IMPORTANT: Please read the DISCLAIMER at the end prior to reading this blog.
By: Guillermo Flores, Attorney, Legionnaire Law Firm, PLLC.
If a criminal defense lawyer in Texas understands and speaks Spanish or any other language, in addition to English, this can help his or her clients (whose native language is not English) fight their criminal cases in several ways. Although any lawyer can request or obtain an interpreter for court proceedings for the client, if the client does not speak or understand English (because the client has a constitutional and statutory right to an interpreter), a lawyer who also speaks the client’s native language, such as Spanish, has advantages which can be used in the defense of the client, such as detecting inaccurate or incomplete translations (and do something about it), fully communicating with the client, reviewing evidence that is not in English (such as videos, audios, or statements), and/or formulating an effective defense strategy. Some of these advantages are discussed below.
If An Accused Does Not Understand or Speak English, He or She Has a Constitutional and Statutory Right to an Interpreter
In Linton v. State, the Texas Court of Criminal Appeals (this is the highest state appellate court in Texas for criminal matters) explained that “[i]t is well settled that if a defendant cannot hear or does not speak English well enough to understand the trial proceedings or communicate with counsel, fundamental fairness and due process of law require that an interpreter be provided to translate between English and the accused’s own language.” 275 S.W.3d 493, 500 (Tex. Crim. App. 2009) (footnote omitted); see also e.g., Orellana v. State, 381 S.W.3d 645, 657 (Tex. App.—San Antonio 2012, pet. ref’d) (“The right to an interpreter is part of an accused’s constitutional right to confrontation and a matter of due process.”) (citing Kan v. State, 4 S.W.3d 38, 41 (Tex. App.—San Antonio 1999, pet. ref’d), U.S. Const. amends. VI, XIV, and Tex. Const. Art. I, § 10). It is important to note that although the interpreter’s translation does not have to be “perfect,” it certainly must be true or accurate. See Linton, 275 S.W.3d at 501; see also Peralta v. State, 338 S.W.3d 598, 604 (Tex. App.—El Paso 2010, no pet.).
Further, under Texas law, “[w]hen 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. Art. 38.30(a); see also Mendiola v. State, 924 S.W.2d 157, 161 (Tex. App.—Corpus Christi 1995, pet. ref’d) (“A defendant is entitled to an interpreter when a motion is filed by any party or on motion of the court.”) (citing Tex. Code Crim. Proc. Art. 38.30(a)).[1] Moreover, a judge may become aware of a defendant’s language barrier by being informed by any of the lawyers involved in the case or by noticing such language barrier on his or her own. See Garcia v. State, 149 S.W.3d 135, 145 (Tex. Crim. App. 2004).
As such, it is important that Texas criminal defense lawyers bring to the court’s attention the fact that a client does not speak or understand English well enough to understand the proceedings (before, during, and even after such proceedings, such as a trial, if any) so that the court appoints an interpreter to assist their client with a true, accurate, and correct translation. This must be done to protect the client’s constitutional and statutory rights.
What Happens if An Interpreter’s Translation Is Incomplete or Inaccurate in a Texas Criminal Case?
Having a criminal defense lawyer in the Dallas – Fort Worth, Texas area who speaks and understands Spanish as part of the defense team has several advantages when it comes to understanding an interpreter’s translation. The lawyer can identify portions of the translation that are incomplete or inaccurate and do something about it, in a timely manner, to protect the client’s rights.
