Palomo, Julio Torres

Citation: Not availableDocket: PD-0425-15

Court: Texas Supreme Court; October 23, 2015; Texas; State Supreme Court

Original Court Document: View Document

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Julio Torres Palomo appeals his conviction for continuous sexual assault, challenging multiple aspects of the trial. The brief outlines several points of error:

1. **Insufficient Evidence**: Claims insufficient proof of his involvement in the continuous sexual assault of both Nancy and Kary Ramirez.
   
2. **Inadmissibility of Statements**: Argues that statements by Nancy and Kary Ramirez should not have been admitted under the outcry exception rule due to inaccurate translations by the translator, Claudia Alvarado, who did not properly translate the forensic interviewer's questions and answers.

3. **Trial Court Abuse of Discretion**: Contends that the trial court erred by allowing forensic interviewer Charlene Ralph to testify under the hearsay rule, as Alvarado was the first adult to hear of the allegations.

4. **Conflict of Interest**: States that his rights were compromised due to a conflict of interest involving his trial counsel, who did not address ethical concerns according to the State Bar Rules of Texas.

5. **Failure to Provide Exculpatory Material**: Claims the State, through its Child Advocacy Center, failed to deliver requested mitigating evidence, impacting his defense.

6. **Ineffective Assistance of Counsel**: Asserts his Sixth Amendment rights were violated due to his counsel allowing him to submit a sworn statement without proper investigation, leading to a perjury indictment, and failing to request a trial continuance to obtain the necessary evidence.

The brief concludes with a prayer for relief and includes a certificate of service and unsworn declaration.

The document includes an Index of Authority detailing key case law relevant to the appeal, citing numerous Texas Court of Criminal Appeals and federal cases, as well as statutes, rules, and constitutional amendments pertinent to the matter. Notable cases referenced include *Anderson v. State*, *Brady v. Maryland*, and *Strickland v. Washington*, among others, emphasizing issues such as due process and the standard for ineffective assistance of counsel. Statutory references include Texas Penal Code provisions and Texas Rules of Appellate Procedure. The petition is submitted by Appellant Julio Torres Palomo, appealing a conviction for continuous sexual assault of a child from the 196th Judicial District Court of Hunt County, Texas, overseen by Judge Steve R. Title Jr.

Appellant was indicted on January 25, 2013, for continuous sexual assault involving multiple acts against Kary and Nancy Ramirez, including various forms of indecency with a child and aggravated sexual assault. The offenses, under Texas Penal Code § 21.02, are classified as first-degree felonies, punishable by life imprisonment or a term between 25 to 99 years. Jury trial proceedings commenced on March 24, 2014, with the Appellant pleading not guilty. On April 1, 2014, the jury assessed punishment at life imprisonment, and a notice of appeal was subsequently filed along with motions for a new trial and amended arrest of judgment on May 28, 2014. The trial court denied the motion for a new trial on June 10, 2014.

The appeal presents several points of error: 
1. Insufficient evidence supporting the continuous sexual assault allegation against Nancy Ramirez.
2. Insufficient evidence supporting the continuous sexual assault allegation against Kary Ramirez.
3. Nancy Ramirez's statements were inadmissible due to improper translation during forensic interviews, rendering the forensic interviewer ineligible as an outcry witness under Texas Code of Criminal Procedure art. 38.072.
4. The translator failed to accurately interpret statements, affecting the admissibility of Nancy Ramirez's testimony.
5. The trial court's refusal to appoint new trial counsel due to a conflict of interest violated the Appellant's rights under the State Bar Rules of Texas.

Point of Error Six asserts that the Appellant deserves a new trial due to the State's Child Advocacy Center's failure to provide requested mitigating or exculpatory evidence. Point of Error Seven claims the Appellant was denied his Sixth Amendment right to effective assistance of counsel because the defense attorney: A. Allowed the Appellant to submit a sworn statement regarding his criminal history without proper investigation, leading to significant error and a conflict of interest. B. Failed to request previously sought mitigating or exculpatory evidence, which only became evident during the trial.

The Statement of Facts outlines that on September 17, 2012, Nancy Ramirez, the Appellant's biological daughter, allegedly disclosed abuse to a schoolmate while on a school bus. This disclosure was subsequently reported to a school counselor, prompting a call to the Texas Department of Family and Protective Services (CPS). Notably, neither Nancy nor Kary Ramirez, the Appellant's stepdaughter, reported any abuse to CPS workers. A forensic interview was scheduled at the Hunt County Child Advocacy Center (HCCAC), where Nancy allegedly made an outcry about abuse during an interview conducted by forensic interviewer Charlene Ralph, with translation assistance from unqualified layperson Claudia Alvarado. Kary Ramirez did not report any abuse during her interview on October 17, 2012.

During the trial, the Appellant was aware of the forensic interview's existence due to CPS reports but did not receive a police report or the interview video until the trial commenced. Despite multiple requests from the defense for the video, the state claimed it did not exist until it was unexpectedly found during Ms. Ralph's testimony. HCCAC's director, Holly Robinson, indicated she may not have received a subpoena related to the video but did not deny its possible existence. It was revealed in court that the video had been misplaced in the files of different victims, complicating its retrieval.

Ms. Ralph's interviews were facilitated by Claudia Alvarado, a non-licensed clerk and background researcher for the Hunt County Sheriff, who provided translation assistance. Alvarado lacks formal training or certification in translation and admitted to modifying questions and answers during the interviews, which could potentially distort the information conveyed. The state intended to introduce outcry statements related to child abuse complaints under Texas Code of Criminal Procedure art. 38.072, indicating that Alvarado, not Ralph, should have been recognized as the first adult notified of the abuse allegations involving minors. Both complainants initially communicated with Alvarado, who then referred them to Ralph, leading to claims of misquotes and altered testimonies.

