MAJORITY OPINION Appellant Severo Pelayo Jaimes appeals his conviction for aggravated assault with a deadly weapon. In a single issue, appellant, who relied on a Spanish-language interpreter throughout the trial, contends the trial court abused its discretion by failing to appoint a qualified interpreter. Finding no error, we affirm. FACTUAL AND PROCEDURAL BACKGROUND Appellant was indicted for aggravated assault by causing bodily injury with a deadly weapon to the complainant, Jorge Jiminez. At the time of the event, the complainant was dating and living with appellant’s ex-wife. According to the testimony of witnesses at trial, appellant and his friend, Huber Conejo, showed up uninvited to a quinceañera celebration. The complainant and appellant’s ex-wife were guests at the party. Witnesses testified that appellant approached the couple, shoved his ex-wife aside, drew a pistol from his waistband, and aimed the gun at the complainant. As the complainant began to run towards a playground set in the yard, appellant reportedly fired three times; one bullet struck the complainant in the leg. The complainant required medical treatment for the injuries he suffered from the gunshot. Appellant presented a different account of what happened. According to appellant’s testimony, the complainant initiated the altercation and other party guests held him back, while appellant, unarmed, heard a gunshot. During his guilt/innocence-phase testimony, appellant made passing references to having trouble hearing to explain his seemingly limited perception of details surrounding the shooting. The jury returned a “guilty” verdict and the trial proceeded to the punishment phase. Appellant again testified, offering conflicting testimony about his hearing and understanding of the jury’s “guilty” finding and the complainant’s testimony. First, appellant testified that he heard the verdict “but not very well.” Appellant also stated that he did not hear that the jury had found him guilty and that he did not understand aspects of the complainant’s testimony relating to restitution for the complainant’s medical expenses. After a recess, appellant returned to the witness stand and testified that he understood the “guilty” verdict, that he heard the complainant’s testimony, and that appellant would be willing to pay restitution. The trial record suggests that appellant spoke no English at the time of trial and relied on a Spanish-language interpreter throughout the trial. ISSUE Appellant contends that he has a “significant hearing impairment,” which he claims on appeal prevented him from understanding the trial proceedings and the testimony of witnesses. He asserts the trial court abused its discretion when it failed sua sponte to appoint a qualified interpreter. ANALYSIS The trial court stood charged with ensuring that appellant, as the accused in a criminal trial, had a sufficient, minimum understanding of the proceedings against him to enable him to assist in his own defense. See Linton v. State, 275 S.W.3d 493, 500 (Tex. Crim. App. 2009). The Code of Criminal Procedure sets forth the trial court’s obligation to appoint an interpreter for defendants and witnesses who are deaf or do not understand and speak English. See Tex. Code Crim. Pro. Ann. art. 38.31(a)(for a defendant or witness who is deaf); see also Tex. Code Crim. Pro. Ann. art. 38.30(a)(for “a person charged or a witness [that] does not understand and speak the English language”). Obligation to Provide Communication Solution for Deaf Defendant Courts routinely discharge this obligation on a party’s request or on their own initiative, for example, by appointing a foreign-language interpreter who is sworn to interpret for a person charged “who does not understand and speak the English language.” Tex. Code Crim. Pro. Ann. art. 38.30(a). Similarly, “if the court is notified by a party” that a defendant is deaf, the court stands obligated to appoint a qualified interpreter to interpret the proceedings in any language that the deaf person can understand, including sign language. Tex. Code Crim. Pro. Ann. art. 38.31(a). The Code of Criminal Procedure defines a “deaf person” as one “who has a hearing impairment . . . that inhibits the person’s comprehension of the proceedings or communication with others.” Tex. Code Crim. Proc. Ann. art. 38.31(g)(1). The statute does not require an interpreter for every level of hearing impairment but only insofar as the impairment inhibits the individual’s comprehension or communication. See id. These statutes implement the constitutional right of confrontation, which includes the right to have trial proceedings presented in a way that the accused can understand. See Linton, 275 S.W.3d at 501. Under these statutes and the relevant constitutional provisions, the trial court has a duty to devise a communication solution that provides the particular defendant with “that minimum level” of understanding that is constitutionally required. See id. Such alternative methods may include the use of sign language, finger spelling, lip reading, written communication, or stenographers to provide simultaneous transcriptions, or a combination of these methods, depending on a person’s proficiency in the different systems of communication. See id. Preservation of Error Not Required Appellant did not preserve error in the trial court on the issue he now presents on appeal. Even so, we address the merits of the point because the Court of Criminal Appeals has held that when a trial judge is aware that the defendant has a problem understanding the English language, the defendant’s right to have an interpreter translate the trial proceedings into a language that the defendant understands is a category-two Marin[1] right, and in these circumstances, the trial judge has an independent duty to implement this right in the absence of the defendant’s knowing and voluntary waiver. See Linton, 275 S.W.3d at 502; Garcia v. State, 149 S.W.3d 135, 145 (Tex. Crim. App. 2004). An appellant may raise for the first time on appeal complaints