A [‘FiRM; and Opinion tiled March 1, 2013.
In The Qnurt uf Apprats .Fift1! 1iitrict nf rxzu at 1a1ta
No. 05-1 1-00826-CR
JUAN CARLOS [IERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F09-60943-M
MEMORANDUM OPINION I3efore Justices Moseley. Francis, and Lang Opinion By Justice Lang
Juan Carlos Hernandez appeals from a conviction of aggravated robbery with a deadly
weapon. In a single issue on appeal. Hernandez contends the trial court abused its discretion by
permitting a police detective to testify, over objection, respecting the Spanish statements made by
Hernandez in his audio-recorded confession. We decide against Hernandez on this issue. The trial
court’s judgment is affirmed. Because all dispositive issues are clearly settled in law, we issue this
memorandum opinion. See TEx. R. App. P. 47.4.
1. FACTUAL AND PROCEDURAL BACKGROUND
Hemandez was charged by indictment with aggravated robbery with a deadly weapon. After
pleading not guilty, he was convicted by ajury, ordered to pay a $10,000 fine, and sentenced to fitly- two years’ imprisonmenL At trial, Detective (iilherto Martinez. HI. testified that he interviewed
I Iernandez and recorded his confes sioii. According to the detecti\ e there were “some points in the
interview when he spoke Spanish with Flernandez. Portions of the audiorecorded statement were
played durinr the detective’s testimony, and he testi tied regarding the English portion ot the
conversation between himself and I-fernandez. Then, before the detective started to testi iv to what
Hernandez said in the parts of the statement he made in Spanish. definse counsel objected to the
detective “serving inj the capacity ota translator.” The objection was overruled, and the detective
continued his testimony.
II. STANDARD OF REVIEW AND APPLICABLE LAW
“On appellate review, and pursuant to Texas Rule of Appellate Procedure 44.2(b), a non-
constitutional error must be disregarded unless it affects the defendant’s substantial rights.” Barshaw
v. State, 342 S.W.3d 91,93 (Tex. Crim. App. 2011) (citing TEx. R. App. P.44.2(b) (“Other errors.
Any other error, detect, irregularity, or variance that does not affect substantial rights must he
disregarded.”)). We will not overturn a criminal conviction for non-constitutional error if, after
examining the record as a whole, we have fair assurance the error did not influence the jury, or
influenced the jury only slightly. Id. (citing Schulz v. State, 63 S.W.3d 442, 444 (Tex. Crirn. App.
2001)). In considering the potential to harm, the focus is not on whether the outcome of the trial was
proper despite the error, but whether the error had a substantial or injurious effect or influence on
the jury’s verdict.” Id. at 93-94 (citing Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App.
2000)).
“A conviction must be reversed for non-constitutional error if the reviewing court has grave
doubt that the result of the trial was free from the substantial effect of the error.” Id. at 94 (citing
Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002)). “Grave doubt’ means that ‘in the judge’s mind. the matter is so evenly balanced that he feels himself in virtual equipoise as to the
harmlessness of the error.’” Id (quoting Burnett, 88 S.W.3d at 637-38). ‘“[ljn cases of grave doubt
as to the harmlessness the petitioner must win.” Id. (quoting Burnett, 88 S. W.3d at 638).
In assessing the likelihood that the jurY’s decision was improperly influenced, we must
consider everything in the record, including any testimony or physical evidence admitted for the
jury’s consideration, the nature of the evidence supporting the verdict, and the character of the
alleged error and how it might be considered in connection with other evidence in the case. Id.
(citing Morales v. State. 32 S.W.3d 862, 867 (Tex. Crim. App. 2000); Haley v. State, 173 S.W .3d
510, 518-19 (Tex. Crim. App. 2005)). “The reviewing court may also consider the jury instruction
given by the trial judge, the state’s theory, defensive theories, closing arguments, voir dire, and
whether the state emphasized the error.” Id. (citing Morales, 32 S.W.3d at 867; Haley, 173 S.W.3d
at 518-19; Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002)). Additionally, the
presence of overwhelming evidence of guilt plays a determinative role in this analysis. Neal v. State,
256 S.W.3d 264. 285 (Tex. Crirn App. 2008) (citing Mod/la, 7$ S.W.3d at 356).
B. Application of Law to Facts
Hernandez argues the trial court erred in permitting the detective to translate the Spanish-
language portions ofhis recorded confession, contending the testimony was hearsay and the detective
was a witness for the State who (lid not establish his qualifications to translate. The State responds
Hernandez’s objection at trial was not specific enough to preserve the issue, the trial court did not
abuse its discretion in permitting the detective to translate Hernandcz’s Spanish statements, and any
error was harmless.
