SIMCOE v. State

268 S.W.3d 84, 2007 WL 2462029
CourtCourt of Appeals of Texas
DecidedAugust 20, 2008
Docket03-06-00714-CR
StatusPublished
Cited by3 cases

This text of 268 S.W.3d 84 (SIMCOE v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
SIMCOE v. State, 268 S.W.3d 84, 2007 WL 2462029 (Tex. Ct. App. 2008).

Opinion

OPINION

G. ALAN WALDROP, Justice.

The trial court convicted Simcoe of burglary of a building and assessed punishment at two years in a state jail facility, probated for three years with conditions of community supervision. See Tex. Penal Code Ann. § 30.02 (West 2003). In two issues, Simcoe contends that the trial court erred by failing to appoint an interpreter for her at trial and that the evidence is factually insufficient to support the verdict. We affirm.

Georgiana Brown owns a mobile home and a storage shed on property located at 4806 Timber Creek Drive, Austin, Texas. Brown testified that Simcoe owns rental property with a mobile home on it at 4807 Timber Creek Drive, which is across the street from Brown’s property, and that Simcoe “actually lives around the corner on the next block.” On April 30, 2006, Brown visited her property with her boyfriend, son, and daughter-in-law “to mow the grass and clean the yard.” She testified that the mobile home on her property had been unoccupied for “about six or eight months” prior to April 2006. According to Brown, when they arrived at the property, she noticed that the fence along the back of her property had been taken down. She testified, “I could see the fence was rolled up laying in front of the stairs in front of the mobile home across the street” on Simcoe’s rental property. Brown testified that she went inside the mobile home on her property and discovered that the stove, the refrigerator, and a cabinet were missing. Brown called the police.

Deputy Tipton Birdwell responded to Brown’s call. He testified that he met with Brown and then “made contact with [Simcoe] and asked her if she had any knowledge of how the fence ended up on her property.” Deputy Birdwell stated that “at that point [Simcoe] kind of went off talking about prior instances where she was a victim and complained of a lot of other things” and “then [Simcoe] said something about the owner of the property the fence came from owed her $800.” According to Deputy Birdwell, Simcoe kept changing the subject when he inquired as *86 to how the fence got onto her property and eventually began yelling at him. He testified that Simcoe said that the prior renters had taken the fence but that he “knew the prior renters had been gone awhile.” Upon further questioning, Simcoe changed her story again. According to Deputy Birdwell, as he and Brown were walking around the outside of Simcoe’s rental property “[Brown] recognized what she believed to be her refrigerator on the back deck of the rental property and roll of fence by the storage shed and there was a brown picnic table that was back in the back of the storage shed that she thought was hers also.” Simcoe refused to let Brown and Deputy Birdwell onto her rental property and, at one point, came outside with a video camera and said, “I’ll see you in court.”

Detective Scott Crowe testified that, after receiving the report from Deputy Bird-well concerning the alleged theft of Brown’s property, he decided to obtain a search warrant for Simcoe’s rental property. He testified that he did not contact Simcoe prior to executing the search warrant based on Birdwell’s report of Simcoe’s actions towards him. Crowe testified, “I didn’t think it would be prudent to contact [Simcoe] and get the same attitude.” He also testified that he had driven by Sim-coe’s rental property prior to executing the search warrant and had observed some of the items described by Brown, including the chain link fence and the refrigerator, on Simcoe’s property. According to Detective Crowe, on the day the search warrant was signed, he contacted Simcoe and she allowed the officers onto the rental property. He testified that “[t]he refrigerator was still on the back porch” but that “the fencing that was in the front underneath the front porch was now gone and the fencing in the backyard was now gone as well.” Simcoe led Detective Crowe around the inside of the mobile home and explained to him that she was preparing the residence for her son, who had recently been released from jail. Detective Crowe testified that the stove in Simcoe’s mobile home matched the description of the stove that Brown had reported stolen from her property and that he discovered a cabinet in Simcoe’s laundry room matching the description of the cabinet Brown had reported stolen. He also discovered the missing fence in a storage shed in Simcoe’s backyard. According to Detective Crowe, Simcoe originally told him that she had purchased the stove, but then changed her story, claiming that a previous tenant by the name of Tracy Ricker-son had stolen the stove. Crowe testified that he had reviewed the utility records for the property and that he did not see anybody by the name of Tracy Rickerson in the records. Detective Crowe placed Sim-coe under arrest for burglary.

On May 26, 2006, Simcoe was indicted for burglary under section 30.02 of the Texas Penal Code. She waived a jury trial on a plea of not guilty. At the bench trial, the State presented four witnesses — Geor-giana Brown, Deputy Birdwell, Detective Crowe, and Cindy Castillo, Brown’s next-door neighbor. Simcoe testified in her own defense and called three character witnesses. The trial court found Simcoe guilty of burglary and sentenced her to two years in a state jail facility, probated for three years with conditions of community supervision.

In her first issue, Simcoe, who is originally from Thailand and speaks both Thai and English, contends that the trial court erred by failing to appoint an interpreter for her at trial. She relies on the Texas Court of Criminal Appeals’s opinion in Garcia v. State to support her argument. See 149 S.W.3d 135, 145 (Tex.Crim.App.2004). In Garcia, it was undisputed *87 that the defendant, Jose Garcia, did not speak English. The pretrial proceedings were translated for Garcia by a sworn interpreter, and defense counsel discussed Garcia’s language difficulty during voir dire. The trial judge stated on the record that at “some point” during the guilVinno-cence phase of the trial, he became aware that the proceedings were not being translated for Garcia. Id. Garcia himself testified, through an interpreter, that he had been unable to understand the complainant’s testimony at trial. The court of criminal appeals held that “[s]ince the judge was aware that Garcia had difficulty understanding English, the judge was required to ensure that the trial proceedings were translated into a language which Garcia could understand, absent an effective waiver by Garcia.” Id. The court concluded that Garcia’s Sixth Amendment right to confront the witnesses against him was violated because Garcia did not knowingly or voluntarily waive his right to an interpreter. In closing, the court explained that Garcia “deserved more than to sit in total incomprehension as the trial proceeded.” Id. (quoting United States ex rel. Negron v. New York, 434 F.2d 886, 390 (2d Cir.1970)).

In this case, Simeoe testified in English that she was born in Thailand and that she moved to the United States in 1978. She also testified that she learned how to speak English sixteen years ago.

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Cite This Page — Counsel Stack

Bluebook (online)
268 S.W.3d 84, 2007 WL 2462029, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simcoe-v-state-texapp-2008.