If there is an interpreter translating into English what a witness says while testifying in court (either for or against an accused), the bilingual criminal defense lawyer can carefully listen: (i) to what the witness says (in Spanish or in any other language); and (ii) to the interpreter’s translation. If the criminal defense attorney realizes that the interpreter’s translation is incomplete or inaccurate, then the attorney can do several things, such as: (a) impeaching the translation during cross-examination of the witness to cure it;[2] (b) impeaching the translation by placing the interpreter on the witness stand to cross-examine him or her as to what the witness said;[3] (c) introducing independent evidence to show that the interpreter’s version was incorrect;[4] and (d) timely complain about the translation’s inaccuracy before the trial court and timely mention the specific evidence or translation that is being challenged.[5]
In Garcia v. State, the Texas Court of Criminal Appeals was presented with a novel issue: “what is required to preserve error when an inaccurate translation is offered into evidence?” 887 S.W.2d 862, 874 (Tex. Crim. App. 1994) (emphasis added), overruled on other grounds, Hammock v. State, 46 S.W.3d 889, 893 (Tex. Crim. App. 2001)). In Garcia, the State called a witness who testified with the help of a translator. Id. As such, the translator interpreted the questions from English to Spanish and the witness’s answers from Spanish to English. Id. The defendant/appellant specifically objected to the inaccuracy of the translation, and not to the general competence of the translator. Id.; see also e.g., Mendiola, 924 S.W.2d at 162 (“while an interpreter’s competency is a question of law, the accuracy of an individual translation is a question of fact.”).[6] However, the Texas Court of Criminal Appeals overruled the defendant’s objection (or point of error) and reasoned as follows:
We, as an appellate court, can no more determine whether a translation is accurate or which of two translations is more accurate, than we can determine which of two witnesses is telling the truth, or which of the two is more truthful these are questions for the factfinder.
. . .
Similarly, just as [the defendant] may not preserve error by objecting at trial that a witness is lying, he may not preserve error objecting that a translation is inaccurate; there is simply no reviewable question to preserve. Just as he must impeach the lying witness at trial to cure the lie, a defendant must impeach the inaccurate or incomplete translation to cure it. As a question of fact, [the defendant] must settle the question of a translation’s accuracy at trial by impeaching the translation; cross-examination of the witness presents the most convenient vehicle, but impeachment may be accomplished by many other means.
Garcia, 887 S.W.2d at 875 (emphasis added) (footnotes and citation omitted). Moreover, the Garcia Court suggested that a defendant may impeach the translation by other means such as introducing independent evidence to show that the interpreter’s version was incorrect or by placing the interpreter in the witness stand to cross-examine him or her as to what the witness said. See id. at 875 n.8 (citing J.E. Macy, Annotation, Use of Interpreter in Court Proceedings, 172 A.L.R. 923, 951).
Based on the above, if a Texas criminal defense lawyer realizes that an interpreter’s translation is incorrect or incomplete at any pretrial proceeding and of course, during trial, then he or she should immediately address this at the trial court level because “questions regarding inaccuracies in a translation are issues of fact to be settled by the trier of fact.” See Galvan-Cerna v. State, 509 S.W.3d 398, 409 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citations omitted). The trier of fact can be the jury or the judge, depending on the circumstances. Although the Texas Court of Criminal Appeals indicated in Garcia that a defendant may not preserve error by objecting that a translation is inaccurate, see Garcia, 887 S.W.2d at 875, a defendant’s Texas criminal defense lawyer should timely complain about such inaccuracy before the trial court and mention the specific evidence or translation that is being challenged (in addition to the remedies discussed above). This is probably a prudent thing to do in such situation.
For example, in Kan v. State, a case that was decided years after the Garcia case, the defendant argued on appeal that the translation was inaccurate (among other appellate grounds or points of error). 4 S.W.3d 38, 43 (Tex. App.—San Antonio 1999, pet. ref’d). However, in Kan, the Fourth Court of Appeals overruled this argument. See id. The Fourth Court of Appeals reasoned as follows:
We cannot review this issue “because there is no legal issue presented; it is a factual question which ultimately only the jury can answer and which is not reviewable by an appellate court.” Because this complaint was not lodged in the trial court, [the defendant] has waived any alleged error from inaccuracies in the translation. Notwithstanding [the] bar to appellate review, we note that [the defendant] has failed to point to any specific evidence in the record of inaccurate translation.
Kan, 4 S.W.3d at 43 (emphasis added) (footnote and citation omitted).[7] Simply put, the criminal defense lawyer must do something at the trial court level to complain about such inaccuracies, to cure them, to undermine them, to develop the record, and of course, to protect the client’s rights. However, to do this, the lawyer must be able to understand what the witness says and carefully compare it with what the interpreter says as a translation.
Speaking and Understanding Spanish Can Help a Criminal Defense Lawyer in Texas To Communicate With Spanish-speaking Clients, To Review Evidence in Spanish, and To Formulate an Effective Defense Strategy.