Assuming, without deciding, the trial judge erred by admitting the detective’s testimony
regarding Hcrnandez’s Spanish statements when defense counsel interposed his objection that the detective was “serving the capacity of a translator” and “we have a translation issue,” we must
analyze whether that error affected Hcrnandez’s substantial rights. See Wx. R. Api. P. 44.2(b):
Barshaw, 342 S.W.3d at 93. The record reflects that before the detective testified and any part ofthe
recording was played for the jury. evidence of Hernandez’s guilt was admitted without objection.
Another police officer, Officer Christopher Biggs, testified he stopped Hernandez in the
complainant’s vehicle for speeding. The police officer’s testimony, video ofthat traffic stop, and still
photographs from the video established liemandez was the driver of the vehicle the police officer
stopped. The evidence showed the complainant was the registered owner ofthe vehicle stopped, and
not Hernandez. The police officer’s testimony and the traffic citation he issued to Hemandez
established Hemandez was driving the complainant’s vehicle a few hours after the vehicle was
reported stolen.
Then the detective testified. The record shows that before Heniandez raised the issue ofthe
translation, the detective had already testified that Hernandez admitted he was there when the
complainant was robbed, his “homeboy” used a screwdriver to steal the complainant’s vehicle, and
Hernandcz “took off’ in the complainant’s vehicle. The detective testified that being a Spanish
speaker he would use occasional Spanish to establish rapport during the interview and that this
interview contained some Spanish language. The complete audio recording was admitted into
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A [‘FiRM; and Opinion tiled March 1, 2013.
In The Qnurt uf Apprats .Fift1! 1iitrict nf rxzu at 1a1ta
No. 05-1 1-00826-CR
JUAN CARLOS [IERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F09-60943-M
MEMORANDUM OPINION I3efore Justices Moseley. Francis, and Lang Opinion By Justice Lang
Juan Carlos Hernandez appeals from a conviction of aggravated robbery with a deadly
weapon. In a single issue on appeal. Hernandez contends the trial court abused its discretion by
permitting a police detective to testify, over objection, respecting the Spanish statements made by
Hernandez in his audio-recorded confession. We decide against Hernandez on this issue. The trial
court’s judgment is affirmed. Because all dispositive issues are clearly settled in law, we issue this
memorandum opinion. See TEx. R. App. P. 47.4.
1. FACTUAL AND PROCEDURAL BACKGROUND
Hemandez was charged by indictment with aggravated robbery with a deadly weapon. After
pleading not guilty, he was convicted by ajury, ordered to pay a $10,000 fine, and sentenced to fitly- two years’ imprisonmenL At trial, Detective (iilherto Martinez. HI. testified that he interviewed
I Iernandez and recorded his confes sioii. According to the detecti\ e there were “some points in the
interview when he spoke Spanish with Flernandez. Portions of the audiorecorded statement were
played durinr the detective’s testimony, and he testi tied regarding the English portion ot the
conversation between himself and I-fernandez. Then, before the detective started to testi iv to what
Hernandez said in the parts of the statement he made in Spanish. definse counsel objected to the
detective “serving inj the capacity ota translator.” The objection was overruled, and the detective
continued his testimony.
II. STANDARD OF REVIEW AND APPLICABLE LAW
“On appellate review, and pursuant to Texas Rule of Appellate Procedure 44.2(b), a non-
constitutional error must be disregarded unless it affects the defendant’s substantial rights.” Barshaw
v. State, 342 S.W.3d 91,93 (Tex. Crim. App. 2011) (citing TEx. R. App. P.44.2(b) (“Other errors.
Any other error, detect, irregularity, or variance that does not affect substantial rights must he
disregarded.”)). We will not overturn a criminal conviction for non-constitutional error if, after
examining the record as a whole, we have fair assurance the error did not influence the jury, or
influenced the jury only slightly. Id. (citing Schulz v. State, 63 S.W.3d 442, 444 (Tex. Crirn. App.
2001)). In considering the potential to harm, the focus is not on whether the outcome of the trial was
proper despite the error, but whether the error had a substantial or injurious effect or influence on
the jury’s verdict.” Id. at 93-94 (citing Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App.
2000)).
“A conviction must be reversed for non-constitutional error if the reviewing court has grave
doubt that the result of the trial was free from the substantial effect of the error.” Id. at 94 (citing
Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002)). “Grave doubt’ means that ‘in the judge’s mind. the matter is so evenly balanced that he feels himself in virtual equipoise as to the
harmlessness of the error.’” Id (quoting Burnett, 88 S.W.3d at 637-38). ‘“[ljn cases of grave doubt
as to the harmlessness the petitioner must win.” Id. (quoting Burnett, 88 S. W.3d at 638).
