Date: 09-25-2020

Case Style:

Case Number: 02-19-00046-CR

Judge: Lee Gabriel

Court: Court of Appeals Second Appellate District of Texas at Fort Worth

Plaintiff's Attorney: Joseph W. Spence

Defendant's Attorney:

Description: Fort Worth, TX - criminal defense attorney, Continuous Sexual Abuse of Young Child or Children


Because Zurita does not challenge the sufficiency of the evidence to support
his CSA conviction, a detailed recitation of the facts is not necessary. For now, it is
enough to state that Zurita was indicted with the CSA of his stepdaughter, Darla
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Grant,
1 occurring between April 9, 2014, and January 23, 2018, when Darla was
between the ages of 10 and 13. Darla finally reported the abuse to her friend Arnold
Smith because she was afraid Zurita would begin to sexually abuse her younger sister.
Arnold told his school counselor, who reported Darla’s outcry to the police.
Detective Tony Miller began investigating Darla’s outcry and discovered that Zurita
did not have a driver’s license. Miller told Officer Joshua Oliver, who located Zurita
and pulled him over after seeing Zurita fail to signal a left turn. Oliver arrested him
for driving without a license after Zurita was unable to produce one.
Miller made arrangements for a Spanish interpreter—Detective Jose Trevino—
to be present during his interview with Zurita the next day. Trevino was not a statecertified interpreter but he had been certified by the police department based on
written and oral exams and had previously served as a translator for police interviews
more than 100 times. Trevino handed Zurita a written copy of the statutorily required
warnings in Spanish. See Tex. Code Crim. Proc. Ann. art. 38.22, §§ 2(a), 3(a)(2).
Trevino also read the warnings to Zurita in Spanish. After each warning, Zurita said
either “okay” or “uh-huh.” Zurita then signed the warnings and agreed to speak with
Miller. Based on Zurita’s behavior during the interview, Miller and Trevino believed
that Zurita understood the warnings and had voluntarily waived his rights. During the
1We refer to the complainant and her friend by aliases. See Tex. R. App. P. 9.8
cmt., 9.10.
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interview, Zurita admitted that he had penetrated Darla’s anus with his finger, causing
him to ejaculate. Eventually, Zurita ended the interview.
Before trial, Zurita filed a motion to suppress his oral statements based on the
“erroneous and illegal” Spanish warnings that Trevino gave Zurita. He also objected
to the admission of his statement through Trevino’s testimony, arguing that the
testimony would be inadmissible hearsay because Zurita had not designated Trevino
as his agent or language conduit for translation purposes. The trial court held a
pretrial evidentiary hearing on the motion and the objection. See id. art. 38.22, § 6.
Miller and Trevino testified to the circumstances surrounding the interview. Zurita
called a certified interpreter, Josea Carmona, to testify to the alleged inaccuracies in
the Spanish translation of the statutory warnings that Trevino had given and read to
Zurita: “This is a confused document because[] in the way it’s written . . ., I will say
it’s broken Spanish.” Carmona also testified, however, that the video from the
interview showed that Zurita never appeared to be confused or unable to understand
Trevino.
The trial court denied the motion to suppress at the conclusion of the hearing
and later signed written findings of fact and conclusions of law. See id. The trial court
found that Zurita’s election to end the interview “indicat[ed] that he did understand
his rights” and concluded that the “objective facts” revealed that the written and oral
warnings Trevino gave to Zurita “substantially complied” with the statutory
requirements even though the warnings used “words that have different meanings [in
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Spanish] when taken out of context.” The trial court also overruled Zurita’s hearsay
objection to Trevino’s proposed testimony about Zurita’s statement. Accordingly, the
State admitted Zurita’s oral statements to Miller through Trevino’s trial testimony. A
jury, after hearing this evidence as well as Darla’s and others’ testimony, found Zurita
guilty of CSA and assessed his punishment at 43 years’ confinement.
Now on appeal, Zurita attacks the denial of his motion to suppress and the
admission of his statement on two grounds:
