Jesus Rivera Davila v. State

• Court: Court of Criminal Appeals of Texas
• Decided: June 12, 2015
• Docket: 07-14-00408-CR
• Status: Published

Opinion

ACCEPTED 07-14-00408-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 6/12/2015 2:08:08 PM Vivian Long, Clerk

CASE NO. 07-14-00408-CR _____________________________________________ FILED IN 7th COURT OF APPEALS IN THE SEVENTH JUDICIAL COURT OF APPEALSAMARILLO, TEXAS AMARILLO, TEXAS 6/12/2015 2:08:08 PM _____________________________ VIVIAN LONG CLERK JESUS RIVERA DAVILA Appellant

v.

THE STATE OF TEXAS Appellee

_____________________________

FROM THE 100th DISTRICT COURT OF CARSON COUNTY;

NO. 5158; HONORABLE STUART MESSER, JUDGE

__________________________________________

APPELLEE’S BRIEF __________________________________________

____________________________ Luke McLean Inman 100TH JUDICIAL DISTRICT ATTORNEY 800 West Avenue, BOX 1 Wellington, TX 79095 State Bar No. 24050806 (806) 447-0055 – Telephone (866) 233-2738 – Facsimile Email: luke.inman@windstream.net

ATTORNEY FOR APPELLEE CASE NO. 07-14-00480-CR TRIAL COURT CASE NO. 5158 _____________________________________________

IN THE SEVENTH JUDICIAL COURT OF APPEALS AMARILLO, TEXAS _____________________________

JESUS RIVERA DAVILA Appellant

THE STATE OF TEXAS Appellee _____________________________

FROM THE 100th DISTRICT COURT OF CARSON COUNTY; NO. 5158; HONORABLE STUART MESSER, JUDGE __________________________________________

Respectfully submitted,

______________________________ Luke McLean Inman 100th Judicial District Attorney State Bar No. 24050806 800 West Avenue, Box 1 Wellington, TX 79095 (806) 447-0055 – Telephone (866) 233-2738 - Facsimile Email: luke.inman@windstream.net

ATTORNEY FOR APPELLEE CERTIFICATE OF INTERESTED PERSONS

I hereby certify that the following listed person(s) or entities have rights

which may be adversely affected by the outcome of these appeals in this Court so

that the Justices of this Court may review the same to determine the need for

refusal or disqualification, if necessary, herein:

1. The Defendant/Appellant, JESUS RIVERA DAVILA, is currently

incarcerated and may be served with process herein at the address of his Counsel

of Record, Mr. Dale A. Rabe, Jr., P.O. Box 1257, Childress, Texas 79201.

2. The Appellee, the STATE OF TEXAS, is represented herein by Luke M.

Inman, District Attorney for the 100th Judicial District, 800 West Avenue, Box 1,

Wellington, Texas 79095, Telephone (806) 447-0055, Facsimile (866) 233-2738,

and may be served with process at his address.

i TABLE OF CONTENTS SUBJECT INDEX

SUBJECT: PAGE:

Certificate of Interested Persons……………………………… i

Table of Contents……………………………………………… ii - iii

Subject Index…………………………………………… ii

Index of Authorities…………………………………… iii

Statement of the Case………………………………………… 1-2

Counterpoint of Error………………………………………… 3

Statement of the Facts………………………………………… 3-6

Summary of the Arguments…………………………………… 6-7

Arguments and Authorities…………………………………… 7 - 10

COUNTERPOINT OF ERROR NUMBER ONE:…………… 7 - 10

THE APPELLANT WAS NOT DENIED HIS DUE PROCESS RIGHT TO CONFRONT WITNESSES WHEN HE WAS NOT APPOINTED AN INTERPRETER TO REVIEW THE TERMS OF HIS COMMUNITY SUPERVISION.

