel returned to court that same day, Nguyen was
asked whether he wanted to plead guilty and have the trial judge assess punishment.
Nguyen replied affirmatively. The trial court then went through certain plea
admonishments in open court and asked if he was a citizen of the United States. That
question was also answered affirmatively. Counsel was asked if Nguyen was mentally
competent, and counsel responded that Nguyen was competent to stand trial. At no
time before his actual plea of guilty did Nguyen or his counsel ever state or even
allude that Nguyen could not understand or speak the English language. When asked
how he pleaded to the driving while intoxicated offense as alleged, Nguyen pleaded
“[g]uilty.” When asked if he was previously convicted in 2013, he answered “[y]es.”
The court accepted Nguyen’s pleas and reset the case for a punishment hearing.
Before recessing, however, the trial judge asked Nguyen if he had any questions.
Nguyen responded, “I don’t have no questions. I want two year or three year if you
can do.”
Nguyen appeared before the trial court for the third time for his sentencing
hearing on June 29, 2021. The State’s only witness was Velasco, the community
supervision officer who had supervised Nguyen while he was out on bond. Velasco
testified that, due to COVID-19 restrictions, he only spoke to Nguyen by phone at
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first. He said he had difficulty getting Nguyen to cooperate to schedule his
appointment with Smart Start to get his “breathalyzer.” Velasco further explained
that once the appointment occurred, he was advised that Nguyen was “rude and
uncooperative” with the personnel at Smart Start and that they had to ask him to
leave without obtaining the device. Velasco stated that Nguyen had been rude and
uncooperative with him as well, but he never testified to having any difficulty
speaking with Nguyen or understanding his English.
The defense called Nguyen’s brother—Long Nguyen (Long)—as the first
witness. Long testified that he and his brother had immigrated to the United States
from Vietnam in 1989. He explained that Nguyen was 17 or 18 years old at the time
and that he was 49 or 50 at the time of the hearing. He further explained that one of
the first things that the brothers did upon arriving in the United States was to attend
English language classes. During his testimony, Long described Nguyen’s work
history, the composition of his family, and his struggles with drug abuse. Long never
testified or even alluded to any difficulty Nguyen had with speaking or understanding
the English language.
Defense counsel then called Nguyen as a witness. Neither Nguyen nor his
attorney requested an interpreter for Nguyen, and he never stated he could not
understand any question asked. Nguyen testified that he attended Carter-Riverside
High School after coming to Fort Worth and that upon graduation, he furthered his
education at the south campus of Tarrant County Junior College (TCJC). He also
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described taking English language classes at TCJC. Nguyen never responded to a
question asked by his counsel or the prosecutor with any type of response indicating
he was having difficulty understanding or answering the question.
Upon completion of the evidence and arguments of counsel, the trial judge
found Nguyen guilty of the offense of driving while intoxicated, as alleged in the
indictment, and found that Nguyen had been previously convicted of aggravated
assault with a deadly weapon, as alleged in the indictment. The trial judge assessed
Nguyen’s sentence at five years’ confinement in the Institutional Division of the
Texas Department of Criminal Justice and appellate counsel was appointed.2
In three issues, Nguyen argues that the trial judge’s failure to sua sponte
appoint a foreign-language interpreter 1) was an abuse of the trial court’s discretion;
2) deprived him of fundamental due process; and 3) violated his constitutional right to
confront witnesses.
II. STANDARD OF REVIEW
Undoubtedly, language is the primary means of communication in a legal
proceeding, and the participants’ ability to understand and communicate that language
is critical to the proceeding’s fairness. Appellate courts must apply an abuse of
discretion standard in reviewing whether the trial judge was told or had actual
2
This court abated this appeal when a brief was not timely filed by appellate
counsel for Nguyen and ordered a hearing in the trial court. New appellate counsel
was appointed for Nguyen and the appeal was reinstated.