as to the alleged deprivation of a category-two Marin right. See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993); Linton, 275 S.W.3d at 502; Garcia, 149 S.W.3d at 145. Standard of Review Decisions as to interpretive services fall within the trial court’s sound discretion, and appellate courts will not reverse them absent a clear abuse of that discretion. See Linton, 275 S.W.3d at 503. The Court of Criminal Appeals has indicated that this deference is especially appropriate in the deaf-interpretation context because evaluating whether a hearing-impaired defendant truly comprehends what is spoken is more art than science. See id. Our question on appeal is not whether the trial court chose the best means of interpretive services but whether the services actually employed passed constitutional muster such that the defendant could understand and participate in the proceedings. Id. at 501. The ultimate question is whether any inadequacy in the interpretation made the trial “fundamentally unfair.” See id. at 503. What the Record Shows The record shows that the trial court appointed a foreign-language interpreter for appellant. On appeal, appellant does not challenge the adequacy of these services; instead, he asserts that what he describes as his “significant hearing impairment,” though made apparent to the trial court, went unaddressed. Appellant contends that the trial court should have been aware of his hearing impairment during the guilt/innocence phase when appellant prefaced his answers to questions about the gunshots with the statement, “as you know, I cannot hear very well.” During direct examination, appellant testified through a Spanish- language interpreter, as follows: [Appellant's counsel]: Now, how long did you struggle? [Appellant]: He came toward me, and I went on the side, and I was going to start struggling with him, and they grabbed me. [Appellant's counsel]: All right. When this was going on, what happened? [Appellant]: When they grabbed me, then I kind of got away from them. As you know, I cannot hear very well. I heard, like, a shot, but it was dark. You couldn’t see. [Appellant's counsel]: So you don’t know who shot the gun? [Appellant]: No, I do not know who shot. (emphasis added). Then, during cross-examination, under a similar line of questioning, appellant made a similar statement: [Prosecutor]: So after you spoke to Ms. Sanchez [appellant's ex- wife], Jorge [the complainant] got up, correct? [Appellant]: Yes, he got up and came at me. [Prosecutor]: And he hit you with his fist? [Appellant]: No, he pushed like this. I moved him away and he fell. [Prosecutor]: And then you heard a gunshot, correct? [Appellant]: I was — I was grabbed. Someone grabbed me, and I was no longer able to fight with him. [Prosecutor]: I know. But you heard a gunshot, correct? [Appellant]: It was a gunshot. As you well know, I don’t hear very well. [Prosecutor]: Right. But did you hear the gunshot? [Appellant]: Yes, of course, I heard a sound. (emphasis added). Appellant paraphrases the above testimony and presents it as a statement that appellant could “not identify the sound of a gun fired.” This exchange, appellant claims, should have alerted the trial court that appellant had “a significant hearing impairment.” Taken in context, appellant’s testimony that he did not hear very well did not rise to the level of giving fair notice to the trial court that appellant was deaf—that he was so impaired as to require assistance in understanding or participating in the ongoing trial. Indeed, the record shows that whatever hearing difficulty appellant may have experienced from time to time, it did not prevent him from responding to questions. Neither appellant’s counsel nor appellant nor the interpreter ever told the trial court, directly or indirectly, that appellant could not participate in the proceedings due to a hearing impairment or that appellant required assistance in understanding or participating in the ongoing trial. Nor would that have been a reasonable inference from the record. The trial court could see firsthand how appellant responded when asked a question and whether appellant appeared to be responding in a way that showed he heard the question. Nothing in the record shows that, contrary to the contextual clues, appellant was so hard of hearing that he could not follow the questioning or understand the proceedings. Appellant’s responses show that he did understand and that he was able to communicate. Nothing in the record shows that any lack of understanding or inability to communicate would have been apparent to the trial court. Given the trial court’s discretion in determining the need for interpretive assistance for defendants and witnesses during trial, the trial court could evaluate the weight and credibility of defendant’s testimony and demeanor, and reasonably could have concluded that appellant simply intended to avoid giving a straight answer to a particular question. See Salazar v. State, 93 S.W.3d 339, 341 (Tex. App.—Texarkana 2002, pet ref’d) (“the trial court was in the best position to judge the credibility of the appellant’s claim that he did not hear part of the proceedings”). Or, taking appellant’s statements at face value, the trial court reasonably could have concluded that appellant was hard of hearing but was not deaf. See id. The record does not show that appellant’s trial counsel or the interpreter or any other courtroom observer viewed these events any differently. After the jury returned its “guilty” verdict, the punishment phase commenced. Four witnesses testified and then appellant took the witness stand. His testimony began as follows: [Appellant's counsel]: Would you state your name for the record, please. [Appellant]: Severo Jaimes. [Appellant's counsel]: Mr. Jaimes, you’ve heard the jury’s verdict? [Appellant]: Not very well, but I did hear it. [Appellant's counsel]: All right. And they found you guilty, correct? [Appellant]: I did not hear that either. What, I’m guilty? [Trial Court]: They found you