• The Spanish warnings were not the effective equivalent of the statutorily
mandated warnings, rendering his waiver unknowing, unintelligent, and
involuntary.
• Zurita did not authorize Trevino to speak for him or adopt Trevino as his
agent for purposes of translating his statements to Miller; thus, Trevino’s outof-court translation was inadmissible hearsay.
Zurita also argues that the trial court abused its discretion by refusing to submit three
issues to the jury:
• Whether Zurita’s statement was voluntarily made, see id.;
• Whether the statutory warnings as given in Spanish were adequate, see id. art.
38.22, § 7; and
• Whether the statement was obtained in violation of Zurita’s constitutional
rights and must be disregarded, see id. art. 38.23(a).
II. ADMISSION OF CUSTODIAL STATEMENT
A. SUPPRESSION RULING
Article 38.22 provides that no oral statement of the accused made as a result of
custodial interrogation shall be admissible against the accused in a criminal proceeding
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unless (1) the statement was recorded and (2) before the statement but during the
recording, the accused was warned of his rights and knowingly, intelligently, and
voluntarily waived those rights. Joseph v. State, 309 S.W.3d 20, 23–24 (Tex. Crim. App.
2010) (citing Tex. Code Crim. Proc. Ann. art. 38.22, § 3). The warnings must inform
the accused that
(1) he has the right to remain silent and not make any statement at all
and that any statement he makes may be used against him at his trial;
(2) any statement he makes may be used as evidence against him in
court;
(3) he has the right to have a lawyer present to advise him prior to
and during any questioning;
(4) if he is unable to employ a lawyer, he has the right to have a
lawyer appointed to advise him prior to and during any questioning; and
(5) he has the right to terminate the interview at any time.
Tex. Code Crim. Proc. Ann. art. 38.22, § 2(a). Regarding oral statements, the
warnings given to the accused are effective even if not given verbatim, so long as they
convey the “fully effective equivalent” of the statutory warnings. Id. art. 38.22,
§ 3(e)(2); see Florida v. Powell, 559 U.S. 50, 60 (2010). A warning that conveys the
precise meaning of the statutory warning, even if given in slightly different language, is
sufficient to comply with the statute. See Eddlemon v. State, 591 S.W.2d 847, 850 (Tex.
Crim. App. [Panel Op.] 1979); Rutherford v. State, 129 S.W.3d 221, 224 (Tex. App.—
Dallas 2004, no pet.). Although a total failure to administer one of the warnings is
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reversible error, an incomplete or incorrect warning may be sufficient for purposes of
effective equivalence. See Rutherford, 129 S.W.3d at 224.
Carmona testified that based on his translation of the Spanish warnings
Trevino gave2
and read to Zurita, Zurita effectively was warned as follows:
(1) You have the right to stay quiet and not to make any statement in
everything, and any statement you make can be utilized against you in
your essay/rehearsal.
(2) Any statement you do can be utilized as evidence against you in
the tribunal.
(3) You have one right to have an attorney present to advise you
before of and during any interrogatory.
(4) If you can not obtain an attorney, you have the right to have an
attorney did nominate to advice you before of and during any
interrogatory.
(5) You have the right to finish this interview at any moment.
Regarding the fourth warning, Carmona testified that the word designó meant
nominate instead of appoint. Trevino testified that when he read the fourth warning
to Zurita, he pronounced designó as designo, which would mean a designated attorney.
The trial court found that designó “would indicate that an attorney can be ‘nominated’”
instead of appointed but that Trevino’s pronunciation meant “to appoint or
designate” an attorney. Regarding the first warning, Carmona testified that ensayo
2Zurita does not argue on appeal that he was unable to read the Spanish
warnings that Trevino handed to him. Indeed, he initialed each Spanish warning,
indicating that he understood them.
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meant “essay/rehearsal” instead of trial. Trevino recognized that ensayo translates into
several words but averred that in the context of the given warning, ensayo meant a trial
or judgment. The trial court found that ensayo could mean trial, judgment, hearing,
essay, rehearsal, or test. Even with these discrepancies, the trial court concluded that