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knowledge of the defendant’s inability to understand the proceedings to be able to
assist in his own defense and thus had a duty to sua sponte appoint an interpreter.
Baltierra v. State, 586 S.W.2d 553, 557 (Tex. Crim. App. 1979); Panchol v. State, No. 02-
12-00228-CR, 2013 WL 3874763, at *4 (Tex. App.—Fort Worth July 25, 2013, pet.
ref’d) (mem. op., not designated for publication). Because the proper handling of the
issue of the need for translation “hinges on a variety of factors, including the
defendant’s knowledge of English and the complexity of the proceedings and
testimony, the trial judge, who is in direct contact with the defendant, must be given
wide discretion.” Linton v. State, 275 S.W.3d 493, 502–03 (Tex. Crim. App. 2009)
(quoting Valladares v. United States, 871 F.2d 1564 (11th Cir. 1989)). We will not
second guess the trial court if its decision lies within the zone of reasonable
disagreement. See Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008)
(admission of hearsay evidence); Garcia v. State, 210 S.W.2d 574, 600 (Tex. Crim. App.
1948) (determination of whether interpreter was necessary); Abdygapparova v. State,
243 S.W.3d 191, 201 (Tex. App.—San Antonio 2007, pet. ref’d) (same).
III. TRIAL COURT’S DISCRETION
Under Article 38.30 of the Texas Code of Criminal Procedure, an interpreter
must be provided if the trial court is “aware of the defendant’s language barrier.”
Garcia v. State, 149 S.W.3d 135, 144 (Tex. Crim. App. 2004); see Tex. Code Crim. Proc.
Ann. art. 38.30. If the trial court is aware the defendant does not understand English,
there is “an independent duty to ensure that the proceedings are interpreted for the
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defendant, absent the defendant’s knowing and intelligent waiver.” Garcia,
149 S.W.3d at 144. The trial court may become aware that the defendant does not
understand “either by being informed of it by one or both parties or by noticing the
problem sua sponte.” Franqui v. State, No. 03-08-00028-CR, 2009 WL 280981, at *1
(Tex. App.—Austin Feb. 6, 2009, no pet.) (mem. op., not designated for publication).
Nguyen acknowledges in his brief that neither he nor his counsel “ever told the
trial court about [his] language barrier, directly or indirectly, or that [Nguyen] could
not participate in the proceedings due to an inability [to] understand.” Thus, he
argues the trial court had a sua sponte duty to appoint an interpreter because the
“evidence clearly rises to the level of giving fair notice to the trial court that [Nguyen]
was so impaired as to require assistance in understanding or participating.” Nguyen
further acknowledges that he signed plea admonishments and waivers that stated that
he could understand English. Despite that concession, Nguyen argues that because
he did not understand what the plea admonishments and waivers said, he could not
have understood that he was forfeiting such a valuable right.
A. PLEA HEARING
Nguyen argues that certain exchanges at the plea hearing were sufficient to put
the court on notice that an interpreter should be appointed for him. When Nguyen
appeared on June 14, 2021, for the first in-person hearing before the trial court, he
had been residing in the United States for over 30 years and was 49 years old. The
trial court reminded Nguyen that they had talked before on Zoom, and Nguyen stated
8
he recalled that occurring. The trial court was aware that the indictment alleged that
Nguyen had been a defendant in three previous court proceedings. On appeal,
Nguyen claims that the following exchange between Nguyen, his counsel, and the trial
court was the “first” indication that an interpreter was needed:
THE COURT: Okay. The purpose of this hearing is to tell me what the
status is of plea negotiations. So Mr. Russo.
MR. RUSSO: Sir, I have a few options for you today. The State’s offer
to resolve your case is four years in the Texas Department of
Corrections, or you can plead guilty and go open punishment to the
judge, or we have a trial setting for July 12. That’s open to you as well if
you’d like a trial. Those are the three options that are in front of you
today, sir.
THE COURT: You’ve communicated that to him?
