In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-15-00125-CR ________________________
MARVIN TAYLOR, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 211th District Court Denton County, Texas Trial Court No. F-2012-0490-C; Honorable Brody Shanklin, Presiding
March 28, 2017
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, Marvin Taylor, was convicted following a jury trial of three counts of
aggravated sexual assault.1 He was sentenced to forty-five years confinement and
assessed a fine of $10,000 on each count, with the three sentences to run concurrently.
In a single issue, Appellant asserts the trial court erred by overruling his objection to
1 See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i)-(iii), (2)(iv), (b) (West Supp. 2016). Each offense is a first degree felony. testimony by a Sexual Assault Nurse Examiner (SANE nurse) regarding information
relayed to her by an unidentified translator who was assisting her in obtaining a
description of the assault from the complainant, L.R.,2 whose principle language was
Spanish.3 We affirm.
BACKGROUND
In March 2012, a three-count indictment issued alleging that on August 18, 2009,
Appellant intentionally and knowingly caused (1) the penetration of L.R.’s mouth by his
sexual organ, (2) Appellant’s mouth to contact L.R.’s sexual organ, and (3) the
penetration of L.R.’s sexual organ, without her consent, by threatening to use force
against her and by the actual use of physical force, and in the course of the same
criminal episode, he used or exhibited a deadly weapon, to-wit: a knife. In February
2015, a three-day jury trial was held.
During trial, Paula Fornara, a SANE nurse, testified she examined L.R. the day of
the assault. Recognizing L.R.’s principle language was Spanish, she called
LanguageLine—a translating service provided by the hospital. A translator returned her
call and Fornara explained what she needed, i.e., a word-for-word translation of her
questions to L.R. and L.R.’s responses. Thereafter, Fornara obtained L.R.’s history
including a description of the assault while on speaker phone with the translator.
Fornara testified that L.R. told her (through the translator) that someone came up
behind her and put a knife to her throat. When she turned around, the knife was put to 2 To protect the privacy of the complainant, we refer to her by her initials. 3 At trial, Appellant’s attorney objected to admission of the SANE nurse’s testimony and examination records asserting a violation of his right of confrontation of L.R.’s translator. Appellant’s attorney sought to find out the translator’s identity and contest her reliability.
2 her neck, and she was told to be quiet and remove her pants. The assailant pulled
down his shorts. He told her to perform oral sex on him and placed his penis in her
mouth. Afterwards, he turned her over and penetrated her vagina with his penis. He
continued to threaten her with his knife and penetrated her five or six times. He also put
his mouth on her genitals and rubbed his finger over her rectum. Fornara described
L.R. as tearful and frightened as she recounted the assault. During L.R.’s physical
examination, Fornara observed an abrasion to her genital area and small tear at the
base of her hymen.
At trial, L.R. testified (through a translator) regarding many, if not all, of the same
facts in addition to giving a more detailed description of the assault and a description of
her assailant. Further, some months after the assault, she identified Appellant as her
assailant from a line-up of six similar-looking persons, paying particular attention to his
long, curly eyelashes. Numerous law enforcement officers who were present at the
scene of the assault testified L.R. was distraught, traumatized, in shock, crying, very
upset, talking extremely fast, and uncontrollably shaking. One officer described her as
someone who had obviously had something very tragic happen to her. DNA consistent
with Appellant was found on L.R.’s vaginal swab taken shortly after the assault.
Samples taken from the floor in the room where the assault occurred tested positive for
L.R.’s blood and DNA. There was also testimony from law enforcement officers and
Fornara corroborating L.R.’s claim that she cut her finger attempting to fend off the knife
used to threaten her into submission.
Appellant’s testimony contradicted L.R.’s testimony of an assault. In sum, he
testified the acts in question were consensual. Thereafter, the jury found him guilty on
3 all three counts of aggravated sexual assault using a deadly weapon and assessed his
sentence. This appeal followed.4
RIGHT TO CONFRONTATION
The Sixth Amendment to the United States Constitution guarantees an accused
in a criminal prosecution the right to confront the witnesses against him. See U.S.
CONST. amend. VI. The Confrontation Clause provides a criminal defendant with the
right to physically face those who testify against him and the right to conduct a
meaningful cross-examination. See Delaware v. Fensterer, 474 U.S. 15, 18-19, 106 S.
Ct. 292, 88 L. Ed. 2d 15 (1985). “[T]he Confrontation Clause guarantees an opportunity
for effective cross-examination, not cross-examination that is effective in whatever way,
and to whatever extent, the defense might wish.” See Fensterer, 474 U.S. at 20
(emphasis added). “The Sixth Amendment right to confront witnesses includes the right
to cross-examine witnesses to attack their general credibility or to show their possible
bias, self-interest, or motives in testifying.” Hammer v. State, 296 S.W.3d 555, 561
(Tex. Crim. App. 2009) (citing Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110,
39 L. Ed. 2d 347 (1974)).
In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004), the United States Supreme Court held that the Sixth Amendment prohibits the
“admission of testimonial statements of a witness who did not appear at trial unless he
was unavailable to testify, and the defendant had had a prior opportunity for cross-
4 Originally appealed to the Second Court of Appeals, this appeal was transferred to this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Second Court of Appeals and that of this court on any relevant issue. TEX. R. APP. P. 41.3.