In assessing the likelihood that the jurY’s decision was improperly influenced, we must
consider everything in the record, including any testimony or physical evidence admitted for the
jury’s consideration, the nature of the evidence supporting the verdict, and the character of the
alleged error and how it might be considered in connection with other evidence in the case. Id.
(citing Morales v. State. 32 S.W.3d 862, 867 (Tex. Crim. App. 2000); Haley v. State, 173 S.W .3d
510, 518-19 (Tex. Crim. App. 2005)). “The reviewing court may also consider the jury instruction
given by the trial judge, the state’s theory, defensive theories, closing arguments, voir dire, and
whether the state emphasized the error.” Id. (citing Morales, 32 S.W.3d at 867; Haley, 173 S.W.3d
at 518-19; Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002)). Additionally, the
presence of overwhelming evidence of guilt plays a determinative role in this analysis. Neal v. State,
256 S.W.3d 264. 285 (Tex. Crirn App. 2008) (citing Mod/la, 7$ S.W.3d at 356).
B. Application of Law to Facts
Hernandez argues the trial court erred in permitting the detective to translate the Spanish-
language portions ofhis recorded confession, contending the testimony was hearsay and the detective
was a witness for the State who (lid not establish his qualifications to translate. The State responds
Hernandez’s objection at trial was not specific enough to preserve the issue, the trial court did not
abuse its discretion in permitting the detective to translate Hernandcz’s Spanish statements, and any
error was harmless.
Assuming, without deciding, the trial judge erred by admitting the detective’s testimony
regarding Hcrnandez’s Spanish statements when defense counsel interposed his objection that the detective was “serving the capacity of a translator” and “we have a translation issue,” we must
analyze whether that error affected Hcrnandez’s substantial rights. See Wx. R. Api. P. 44.2(b):
Barshaw, 342 S.W.3d at 93. The record reflects that before the detective testified and any part ofthe
recording was played for the jury. evidence of Hernandez’s guilt was admitted without objection.
Another police officer, Officer Christopher Biggs, testified he stopped Hernandez in the
complainant’s vehicle for speeding. The police officer’s testimony, video ofthat traffic stop, and still
photographs from the video established liemandez was the driver of the vehicle the police officer
stopped. The evidence showed the complainant was the registered owner ofthe vehicle stopped, and
not Hernandez. The police officer’s testimony and the traffic citation he issued to Hemandez
established Hemandez was driving the complainant’s vehicle a few hours after the vehicle was
reported stolen.
Then the detective testified. The record shows that before Heniandez raised the issue ofthe
translation, the detective had already testified that Hernandez admitted he was there when the
complainant was robbed, his “homeboy” used a screwdriver to steal the complainant’s vehicle, and
Hernandcz “took off’ in the complainant’s vehicle. The detective testified that being a Spanish
speaker he would use occasional Spanish to establish rapport during the interview and that this
interview contained some Spanish language. The complete audio recording was admitted into
evidence, and no request was made to have any Spanish portions translated into English. The
prosecution played the portion of the recording containing Hernandez’s statements in English
wherein he admitted he and his “homeboy” took the complainant’s vehicle, but that his “homeboy”
was the one with the screwdriver. Then, when the State began to play the portion of the recording
containing Spanish and asked the detective what Hernandez said, the defense interposed its
objection. After the trial court’s ruling, the detective continued his testimony. Defense counsel did
-4-- not crossexarnine the (letective on his Interpretation, and he did not ask the “courtroom interpreter”
to yen iv the accuracy of the detective’s testinonv. We conclude any error in admitting the
comphunedot testimony was harmless in light of’ the overwhelming evidence ot guilt shown by
other evidence in the record. See Neal, 256 S.W3d at 285.
IV. CONCLUSION
We decide against Hernandez on his sole issue on appeal. The trial court’s judgment is
a ttirnicd.
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JUDGMENT .I[AN CARL.( )S HERNANDEZ. Appellant Appeal from the 194th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. No. 05-1 1-00826-CR V. F09-60943-fv1), Opinion delivered 1w Justice Lang. .lusticcs fl IF STATE OF: TE\AS Appellee Mosclev and Francis participating.
l3ased on the (fourt’s opinion of this date, the judgment of the trial court is AFFiRM El),
Judgment entered March 1 2() 13.
7/ -
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OOUGL.’S. LAN(i JUST I c4