Jose Guadalupe Roman v. State

Affirmed and Memorandum Opinion filed May 22, 2008 Affirmed and Memorandum Opinion filed May 22, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00152-CR ____________ JOSE GUADALUPE ROMAN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 1033308 M E M O R A N D U M   O P I N I O N Appellant Jose Guadalupe Roman was convicted of aggravated sexual assault and sentenced to confinement for 45 years in the Texas Department of Criminal Justice, Correctional Institutions Division. In three issues, Roman challenges the conviction, asserting that (1) the trial court erred in declining to declare a mistrial sua sponte after voir dire proceedings were conducted without an interpreter, (2) he received ineffective assistance of counsel, and (3) the trial court erred in declining to grant a mistrial as requested by his counsel after the jury heard testimony that Roman had previously been in jail. We affirm. I. Factual and Procedural History Jose Guadalupe Roman lived with Ebelia Fuentes (Ebelia), and her son, I.F., from approximately 1994 to 2002. During that time, Roman fathered two children with Ebelia, E.R. and D.R. Roman and Ebelia separated in 2002. Over the next three years E.R. and D.R. lived with Ebelia and visited Roman in compliance with the custody agreement. In 2005, three years after Roman and Ebelia separated, the children went to North Carolina to visit extended family. On that trip, E.R. disclosed to her cousins her allegations of sexual assault by her father. When this information was relayed to Ebelia a month later, she immediately went to E.R.=s school to discuss the allegations. Ebelia testified that E.R. spoke about the sexual abuse occurring prior to her separation from Roman, stating that Awhen she would stay sometimes with her father he would lock the door, and he would tell her to drop her panties. . . . he would take out his private part and put it in the part, the back part of the little girl.@ Ebelia admitted that she never noticed bruises or tenderness on her daughter, and that she did not notice any emotional response in E.R. that would be consistent with a sexual assault. She also admitted that Roman had left her for another woman. E.R. was eleven years old when she testified at trial about the incidents that took place when she was five and six years old. On Saturdays, while her mother was at work, Roman would call E.R. into the bedroom and lock the door. E.R. testified that Ahe told me to take off my pants@ and Ahe put me on the edge of the bed . . . [and] told me to look towards the wall . . . [a]nd after that, I felt something hard in my back side.@ She also stated that she Atried to avoid him from sticking it in, and then he would tell me to open my rear-end so he could do it.@ When given anatomically correct dolls, she identified the vaginal area, the chest, and the buttocks as the private places on a female body, and the genital area as the private place on a male body. E.R. further testified that Roman touched her in her Arear-end@ and when asked what Roman used to touch her, she responded Awhat he has between . . . of his two legs . . . to go to the bathroom.@ I.F., E.R.=s half-brother, was 13 years old at the time of trial and testified that he heard E.R. crying and screaming when Roman took her into the bedroom, but that he did not do anything about it because he was scared. A physician at the Children=s Advocacy Center examined E.R., but found no physical evidence of abuse. However, he testified that this finding was consistent with the three-year time lapse between the alleged abuse and the examination. Roman was charged by indictment for aggravated sexual assault. After voir dire, Roman=s attorney requested an interpreter and informed the court that Roman, who spoke Spanish, did not fully understand English and had some difficulty understanding certain words during voir dire. Counsel stated that he had been representing Roman for approximately six or seven months, and during that time it was never brought to his attention that Roman did not understand English. However, counsel admitted that he typically used another employee, who was fluent in Spanish, to communicate with Roman. Counsel informed the court that Roman was born in Mexico, completed the equivalent of ninth grade in school, and has been in the United States since 1980. When asked if his client was able to communicate with him in English, he responded that Roman Awas able to talk with me about his knowledge of the case and his concerns regarding the case.@ Although Roman communicated with pretrial services employees in Spanish, an employee from pretrial services informed the court that Roman indicated on his pretrial paperwork that English was his main language and he completed his pretrial paperwork in English. The court granted the request for an interpreter and proceeded to trial. A jury found Roman guilty as charged and the trial court assessed punishment at confinement for 45 years in the Texas Department of Criminal Justice, Correctional Institutions Division. II. Issues and Analysis Roman contends that (1) the trial court erred in declining to declare a mistrial sua sponte after voir dire proceedings were conducted without an interpreter, (2) he received ineffective assistance of counsel, and (3) the court erred in declining to grant a mistrial as requested by his counsel after the jury heard testimony that Roman had previously been in jail. A. The trial court did not err in declining to declare a mistrial sua sponte after voir dire proceedings were conducted without an interpreter. AOur system may be thought to contain rules of three distinct kinds: (1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request.@ Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997)). The right to an interpreter falls into the second category, and can be expressly waived. Garcia v. State, 149 S.W.3d 135, 144 (Tex. Crim. App. 2004). An interpreter must be appointed following a motion by any party or a motion of the court when the defendant or a witness does not understand and speak the English language. Code Crim. Proc. Ann. art 38.30(a) (Vernon 2005). When the court is aware of the language barrier, however, the court Ahas an independent duty to ensure that the proceedings are interpreted for the defendant, absent the defendant=s knowing and intelligent waiver.@ Garcia, 149 S.W.3d at 144. The court becomes aware of a language barrier when it is informed by one or both of the parties, or by personal observation. Id. at 145. In the present case, the State contends that the court had no reason to be aware of Roman=s possible language barrier until Roman=s counsel brought the matter to the court=s attention after the jury was selected. The State asserts that nothing in the clerk=s record indicates that Roman could not speak or understand English and required an interpreter. Roman was present during the voir dire proceedings and did not inform the court that he needed an interpreter. When the interpreter issue was raised, the court questioned Roman=s counsel about the duration of his representation, the method of communication between Roman and his counsel, and whether Roman understood and communicated in English. The court learned that Roman had resided in the United States for more than 25 years. English was spoken at Roman=s place of employment; however, he had some difficulty communicating with his employer. Roman=s counsel admitted that he used another Spanish-speaking employee to facilitate communication with Roman most of the time, but told the court that it was never brought to his attention that Roman did not understand when he spoke to him in English. When asked if he was able to communicate with Roman in English, Roman=s counsel responded: A[h]e has been able to talk with me about his knowledge of the case and his concerns regarding the case, yes.@ The trial court subsequently appointed an interpreter, and the interpreter assisted Roman through the remainder of the trial proceedings. A trial court has the discretion to declare a mistrial sua sponte when Ain [its] opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.@ Torres v. State, 614 S.W.2d 436, 442 (Tex. Crim. App. 1981). The power to grant a mistrial sua sponte Aought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.@ Id. Because it is unclear from the fact of this case that Roman actually needed an interpreter, and because the court appointed an interpreter as soon as it became aware of a possible language barrier, Roman has not established that the trial court abused its discretion in failing to declare a mistrial sua sponte. Roman contends that this is a constitutional error, which is subject to harmless-error review and warrants reversal. Tex. R. App. Proc. 44.2(a). We disagree. In a harmless-error review, we must reverse the judgment unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. Id. Even if we agree with Roman that there was a constitutional error, we conclude that reversal is not necessary because the error did not contribute to the conviction. There is no evidence to support the contention that had Roman been provided an interpreter during voir dire, the composition of the jury would have been different and that jury would have reached a different verdict based on the same evidence. The Texas Court of Criminal Appeals has adopted the Areasonably substantial relationship@ test, which requires that the defendant=s presence must bear a reasonably substantial relationship to the opportunity to defend. Pineda v. State, 176 S.W.3d 244, 247-48 (Tex. App.CHouston[1st Dist.] 2004, pet. ref=d) (holding that the temporary absence of an interpreter during voir dire was harmless) (quoting Adanandus v. State, 866 S.W.2d 210, 219 (Tex. Crim. App. 1993)). Even if the absence of an interpreter rendered Roman Aabsent@ from the voir dire proceedings, his presence did not bear a reasonably substantial relationship to his opportunity to defend. Assuming that an interpreter during voir dire would have allowed Roman to consult his attorney on possible juror biases and suggest strikes for cause, there is still no indication that a different jury would have reached a different result given the weight of the evidence presented at trial. Therefore, even if some error resulted from the delay in appointing an interpreter, such error was harmless. In the alternative, Roman contends that even if this is considered non-constitutional error, it still warrants reversal. Roman contends that Rule 44.2(b) of the Texas Rules of Appellate Procedure[1] entitles him to reversal, because Roman claims that we cannot say with fair assurance that harm was absent. We disagree for the reasons previously discussed. B. Roman did not receive ineffective assistance of counsel. Roman asserts that he received ineffective assistance of counsel when his counsel failed to protect his right to understand the trial proceedings. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Code Crim. Proc. Ann art 1.051 (Vernon 2005). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). When reviewing allegations of ineffective assistance of counsel, we apply a two-prong test. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland, 466 U.S. at 687). To satisfy this test and establish ineffective assistance of counsel, an appellant must prove by a preponderance of the evidence that (1) his trial counsel=s representation was deficient in that it fell below an objective standard of reasonableness based on the prevailing professional norms, and (2) there is a reasonable probability that, but for counsel=s deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 688-92. When reviewing Roman=s claim for ineffective assistance of counsel, we apply a strong presumption that the trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We must look to the totality of the representation and the particular facts of each case. Id. Further, we presume that counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Overcoming this presumption requires that Aany allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@ Thompson, 9 S.W.3d at 914. We must first determine whether Roman=s counsel=s performance was so deficient that it fell below the standard of professional norms. Roman asserts that counsel was aware, or should have been aware, that Roman was unable to understand English before the completion of jury selection. However, when asked if his client was able to communicate with him in English, he responded that Roman Awas able to talk with me about his knowledge of the case and his concerns regarding the case.@ Counsel stated that although he had represented Roman for several months, he had no reason to believe that Roman would require an interpreter until after the completion of voir dire. Upon being informed that Roman had some difficulty understanding some of the words spoken during voir dire, Roman=s counsel promptly raised the issue with the court, and requested an interpreter who assisted Roman throughout the remainder of the proceedings. Even if we agreed with Roman and concluded that counsel=s actions did satisfy the first prong of the Strickland test, we cannot conclude that the second prong is satisfied. There is not a reasonable probability that, but for counsel=s deficient performance, the result of the proceeding would have been different. See Strickland, 466 U.S. at 688-92. Any error resulting from the absence of an interpreter until after the conclusion of voir dire was harmless. C. The trial court did not err in declining to grant a mistrial after the jury heard testimony that Roman had previously been in jail. Roman contends that the trial court erred by not granting a mistrial after the jury heard testimony that he had previously been in jail. We disagree. A trial court=s denial of a motion for mistrial is reviewed under an abuse-of-discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) (citing State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993)). The court must consider the particular facts of each case when making the determination of whether to declare a mistrial. Id. We must uphold the trial court=s ruling Aif it was within the zone of reasonable disagreement. Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required.@ Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007) (citations omitted). Almost any improper argument may be cured by an instruction to disregard and will not require a mistrial. See Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995). A trial court may declare a mistrial when the Aerror is so prejudicial that expenditure of further time and expense would be wasteful and futile.@ Ladd, 3 S.W.3d 547 at 567. A mistrial is proper when an impartial verdict cannot be reached, or any verdict reached would have to be reversed on appeal due to a procedural error. Id. (citing Sewell v. State, 696 S.W.2d 559, 560 (Tex. Crim. App. 1983)). In determining whether an improper argument warrants a mistrial, we consider three factors: (1) the severity of the misconduct, (2) any curative measures taken after the misconduct, and (3) the certainty of conviction absent the misconduct. Archie, 221 S.W.3d at 700 (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)). During cross-examination, Roman=s counsel asked Ebelia when she and Roman moved in together, and she responded A[w]hen he got out of jail.@ The trial court denied the motion for a mistrial, but promptly instructed the jury to disregard the remark. In considering the first factor, we note that the reference to jail may have created a negative inference in the mind of the jury. However, the court promptly instructed the jury to disregard Ebelia=s response and not to consider it for any purposes. Roman points to no evidence that the jury failed to follow the instruction to disregard. Regarding the third factor, despite Ebelia=s improper response, substantial evidence supporting a conviction existed, including the unambiguous testimony of E.R., as well as the corroborating testimony of her mother and brother. Accordingly, we hold that the trial court did not abuse its discretion in finding that Ebelia=s response was not so prejudicial that the expenditure of further time and expense would be futile. Based on the foregoing, we affirm the judgment of the trial court. /s/ Jeff Brown Justice Judgment rendered and Memorandum Opinion filed May 22, 2008. Panel consists of Justices Yates, Guzman, and Brown. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Rule 44.2(b) states AAny other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.@ Tex. R. App. P. 44.2(b).