Prayer…………………………………………………………… 11

Certificate of Service…………………………………………… 11

Certificate of Compliance ………………………………………. 12

ii INDEX OF AUTHORITIES

Cases Page Texas Cases

Bustillos v. State 464 S.W.2d 118 (Tex. Crim. App. 1971) ………………………….. 7

Cantu v. State 716 S.W.2d 688 (Tex. App. – Corpus Christi 1986, no pet.) ………. 8

Diaz v. State 491 S.W.2d 166 (Tex. Crim. App. 1973) ………………………….. 8

Nguyen v. State 774 S.W.2d 348 (Tex. App. – Houston[14th Dist.] 1989) ………….. 7,8

Statutes

Texas Code of Criminal Procedure Tex. Code Crim. Proc. Ann. art. 38.30 (a)(Bender 2014) …………. 7

iii APPELLEE’S BRIEF

TO THE HONORABLE SEVENTH COURT OF APPEALS:

THE STATE OF TEXAS, the Appellee in the above-styled and numbered

cause, by and through her counsel of record on appeal herein, submits to this Court

her Brief on Appellant’s appeal responding to points of error of fact and law in the

trial court below as follows:

For convenience, the State of Texas, Appellee, will hereinafter be referred to

as the State, and the Appellant, Jesus Rivera Davila, will hereinafter be referred to

as the Appellant, throughout the remainder of this brief. References to the

Reporter’s Record are designated as “(R.R. Vol. #, page #, line (s) #)” and the

Clerk’s Record are designated as “(C.R. page #).”

STATEMENT OF THE CASE

On April 22, 2013, in Cause Number 5158, in Carson County, Texas, the

Appellant pleaded guilty to the first degree felony offense of possession of a

controlled substance. R.R. Vol. 1, p. 8, L 22 – p. 9, L 3. The trial court placed

Appellant on deferred adjudication community supervision for a period of five

years and ordered Appellant to pay a fine and lab fees and complete 400 hours of

community service and pay an out-of-state probation transfer fee. R.R. Vol. 1, p.

23, LL 16-18.

Appellee’s Brief Page 1 of 12 On March 7, 2014, the State filed a Motion to Adjudicate, alleging that the

Appellant had violated his deferred adjudication community supervision by

committing the offense of possession of cocaine and the offense of possession of

drug paraphernalia on or about October 14, 2013 in Polk, County, Florida; by

consuming cocaine; by failing to report monthly by mail for November 2013; and

by failing to complete the required hours of community service. R.R. Vol. 1, p. 10,

LL 22-25, p. 11, LL 11-25, p. 12, LL 1-3.

On November 19, 2014, the trial court conducted a hearing on the Motion to

Adjudicate. R.R. Vol. 1, p. 1, L 13. The Appellant pleaded not true to all of the

allegations. R.R. Vol. 1, p. 14, L 20. At the conclusion of the hearing, the trial

court found that the Appellant had violated the terms of his community supervision

by committing the offense of possession of drug paraphernalia, by failing to report

monthly by mail for the month of November 2013, and by failing to complete the

required hours of community service. R.R. Vol. 1, p. 62, LL 7-14. The trial court

then adjudicated the Appellant guilty of the first degree felony offense of

possession of a controlled substance. R.R. Vol. 1, p. 62, LL 15-17. The trial court

assessed the Appellant’s punishment at incarceration for a term of 55 years and the

remainder of the $2,000 fine. R.R. Vol. 1, p. 96, LL 2-3.

Appellee’s Brief Page 2 of 12 COUNTERPOINT OF ERROR

COUNTERPOINT OF ERROR NUMBER ONE:

THE APPELLANT WAS NOT DENIED HIS DUE PROCESS RIGHT TO CONFRONT WITNESSES WHEN HE WAS NOT APPOINTED AN INTERPRETER TO REVIEW THE TERMS OF HIS COMMUNITY SUPERVISION.

STATEMENT OF THE FACTS

On March 7, 2014, the State filed a Motion to Adjudicate, alleging that the

Appellant had violated his deferred adjudication community supervision by

committing the offense of possession of drug paraphernalia and the offense of

possession of cocaine on or about October 14, 2013; by consuming cocaine on or

about May 25, 2013 and August 3, 2013; by failing to report monthly by mail for

November 2013; and by failing to complete the required community service hours.

