Keller, P.J. filed a concurring opinion in which WOMACK, J., joined.

The right to have proceedings interpreted¹ finds a ready analogy in the right to be competent at one’s own trial. Whether a defendant’s failure to understand the proceedings or assist in his defense² is caused by a mental defect or a language barrier, the outcome is largely the same: a trial in which the defendant lacks the ability to participate in a meaningful way. The two situations are also alike in that they are not the norm. Just as defendants are presumed to be competent,³ they should be presumed to understand the English language. Our past cases on language barriers have treated the issue in such a manner, requiring it to be raised in some fashion before a duty devolves upon the trial court to conduct an inquiry.⁴ This treatment distinguishes the right to have proceedings interpreted from other waivable-only rights, such as the right to counsel and the right to a jury trial. These latter are implemented as a matter of course, unless the defendant takes affirmative action to prevent such implementation.

While competency and language proficiency are similar in several respects, there are also differences. An incompetent person cannot be tried,⁵ but the trial court can compensate for a language barrier by appointing an interpreter. Also, incompetency to stand trial cannot be waived because an incompetent person cannot, by definition, intelligently waive his rights, but the right to have proceedings interpreted can be relinquished through a knowing and intelligent waiver.⁶

Accordingly, the right to have proceedings interpreted should be treated like competency to stand trial in some respects and like waivable-only rights in other respects. I would hold as follows: (1) The trial court has no duty to inquire about the defendant’s ability to understand English until the issue is raised in some fashion. The issue is raised if one of the parties raises it or if any source of information indicates that the defendant’s grasp of the English language is inadequate.⁷ The trial court should address the issue even if it is raised late, such as during trial or in a motion for new trial, provided that, in the latter situation, the defendant has properly raised the issue by affidavit as required by caselaw.⁸ (2) Once the issue is raised, the defendant must prove by a preponderance of the evidence his need for the proceedings to be interpreted. Unless the defendant wishes to waive his right to an interpreter, the trial court should permit the State to question the defendant’s attorney concerning the defendant’s ability to understand the English language. The lawyer-client privilege would be waived under those circumstances for the limited purpose of resolving the language proficiency question.⁹ In reviewing whether the defendant has met his burden of proof, an appellate court should give due deference to the trial court’s resolution of fact questions, especially those that turn upon credibility and demeanor.¹⁰ (3) If it is shown that an interpreter is needed, one should be provided unless the defendant knowingly and intelligently waives such.

Here, appellant’s language barrier became manifest at trial and was specifically raised by appellant in a motion for new trial. The parties agree that appellant proved he needed an interpreter to understand the proceedings. And he did not waive his right to one. Under these circumstances, I agree with the Court that appellant was deprived of his right to have the proceedings interpreted.

KELLER, Presiding Judge

Date filed: March 24, 2004
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¹ While this right flows from several provisions in United States and Texas Constitutions, it is also protected by statute. See TEX. CODE CRIM. PROC., Art. 38.30(a).
² See TEX. CODE CRIM. PROC., Art. 46B.003(a).
³ See Art. 46B.003(b).
⁴ See Baltierra v. State, 586 S.W.2d 553, 559 (Tex. Crim. App. 1979).
⁵ Article 46B.071.
⁶ Baltierra, supra.
⁷ This requirement parallels Art. 46B.004.
⁸ Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003).
⁹ See TEX. R. EVID. 503(d)(1)(crime-fraud exception).
¹⁰ See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).