THE DEFENDANT: Can I sign three?
Nguyen argues that the response “Can I sign three?” makes no sense in this
context. Nguyen fails to mention or consider the colloquy between the trial court and
Nguyen that immediately followed this alleged nonsensical question by Nguyen, as
well as what occurred in the previous proceeding:
THE COURT: Let me explain this. We have been talking to you
previously about your case. Do you remember that when we were on
the TV?
THE DEFENDANT: Yeah.
THE COURT: Okay. The last time we were on the TV they offered
you a three-year deal and you turned it down. You didn’t - - you said
you didn’t want it. So when they - - now it’s not three. It’s four. Or
you could plead guilty and ask me to assess punishment or you can have
a trial.
9
If you ask me to assess punishment, I can go anywhere within the
range of punishment. I can give you a two-year sentence. . . .
Contrary to Nguyen’s argument, his question concerning the three-year offer
makes complete sense. Nguyen was referring to the previous offer by the State.
Throughout the proceeding on June 14, 2021, Nguyen was trying to negotiate a lower
offer than the four years the State was offering on that date:
THE COURT: So that’s where we stand. You had three, you turned it
down. Now they are offering you four. You want three. That’s not
available.
THE DEFENDANT: No more available?
THE COURT: It’s not available from the State.
THE DEFENDANT: Can you do - -
THE COURT: He can’t talk to you while you have a lawyer.
From this exchange, it is clear that Nguyen was remorseful that he did not take the
three years when it was available and was trying to get the offer restored by addressing
the prosecutor himself. The trial court personally conversed with Nguyen and
observed him processing the situation and trying to take the situation in his own
hands. After this conversation, Nguyen said he wanted to talk to his attorney about
the remaining options.
When the proceeding resumed on the record, Nguyen had made the decision to
plead guilty and ask the court to assess punishment. During the private discussion
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with his attorney, Nguyen and his counsel signed plea paperwork that stated the
following:
WRITTEN WAIVERS OF DEFENDANT—JOINED BY
ATTORNEY
Comes now BINH HUNG NGUYEN, in open, court, joined by my
attorney and states:
(A)I am able to read the English language. I fully understand each of the
above written plea admonishments given by the Court and I have no
questions. If I am unable to read the English language, then my
attorney or an interpreter for my attorney has read this entire
document to me in my own language and I fully understand the
entire document, as well as each of the above written plead
admonishments given by the Court and I have no questions.
Nguyen initialed the appropriate portion of the form acknowledging he was a United
States citizen and signed the waiver form. Immediately thereafter his counsel signed
the following certification:
I have fully reviewed and explained the above and foregoing court
admonishments, rights, and waivers, as well as the following judicial
confession to the Defendant. I am satisfied that the Defendant is legally
competent and has intelligently, knowingly, and voluntarily waived his
rights and will enter a guilty plea understanding the consequences
thereof. . . .
The State argues that, under Marin v. State, the Court of Criminal Appeals
categorized the right to an interpreter as a category-two right which must be waived
“plainly, freely, and intelligently, sometimes in writing and always on the record.”
851 S.W.2d 275, 280 (Tex. Crim. App. 1993); Garcia 149 S.W.3d at 144. Although the
State concedes Nguyen never expressly waived his right to an interpreter, it argues
that by signing a form stating he was able to read English and based on his answers to
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the trial court’s questions during the actual plea, Nguyen did expressly waive the right
to an interpreter. During Nguyen’s plea, which followed Nguyen’s requested
opportunity to talk to his lawyer, the trial court and Nguyen had the following
discussion:
THE COURT: I have written plea admonishments, some papers right
here - -
THE DEFENDANT: Yes.
THE COURT: -- that I want to ask you about.
THE DEFENDANT: Yes, sir.
THE COURT: It’s my understanding that you want to plead guilty and
have me assess punishment; is that right?
THE DEFENDANT: Yes.
