Sanchez v. State

122 S.W.3d 347

Alfredo Martinez SANCHEZ, Appellant, v. The STATE of Texas, Appellee.

No. 06-02-00167-CR.

Court of Appeals of Texas, Texarkana.

Submitted November 12, 2003.

Decided November 20, 2003.

Ebb B. Mobley, Longview, for appellant.

William M. Jennings, Dist. Atty., Renee Gartland, Asst. Dist. Atty., Longview, for state.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice CARTER.

Alfredo Sanchez¹ (hereinafter defendant) appeals his conviction by jury trial of capital murder for shooting and killing his two cousins, Jorge Sanchez and Jose Luis Sanchez. The State waived the death penalty, and the trial court sentenced defendant to life imprisonment. Defendant raises four issues on appeal, arguing the trial court erred in 1) conducting a pretrial hearing in the absence of the defendant, 2) failing to appoint a bi-lingual interpreter in addition to the court's interpreter to assist defendant's trial counsel, 3) giving the jury an instruction concerning illegal possession of a handgun without the qualification that a person may legally possess a handgun while traveling, and 4) refusing to allow the defendant to call the court interpreter as a witness to possible visual coaching of one of the State's witnesses. We affirm the judgment of the trial court.

On the evening of December 24, 2000, members of the extended Sanchez family gathered at 441 South Fredonia in Longview, Texas, for a Christmas Eve dinner. Defendant picked up Emma Sanchez de la Paz (hereinafter Emma Sanchez) at her house in Longview and brought her to the residence on South Fredonia. Defendant had intended to go to his Uncle Javier's house in Liberty City later that night. Defendant and Emma Sanchez went into the house and greeted the family members gathered therein. After greeting the family members amicably, defendant left the residence briefly.

When defendant returned, he had a gun in his hand. At this point, a verbal confrontation may have developed. Several witnesses testified Jose Luis Sanchez told him not to bring the pistol into the house, but no physical confrontation occurred. Defendant testified that his cousins cursed him when he brought the gun into the house and that Jorge Sanchez pushed him out the door. Jorge Sanchez and defendant went outside together. After hearing gunshots from the yard, several family members peered outside and saw Jorge Sanchez lying on the ground. Defendant testified he was shot at before he shot Jorge Sanchez. After he saw Jorge Sanchez lying in the yard, Marco Antonio Sanchez Martinez (hereinafter Marco Sanchez) retrieved a gun from the inside of the house. Marco Sanchez and Jose Luis Sanchez opened the door and stepped outside. Marco Sanchez testified defendant shot at them, and he returned fire. At various points during the exchange of gunfire, Jorge Sanchez and Jose Luis Sanchez were killed, and defendant was wounded in the stomach and the foot.

Police officers, who had been at another residence in the neighborhood, heard the shots and quickly arrived at the scene. The officers discovered the defendant outside near his truck with a pistol and a shotgun. No gun was found near Jorge Sanchez or Jose Luis Sanchez. Another pistol was discovered inside the house.

Right to be Present at Pretrial Hearing

In his first point of error, defendant alleges the trial court violated both his constitutional and statutory rights to be present at a pretrial hearing. The pretrial hearing in question occurred immediately before voir dire. Defendant had not yet arrived in the courtroom. The hearing was held to determine whether the court would appoint an interpreter, other than the witness interpreter, to aid defendant's appointed counsel during trial. The State argues that the hearing did not bear a "reasonably substantial relationship" to defendant's opportunity to defend himself and that he was "voluntarily absent" from the hearing. In the alternative, the State argues that any error was harmless error.

