DO NOT PUBLISH. TEX.R.APP. P. 47
OPINION ON REMAND
Opinion By Justice O'NEILL.
Appellant Jose Carmen Saavedra pleaded not guilty to aggravated sexual assault of a child by contact of his penis with the child's mouth. The jury found him guilty and sentenced him to twelve years' confinement. In our original opinion
The Texas Court of Criminal Appeals granted the State's petition to address the split of authority. It reversed our ruling and adopted the "language conduit rule," which allows an officer to testify to an interpreter's translation if certain requirements are met. It remanded the case back to this court to consider appellant's complaints in light of its opinion. See Saavedra v. State, 297 S.W.3d 342, 343 (Tex. Crim. App. 2009).
After rebriefing, appellant argues that even if we apply the "language conduit rule," the State failed to meet the four factors for admission of the officer's statements, and the admission of the testimony was harmful error. In his second issue, he asserts the evidence is factually insufficient to support his conviction. We reverse the trial court's judgment and remand for a new trial.
In September 2003 complainant and her mother got into an argument because complainant missed her curfew. After complainant's mother slapped her, she left and walked to her aunt's house. Her mother called the police and reported her as a runaway. When the police arrived at the aunt's house, complainant told Officer Kevin Burkleo she did not want to go home because appellant, her step-father, had molested her. She alleged the abuse began when she was about six years old and continued until she was twelve.
After the outcry, the Irving police arranged a meeting with appellant. Through an interpreter, Jaime Casas, Detective James Sears informed appellant of the allegations. Appellant admitted to the interpreter he may have accidentally touched complainant inappropriately, but he denied forcing her to perform oral sex. Detective Sears testified at trial to what the interpreter told him. Complainant later recanted the allegations at trial and denied appellant forced her to perform oral sex. She admitted she did not want to testify because she was worried her younger sisters would grow up without a father. Her mother also testified she did not believe the allegations, and appellant never admitted the abuse to her.
Several witnesses testified for the State to impeach the mother's credibility; however, the trial court instructed the jury such testimony was not to be considered for the truth of the matter asserted-that appellant abused complainant. The jury also heard testimony from Officer Burkleo regarding complainant's outcry statement on the night she ran away. The jury found appellant guilty and sentenced him to twelve years' confinement. This appeal followed.
In his first issue, appellant contends the trial court abused its discretion by allowing Detective Sears to testify that appellant admitted to a Spanish interpreter he sexually abused complainant. He argues that after applying the "language conduit" factors, the testimony is inadmissible hearsay. The State responds the interpreter acted as the language conduit for appellant and his statements, through Detective Sears, should be admissible.
In Saavedra v. State, the Texas Court of Criminal Appeals determined if a party makes an interpreter his agent to communicate-whether by authorizing the interpreter to translate a statement for him concerning a specific subject, or by designating the interpreter as his agent for purposes of translating a specific statement-the translation rendered by the agent does not append a layer of objectionable hearsay upon the parties' otherwise admissible out-of-court assertion. 247 S.W.3d 342, 346. In determining whether a defendant has adopted an interpreter as his agent, we consider the following factors: (1) who supplied the interpreter; (2) whether the interpreter had any motive to mislead or distort; (3) the interpreter's qualifications and language skills; and (4) whether actions taken subsequent to the translated statement were consistent with the statement as translated. Id. at 348.
After taking these factors into account, if the State can demonstrate to the satisfaction of the trial court the party authorized the interpreter to speak for him on a particular occasion or otherwise adopted the interpreter as his agent for purposes of translation, then the out-of-court translation may be properly admitted under Texas Rules of Evidence 801(e)(2)(C) or (D). Id. at 349. If the trial court is not satisfied, it should sustain the hearsay objection. Id.
Who Supplied the Interpreter
It is undisputed the State provided the interpreter, Jaime Casas. He worked as a records clerk for the police department and did not have any other job duties or functions within the department. The State relies on federal case law to argue that just because the police supplied the interpreter, it does not necessarily prevent the interpreter from acting as the declarant's agent. It further claims "the inquiry in this case is whether appellant understood Casas's role and whether he spoke freely through Casas." The State then argues because appellant freely talked to Casas and never argued he was forced to use him as an interpreter, this factor weighs in its favor that Casas acted as appellant's language conduit. We cannot agree.
When analyzing the first factor, the Texas Court of Criminal Appeals simply held courts should look to who provided the interpreter. It did not conclude courts should see who provided the interpreter and if the State provided him, then we should delve further and determine if the appellant understood the interpreter's role.
The only two published cases discussing the language conduit rule provided the split in authority the court of criminal appeals addressed. See Gomez v. State, 49 S.W.3d 456, 458 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd); Cassidy v. State, 149 S.W.3d 712, 715 (Tex. App.-Austin 2004, pet. ref'd). Although both appellate courts ultimately held the interpreter acted as a language conduit for purposes of the hearsay rule, the facts of these two cases are easily distinguishable from appellant's situation.