guilty. [Appellant]: They found me guilty? [Appellant's counsel]: Yes. [Appellant]: Why did they find me guilty? [Trial Court]: Let’s proceed question and answer. [Appellant's counsel]: Mr. Jaimes, you’ve heard Mr. Jiminez say that he incurred a $10,000 medical bill? [Appellant]: $10,000? [Appellant's counsel]: Yes. [Appellant]: What does he want with that money? [Appellant's counsel]: Okay. [Trial Court]: Let’s proceed question and answer. Tell Mr. Jiminez [sic] to listen to the question, answer the question, and try to not respond with a question. Let’s proceed. [Prosecutor]: Your Honor, can we have a break, please? Sorry. [Trial Court]: We need a break? Okay. Let’s take a break. (emphasis added). Pointing to this courtroom exchange, appellant contends that the trial court abused its discretion in not providing a hearing-assistance interpreter. We consider these statements in context. Throughout the proceedings leading up to this point in the trial, appellant, who had been testifying through a Spanish-language interpreter, had not requested any other interpreter services and had made no direct statement notifying the trial court that he was either deaf or needed a hearing-assistance interpreter. Though appellant had made passing remarks about his hearing in the context of questions about his perception of the gunshots (that he heard the sound despite not being able to hear well), appellant did not convey, directly or indirectly, that he lacked the ability to understand the proceedings or to communicate with others. Appellant answered more than one hundred questions during the guilt/innocence phase and more than twenty questions during the punishment phase. Not once in responding to these questions, did appellant ask the examining attorney or the interpreter to speak up or to repeat the question. Appellant’s actions in answering questions from the witness stand showed that he received the communications and chose to respond to them rather than indicate he was unable to do so. These and other contextual clues in the record show that appellant understood the questions asked of him. While on the stand during the guilt/innocence phase, appellant responded directly, without confusion, to questions about his name, where he worked, the location of the party where the shooting occurred, where appellant lived and the distance between those places, how appellant came to learn of the party, the person who accompanied appellant to the party, the time appellant arrived at the party, the identity of the owner of the residence and appellant’s conversation with the owner, how long appellant visited with the owner of the residence, what appellant and his companion were drinking, how long appellant stayed at the residence, and where appellant went after the shooting. In the few instances appellant did not directly respond with a concise answer, the record suggests appellant understood the question but sought a clarification or narrowing of the question.[2] Appellant similarly demonstrated an understanding of the proceedings and the questions asked of him the next morning during cross-examination in the guilt/innocence phase. During the cross-examination, appellant confirmed to the prosecutor that he had heard and understood the testimony of the witnesses who had testified against him.[3] During the cross-examination, appellant answered most questions directly; when he did not, the record suggests appellant grasped what was being asked but sought to evade answering the question or used the opportunity to further his version of what happened on the night of the shooting. For example, appellant testified as follows: Q. So after you stayed for a while, did you then go check on your family? A. They were there walking around. Q. And you knew that the only person that had been injured was Jorge [the complainant] because you shot him, correct? A. That I shot him? Q. Correct. A. Who saw that? Where is the weapon? Q. Who saw it? Did you hear the testimony today, or yesterday? A. That’s a version that one person says, another one says, and then someone else says. Appellant continued to testify in a manner suggesting that he could hear the questions asked and understand the proceedings as they were unfolding. Neither appellant nor his counsel ever did or said anything that would suggest otherwise. Until appellant’s punishment-phase testimony, the trial court would have had no reason to doubt that appellant was able to understand the proceedings and communicate with others. Under these circumstances, we could hardly expect the trial court to have taken further action to ensure that the proceedings and the testimony were effectively communicated to appellant. See Salazar, 93 S.W.3d at 341. Trial Recess as Constitutionally Adequate Accommodation to Address Hearing Impairment Whether the trial court should have recessed on its own initiative when appellant gave mixed testimony about his hearing of the jury’s “guilty” verdict is of no moment because shortly thereafter, the trial court granted a recess. When appellant returned, he testified that he understood the jury’s “guilty” verdict and that he heard and understood the nature of the complainant’s testimony about medical expenses. To the extent the record shows the need for some accommodation to address appellant’s hearing impairment during the punishment phase of trial, we conclude that the trial court’s recess served as an appropriate and constitutionally adequate measure to ensure that appellant could understand and participate in the proceedings. See Linton, 275 S.W.3d at 509. The record does not show any inadequacy in the appellant’s understanding and participation in the proceedings that made the trial fundamentally unfair. See id. at 503. We overrule appellant’s sole issue. Having overruled appellant’s only complaint on appeal, we affirm the trial court’s judgment. /s/ Kem Thompson Frost Chief Justice Panel consists of Chief Justice Frost and Justices Christopher and Bourliot (Bourliot, J. dissenting). Publish — TEX. R. APP. P. 47.2(b).