4 examination.” Id. at 53-54. Generally, a statement is testimonial if it is “[a] solemn
declaration or affirmation made for the purpose of establishing or proving some fact.”
Id. at 51. See Grant v. State, 218 S.W.2d 225, 230 (Tex. App.—Houston [14th Dist.]
2007, pet. ref’d). “In the end, the question is whether, in light of all the circumstances,
viewed objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-
court substitute for trial testimony.’” Ohio v. Clark, ___ U.S. ___, 135 S. Ct. 2173, 2180,
192 L. Ed. 2d 306 (2015) (quoting Michigan v. Bryant, 562 U.S.
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In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-15-00125-CR ________________________
MARVIN TAYLOR, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 211th District Court Denton County, Texas Trial Court No. F-2012-0490-C; Honorable Brody Shanklin, Presiding
March 28, 2017
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, Marvin Taylor, was convicted following a jury trial of three counts of
aggravated sexual assault.1 He was sentenced to forty-five years confinement and
assessed a fine of $10,000 on each count, with the three sentences to run concurrently.
In a single issue, Appellant asserts the trial court erred by overruling his objection to
1 See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i)-(iii), (2)(iv), (b) (West Supp. 2016). Each offense is a first degree felony. testimony by a Sexual Assault Nurse Examiner (SANE nurse) regarding information
relayed to her by an unidentified translator who was assisting her in obtaining a
description of the assault from the complainant, L.R.,2 whose principle language was
Spanish.3 We affirm.
BACKGROUND
In March 2012, a three-count indictment issued alleging that on August 18, 2009,
Appellant intentionally and knowingly caused (1) the penetration of L.R.’s mouth by his
sexual organ, (2) Appellant’s mouth to contact L.R.’s sexual organ, and (3) the
penetration of L.R.’s sexual organ, without her consent, by threatening to use force
against her and by the actual use of physical force, and in the course of the same
criminal episode, he used or exhibited a deadly weapon, to-wit: a knife. In February
2015, a three-day jury trial was held.
During trial, Paula Fornara, a SANE nurse, testified she examined L.R. the day of
the assault. Recognizing L.R.’s principle language was Spanish, she called
LanguageLine—a translating service provided by the hospital. A translator returned her
call and Fornara explained what she needed, i.e., a word-for-word translation of her
questions to L.R. and L.R.’s responses. Thereafter, Fornara obtained L.R.’s history
including a description of the assault while on speaker phone with the translator.
Fornara testified that L.R. told her (through the translator) that someone came up
behind her and put a knife to her throat. When she turned around, the knife was put to 2 To protect the privacy of the complainant, we refer to her by her initials. 3 At trial, Appellant’s attorney objected to admission of the SANE nurse’s testimony and examination records asserting a violation of his right of confrontation of L.R.’s translator. Appellant’s attorney sought to find out the translator’s identity and contest her reliability.
2 her neck, and she was told to be quiet and remove her pants. The assailant pulled
down his shorts. He told her to perform oral sex on him and placed his penis in her
mouth. Afterwards, he turned her over and penetrated her vagina with his penis. He
continued to threaten her with his knife and penetrated her five or six times. He also put
his mouth on her genitals and rubbed his finger over her rectum. Fornara described
L.R. as tearful and frightened as she recounted the assault. During L.R.’s physical
examination, Fornara observed an abrasion to her genital area and small tear at the
base of her hymen.
At trial, L.R. testified (through a translator) regarding many, if not all, of the same
facts in addition to giving a more detailed description of the assault and a description of
her assailant. Further, some months after the assault, she identified Appellant as her
assailant from a line-up of six similar-looking persons, paying particular attention to his
long, curly eyelashes. Numerous law enforcement officers who were present at the
scene of the assault testified L.R. was distraught, traumatized, in shock, crying, very
upset, talking extremely fast, and uncontrollably shaking. One officer described her as
someone who had obviously had something very tragic happen to her. DNA consistent
with Appellant was found on L.R.’s vaginal swab taken shortly after the assault.
Samples taken from the floor in the room where the assault occurred tested positive for
L.R.’s blood and DNA. There was also testimony from law enforcement officers and
Fornara corroborating L.R.’s claim that she cut her finger attempting to fend off the knife
used to threaten her into submission.
Appellant’s testimony contradicted L.R.’s testimony of an assault. In sum, he
testified the acts in question were consensual. Thereafter, the jury found him guilty on
3 all three counts of aggravated sexual assault using a deadly weapon and assessed his
sentence. This appeal followed.4
RIGHT TO CONFRONTATION
The Sixth Amendment to the United States Constitution guarantees an accused
in a criminal prosecution the right to confront the witnesses against him. See U.S.
CONST. amend. VI. The Confrontation Clause provides a criminal defendant with the
right to physically face those who testify against him and the right to conduct a
meaningful cross-examination. See Delaware v. Fensterer, 474 U.S. 15, 18-19, 106 S.
