Flores v. State

904 S.W.2d 129, 1995 Tex. Crim. App. LEXIS 80, 1995 WL 379768

• Court: Court of Criminal Appeals of Texas
• Decided: June 28, 1995
• Docket: 1183-93
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MANSFIELD, Judge.

A Smith County jury convicted appellant, Aristeo Lira Flores, of driving while intoxicated. The trial court assessed punishment at confinement for one year and a $100 fine. The Twelfth Court of Appeals affirmed the conviction. Flores v. State, 903 S.W.2d 769 (Tex.App.—Tyler 1993). We granted appellant’s petition for discretionary review to determine whether the court of appeals erred in holding that appellant was not denied his rights under the United States and Texas constitutions when the trial court, in assessing punishment, took into account his inability to speak English.

The record reflects that the trial court determined that Smith County had no rehabilitation programs for persons convicted of alcohol offenses who do not speak English. The trial court also stated its belief that a state-run alcohol education program, which was offered in Spanish (appellant’s native language), was worthless. Based on the preceding, the trial court decided that probation in appellant’s case would be meaningless. The trial court then sentenced appellant to jail.

In his petition, appellant argues that the trial court’s action in denying him probation because of his inability to speak English denied him due process, due course of law, equal protection of the laws, and equal rights under the United States and Texas constitutions. Appellant’s argument rests entirely on the assumption that disparate treatment based on linguistic ability is the same as disparate treatment based on race or ethnic origin. In other words, according to appellant different treatment based on inability to speak English is equivalent to discrimination based on race or national origin.

There is no question that discrimination based on race or national origin is prohibited by the due process, due course of law, equal protection, and equal rights clauses of the United States and Texas constitutions. Appellant does not show that he was discriminated against due to national origin, however; any disability he suffered was due to his ability to speak only Spanish. Spanish-speaking persons have many national origins, e.g., Cuba, Spain, Mexico and Argentina, and may be racially Caucasian, African, Indian, biracial or multiracial. To accept appellant’s argument—that language equals national origin or race—assumes illogically that all Spanish-speaking persons should be treated as one group.¹ At least three federal appeals courts have held that language, by itself, does not identify members of a suspect class. Frontera v. Sindell, 522 F.2d 1215 (6th Cir.1975); Soberal-Perez v. Heckler, 717 F.2d 36 (2d Cir.1983), cert. denied, 466 U.S. 929, 104 S.Ct. 1713, 80 L.Ed.2d 186 (1984); Garcia v. Gloor, 618 F.2d 264 (5th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981).

The constitutional provisions in question generally allow governmental classifications that are rationally related to legitimate governmental interests. The provisions require a higher justification, however, for classifications that affect suspect classes or fundamental rights. Extending such strict judicial scrutiny to classifications based on language ability would require this Court to equate same with individual characteristics that are a result of birth. The United States Supreme Court has found the basis for finding a suspect class to be “immutable characteristics” over which a person has no control: race, gender, and national origin. See Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). An individual is free to choose the language he or she speaks and one only needs to look at the history of the United States to find millions of examples of individuals who came here speaking many different languages but who learned to speak at least one additional language, generally English. Clearly, language ability does not equal national origin or race.

Similarly, there is no fundamental right to receive probation; it is within the discretion of the trial court to determine whether an individual defendant is entitled to probation. Washington v. McSpadden, 676 S.W.2d 420 (Tex.Cr.App.1984); Burns v. State, 561 S.W.2d 516 (Tex.Cr.App.1978). Since no fundamental right is at issue in the present case, heightened scrutiny is not indicated. Nordlinger v. Hahn, 505 U.S. 1, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992).

As no suspect class is involved and no fundamental right is implicated, we need only determine whether the action of the trial court was rationally related to a legitimate governmental interest. The court found that appellant could not benefit from the only meaningful alcohol education program available due to his inability to speak English. As probation was not a viable option without the program and the State had a legitimate interest in sentencing an individual convicted of his second DWI offense, incarceration was an appropriate punishment. Appellant was treated no differently than any other similarly-situated convicted drunk driver who could not speak English.² Therefore, the judgment of the trial court was constitutional.

Appellant alleges that the due course of law and equal rights clauses of the Texas Constitution should be interpreted to provide greater protection than the United States Constitution. However, appellant fails to cite any authority or present any evidence that the authors of the Texas Constitution would have agreed with his position.

Finally, appellant avers that because many Hispanics speak only Spanish, the failure of the State to have alcohol treatment programs in Spanish as part of probation for persons convicted of DWI means disproportionately more Hispanics convicted of DWI will be incarcerated compared to those who speak English. Disparate impact analysis is often applied in employment law where tests or other hiring criteria that are neutral on then-face result in members of suspect classes— racial minorities, ethnic groups, women — being excluded in higher percentages from jobs than non-suspect class members. See Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). The use of disparate impact analysis is the subject of much controversy and this Court should not extend its use into the criminal law absent direction from the U.S. Supreme Court or the Legislature. Furthermore, the U.S. Supreme Court has refused to extend disparate impact analysis to state action, requiring instead that discriminatory intent on the part of the State be proven in order to establish a violation of the Equal Protection Clause. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).

An acceptance of appellant’s argument could lead to many unfortunate results. For example, one could be that cash-strapped local, county, and state governments would be required to set up, as part of probation, alcohol and drug education programs in many different languages. Another could be that a probationer who does not speak English would have to be provided a probation officer (or an interpreter) who speaks his language. This is a matter best left to the legislature.

The judgment of the court of appeals is AFFIRMED.

WHITE, J., concurs in the result.

1 . Persons of Cuban descent would probably not agree that they are of the same national or ethnic origin as persons of Argentine descent, to use but one example.

2 . The dissent fails to mention that the same result would have occurred if appellant spoke only Vietnamese, Russian, or German. While it is true that the number of Texas residents who speak only Spanish is greater than the number who speak only, e.g., Vietnamese, constitutional rights are not based on numbers. Had Appellant been able to speak English he might have received a lesser punishment (probation). The dissent appears to suggest that, since the alcohol treatment program that is part of probation is not available in Spanish, appellant should, in effect, receive less punishment than similarly-situated English-speaking individuals convicted of second-offense DWI, re, something less than the standard probation with the alcohol treatment program.