In Gomez, the interpreter testified. Further, he was not supplied by either party but rather approached the appellant and took on the role as interpreter when explaining the accident scene to police. Gomez, 49 S.W.3d at 459. In Cassidy, the interpreter was also not provided by either party but was a friend visiting an accident victim when the police arrived for an interview. Cassidy, 149 S.W.3d at 715.
As previously stated, our facts are easily distinguishable. Casas did not testify. Further, it is undisputed the State provided him as the interpreter for appellant.
We decline the State's request to rely on federal case law to determine what the court of criminal appeals may have intended when analyzing facts for who provided the interpreter. Thus, after following their simple instruction to look to who provided the interpreter, we conclude this factor weighs against admission of Detective Sears's testimony.
Whether the Interpreter had Any Motive to Mislead or Distort
The record does not contain any direct evidence of a motive for Casas to mislead or distort his translations. While we could infer that by working for the State Casas had an interest in the State prosecuting appellant and might be inclined to mislead or distort his translations, we decline to make this inference. Thus, we conclude this factor is neutral and weighs neither for nor against Casas being a language conduit for appellant.
Interpreter's Qualifications and Language Skills
Detective Sears testified that to his knowledge, Casas was not a certified interpreter, but just somebody that speaks Spanish within the department. When asked if he knew Casas's background, training, or education, Detective Sears responded, "He was raised — actually, he's from Mexico and was raised in the valley and came up here, applied and worked for us, and I don't know if he — I can't say if he's been through the — the testing to be a recognized interpreter for our department, but he's one we normally use." He could provide no other specifics about background, training, or education but "he's on our list of ones to use."
In Gomez, there was no formalized evidence offered regarding the interpreter's proficiency in Spanish; however, the interpreter testified he conversed with the appellant only in Spanish. 49 S.W.3d at 460. Further, the evidence showed he possessed enough fluency to carry on conversations with the appellant on two separate occasions. Id. In Cassidy, the officer testified he believed the witness was fluent for purposes of translation. 149 S.W.3d at 715-16. Under our facts, Casas did not testify and Detective Sears was unsure about Casas's proficiency in Spanish. Thus, we findGomez and Cassidy distinguishable.
We acknowledge Detective Sears testified Casas had to go through some kind of testing with the department before getting on "the list"; however, he could not provide any specifics about the testing or how a person got on the list. He also could not say with certainty if Casas knew how to translate properly. It is the State's burden, as the proponent of the out-of-court statements to prove Casas acted as an agent or language conduit. Thus, when the State decided not to call Casas as a witness, it should have in the very least prepared Detective Sears to testify more specifically about Casas's background, the department's required credentials for using a particular interpreter, and how a person gets on "the list." Based on the facts before us, we conclude this factor weighs against the State.
Whether Actions Taken Subsequent to the Translated Statement were Consistent with the Statement as Translated
The final factor in determining whether Casas acted as appellant's agent or language conduit for purposes of the hearsay rule is whether actions taken subsequent to the translated statement were consistent with the statement as translated. Appellant relies on U.S. v. Martinez-Gaytan from the Fifth Circuit Court of Appeals. U.S. v. Martin-Gaytan, 213 F.3d 890 (5th Cir. 2000). In that case, the appellant expressly refused to sign any written confession despite having just confessed to an interpreter. Id. at 893. The court concluded the fourth factor weighed against the State.
Here, appellant argues by not returning at a later date to provide and sign a formal written statement, his actions show he did not adopt the interpreter's translation. The State responds appellant did not expressly refuse to give a formal statement as in Martin-Gaytan, but rather did not honor his agreement to return at a later date.
Under these facts, we cannot conclude appellant's failure to return to the station implies he accepted the original translation. However, we also cannot conclude his failure to return resulted in an implied refusal to accept Casas as his language conduit. Therefore, this factor is neutral.
Although it does not appear one factor is either necessary or sufficient to establish an interpreter acted as a language conduit, the factors are related and must be considered together. See Saavedra, 297 S.W.3d at 349 (noting factors go directly to whether appellant authorized interpreter to speak on his behalf and the ultimate reliability of the statement). After analyzing the four factors, the State failed to meet its burden, as the proponent of the out-of-court translations, that Jaime Casas acted as appellant's language conduit. Nothing shows appellant authorized Casas to speak for him or that Casas was a reliable translator, core considerations in fashioning an exception to the hearsay rule. Id. Thus, Detective Sears's testimony was not properly admitted as a hearsay exception under rules of evidence 801(e)(2)(C) or 801(e)(2)(D). See Tex. R. Evid. 801(e)(2)(C), (D). The trial court abused its discretion in admitting his testimony.