the warnings Trevino gave to Zurita substantially complied with the Article 38.22
requirements and denied the motion to suppress. And the trial court concluded that
Zurita’s waiver was knowing and voluntary, partially based on the trial court’s finding
that Zurita exercised his right to end the interview.
We review the trial court’s denial of Zurita’s motion to suppress under a
bifurcated standard of review, conferring almost total deference on any historical-fact
and application-of-law-to-fact questions that turn on an evaluation of credibility and
demeanor and reviewing de novo application-of-law-to-fact questions that do not turn
on credibility and demeanor. See Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim.
App. 2007). When the trial court makes explicit fact findings, we determine whether
the evidence, when viewed in the light most favorable to the trial court’s ruling,
supports those fact findings. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007);
State v. Kelly, 204 S.W.3d 808, 818–19 (Tex. Crim. App. 2006).
On appeal, Zurita points to the alleged incorrect use of designó and ensayo in
support of his suppression argument; however, he also argues that the warnings as a
whole were not the effective equivalent of the statutory warnings. But the warnings
given, while not a word-for-word identical translation of the statutory warnings, were
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an effective equivalent when viewed in the context in which they were given. See, e.g.,
Bible v. State, 162 S.W.3d 234, 240–41 (Tex. Crim. App. 2005); Hernandez v. State,
No. 05-17-00560-CR, 2018 WL 2316026, at *10 (Tex. App.—Dallas May 22, 2018,
pet. ref’d) (mem. op., not designated for publication); Hernandez v. State, 533 S.W.3d
472, 480 (Tex. App.—Corpus Christi–Edinburg 2017, pet. ref’d); Cervantes-Guervara v.
State, 532 S.W.3d 827, 836–37 (Tex. App.—Houston [14th Dist.] 2017, no pet.);
Galvan-Cerna v. State, 509 S.W.3d 398, 408–09 (Tex. App.—Houston [1st Dist.] 2014,
no pet.); Garner v. State, No. 02-12-00052-CR, 2014 WL 2538804, at *4 (Tex. App.—
Fort Worth June 5, 2014, no pet.) (mem. op., not designated for publication);
McGowan v. State, No. 12-12-00056-CR, 2013 WL 1143240, at *3–4 (Tex. App.—Tyler
Mar. 20, 2013, no pet.) (mem. op., not designated for publication); Rutherford,
129 S.W.3d at 225–26. Although we recognize that the best practice would be to
follow the statutory warnings exactly with no variance, the effect of the translation
variances here were issues of fact that were determined adverse to Zurita’s argument,
and we conclude that the evidence and the law supported the trial court’s findings and
conclusions on this issue. See Galvan-Cerna, 509 S.W.3d at 409; Garner, 2014 WL
2538804, at *4. As the trial court stated at the hearing, the given warnings were
“correct enough to comply with the law.”
Zurita also contends that the State failed to prove by a preponderance that
Zurita knowingly, intelligently, and voluntarily waived his rights. This argument is
premised on his challenge to the sufficiency of the warnings. We have determined
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that the warnings given were the effective equivalent of the statutory warnings. And
as Trevino and Miller testified, Carmona recognized, and the trial court concluded, the
totality of the circumstances surrounding Zurita’s statement reflected that he
understood the warnings (later evidenced by his choice to end the interview), did not
appear to be confused, and voluntarily waived his rights. Viewing the evidence
through the appropriate deferential prism, we conclude the trial court did not abuse
its discretion or err by determining that Zurita’s waiver was voluntary. See Eddlemon,
591 S.W.2d at 850; Randle v. State, 89 S.W.3d 839, 842–43 (Tex. App.—Houston [1st
Dist.] 2002, pet. ref’d).
B. HEARSAY RULING
Zurita additionally argues that the trial court abused its discretion by admitting
his translated, oral custodial statement through Trevino’s testimony. Before trial,
Zurita objected to Trevino’s proposed testimony on the basis of hearsay because
Zurita did not authorize Trevino to speak for him or adopt Trevino as his agent for
the purposes of the translation. See Tex. R. Evid. 801(e)(2)(C)–(D). Zurita argues that
because neither of these qualifiers applies, Trevino’s testimony was hearsay and, thus,
was inadmissible. See Tex. R. Evid. 802. The trial court ruled that the statement was