Ct. 292, 88 L. Ed. 2d 15 (1985). “[T]he Confrontation Clause guarantees an opportunity
for effective cross-examination, not cross-examination that is effective in whatever way,
and to whatever extent, the defense might wish.” See Fensterer, 474 U.S. at 20
(emphasis added). “The Sixth Amendment right to confront witnesses includes the right
to cross-examine witnesses to attack their general credibility or to show their possible
bias, self-interest, or motives in testifying.” Hammer v. State, 296 S.W.3d 555, 561
(Tex. Crim. App. 2009) (citing Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110,
39 L. Ed. 2d 347 (1974)).
In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004), the United States Supreme Court held that the Sixth Amendment prohibits the
“admission of testimonial statements of a witness who did not appear at trial unless he
was unavailable to testify, and the defendant had had a prior opportunity for cross-
4 Originally appealed to the Second Court of Appeals, this appeal was transferred to this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Second Court of Appeals and that of this court on any relevant issue. TEX. R. APP. P. 41.3.
4 examination.” Id. at 53-54. Generally, a statement is testimonial if it is “[a] solemn
declaration or affirmation made for the purpose of establishing or proving some fact.”
Id. at 51. See Grant v. State, 218 S.W.2d 225, 230 (Tex. App.—Houston [14th Dist.]
2007, pet. ref’d). “In the end, the question is whether, in light of all the circumstances,
viewed objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-
court substitute for trial testimony.’” Ohio v. Clark, ___ U.S. ___, 135 S. Ct. 2173, 2180,
192 L. Ed. 2d 306 (2015) (quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S. Ct.
1143, 179 L. Ed. 2d 93 (2011)).
We must, therefore, first determine whether the statements by the translator were
testimonial in nature. See Vinson v. State, 252 S.W.3d 336, 338 (Tex. Crim. App. 2008)
(“[T]he [defendant] did not have a prior opportunity to cross-examine [the accuser].
Therefore, the admissibility of these statements through [someone else’s] testimony
hinges on the determination of whether the statements were testimonial or
nontestimonial.”). Although a trial court’s ruling on an evidentiary matter is viewed
under an abuse of discretion standard, a constitutional legal ruling—such as the nature
of the challenged statement—is reviewed de novo. See Wall v. State, 184 S.W.3d 730,
742 (Tex. Crim. App. 2006). See also Trigo v. State, 485 S.W.3d 603, 610 (Tex. App.—
Houston [1st Dist.] 2016, pet. ref’d). Therefore, we review de novo the determination
regarding whether the translator’s statements were testimonial. Rodriguez v. State, 274
S.W.3d 760, 765 (Tex. App.—San Antonio 2008, no pet.).
We hold that the translator’s rendition of L.R.’s statements to Fornara were not
testimonial, i.e., the translator was never a witness against Appellant but merely a
conduit or tool used by Fornara to understand Appellant’s statements to her.
5 Appellant’s attorney had the opportunity to perform, and did perform, a vigorous cross-
examination of the actual witnesses against him. Furthermore, the translator’s
statements were not “solemn declaration[s] or affirmation[s] made for the purpose of
establishing or proving some fact.” See Crawford, 541 U.S. at 51. There was no
evidence in the record establishing the translator had any self-interest in or bias toward
the proceedings. In fact, Fornara did not choose the translator or even know the
translator’s identity. The translator was provided by a service normally used by the
hospital, and Fornara advised the translator that she needed verbatim translations of
her questions to L.R. and L.R.’s responses.
Moreover, even if we were to assume there was error in the admission of L.R.’s
translated communications through Fornara, certain constitutional errors are subject to
a harmless error analysis under Rule 44.2(a) of the Texas Rules of Appellate
Procedure. TEX. R. APP. P. 44.2(a). Violation of the Confrontation Clause of the Sixth
Amendment is a “non-structural” error of constitutional dimension that is subject to
harmless error analysis. See Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct.
1431, 89 L. Ed. 2d 674 (1986); Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim.
App. 2010); Bibbs v. State, 371 S.W.3d 564, 570 (Tex. App.—Amarillo 2012, pet. ref’d).
In making a harmless error determination under Rule 44.2(a), appellate courts should
adhere strictly to the question of whether the error committed in that particular case
contributed to the verdict obtained in that case. Snowden v. State, 353 S.W.3d 815,
821 (Tex. Crim. App. 2011). If the record reveals constitutional error that is subject to
harmless error review, we must reverse the judgment of conviction or punishment
6 unless we are able to determine beyond a reasonable doubt that the error did not
contribute to the conviction or punishment. TEX. R. APP. P. 44.2(a).
Here, the challenged statements were cumulative of other evidence. See
Langham, 305 S.W.3d at 582 & n.42. In addition, L.R.’s testimony, the physical
evidence, and other testimony admitted at trial provided corroboration for the challenged
statements, and the prosecution’s case was otherwise strong. Id. Having reviewed the
entire record, we can determine beyond a reasonable doubt that error, if any, did not
contribute to Appellant’s conviction. Id. As such, the error, if any, would be harmless
under the circumstances. Appellant’s sole issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Patrick A. Pirtle Justice
Do not publish.