Additionally, prior to trial, the Appellant provided a sworn statement about his eligibility for probation, influenced by his defense attorney, despite being ineligible due to a prior conviction. The state subsequently charged him with aggravated perjury based on this statement. The trial attorney sought to withdraw from the case due to this error but was denied by the court and was compelled to serve as a witness for the prosecution against the Appellant.

Two key points of error are presented: insufficient proof of continuous sexual assault on complainants Nancy and Kary Ramirez. During the trial, both testified via closed circuit, with Nancy claiming inappropriate contact but not confirming penetration, while Kary stated that the Appellant did not penetrate her but touched her inappropriately. There are discrepancies in testimonies attributed to Alvarado’s modifications, raising questions about the reliability of the evidence and the truthfulness of the accounts provided.

The Jackson v. Virginia standard is the sole criterion for Texas courts to evaluate the sufficiency of evidence supporting a criminal offense, requiring the state to prove guilt beyond a reasonable doubt. Direct and circumstantial evidence are treated equally, and circumstantial evidence may suffice to establish guilt. However, conclusions drawn from evidence must not rely on unreasonable speculation or hearsay. The evidence presented was deemed insufficient to support the conviction, particularly regarding the alleged continuous sexual assault of Nancy and Kary Ramirez, with claims that testimony did not substantiate the allegations. Specifically, neither witness testified to key acts of contact, and the evidence was characterized as merely speculative and not meeting the preponderance of evidence standard. 

Multiple points of error were raised: 
1. Insufficient proof regarding Nancy Ramirez's assault, as testimony failed to confirm acts of contact.
2. Insufficient proof regarding Kary Ramirez's assault, with certain acts abandoned due to lack of evidence.
3. Nancy Ramirez's statements were deemed inadmissible under the outcry exception due to inaccuracies in translation.
4. Kary Ramirez's statements were similarly inadmissible, as the translator modified the testimony, violating the outcry witness statute that requires the first person over 18 to be an accurate communicator of the allegations.

The request is for the court to either acquit the appellant or, alternatively, reverse and remand for a new trial, citing that the evidence presented fails to meet the legal standards required for conviction.

Forensic interviewer Charlene Ralph conducted interviews solely in English, while complainants Nancy and Kary Ramirez, who primarily speak Spanish, required a translator. Claudia Alvarado, an unqualified clerk from the Hunt County Sheriff's office, was used for translation, despite having no formal training or qualifications in bilingual translation. Concerns were raised about the necessity of a translator if the complainants were allegedly bilingual. Alvarado's lack of expertise and her admission of modifying questions and answers potentially compromised the integrity of the translation and led to misinterpretations. This miscommunication denied the Appellant a fair trial and affected the trial's outcome.

The state offered Ralph as an outcry witness without objection from defense counsel, which is also claimed to be ineffective assistance of counsel. The admissibility of translated statements is contingent on meeting certain legal criteria, which, in this case, were not satisfied: the interpreter was provided by the state agencies involved, had motives to distort the translation, lacked necessary qualifications, and no measures were taken to ensure accurate translation. The outcome of the trial may have been prejudiced due to these factors, as outlined in relevant case law.

Child forensic interviews are typically inadmissible under the hearsay rule unless they meet specific statutory requirements outlined in T.C.C.P. art. 38.072. In this case, those requirements were not met, constituting an abuse of discretion by the trial court. The outcry chain began with Nancy Ramirez, who disclosed information to her friend Evelyn Regelado, leading to several subsequent reports to family and authorities, but neither complainant directly informed CPS investigator Aisha Coutain. Subsequently, Ms. Ralph facilitated an interview with the girls at the Hunt County Sheriff's Office, aided by interpreter Ms. Alvarado.

Concerns arise regarding the accuracy of Ms. Alvarado's translations, as she allegedly distorted the complainants' statements, driven by personal stakes, including potential career advancement tied to the case's outcome. The statute requires clear notifications and specifics regarding the alleged abuse, which were not adequately provided. General allusions to the abuse were deemed insufficient, and the necessity for discernible descriptions of the offense was emphasized. Ms. Alvarado's admissions of taking liberties with translations raised doubts about the integrity of the forensic interview process, suggesting that the jury may have been misled. Overall, the failure to comply with statutory requirements undermines the admissibility of the hearsay evidence presented in this case.

Appellant objected to the admission of a Spanish portion of a video due to its lack of transcription, arguing that this violated T.C.C.P. art. 38.072, which requires defendants to be adequately notified of content to uphold their Due Process rights under the Fifth and Fourteenth Amendments. The trial court overruled the objection, and the Sixth Court of Appeals deemed the error unpreserved. The video was shown to the jury, which Appellant claims prejudiced the verdict. Additionally, Appellant contends that Ms. Alvarado’s translation should not have been admitted because she was not a neutral interpreter, thus compromising the integrity of the outcry statement. If Ms. Alvarado is deemed the outcry witness, rather than Ms. Ralph, this could turn the hearsay testimony into harmful third-party hearsay, undermining the girls' testimony. Appellant requests that the court sustain points of error regarding the video and translation, reverse the judgment, or remand for a new trial. Furthermore, Appellant asserts a conflict of interest with trial counsel, raising concerns about the failure to appoint new counsel. The defense counsel allegedly misinformed Appellant about community supervision eligibility, suggesting a lack of due diligence. The standard of review emphasizes that an attorney in conflict with a client must withdraw to ensure a fair trial.