Last month Texas Court of Criminal Appeals Judge Elsa Alcala issued a dissenting opinion which accused the majority of failing to protect the constitutional right of a Hispanic defendant to have a translator present at his criminal trial. In her dissent, Judge Alcala, who was joined by Judge Cathy Cochran and Judge Cheryl Johnson says that the majority opinion does not even address the sole question that had been presented to the Appeals Court for its consideration, namely, the issue of whether the defendant made a knowing, voluntary, and intelligent waiver of his right to have a translator or interpreter present at his criminal trial.

Under the United States Constitution, criminal defendants are guaranteed the rights of equal protection, due process, and confrontation. When a criminal defendant does not speak English, those rights are protected by having a translator present during the defendant’s criminal trial. The presence of a translator ensures that the defendant can hear the information which is being presented at trial in his or her native language and understand the nature of the proceedings which they are involved in. If a defendant does not wish to be provided with the services of a translator, they must knowingly, voluntarily, and intelligently waive their right to have a translator or interpreter present.

In the case before the Appeals Court, the defendant, Irving Magana Garcia, had been convicted of murder by the Hidalgo County Court. Garcia appealed that decision to the Texas Court of Criminal Appeals, but he lost the case on appeal. Garcia asked the Texas Court of Criminal Appeals to reconsider its decision, but again, he was denied.

When the case was originally tried, Garcia’s lawyer declined the services of an interpreter. However, the attorney’s statement declining the services of an interpreter was not a part of the trial court record; because the court reporter was not taking notes at the time that the attorney informed the judge that his client was waiving the right to a translator.

In their motion for rehearing, Garcia’s lawyers argued that no one, not even Garcia’s attorney during his criminal case, had informed Garcia that he had state and federal constitutional rights which would have to be knowingly, voluntarily, and intelligently waived in order for an interpreter to be absent from the trial proceedings. They also argued that if there had been any waiver by Garcia, it had not been voluntary, knowing, and intelligent, but that it had more likely than not been coerced by his attorney, who felt that a translator would distract him while he was presenting Garcia’s defense. Interestingly enough, although they ruled against Garcia, the majority opinion did recognize that Garcia had not waived his rights on the record, and also that judges have an independent duty to ensure that criminal cases are interpreted for defendants absent their knowing, intelligent, and voluntary waiver.

If you have been accused of a crime and you do not speak English, you have a right to have a translator present during your criminal trial. Your translator can help you to understand the criminal proceedings, as you will be able to hear them in your native language. While a translator can help you to understand the court proceedings, they cannot present your defense to the court for you. At Texas Criminal Defense Lawyer can help you to present your very best defense against the crime or crimes which you have been accused of committing. To learn more, call attorney Alex Tyra today, to schedule a free consultation. We can be reached at (903) 753-7499, or submit a convenient online contact form.