Sostenes Lorenzo Tolentino v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 9, 2024
• Docket: 01-22-00442-CR
• Status: Published

Opinion

Opinion issued January 9, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00442-CR ——————————— SOSTENES LORENZO TOLENTINO, Appellant V. STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 14 Harris County, Texas Trial Court Case No. 2306675

OPINION

Sostenes Lorenzo Tolentino was found guilty of driving while intoxicated. On

appeal, Tolentino complains that he could not understand the trial proceedings because he was not provided with an interpreter in his native language, Nahuatl.1

Tolentino argues that his rights under the United States and Texas Constitutions to

due process and due course of law, confrontation, and counsel were denied; that the

trial court violated its statutory duty to appoint an interpreter in a language he

understands; and that the trial court abused its discretion when it denied his motion

for new trial. Because the trial court’s decision to proceed with a Spanish interpreter

violated Tolentino’s right to due process, we reverse and remand for a new trial.

Background

In April 2020, Tolentino was near the scene of a separate ongoing DWI

investigation. The police began questioning Tolentino and because of his

interactions with the police, he was arrested and charged with DWI.

In June 2021, a year before trial, Tolentino’s trial counsel moved for

appointment of a Nahuatl interpreter. Trial counsel informed the trial court that he

communicated with Tolentino through Tolentino’s brother, who has a better

understanding of Spanish. Tolentino’s native language is Nahuatl, and he speaks and

understands little Spanish or English. The trial court initially attempted to provide a

Nahuatl interpreter but eventually, over Tolentino’s objection, appointed a Spanish

interpreter for Tolentino and proceeded with trial in June 2022. A jury found

1 Nahuatl is an indigenous language spoken in Mexico.

2 Tolentino guilty of DWI and the trial court sentenced him to one year confinement

probated for 15 months of community supervision.

Tolentino moved for a new trial, arguing that his rights under the United States

and Texas Constitutions to due process and due course of law, confrontation, and

counsel were denied. He also argued that the trial court violated its statutory duty to

appoint an interpreter in a language he understands. The trial court denied his

motion.

Due Process

Tolentino argues that his right to due process was violated by the trial court’s

appointment of a Spanish interpreter instead of a Nahuatl interpreter.

A. Standard of Review

We review a trial court’s decision to appoint an interpreter for an abuse of

discretion. See Balderas v. State, 517 S.W.3d 756, 777–78 (Tex. Crim. App. 2016).

Whether the trial court took adequate steps to ensure that a defendant sufficiently

understood the proceedings is also reviewed for an abuse of discretion. Linton v.

State, 275 S.W.3d 493, 502 (Tex. Crim. App. 2009). We reverse only when the trial

court’s ruling lies outside the zone of reasonable disagreement. Id. at 503; see also

Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App. 2016) (before reviewing court

reverses trial court’s decision, it must find ruling was so clearly wrong as to lie

outside zone within which reasonable people might disagree).

3 B. Analysis

The parties do not dispute that Tolentino required an interpreter, only whether

a Spanish interpreter satisfied this need. If a defendant cannot understand the

proceedings, fundamental fairness and due process require that the court provide an

interpreter. See Linton, 275 S.W.3d at 500. Whether an accused receives adequate

interpretation is a matter within the trial court’s discretion because it depends on “a

potpourri of factors.” Id. “The question on appeal is not whether the ‘best’ means of

interpretive services were employed, but whether the services . . . were

constitutionally adequate such that the defendant could understand and participate

in the proceedings.” Id.

The constitutional guarantee of due process “is, in essence, the right to a fair

opportunity to defend against the State’s accusations.” Chambers v. Mississippi, 410

U.S. 284, 294 (1973). That guarantee encompasses both the right of a defendant to

confront witnesses against him and his right to assist in his own defense. See U.S.

CONST. amend. VI; Chambers, 410 U.S. at 295; Pointer v. Texas, 380 U.S. 400, 405

(1965). While the Constitution does not guarantee every defendant a perfect trial, it

requires “that a defendant sufficiently understand the proceedings against him to be

able to assist in his own defense.” Ex Parte Cockrell, 424 S.W.3d 543, 557 (Tex.