not hearsay, overruled Zurita’s hearsay objection, and allowed Trevino to testify at
trial, which we review for an abuse of discretion. See Saavedra v. State, 297 S.W.3d 342,
349 (Tex. Crim. App. 2009).
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To determine whether a translated out-of-court statement is admissible through
an interpreter’s testimony under Rule 801(e)(2)(C)–(D), a court is to consider (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 after the translated statement were consistent with the statement as translated.
Id. at 348–49. Under these interrelated factors, if the State can show that Zurita
authorized Trevino to speak for him on the particular occasion, or otherwise adopted
Trevino as his agent for translation purposes, then the out-of-court translation may be
admitted over a hearsay objection. See id. at 349.
First, it is undisputed that the State provided Trevino as the interpreter for
Zurita’s interview with Miller. Thus, this factor weighs in favor of exclusion. See
Palomo v. State, No. 06-14-00076-CR, 2015 WL 1546148, at *4 (Tex. App.—Texarkana
Apr. 1, 2015, pet. ref’d) (mem. op., not designated for publication); Saavedra v. State,
No. 05-06-01450-CR, 2010 WL 2028111, at *3 (Tex. App.—Dallas May 24, 2010, no
pet.) (not designated for publication) (op. on remand).
Second, nothing in the record shows that Trevino had a motive to mislead or
distort Zurita’s answers. Trevino was not involved in the investigation of Darla’s
outcry or in Zurita’s arrest, and he testified that he accurately translated Miller’s
questions and Zurita’s answers. This factor weighs in favor of admissibility. See
Guillen-Hernandez v. State, Nos. 01-18-00461-CR, 01-18-00462-CR, 2019 WL 2750597,
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at *5 (Tex. App.—Houston [1st Dist.] July 2, 2019, no pet.) (mem. op., not designated
for publication); Palomo, 2015 WL 1546148, at *4.
Third, Trevino grew up in a bilingual family and speaks Spanish daily. He was
exam certified by the police department to translate and has done so more than 100
times. This factor weighs in favor of admissibility. See Diaz v. State, No. 08-07-00323-
CR, 2010 WL 109703, at *8 (Tex. App.—El Paso Jan. 13, 2010, pet. dism’d, untimely
filed) (not designated for publication); Driver v. State, No. 01-07-00386-CR, 2009 WL
276539, at *6 (Tex. App.—Houston [1st Dist.] Feb. 5, 2009, pet. ref’d) (not
designated for publication).
Fourth, Darla testified at trial and affirmed that Zurita had penetrated her anus
with his sexual organ many times, causing him to ejaculate, which was similar to
Zurita’s inculpatory statement to Miller. The sexual-assault nurse examiner who
interviewed Darla after her outcry testified that Darla had told her that Zurita had
penetrated her anus with his sexual organ and with his finger and that she had “felt
wet on my butt before.” This subsequent testimony was consistent with Zurita’s
statement and indicates that the translation was reliable. This factor weighs in favor
of admissibility. See Guillen-Hernandez, 2019 WL 2750597, at *5; Palomo, 2015 WL
1546148, at *4; Trevizo v. State, No. 08-12-0063-CR, 2014 WL 260591, at *6 (Tex.
App.—El Paso Jan. 22, 2014, no pet.) (not designated for publication).
After reviewing the Saavedra factors—three of which weigh in favor of
reliability and admissibility—we conclude that the trial court could have found that
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Trevino was acting as Zurita’s agent or language conduit during the interview with
Miller and, thus, that the statement was not hearsay. See Guillen-Hernandez, 2019 WL
2750597, at *6. Accordingly, it was within the trial court’s discretion to admit
Trevino’s testimony about Zurita’s translated statement to Miller. See, e.g., Driver,
2009 WL 276539, at *6.
III. JURY INSTRUCTIONS
Zurita next contends that the trial court erred when it refused his requests to
submit the voluntariness issue to the jury based on the insufficiency of the given
warnings and to instruct the jury that they should disregard Zurita’s statement to
Miller because it was involuntary. See Tex. Code Crim. Proc. Ann. art. 38.22, §§ 6–7,
art. 38.23(a).
The first instruction Zurita requested was a “general” voluntariness instruction,
which would have asked the jury whether Zurita’s statement was voluntary. See id.
art. 38.22, § 6; Oursbourn v. State, 259 S.W.3d 159, 173 (Tex. Crim. App. 2008). Such
an instruction is to be submitted in the charge if a reasonable jury, viewing the totality
