Quang Hoang Truong v. The State of Texas--Appeal from 262nd District Court of Harris County

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State: Texas

Court: Texas Northern District Court

Docket No: 10-89-00137-CR

Case Date: 11/08/1990

Plaintiff: Quang Hoang Truong

Defendant: The State of Texas--Appeal from 262nd District Court of Harris County

Preview:Quang Hoang Truong v. The State of Texas--Appeal from 262nd District Court of Harris County
Truong v. State /**/ AFFIRMED 8 NOVEMBER 1990 NO. 10-89-137-CR Trial Court # 509450 IN THE COURT OF APPEALS FOR THE TENTH DISTRICT OF TEXAS AT WACO

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QUANG HOANG TRUONG, Appellant v.

THE STATE OF TEXAS, Appellee

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From 262nd Judicial District Court Harris County, Texas

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OPINION

******* This is an appeal by appellant Truong from conviction for sexual assault for which he was sentenced to 20 years in the Texas Department of Corrections and a $2,000 fine. This appeal arises from an adjudication proceeding under Article 42.12, Section 3(d)(b), V.A.C.C.P. On December 12, 1988, appellant waived a jury and plead guilty to the offense of sexual assault. After admonishing appellant and hearing evidence sufficient to support a finding of guilt, the court deferred adjudication on the plea and placed appellant on probation for 10 years and imposed a $2,000 fine. On February 22, 1989, the State filed a motion to adjudicate guilt, alleging as grounds the violation of the conditions of the probation that he commit no offense against the law and that he avoid persons of harmful and disreputable character. On April 7, 1989, hearing was had on the motion. After hearing the evidence the trial court found that appellant had violated the conditions of his probation by committing a new offense, adjudged defendant guilty of the primary offense of sexual assault, and assessed his punishment at 20 years in the Texas Department of Corrections and a $2,000 fine. Appellant appeals on 5 points. Point 1 asserts "appellant is illegally confined by virtue of an unconstitutional statute". Appellant argues that the deferred adjudication statute, Article 42.12, Section 3(d)(b), insofar as it deprives appellant of an appeal, violates the Texas Constitution. Our courts have held the above statute constitutional a number of times. McNew v. State, Ct.Crim.Appls, 608 S.W.2d 166, 176; Galitz v. State, Ct.Crim.Appls, 617 S.W.2d 949, 951; Reed v. State, Ct.Crim.Appls, 644 S.W.2d 479, 483; see also LeCroy v. Hanlon, S.Ct., 713 S.W.2d 335, 341. Nevertheless appeals have been allowed on a few occasions. Eldridge v. State, CA (Houston 1), 731 S.W.2d 618; see also Abdnor v. State, Ct.Crim.Appls, 712 S.W.2d 136. We hold the statute constitutional but will consider and pass on appellant's additional points. Point 2 asserts "the record contains fundamental error, to-wit, that appellant was not afforded an interpreter during the adjudication proceeding". Appellant is a Vietnamese person who does not speak perfect English. In this case appellant testified in English and responded rationally to all questions and appeared to understand the English language. The fact that he might have been more fluent in Vietnamese does not mean that he was entitled to an interpreter. The trial court was not required to appoint an interpreter for appellant unless he "does not understand and speak the English language". Article 38.30, V.A.C.C.P. The mere fact that a defendant might have been able to express himself better in his native tongue does not require the use of an interpreter. Flores v. State, Ct.Crim.Appls, 509 S.W.2d 580, 581; Vargas v. State, 627 S.W.2d 785, 787. From the record before us it is clear that appellant understood and communicated knowledgeably in English at his hearing. Point 2 is overruled. Point 3 asserts "the evidence is insufficient to sustain the conviction". A trial court must have sufficient evidence "to support a plea of guilty before finding a defendant guilty. Here appellant signed a judicial confession containing the allegations of sexual assault committed on August 10, 1988.
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Appellant's signature is followed by a jurat noting that appellant signed and swore to the judicial confession before a Harris County Deputy District Clerk. The judicial confession, also approved and signed by the court, provided "sufficient evidence" in support of appellant's plea of guilty. Point 3 is overruled. Point 4 asserts "the record fails to show substantial compliance with Article 26.13, V.A.C.C.P." Article 26.13 provides that prior to accepting a plea of guilty * * the court should admonish the defendant of: " * * whether it will follow or reject [plea bargain] agreement in open court and before any finding on the plea". When the record fails to show substantial compliance with Article 26.13 reversal is required. Eatmon v. State, Ct.Crim.Appls, 768 S.W.2d 310. Ex parte Cervantes, Ct.Crim.Appls, 762 S.W.2d 577. Here appellant received written admonishment informing him the court would permit him to withdraw his plea of guilty if the court should reject any plea bargain agreement. The State recommended 10 years deferred adjudication, a $2,000 fine, intensive supervisory probation, and no contact with the complainant. Appellant agreed that he understood the consequences of his plea and the effect of the State's recommendation. The trial court followed the State's recommendation. The trial court substantially complied with Article 26.13. Point 4 is overruled. Point 5 asserts "appellant is denied an adequate record with which to appeal". Appellant complains that he was deprived of a statement of facts from his plea of guilty. The record does contain a statement of facts of the hearing on appellant's plea of guilty. Point 5 is overruled. Appellant has additionally filed a pro se brief in which he presents 3 additional asserted "grounds of error" which we address in the interest of justice. Pro se point 1 asserts appellant received ineffective assistance of counsel. From the record as a whole defendant has not shown that there is a reasonable probability that but for counsel's asserted errors, the result of the proceeding would have been different. From the record as a whole we think appellant's counsel did an acceptable performance. Hernandez v. State, Ct.Crim.Appls, 726 S.W.2d 53; Strickland v. Washington, US S.Ct., 104 S.Ct. 2052. Pro se point 1 is overruled. Pro se points 2 and 3 complain that appellant was denied due process, equal protection under law when he was assessed more time, viz, 20 years, at the adjudication hearing, than he had been given probation, viz, 10 years. When a trial court revokes probation and proceeds to adjudication of guilt which has been deferred, it may assess any punishment within the range provided by the statute for offense. McNew v. State, supra. Pro se points 2 and 3 are overruled. AFFIRMED FRANK G. McDONALD DO NOT PUBLISH Chief Justice (Retired)

[Participating: Chief Justice Thomas, Justices Hall and Means and Chief Justice McDonald (Retired)]
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