Crim. App. 2014) (internal quotations omitted). The Court of Criminal Appeals has

considered that a defendant is denied due process when

4 (1) what is told him is incomprehensible; (2) the accuracy and scope of a translation at a hearing or trial is subject to grave doubt; (3) the nature of the proceeding is not explained to him in a manner designed to insure his full comprehension; or (4) a credible claim of incapacity to understand due to language difficulty is made and the district court fails to review the evidence and make appropriate findings of fact.

Linton, 275 S.W.3d at 505 (internal quotation omitted). “The ultimate question is

whether any inadequacy in the interpretation made the trial ‘fundamentally unfair.’”

Id. at 503.

Tolentino moved for a Nahuatl language interpreter. The trial court stated on

the record that it could not “put [Tolentino] to trial without having a qualified

interpreter interpreting for him.” The trial court acknowledged if it could get a

Nahuatl interpreter it would proceed with trial, otherwise it would not. At a later

hearing, the trial court acknowledged that Nahuatl interpreters were available, but

either they would need an additional interpreter to translate from English to Spanish

and then from Spanish to Nahuatl or the English-to-Nahuatl interpreter would have

to translate remotely because they were unable to physically attend trial.

A few months later, the trial court told the parties that it would provide a

Spanish interpreter instead of a Nahuatl interpreter. The trial court held a hearing in

which it stated it considered Detective A. Nerio’s testimony about video of

Tolentino’s arrest provided at an earlier pretrial hearing. Detective Nerio testified

that in the video he had a “full conversation” with Tolentino in Spanish.

5 The video depicts Detective Nerio approaching Tolentino and shouting “hey”

at Tolentino. Detective Nerio then repeatedly asks Tolentino the same question to

which Tolentino responds by grunting. Detective Nerio then asks a different question

repeatedly and Tolentino mumbles unintelligibly. Detective Nerio spends most of

the interaction speaking and repeating questions. Tolentino can be seen staring

blankly at Detective Nerio, occasionally grunting, and mumbling short phrases.

Detective Nerio translated his conversation with Tolentino as follows:

[Det. Nerio]: What are you doing? What are you doing? His response was, [n]othing. [State]: What was your conversation about?

[Det. Nerio]: Why did you come here? What are you doing here? You’re – you’ve urinated – sorry, I didn’t quite hear everything. Sorry. Stop. What are you doing? What are you doing? What are you doing? Nothing. Why did you come here? Why did you come here? Why did you come? Why did you come here?

[State]: What do you think of the way that the defendant spoke? [Det. Nerio]: Slurred and swaying. For nothing. And why? You’re urinating, you’re intoxicated, and you’re about to start driving. And then I’m basically motioning around the head, What is not functioning up here? Where do you live? Where do you live?

[State]: So what did—where did he say he lived?

[Det. Nerio]: He, basically, at that point just pointing down the street. I do nothing. I do nothing. [State]: What did he say there?

6 [Det. Nerio]: I’m not doing anything, son.

Detective Nerio then calls Tolentino a “fucker,” handcuffs him, and escorts him to

the back of his patrol vehicle. Tolentino can be heard mumbling the same words to

himself while being handcuffed.

After opening the back door to his patrol vehicle, Detective Nerio instructs

Tolentino in Spanish, but Tolentino does not respond. Detective Nerio turns

Tolentino around so Tolentino’s back is facing the interior of the patrol vehicle so

Tolentino can get inside. Tolentino makes a brief comment to which Detective Nerio

testified that he responded by asking Tolentino, “You can’t lift your leg up? Why

can’t you lift your leg up?” Tolentino then repeats a short question to Detective

Nerio, which Detective Nerio does not respond to. Then Detective Nerio is seen

using his hand to push Tolentino into the vehicle while Tolentino begins repeating

an earlier phrase. Detective Nerio ignores Tolentino and lifts Tolentino’s leg into the

vehicle before closing the door.

