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Click here for the full text of this decision FACTS:A jury found the appellants guilty of the offense of aggravated robbery. HOLDING:Reversed and remanded. The appellants argue that the trial court erred in denying their requests to have an interpreter appointed to assist the complainant in testifying because the complainant “could not speak English well enough to be reliable” and “could not be effectively cross-examined [as] he could neither understand the questions, or repeat many answers that [had] been attributed to him by the investigating officer.” The Court of Criminal Appeals recently concluded that “when a trial judge is aware that [a] defendant has a problem understanding the English language,” his right to have an interpreter translate the trial proceedings into a language that he understands is a right “which must be implemented by the system unless expressly waived.” Garcia v. State, No. 2004 WL 574554, *9 (Tex. Crim. App. Mar. 24, 2004). The court explained that, “[i]n these circumstances, the judge has an independent duty to implement this right in the absence of a knowing and voluntary waiver by the defendant. The judge may become aware of the defendant’s language problem either by being informed of it by one or both parties or by noticing the problem sua sponte.” In Garcia, the court noted that, because the trial court “was aware that Garcia had difficulty understanding English,” it was “required to ensure that the trial proceedings were translated into a language which Garcia could understand, absent an effective waiver by Garcia.” The court held that, because Garcia did not knowingly or voluntarily waive his right to an interpreter, his Sixth Amendment right to confront witnesses was violated. The court finds that this reasoning applies equally to material witnesses who have a problem understanding the English language. Here, the record reveals that the complainant had great difficulty answering the state’s questions on direct examination and that the trial court allowed the state to examine the complainant with numerous leading questions. The court recognizes that the trial court did not have the benefit of Garcia and was genuinely concerned about delaying the trial. Nevertheless, under Garcia’s holding and reasoning, once the trial court became aware of complainant’s language problem, it had an independent duty to implement appellants’ confrontation rights by securing an interpreter to translate for the complainant. Based on the record presented, which demonstrated the complainant’s language barrier and the trial court’s awareness of that barrier, the court holds that the trial court erred in not implementing appellants’ confrontation rights under both the Sixth Amendment to the United States Constitution and Article I, 10 of the Texas Constitution. Because the complainant could not understand certain basic questions posed to him, the ability of appellants’ trial counsel to effectively cross-examine the complainant was impeded. Harmless error analysis for Confrontation Clause violations assumes that “the damaging potential of the cross-examination [would have been] fully realized.” Delaware v. Van Arsdall, 475 U.S. 673 (1986). Here, appellants were effectively deprived of the ability to test the credibility of the complaining witness through cross-examination. Therefore, the court cannot find beyond a reasonable doubt that the trial court’s error in not implementing appellants’ confrontation rights did not contribute to appellants’ convictions. OPINION:Jennings, J.; Taft, Jennings and Bland, JJ.

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