of the circumstances, could have found that the accused’s statement was involuntary.
Vasquez v. State, 225 S.W.3d 541, 544–45 (Tex. Crim. App. 2007). But this instruction
is not meant to address complaints about the insufficiency or defectiveness of the
given statutory warnings. See Oursbourn, 259 S.W.3d at 175. This instruction is meant
to address mental or physical conditions affecting voluntariness such as sickness,
intoxication, or mental disability, not issues regarding the statutory warnings
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themselves. See id. at 176; Smith v. State, 532 S.W.3d 839, 843 (Tex. App.—Amarillo
2017, no pet.). Voluntariness in this respect was never raised in the trial court,
removing this instruction from the law applicable to the case that the trial court was
required to submit to the jury. See Tex. Code Crim. Proc. Ann. art. 36.14; Oursbourn,
259 S.W.3d at 175–76, 180; see also Butler v. State, No. 02-17-00171-CR, 2018 WL
2343653, at *5 (Tex. App.—Fort Worth May 24, 2018, no pet.) (mem. op., not
designated for publication); Little v. State, No. 04-14-00618-CR, 2015 WL 5838082, at
*2 (Tex. App.—San Antonio Oct. 7, 2015, no pet.) (mem. op., not designated for
publication). The trial court did not err by failing to instruct the jury on an issue that
was not the law applicable to the case.
Zurita also unsuccessfully requested a “specific” voluntariness instruction
regarding whether the police had complied with the statutory-warnings requirement
such that his statement was voluntary. See Tex. Code Crim. Proc. Ann. art. 38.22, § 7.
To be entitled to such an instruction, the affirmative evidence must have raised a
genuine factual dispute regarding whether Zurita was adequately warned of his rights
and thereafter was able to knowingly and intelligently waive them. See Oursbourn,
259 S.W.3d at 176–77; Hailey v. State, 413 S.W.3d 457, 496 (Tex. App.—Fort Worth
2012, pet. ref’d). Here, Trevino reviewed each warning with Zurita, and Zurita
initialed and responded that he understood each warning. Zurita gave no indication
that he did not understand the warnings. Carmona reviewed the interview video and
agreed that there was no indication that Zurita was confused or did not understand
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the rights read to him. Because the dispute Zurita raised was whether the given
warnings were the essential equivalent of the statutory warnings—not what warnings
were actually given—a genuine fact issue under Article 38.22, Section 7 was not
raised. See Little, 2015 WL 5838082, at *3. Thus, the question of the adequacy of the
given warnings was a question of law for the trial court to decide, and Zurita was not
entitled to the requested instruction. See Oursbourn, 259 S.W.3d at 177–78; Little, 2015
WL 5838082, at *3.
Finally, Zurita asserts that the trial court should have instructed the jury to
disregard his statement if the jury believed that the statement was obtained in
violation of due process. See Tex. Code Crim. Proc. Ann. art. 38.23(a). As with
Article 38.22, Section 7, a genuine, disputed fact issue must be raised by the
affirmative evidence to trigger the applicability of an Article 38.23 instruction. See
Hernandez, 533 S.W.3d at 481–82 (citing Madden v. State, 242 S.W.3d 504, 510 (Tex.
Crim. App. 2007)). As the State points out, there were no contested issues regarding
the specific facts and circumstances surrounding Zurita’s interview. As such, Zurita
was not entitled to the requested instruction. See id. at 482–83; Smith, 532 S.W.3d at
843–44; Dede v. State, No. 14-15-00772-CR, 2018 WL 1278731, at *17 (Tex. App.—
Houston [14th Dist.] Mar. 13, 2018, pet. ref’d) (mem. op., not designated for
publication).

Outcome: We conclude that the Spanish warnings given to Zurita were the effective
equivalent of the required statutory warnings; thus, his ensuing inculpatory statement
to Miller was not rendered involuntary. Trevino’s testimony about Zurita’s statement
to Miller was not hearsay because the evidence showed that Trevino acted as Zurita’s
agent during the interview. Finally, the trial court did not err by refusing Zurita’s
requested instructions because they were either not the law applicable to the case or
because the affirmative evidence did not raise a genuine, disputed fact issue that
warranted their submission. Accordingly, we overrule each of Zurita’s appellate issues
and affirm the trial court’s judgment.

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