THE COURT: And that’s what these papers, these plea admonishments
tell me.
THE DEFENDANT: Yes.
THE COURT: And so everything in these plea admonishments is true;
is that right?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Are you a United States citizen?
THE DEFENDANT: Yes, I am.
THE COURT: And he’s mentally competent?
MR. JOHNSON: He is, Your Honor.
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THE COURT: Okay. It’s my understanding that you’re going to plead
guilty and tell me that it’s true that you have this prior conviction for
aggravated assault back in 2013?
THE DEFENDANT: Yes.
THE COURT: And then that way we will come back and have a
sentencing hearing to where I would decide what punishment you get
for this DWI?
THE DEFENDANT: Yes.
Nguyen contends that he did not expressly waive his right to an interpreter and
that this exchange should have again put the court on notice of his language barrier
because his answers were only “yes” or “no” answers. The questions themselves did
not require or call for an answer of any greater length, and each answer was
appropriate to the inquiry. While the exchanges between Nguyen and the trial court
do not show an express waiver of his right to an interpreter, to this point, they also do
not show that the trial court was aware that Nguyen had any difficulty understanding
English or communicating his answers. See Goukasian v. State, Nos. 02-13-00018-CR,
02-13-00019-CR, 2014 WL 4656655, at *3 (Tex. App.—Fort Worth Sept. 18, 2014,
pet. ref’d) (mem. op., not designated for publication); Abdygapparova, 243 S.W.3d at
201.
Finally, Nguyen asserts that after the trial court accepted his pleas, he made a
statement showing he did not understand that a punishment hearing would be held at
another time.
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THE COURT: All right. Then I’ll accept your pleas. And then we will
schedule a date that’s good for everybody --
....
THE COURT: -- to where we can do the sentencing. . . .
All right. Do you have any questions at this point?
THE DEFENDANT: I don’t have no questions. I want two year or
three year if you can do.
THE COURT: I don’t know. We’ll talk about it . . . at that time. . . .
Contrary to Nguyen’s assertion on appeal, his comment to the trial court specifying
the sentence he wanted showed Nguyen clearly understood the procedure that was
taking place. When he learned he could not receive the sentence he wanted from the
prosecutor, he instead directed his request to the person who was going to be making
the decision at the sentencing hearing.
The evidence in the plea hearing does not support Nguyen’s contention that
the trial court should have appointed an interpreter sua sponte. The trial court was in
the best position to observe Nguyen and his ability to communicate in English.
Indeed, the trial court conversed with Nguyen and observed his knowing pursuit of
the sentence he desired. Evidence that a person is capable of communicating in
English is sufficient to support a trial court’s denial of an interpreter. Abdygapparova,
243 S.W.3d at 201; see Aguilar Lamberto v. State, No. 02-07-070-CR, 2008 WL 2168122at *2 (Tex. App.—Fort Worth Sept. 24, 2008, pet. ref’d) (not designated for
publication). The evidence in the plea hearing does not show that the trial court was
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or should have been aware that Nguyen was unable to understand the English
language.
B. SENTENCING HEARING
Nguyen argues that there was “[a] second opportunity for the court to sua
sponte appoint a translator . . . at the punishment hearing.” He references his
brother’s testimony in support of his position that the court should have been aware
of Nguyen’s language barrier. At the sentencing hearing, Long testified that he and
his brother came to the United States in 1989. Long also explained that “the first
thing” they did was take English as a second language classes.
Nguyen also testified at the sentencing hearing concerning his arrival in the
United States.
[MR. JOHNSON:] And you came to the United States when you were
about 17 years old approximately; is that correct?
[THE DEFENDANT:] Yes, sir.
[MR. JOHNSON:] And what – did you attend school when you came
to the United States?
[THE DEFENDANT:] High school it was River -- Carter-Riverside.
[MR. JOHNSON:] Carter-Riverside High School here in Fort Worth?
[THE DEFENDANT:] Yes.