The video then briefly depicts Detective Nerio’s investigation away from

Tolentino before he returns to speak to Tolentino in the back of his vehicle. Detective

Nerio and Tolentino then have a broken exchange of repeated questions and short

responses for about 30 seconds. Based on this evidence, the trial court stated it would

proceed with a Spanish interpreter and overruled Tolentino’s objection.

7 The State compares this case to Martins v. State, where the defendant

complained that he required a Portuguese interpreter but was given a Spanish

interpreter. See 52 S.W.3d 459, 471 (Tex. App.—Corpus Christi-Edinburg 2001, no

pet.). But there are significant differences. In Martins, the defendant did not request

a Portuguese interpreter or object to a Spanish interpreter. See id. Here, Tolentino

did both. Moreover, the record in Martins lacked any evidence of the defendant’s

difficulty understanding Spanish. Id. at 472. Instead, there was evidence that the

defendant had a Spanish-speaking wife, testified at trial in Spanish, and

communicated with his attorney in Spanish. See id. Martins was decided based on

the defendant’s failure to object to the appointment of a Spanish translator and the

lack of evidence that he required a Portuguese interpreter. See id. at 473. That is not

the case here. Tolentino made his request and objection clear to the trial court, and

the trial court was aware that Tolentino’s Spanish-speaking attorney could not

communicate with Tolentino without Tolentino’s brother translating to Nahuatl.

Upon Tolentino’s objection, the trial court asked whether Tolentino

communicated with his family members in Spanish. Trial counsel responded that

Tolentino communicates with his family primarily in Nahuatl because they are from

the same region of Mexico and that Tolentino’s job does not require him to

communicate “with anybody really[] but himself.” Trial counsel also highlighted

that Nahuatl can be a difficult language because there are no phrases or words for

8 certain terms and that his primary communication with Tolentino relied on

Tolentino’s brother as his interpreter.

The only evidence that Tolentino understood Spanish was Detective Nerio’s

testimony about the video of the arrest. But the record reflects that Detective Nerio’s

brief conversation with Tolentino involved Detective Nerio repeatedly asking

Tolentino the same questions while Tolentino grunted, mumbled “nothing” or “I do

nothing” in Spanish, and pointing down the street in response to being repeatedly

asked where he lived.

In Linton, the Court of Criminal Appeals recognized that a defendant may

receive a fair trial absent a perfect translation. 275 S.W.3d at 508. There, the

defendant testified at a hearing and often answered questions before the interpreter

translated them, and there were direct exchanges between the trial court and the

defendant using an American Sign Language interpreter. Id. at 505–06. These

exchanges reflected the defendant’s “ability to communicate effectively.” Id. at 506.

There was also evidence that the defendant, graduated from high school and was

admitted to college, understood sufficient English to obtain a driver’s license, could

communicate sufficiently with another person to exchange information related to a

car accident, and could follow law enforcement’s instructions. Id. at 509. The record

here contains no similar communications or evidence.

9 In reaching its holding, the Linton court considered cases from across the

country where defendants were given interpreters in languages other than what they

claimed they required. We consider their applicability here.

One such case is People v. Warcha, where a Spanish interpreter was

permissible because there was ample evidence of the defendant’s Spanish

proficiency despite his late request for a Quiche interpreter. 17 A.D.3d 491, 492–93

(N.Y. App. Div. 2005). The defendant raised his request for a Quiche interpreter 10

months into the case, after pretrial proceedings, and two days into jury selection. Id.

at 492. The trial court had two Spanish interpreters independently interview the

defendant, and they reported that the defendant could understand Spanish if they

spoke slowly. Id. The trial court ordered a recess to locate a Quiche interpreter, but

none was found. Before proceeding without a Quiche interpreter, the trial court had

a conversation with the defendant and determined that the defendant was proficient

in Spanish. Id. The trial court also instructed the interpreters to signal the court

whenever necessary to ensure that the defendant would have the proceedings fully

explained to him. Id. at 493. Moreover, there was evidence that the defendant had

communicated in Spanish with co-workers for two years, that his education was in

Spanish and Quiche, and that he had communicated with counsel in Spanish during

the 10 months of his case. Id. at 492–93.