Having again found error in admission of the evidence, our harm analysis from our original opinion remains unchanged. See Saavedra v. State, 05-06-01450-CR, 2008 WL 44471, * 2-3 (Tex. App.-Dallas 2008), rev'd, 297 S.W.3d 342 (Tex. Crim. App. 2009). However, because the court of criminal appeals vacated our original judgment, we repeat the analysis below.
Having found error, we must now determine if admission of the hearsay harmed appellant. Admission of inadmissible hearsay constitutes non-constitutional error. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
Error in the admission of evidence is generally deemed harmless if the same or similar evidence is subsequently introduced without objection. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).
Here, Detective Sears testified, over objection, that appellant admitted to the interpreter that one time he accidentally came up from behind, and while in a hug, rubbed complainant's breast and vagina. He also admitted to another incident when he touched her over her underwear beside her vagina. Appellant denied the oral sex allegations.
Despite the State's repeated coaxing, complainant was an unwilling witness at trial and denied she performed oral sex on appellant. Complainant's mother likewise testified she did not believe her daughter's accusations because "she lies a lot." She further denied ever telling anyone appellant confessed to her regarding the allegations.
The State put on several witnesses who claimed the mother told them appellant confessed to her about the abuse. The State acknowledges the trial court instructed the jury this testimony was for impeachment purposes only and was not to be considered for the truth of the matter asserted. However, the State contends the same evidence came in without objection through Cindy Irwin, the CPS supervisor. The State argues appellant objected to Irwin's testimony as hearsay, but failed to request a limiting instruction regarding impeachment. Because appellant failed to make this request, the State claims her testimony was admitted for all purposes; therefore, the jury heard substantially the same evidence about appellant's confession. Thus, any error in admitting Detective Sear's testimony regarding appellant's confession to the interpreter was harmless.
We cannot agree with the State's conclusions. First, Irwin's testimony was not admitted for all purposes. Texas Rule of Evidence 105 states when evidence is admissible for one purpose but not admissible for another purpose, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Tex. R. Evid. 105. The party opposing the evidence has the burden of requesting the limiting instruction at the introduction of the evidence. Martin v. State, 176 S.W.3d 887, 899 (Tex. App.-Fort Worth 2005, no pet.). Once evidence is received without a limiting instruction, it becomes part of the general evidence and may be used for all purposes. Id.
Appellant objected to Irwin's testimony as hearsay, and the trial court overruled the objection. The court then stated "[t]his is for impeachment. . . . So I overrule the objection for impeachment purposes." We conclude appellant was not required to request a further limiting instruction because in light of the record as a whole and the trial court's prior instructions, the statement adequately informed the jury the testimony should be considered for impeachment only and not for the truth of the matter asserted. Thus, the State's argument that Irwin's testimony was admitted for all purposes is without merit.
Although admission of evidence is harmless if the same or similar evidence is subsequently introduced without objection, the record is void of any properly admitted evidence regarding whether appellant confessed to anyone else that he committed the abuse. Although Officer Burkleo testified complainant admitted to him the abuse happened, we cannot conclude the outcry of a complainant, who recanted her statement at trial, is the same or similar evidence as a confession to a police officer. We recognize appellant did not confess to the oral sex allegations to the interpreter; however, the jury heard testimony from Detective Sears that it is typical for a defendant to minimize his actions when talking to police. "You're saying part of it, but you're not saying all of it. You're saying what makes you seem a little more innocent."
The State also relied heavily on appellant's confession during closing argument. The prosecutor argued ". . . and you know [complainant's] telling the truth about all those things because of what the defendant told the detective." He further argued "[w]hat do defendants do when they're talking about the crimes they commit? They minimize. They do. . . . This man minimized the entire thing because that's what defendants do when they are finally confronted with what they did." The State further emphasized the specific instances of inappropriate contact appellant admitted to and told the jury it could consider them in determining guilt.
Essentially, the jury had before it an uncooperative complainant who denied appellant forced her to perform oral sex, a mother who did not believe her daughter's allegations, and Detective Sears's improperly admitted hearsay testimony regarding an alleged confession to an interpreter. The only evidence of guilt before the jury was the alleged outcry statement to Officer Burkleo. Consequently, the hearsay evidence and argument therefrom, that appellant allegedly admitted he inappropriately touched complainant and minimized the mouth-to-penis offense, likely influenced the jury. Therefore, after examining the record as a whole, we do not have fair assurance the hearsay testimony had but a slight effect.
We sustain appellant's first issue and reverse the judgment of the trial court and remand for a new trial. Having sustained appellant's first issue, we need not consider his factual sufficiency argument. Tex. R. App. P. 47.1.