[MR. JOHNSON:] Did you have any further education after that?
[THE DEFENDANT:] Yes.
[MR. JOHNSON:] What was that?
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[THE DEFENDANT:] TCJC -- TCJC south campus.
[MR. JOHNSON:] What did you study there, do you remember?
[THE DEFENDANT:] I typically do noncredit and credit for math
and ESL.
[MR. JOHNSON:] Have you had some problems with your mental
health through the years?
[THE DEFENDANT:] Yeah, I got a mental health right now. I’m --
I take a pill right now.
[MR. JOHNSON:] Do you -- have you received Social Security
disability?
[THE DFENDANT:] Yes, I do.
[MR. JOHNSON:] For your mental condition?
[THE DEFENDANT:] Yes, I do.
Nguyen argues that the evidence showing he came from Vietnam and took
ESL classes should have “clearly indicate[d] to the trial court that there may have been
a language barrier.” While he does not argue that he was incompetent, he does argue
that “[t]he mental health issues suggest why it might have been more difficult for
[Nguyen] to learn or comprehend English.”
What the evidence indicates is that Nguyen recognized that he had a language
barrier at the age of 17 when he arrived in the United States and took action to
correct that. It does not prove he had a language barrier 30 years later nor should it
have put the trial court on notice that such a problem existed. Counsel for Nguyen
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unequivocally expressed his opinion to the trial court that Nguyen was competent to
stand trial, and he does not raise that issue on appeal. Yet Nguyen argues that “[t]he
mental health issues suggest why it might have been more difficult for [Nguyen] to
learn or comprehend English.” Nguyen did not complain to the trial court that he did
not understand what was being said, nor did he indicate that he had any issue
understanding what he was being taught when taking classes in high school or at
TCJC. There was no request for an interpreter, by either Nguyen or his counsel.
Considering the record, there is ample evidence that Nguyen understood and
communicated in the English language sufficiently well, and the record reveals no
abuse of discretion by the trial court for failing to sua sponte appoint an interpreter.
See Diaz v. State, 491 S.W.2d 166, 168 (Tex. Crim. App. 1973); Vargas v. State,
627 S.W.2d 785, 787 (Tex. App.—San Antonio 1982, no pet.). We overrule Nguyen’s
first issue.
IV. FUNDAMENTAL RIGHTS
In his second issue, Nguyen contends that the trial court’s failure to appoint an
interpreter deprived him of his right to due process. “It is well settled that if a
defendant . . . does not speak English well enough to understand the trial proceedings
or communicate with counsel, fundamental fairness and due process of law require
that an interpreter be provided to translate between English and the accused’s own
language.” Linton 275 S.W.3d at 500. We have held that the record reflects that
Nguyen understood the English language sufficiently to communicate with both his
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counsel and the trial court and that the trial court did not abuse its discretion by
failing to sua sponte appoint an interpreter. Thus, we also hold that the record does
not reflect that the proceeding was fundamentally unfair or a violation of Nguyen’s
due-process rights. See id. at 509. We overrule Nguyen’s second issue.
In his third issue, Nguyen argues that the trial court’s failure to appoint an
interpreter deprived him of the fundamental right to confront his accusers. An
accused’s constitutional right to confront witnesses encompasses the right to have
trial proceedings interpreted to the accused in a language he can understand. Baltierra,
586 S.W.2d at 558; Cantu v. State, 993 S.W.2d 712, 721 (Tex. App.—San Antonio
1999, pet. ref’d). Again, we have held that the record from both the guilty plea
hearing and the sentencing hearing reveals nothing that would have put the trial court
on notice that Nguyen needed an interpreter. We further hold that Nguyen’s right to
confront witnesses against him was not violated. We overrule Nguyen’s third issue.
V. CONCLUSION
Having overruled Nguyen’s three issues, we affirm the judgment of the trial
court.
/s/ Lee Gabriel
Lee Gabriel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: June 1, 2023
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