When a client does not speak English or if the client’s English is limited, it can be beneficial to have a criminal defense lawyer in Texas who speaks the client’s language, such as Spanish. Quite often, persons who are accused of an alleged offense have a clear and fresh recollection of the events that took place. However, due to a language barrier, sometimes it can be challenging for some of them to express to their lawyers what occurred, what they saw, and/or their side of the story in a clear, accurate, and thorough manner. Clear communication between a client and the criminal defense lawyer is very important, particularly when it comes to the investigation of the facts of the alleged event or alleged incident. Simply put, there must be clear and effective communication between criminal defense lawyers in Texas and clients who do not speak English or whose English is very limited. Additionally, a lawyer must explain the consequences (or potential consequences) or potential ramifications of an alleged offense or alleged crime to a client, or of a plea offer given by the prosecution. The client must be able to make an informed decision. Moreover, the client has the right to have his or her questions or concerns answered or explained by their lawyer.[8]
Speaking Spanish can also help Texas criminal defense attorneys when it comes to reviewing the discovery or evidence in a criminal case. For example, there can be witnesses or potential witnesses who provided to the police oral or written statements in Spanish as to what they saw or what they believe they saw. The same applies for 911 call audios or police body camera videos.[9] Understanding these statements in Spanish is crucial when it comes to the investigation of a case or if needed, for direct examination or cross-examination of witnesses. Moreover, one word or phrase can completely alter one’s understanding of the context of what occurred during an event or incident. All of the above should be taken into consideration when it comes to formulating an effective defense strategy while representing a client who is accused of an alleged crime in Texas.
Based on the foregoing, it is clear that if a criminal defense lawyer in Texas understands and speaks Spanish or any other language, in addition to English, this can help his or her clients (whose native language is not English) fight their criminal cases and formulate effective defensive strategies.
[1] See also e.g., Tex. Gov’t Code § 157.001(2) (‘“Licensed court interpreter’ means an individual licensed . . . by the commission to interpret court proceedings for an individual who can hear but who has no or limited English proficiency.”); Tex. Gov’t Code § 151.001(2) (defining the “Commission” as the Judicial Branch Certification Commission); Tex. Gov’t Code § 157.101(a) (a court interpreter license is issued to an applicant who has passed the appropriate examination prescribed by the commission and possesses the other qualifications required by Chapter 157 of the Texas Government Code); see also Smith v. State, No. 01-22-00227-CR, 2023 Tex. App. LEXIS 5387, at *3 n.1 (Tex. App.—Houston [1st Dist.] July 25, 2023, no pet. h.) (mem. op., not designated for publication) (“A court interpreter’s license provides a designation as a ‘basic’ or ‘master’ interpreter.”) (citing Tex. Gov’t Code § 157.101(d)).
[2] See Garcia v. State, 887 S.W.2d 862, 875 (Tex. Crim. App. 1994) (“a defendant must impeach the inaccurate or incomplete translation to cure it.”), overruled on other grounds, Hammock v. State, 46 S.W.3d 889, 893 (Tex. Crim. App. 2001)).
[3] See id. at 875 n.8 (“the interpreter may be placed in the witness stand and cross-examined as to what the witness had said.”) (citation omitted).
[4] See id. (“Independent evidence may be introduced to show that the interpreter’s version was incorrect . . . .”) (citation omitted).
[5] See e.g., Kan v. State, 4 S.W.3d 38, 43 (Tex. App.—San Antonio 1999, pet. ref’d) (indicating that the defendant’s complaint –that the translation was inaccurate –was not lodged in the trial court and noting that the defendant failed to point out to any specific evidence in the record of inaccurate translation).
[6] This blog focuses on potential or possible inaccuracies (question of fact) of an interpreter’s translation in Texas criminal courts. However, there are many Texas cases that discuss the legal standard for the competency (question of law) of interpreters.
[7] See also e.g., Garcia, 887 S.W.2d at 875 n.9 (“in the present case, no specific objection was offered stating the problem with the interpretation admitted into evidence, nor was any ‘correct’ interpretation entered into the record by offer of proof or during cross examination of the witness [and] [t]herefore, even if we could review the question, we would have to find that appellant failed to preserve error.”).
[8] See e.g., Tex. R. Prof Conduct 1.03(b) (“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”).
[9] Language barrier may also be a problem when the police is investigating an event or alleged incident or when they are talking to potential witnesses.
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