10 Another case Linton considered, Gado v. State, held that proceeding with a

French interpreter over the defendant’s objection and request for a Djerma

interpreter was permissible when there was ample evidence that the defendant

understood French and English. 882 N.E.2d 827, 830–31 (Ind. Ct. App. 2008). The

trial court attempted to procure a certified Djerma interpreter upon the defendant’s

request but only found two uncertified Djerma interpreters. Id. at 829. During trial,

the interpreters told the trial court that they were threatened with repercussions if

they continued translating. Id. The trial court suspected the defendant made these

threats and declared a mistrial. Id. The trial court tried to find another Djerma

interpreter but was unsuccessful. Id. During a hearing to determine the defendant’s

language proficiency, the trial court recalled interacting with the defendant on

several occasions in English and that the defendant had participated in earlier

proceedings using a French interpreter. There was also evidence that the defendant

had conversations in English lasting over an hour on various topics including his

family, where he lived, and his criminal history. Id. at 830–831.

Linton also considered Costa v. Williams, where the court found that using a

Spanish interpreter was sufficient when there was evidence that the Portuguese

defendant gave detailed answers to the trial court’s questions and never made a

request for a Portuguese interpreter until his habeas petition. 830 F. Supp. 223, 224

(S.D.N.Y.1993). Moreover, the defendant’s petition was written in English and

11 signed by him without any indication that an interpreter was used or necessary. Id.

at 224 n.2.

Here, Tolentino made the trial court aware of his need for a Nahuatl interpreter

a year before trial. No independent Spanish interview was done with Tolentino

before trial. Trial counsel informed the trial court that he used a Nahuatl speaker to

communicate with Tolentino. And Tolentino’s family communicated in Nahuatl.

Thus, the cases highlighted in Linton are inapposite.

Because the trial court was aware that Tolentino had difficulty understanding

English, it was required to ensure that the trial proceedings were translated into a

language that Tolentino could understand. Garcia v. State, 149 S.W.3d 135, 145

(Tex. Crim. App. 2004). The trial court recognized the need for a Nahuatl interpreter

and delayed the trial for a year to procure one, but it changed course based on

testimony from Detective Nerio. While a trial court “must be given wide discretion,”

the ultimate question before this Court is whether any inadequacy in the

interpretation made the trial fundamentally unfair. Linton, 275 S.W.3d at 503. Linton

instructs us that we measure the trial court’s decision on interpretive services by

whether the defendant has a basic understanding of the proceedings to support his

participation in them. See id. at 500–04 (trial is fundamentally unfair when defendant

is unable to assist in his own defense).

12 The record shows that during Tolentino’s arrest he appeared confused and

spoke minimal broken Spanish and that trial counsel, a Spanish speaker, had to rely

on a Nahuatl speaker to communicate with Tolentino, so it follows that Tolentino

would not be able to understand the proceedings well enough to assist in his own

defense absent a Nahuatl interpreter. The record also reflects that a Nahuatl

interpreter was available, at least virtually, but that the trial court chose not to use

that interpreter. We find that the interpretation provided was inadequate because

Tolentino required a Nahuatl interpreter, so the trial was fundamentally unfair. Id. at

505 (defendant is denied due process when “the nature of the proceeding is not

explained to him in a manner designed to insure his full comprehension” (internal

quotation omitted)). Accordingly, the trial court’s decision to proceed with a Spanish

interpreter was an abuse of discretion.

We reverse and therefore need not consider Tolentino’s remaining issues. See

TEX. R. APP. P. 47.1.

13 Conclusion

We reverse and remand for new trial.

Sarah Beth Landau Justice

Panel consists of Justices Kelly, Landau, and Farris.

Publish. TEX. R. APP. P. 47.2(b).