R.R. Vol. 1, p. 10, LL 14-25; p. 11, LL 16-25; p. 12, LL 1-3.

On November 19, 2014, the trial court conducted a hearing on the Motion to

Adjudicate. R.R. Vol. 1, p. 1, L 13. The trial court appointed an interpreter to

assist the Appellant during the hearing. R.R. Vol. 1, p. 7. The Appellant pleaded

not true to all of the allegations. R.R. Vol. 1, p. 14, L 20.

During the hearing, the State presented the testimony of Mr. Mark White, a

Community Supervision Officer with the 100th Judicial District Community

Supervision and Corrections Department. R.R. Vol. 1, p. 16, L 24. Mr. White

testified that on April 22, 2013, he performed the intake interview with the

Appellee’s Brief Page 3 of 12 Appellant after the Appellant pleaded guilty to the first degree felony offense of

possession of a controlled substance. R.R. Vol. 1, p. 18, L 22; p. 20, LL 3-6. Mr.

White testified that during his intake interview with the Appellant, the Appellant

gave no indication that he needed an interpreter to fully understand the terms of his

community supervision. R.R. Vol. 1, p. 21, LL 9-13. Mr. White testified that the

Appellant did not ask for assistance with any translation and did not request the

assistance of an interpreter. R.R. Vol. 1, p. 21, L 16; p. 34, L 25. Mr. White

further testified that there is an interpreter on staff and that he would ask for the

interpreter’s assistance if he felt that it was needed or if the Appellant requested the

interpreter. R.R. Vol. 1, p. 21, LL 9-13; p. 34, L 18. Mr. White testified that he

read each individual condition to the Appellant and that the Appellant indicated

that he understood all of the conditions read to him. R.R. Vol. 1, p. 25, LL 12-13;

p. 26, L 15. Mr. White also testified that the Appellant answered all of the

questions required in the paperwork such as where he lives, how old he is and who

he lives with and that Mr. White was able to understand the Appellant. R.R. Vol.

1, p. 38, LL 1-4.

During the hearing, the State also presented the testimony of Ms. Carol

Holcomb, the Assistant Director and Community Supervision Officer with the

100th Judicial District Community Supervision and Corrections Department. R.R.

Vol. 1, p. 41, L 15-16. Ms. Holcomb testified that she was the indirect

Appellee’s Brief Page 4 of 12 supervision officer for the Appellant in Texas and that the Appellant saw a

probation officer directly in Florida. R.R. Vol. 1, p. 43, LL 12-20. Ms. Holcomb

testified that the Appellant was on probation for less than eight months when she

filed a violation report. R.R. Vol. 1, p. 44, L 3. Ms. Holcomb testified that the

Appellant failed to report by mail for the month of November 2013. R.R. Vol. 1,

p. 55, LL 4-6. Ms. Holcomb also testified that the Appellant failed to complete

100 hours of community service by October 1, 2013, as required in the conditions

of his community supervision. R.R. Vol. 1, p. 55, LL 9-11. Ms. Holcomb testified

that the Appellant had only completed 67.5 hours of community service. R.R. Vol.

1, p. 55, L 23. Ms. Holcomb also testified that she did not need an interpreter

when she spoke with the Appellant. R.R. Vol. 1, p. 58, LL 16-18.

Ms. Holcomb also testified that she had received an offense report from the

Appellant’s probation officer in Florida. R.R. Vol. 1, p. 45, L 20. The Court

admitted State’s Exhibit 3, which contained court documents from Polk County,

Florida with the charges of possession of cocaine and possession of drug

paraphernalia against the Appellant. R.R. Vol. 1, p. 49, LL 11-13; State’s Exhibit

3. State’s Exhibit 3 also contained a Memo of Sentence/Order of the Court, which

sentenced the Appellant to 120 days in jail for possession of drug paraphernalia.

