Court of Appeals of Texas, First District, Houston
FRANCISCO J. CASTREJON, Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 1, Harris County, Texas. Trial Court Case No. 1787812.
For APPELLANT: Michael S. Driver, Houston, TX.
For STATE: Devon Anderson, District Attorney - Harris County, TX, Houston, TX; Carly Dessauer, Assistant District Attorney, Harris County, Texas, Houston, TX.
Panel consists of Keyes, Higley, and Massengale
Evelyn V. Keyes Justice.
A jury convicted appellant, Francisco J. Castrejon, of the Class B misdemeanor offense of prostitution. The trial court assessed punishment at ten days' confinement in the Harris County Jail and a $500 fine. In one issue, appellant contends that the trial court erroneously admitted a recorded conversation held partly in Spanish and partly in English without proper notice that the State intended to introduce this recording and without a written transcript from a licensed translator.
Specifically, appellant contends that the trial court erred in admitting the recording of a conversation he held partly in Spanish with the arresting officer, Officer G. Das, because, under Texas Rule of Evidence 1009(a), the State was required to give forty-five days' notice that it intended to use the recording as evidence at trial and to submit a contemporaneous written English translation prepared by a certified translator, and the State failed to do so. He also contends that, because of this failure, his defense counsel was unable to request that the trial court appoint an interpreter pursuant to Code of Criminal Procedure article 38.30 to submit a translation of the recording. He further contends that Officer Das was not qualified to render an accurate English translation of the conversation.
Concluding that appellant has misconstrued the law, we affirm.
Houston Police Department (" HPD" ) Vice Division Officer Das was working undercover on Bissonnet Street in southwest Houston on October 17, 2012, in an attempt to combat the prostitution problem in the area. Officer Das posed as a prostitute and maintained a telephone connection with her backup officers underneath her clothing to record any conversations that she had with individuals who propositioned her. Officer Das encountered appellant, who was driving along Bissonnet, and they negotiated payment for a sexual encounter to occur in a nearby parking lot. This conversation was recorded by audio recording. After Officer Das began to walk toward the parking lot and appellant started to follow her in his vehicle, the backup officers arrested appellant. No translation of the recording of the conversation between Officer Das and appellant, which was partly in English and partly in Spanish, was made prior to trial.
Appellant filed a pre-trial motion in limine in which he sought to exclude, among other things, " [a]ny reference to a conversation between persons if such conversation is contained in an audio recording that constitutes the best evidence of the conversation that transpired" and " [a]ny reference or attempt to translate any conversation between persons if such conversation was conducted in a foreign language, in whole or in part, except if such translation has been disclosed by the State, and served upon all parties, at least 45 days prior to the date of trial, upon the affidavit of a qualified translator pursuant to the Rules of Evidence." The trial court denied the first request and allowed the State to reference the conversation between Officer Das and appellant, but it granted the second request and required
the State to approach the bench before it discussed the audio recording of this conversation or attempted to translate it.
At trial, Officer Das testified that she is able to communicate with suspects who speak only Spanish. She testified that she has experience taking police reports in Spanish and questioning witnesses in Spanish and that, over the course of her twenty-year career in the Vice Division, she has dealt with Spanish-speaking suspects " quite frequently." She also stated that she has taken Spanish classes through HPD, and she characterized the type of Spanish that she speaks as " street Spanish," which is what many suspects who solicit prostitutes speak. Officer Das acknowledged that she is not fluent in Spanish, but she is " comfortable" speaking it, she is able to " get [her] point across and [she] can understand what people are saying to [her]" in Spanish.
Officer Das testified that she was walking along Bissonnet when appellant drove by in his car, " slowed his car down considerably," made eye contact with her, pulled into the next driveway, and parked his car in the parking lot. Appellant maintained eye contact with Officer Das, so she decided to approach his car. Officer Das testified that appellant called out to her in Spanish.
After the prosecutor asked Officer Das what happened next, defense counsel objected and asked to approach the bench. He argued that any answer to this question would " necessarily involve the witness' translation of a conversation that took place in a foreign language," and he renewed his objection from his motion in limine to any reference to or attempt to translate any conversation in a foreign language because " [t]here is no certified interpreter that is present here today" and " [n]one has been disclosed to defense counsel." The trial court asked whether Officer Das was the one who had the conversation in Spanish with appellant, and, after the State responded that she was, the court overruled defense counsel's objection and allowed Officer Das to testify concerning the conversation.
Officer Das then testified that she and appellant exchanged pleasantries in Spanish, and she stated, in Spanish, what they said to one another. She stated that she informed appellant that she had a hotel room and that he asked her " how much?" She testified that she asked, " For what?" and she then stated the English translation for the two sex acts that she had offered to perform. She then specifically stated the Spanish words that she had used in the conversation with appellant and their English translations for the jury. She testified that appellant indicated, in Spanish, that he wished to have sexual intercourse with her, and she told him, also in Spanish, that that would cost $15. He repeated " fifteen" twice more during the course of their conversation. Appellant then suggested that they go to a nearby parking lot instead of a hotel room.
The State asked Officer Das whether an audio recording existed of this conversation, whether the recording was " in line with" Das' testimony, and whether the recording was in English or Spanish. Officer Das affirmed that there was an audio recording and agreed that the recording was " in line with the verbal part of [their] conversation" and that the recording contained both English and Spanish. The State then offered the recording into evidence. The following exchange occurred:
[Defense counsel]: Judge, we renew our objection based on the Motion in Limine that any audio that is admitted into evidence without the proper certified interpreter would be a violation of not only Texas Rules of Evidence but my client's rights to confrontation.
The Court: Okay. And you are not offering a transcript?
[The State]: No, Your Honor.
The Court: Simply the audio and her testimony regarding it; is that correct?
[The State]: That's correct, Judge.
The Court: Your objection will be overruled.
No written English translation of the Spanish part of the audio recording was offered into evidence. The recording was not played for the jury at that time. Defense counsel did not object to admission of the recording on the basis that the State failed to give forty-five days' notice of its intent to introduce the recording, and he did not object on the basis that no English translation of the Spanish on the recording was offered; nor did he seek a continuance so that the ...