Defendant argues he has a statutory right to be present.² Article 28.01 of the Texas Code of Criminal Procedure requires an accused to be present during any "pre-trial proceeding." Tex.Code Crim. Proc. Ann. art. 28.01 (Vernon 1989). Whether a hearing constitutes a proceeding under Article 28.01 has been considered in several decisions by the Texas Court of Criminal Appeals.³ Adanandus interpreted its earlier decision to require a proceeding to contain "a written order indicating the existence of some type of proceeding leading to the court's conclusion." Adanandus v. State, 866 S.W.2d 210, 218 (Tex.Crim.App.1993). These cases indicate that whether a pretrial hearing is a proceeding requires us to consider whether the proceeding is adversarial in nature, recorded or resulted in a written order, included evidence or argument, and resulted in a conclusion by the court. The hearing at issue concerned whether the court would appoint a second interpreter to aid defense counsel in investigation of the events on which the defendant was charged and to aid counsel in communicating with his client. The hearing was adversarial, transcribed by the court reporter, and led to a conclusion by the court. Further, Article 28.01 includes appointment of an interpreter as a matter on which a pretrial hearing can be held. See Tex.Code Crim. Proc. Ann. art. 28.01 (Vernon 1989). We conclude the hearing was a pretrial proceeding and the defendant's presence was required under Article 28.01. Therefore, the trial court did err in conducting the proceeding without the defendant's presence.

The next step in the analysis is whether the error resulted in harmless error. In our review of nonconstitutional error, we are to disregard errors, defects, irregularities, or variances that do not affect substantial rights of the accused. Tex.R.App. P. 44.2(b). A "substantial right" is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim.App.1997). If, on the record as a whole, it appears the error "did not influence the jury, or had but a slight effect," we must conclude the error was not harmful and allow the conviction to stand. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). Since the only issue at the hearing concerned the appointment of a second interpreter and the defense counsel, to his credit, paid for a second interpreter at his own expense, the error clearly did not have any more than a slight effect. Although the trial court erred in conducting the proceeding outside the presence of the defendant, the error was harmless.

In addition to the right to be present under Article 28.01, defendant has a constitutional right to be present. The Confrontation Clause of the Sixth Amendment creates a constitutional right to be physically present at trial. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). The Texas Court of Criminal Appeals has adopted the "reasonably substantial relationship" test in order to satisfy Fourteenth Amendment due process and Sixth Amendment concerns. Routier v. State, 112 S.W.3d 554, 576 (Tex. Crim.App.2003); Adanandus, 866 S.W.2d at 219. The "reasonably substantial relationship" test focuses on the effect of the error on the advancement of the defendant's defense. Adanandus, 866 S.W.2d at 219. Under the "reasonably substantial relationship" test, the defendant's presence must bear a reasonably substantial relationship to the opportunity to defend. Id. If the defendant's presence would not have furthered the defense, his or her presence does not bear a reasonably substantial relationship to the opportunity to defend. Id. Similar to Adanandus, we cannot "envision how [the defendant's] presence could have furthered his defense," because there is "no evidence that appellant had any information, not available to the attorneys or the court, regarding any of the matters discussed at the meeting." Id. at 220. The trial court had previously made the decision that an interpreter was necessary. The trial court had previously appointed an interpreter, and the only issue raised in this hearing was whether the defendant was entitled to a separate interpreter during the trial to aid his attorney. Because the defendant's presence could not have furthered his defense, his presence did not bear a reasonably substantial relationship to his opportunity to defend. Further, since defense counsel paid a second interpreter out of his own funds and was eventually reimbursed by the court, any error would be harmless beyond a reasonable doubt.

Although defendant's absence violated Article 28.10, the error did not have any more than a slight effect. His absence did not constitute a violation of defendant's constitutional rights under the reasonably substantial relationship test. Even if there was a constitutional error, it was clearly harmless error because we conclude, beyond a reasonable doubt, that it did not affect the outcome of the trial.

Failure to Appoint a Second Bi-Lingual Interpreter

In his second point of error, defendant argues that the failure to appoint an interpreter to aid his attorney, other than the court's interpreter, violates the Confrontation Clause and Effective Assistance of Counsel Clause of the Sixth Amendment. The State contends the right to an interpreter is derived from the Confrontation Clause, which is satisfied by the appointment of a single interpreter. The State argues that Texas statutes only require the appointment of a single interpreter at the discretion of the trial court.

The need for interpreters arose because the defendant and several witnesses could not speak English. Since the appointed defense counsel could not speak Spanish, and no Spanish-speaking investigator was available, an interpreter was needed to aid the defense investigator in communicating with witnesses and the defense counsel in communicating with his client. Terri Cotton,...