R.R. Vol. 1, p. 52, LL 12-15; State’s Exhibit 3. Ms. Holcomb testified that the

Appellee’s Brief Page 5 of 12 Appellant’s probation officer in Florida told her that the Appellant admitted in

writing on two occasions that he used cocaine. R.R. Vol. 1, p. 54, LL 18-25.

After the presentation of the evidence, the State waived the violation that the

Appellant possessed cocaine and the violation that the Appellant consumed

cocaine. R.R. Vol. 1, p. 61, LL 13-19. The trial court then found that the

Appellant had violated the terms of his community supervision by committing the

offense of possession of drug paraphernalia; by failing to report by mail for the

month of November 2013; and by failing to complete the required community

service hours. R.R. Vol. 1, p. 62, LL 7-14. The trial court adjudicated the

Appellant guilty of the first degree felony offense of possession of a controlled

substance. R.R. Vol. 1, p. 62, LL 15-17. The trial court assessed the Appellant’s

punishment at incarceration for a term of 55 years. R.R. Vol. 1, p. 96, LL 2-3.

SUMMARY OF THE ARGUMENTS

The trial court did not violate the Appellant’s due process right to confront

witnesses by not appointing an interpreter to review the terms of the Appellant’s

community supervision. Under Article 38.30 of the Code of Criminal Procedure,

the trial court is not required to appoint an interpreter to assist with the community

supervision intake interview as it is not part of a criminal proceeding. In addition,

an interpreter was not necessary for the review of the Appellant’s terms of

community supervision as the Appellant communicated successfully in English

Appellee’s Brief Page 6 of 12 with the community supervision officer and never requested an interpreter.

Furthermore, the Appellant fails to affirmatively state that he did not understand

the terms of his community supervision.

Therefore, this case should be affirmed for the State.

ARGUMENTS AND AUTHORITIES

THE APPELLANT WAS NOT DENIED HIS DUE PROCESS RIGHT TO CONFRONT WITNESSES WHEN HE WAS NOT APPOINTED AN INTERPRETER TO REVIEW THE TERMS OF HIS COMMUNITY SUPERVISION.

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 the person charged or the witness. Tex.

Code Crim. Proc. Ann. art. 38.30 (a)(Bender 2014). In general, the appointment of

an interpreter is reviewed for an abuse of discretion. Bustillos v. State, 464 S.W.2d

118, 126 (Tex. Crim. App. 1971).

In Nguyen v. State, the Appellant was convicted of murder and appealed in

part that the trial court erred in refusing to appoint an interpreter to assist defense

counsel. Nguyen v. State, 774 S.W.2d 348 (Tex. App. – Houston[14th Dist.] 1989).

In affirming the conviction, the Nguyen court held that where all testimony was

interpreted, the appellant’s right to confrontation was satisfied and the trial judge

Appellee’s Brief Page 7 of 12 did not abuse his discretion in refusing to appoint a second interpreter. Id. at 350.

The Nguyen court stated that plainly, the first sentence of article 38.30 does not

provide for appointment of an interpreter to act as an intermediary between a

defendant and his counsel. Id. The Nguyen court held that the only basis for the

trial court’s providing an interpreter to an accused is the constitutional and

statutory guarantees of confrontation under the state and federal constitutions. Id.,

citing Diaz v. State, 491 S.W.2d 166 (Tex. Crim. App. 1973); Cantu v. State, 716

S.W.2d 688 (Tex. App. – Corpus Christi 1986, no pet.).

In the current case, the Appellant received the assistance of an interpreter

during his plea hearing and during his revocation hearing but complains that the

court erred in not appointing an interpreter for his community supervision intake

interview. See Appellant’s Brief. Article 38.30 of the Texas Code of Criminal

Procedure provides for the appointment of an interpreter during a criminal

proceeding. As stated in Nguyen, the only basis for the trial court’s providing an

interpreter to an accused is the constitutional and statutory guarantees of

confrontation under the state and federal constitutions. The community

supervision intake interview is not a criminal proceeding. The Appellant will not

be confronting witnesses or hearing testimony during the intake interview when the

terms of his community supervision are explained to him. Thus, the appointment

of an interpreter is not required under Article 38.30 for intake interviews. Since

Appellee’s Brief Page 8 of 12 the intake interview is not a criminal proceeding, the trial court is not required to

appoint an interpreter to assist with the intake interview.

Furthermore, in the case at hand, the Appellant did not need an interpreter to

review the terms of his community supervision. Mr. White, the community

supervision officer who conducted the Appellant’s intake interview, testified that

the Appellant was able to communicate in English, answered questions in English,

completed paperwork in English and indicated that he understood the terms of his

community supervision. R.R. Vol. 1, p. 35, LL 6-9; p. 36, LL 2-5; p. 38, LL 1-4.

In addition, the Appellant never requested an interpreter or asked for any assistance

with translation during the intake interview. R.R. Vol. 1, p. 21, L 16; p. 34, L 25.

The 100th District Community Supervision and Corrections Department has an

interpreter on staff, who would have assisted the Appellant if the Appellant had

requested an interpreter or if Mr. White thought that an interpreter was necessary.

R.R. Vol. 1, p. 21, LL 9-13; p. 34, L 18. Thus, the community supervision officer

had no indication that the Appellant needed an interpreter to review the terms of

his community supervision and the Appellant never requested an interpreter.

In addition, while the Appellant was appointed an interpreter for his plea and

for his revocation hearing, the Appellant indicated his ability to speak English in

court as he was able to answer the court in English during his revocation hearing.

R.R. Vol. 1, p. 13, LL 11-12. Also, Ms. Holcomb, the Appellant’s indirect

Appellee’s Brief Page 9 of 12 probation officer, testified that she spoke to the Appellant in English and did not

need an interpreter when communicating with him. R.R. Vol. 1, p. 58, LL 16-18.

Lastly, the Appellant does not affirmatively state in his brief that he did not

understand the terms of his community supervision nor did he complain of not

understanding the terms of his community supervision during his revocation

hearing. The Appellant complains in general in his brief that he was not given an

interpreter to review the terms of his community supervision but he does not state

that he did not understand the terms of his community supervision. See

Appellant’s Brief.

Therefore, in the case at hand the trial court did not violate the Appellant’s

due process right to confront witnesses by not appointing an interpreter to review

the terms of the Appellant’s community supervision. Under Article 38.30 of the

Code of Criminal Procedure, the trial court is not required to appoint an interpreter

to assist with the community supervision intake interview as it is not part of a

criminal proceeding. In addition, an interpreter was not necessary for the review of

the terms of community supervision as the Appellant communicated successfully

in English with the community supervision officer and never requested an

interpreter. Finally, the Appellant fails to affirmatively state that he did not

understand the terms of his community supervision.

Appellee’s Brief Page 10 of 12 PRAYER FOR RELIEF

The State of Texas respectfully requests this Honorable Court to affirm the

Trial Court’s adjudication as well as the conviction of Appellant in all respects.

Respectfully Submitted by,

____________________________________ LUKE MCLEAN INMAN 100TH JUDICIAL DISTRICT ATTORNEY 800 West Avenue, BOX 1 Wellington, TX 79095 State Bar No. 24050806 (806) 447-0055 – Telephone (866) 233-2738 – Facsimile Email: luke.inman@windstream.net

CERTIFICATE OF SERVICE

I, Luke M. Inman, hereby certify that a true and correct copy of the

foregoing Brief was on this the 12th day of June, 2015, forwarded to counsel of

record by the United States Postal Service in accordance with the Texas Rules of

Appellate Procedure.

______________________________ Luke M. Inman, District Attorney

Appellee’s Brief Page 11 of 12 CERTIFICATE OF COMPLIANCE

I, Luke M. Inman, hereby certify that the above and foregoing Appellee’s

Brief is 2,598 words in its completion, signed on this the 12th day of June, 2015, in

accordance with the rules governing same.

______________________________ Luke M. Inman, District Attorney

Appellee’s Brief Page 12 of 12