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Click here for the full text of this decision FACTS:On March 31, 2001, Asel Abdygapparova, a University of Texas at San Antonio (UTSA) student from Kazakhstan, was involved in the abduction and murder of Rosa Rosado in San Antonio. Five days after the murder, Abdygapparova told retired FBI agent Bruce Gatti about the abduction and murder she witnessed. Gatti contacted the San Antonio Police Department and then traveled with Abdygapparova to a Fuddrucker’s restaurant to meet the police. During their meeting, Abdygapparova provided the officers with a detailed account of the events of March 31, 2001. According to Abdygapparova’s statement to officers and her testimony at trial, Abdygapparova, who was five months pregnant at the time, and her boyfriend Ramon Hernandez left their residence and picked up Hernandez’s friend Santos Minjares. Ramon was driving and Abdygapparova was in the back seat, when Santos grabbed Rosa Rosado, a woman waiting at a bus stop, and pulled her into the car. Santos then sat in the backseat of the car, with Rosado sitting between himself and Abdygapparova. Rosado’s head was ultimately covered with a towel and duct tape. After driving around for approximately half an hour, Ramon stopped at a motel, and Santos instructed Abdygapparova to remove money from Rosado’s purse and pay for a room. Abdygapparova complied, even providing her driver’s license information to the motel clerk. Ramon drove the car to the motel room, and Santos took Rosado inside. Abdygapparova explained that she walked into the motel room to use the restroom and Santos instructed her to leave and obtain bleach and a douche from the house. Abdygapparova claimed she followed Santos’ instructions because she was afraid of him. According to Abdygapparova, when she returned to the motel room, approximately 10 or 15 minutes later, she found Ramon and Santos, both clothed, and Rosado, laying on the bed, half-naked, but alive. Abdygapparova went into the restroom with Ramon while Santos raped Rosado. Ramon then insisted she leave and purchase a shovel at Wal-Mart. Abdygapparova complied and purchased a shovel, using a gift card. According to her testimony, before asking for assistance at Wal-Mart, she did not know the meaning of the word “shovel.” When Abdygapparova returned to the motel room around 11 p.m., Rosado’s dead, naked body lay on the floor. Ramon and Santos collected everything from the room, wrapped Rosado in a blue and red blanket, and placed her body in the back seat of the car. Santos sat in the passenger seat and Ramon instructed Abdygapparova to drive them to a clearing near UTSA where she dropped them off; she was told to return in 30 minutes. When Abdygapparova returned to the clearing, they again told her to leave. She complied and returned a short time later to pick them up. The three then drove to Ramon’s residence where Abdygapparova participated in the destruction of Rosado’s personal items. On April 2, 2001, Abdygapparova took the car used in the commission of the offense to Austin and traded the vehicle for a white Ford. By all accounts, Abdygapparova fully disclosed the events, including her role, to the officers. She provided a five-page written statement, led the officers to Rosado’s body and the motel, and even provided the gift card she used at Wal-Mart. Abdygapparova was not given any promises of immunity for her statements. Several officers testified that Abdygapparova appeared scared of both men, especially Santos, and even remained at the police station until both Ramon and Santos were in custody. More than four months later, on July 24, 2001, authorities charged Abdygapparova with the capital murder of Rosa Rosado. After both Ramon and Santos were tried and convicted, Abdygapparova’s case was set for trial on Feb. 17, 2004. On Nov. 5, 2003, three months before trial and two and a half years after indictment, the state filed its notice to seek the death penalty. On Dec. 3, 2003, the trial court heard several pretrial motions, including Abdygapparova’s motion for an interpreter. During the hearing, the court denied the interpreter for voir dire but did agree to have an interpreter available for any witness being called to testify needing assistance. The case was called for trial on Jan. 14, 2005. Before the start of voir dire, defense counsel again urged the court to appoint an interpreter for Abdygapparova. Again, the trial court denied the request. The jury convicted Abdygapparova of capital murder and assessed life imprisonment. Abdygapparova appealed. HOLDING:Reversed and remanded. Abdygapparova alleged that the administrative judge abused his discretion in denying her motion to recuse the trial judge. She argued that the trial judge was so biased and prejudiced against her that the trial amounted to a denial of due process of law. Abdygapparova also argued the trial judge’s apparent anger toward Abdygapparova suggested that the judge appeared more worried about inconveniencing the state’s witnesses than protecting Abdygapparova’s rights. Finally, Abdygapparova argued that the trial judge previously presided over the trials of the two codefendants, resulting in a predetermination of Abdygapparova’s guilt that precluded a fair and impartial trial. When bias is alleged as a ground for recusal, the recusal of a judge is appropriate only if the movant provides sufficient evidence to establish that a reasonable person, knowing all the circumstances involved, would harbor doubts as to the impartiality of the judge. Based on the evidence before the administrative judge at the time of the hearing, however, the court could not find that the administrative judge abused his discretion in failing to find a violation under Rule 18a of the Texas Rules of Civil Procedure sufficient to warrant recusal. Abdygapparova then argued that because she could not speak or understand English well enough to respond to questioning or understand the proceedings, the trial court’s denial of several requests she made for an interpreter violated her due process rights guaranteed by the 14th Amendment. Texas Code of Criminal Procedure Art. 38.30 provides that upon filing a motion for the appointment of an interpreter, if it is determined that a person charged or a witness does not understand and speak the English language, an interpreter must be sworn to interpret for him. The right to an interpreter, the court stated, turns on two-prong test. First, the defendant must show an inability to understand English; and second, the defendant must make a timely request for an interpreter. Of great concern in this case, the court declared, is that the trial court and the state appeared to be “more concerned about the cost of the translator than the plight of the defendant.” Nonetheless, the court did not find an abuse of discretion. The trial judge, the court noted, determined Abdygapparova maintained a sufficient understanding of the English language and understood “what was going on.” Because the trial court’s decision was based on facts identified in the record, the court could not say her findings were arbitrary or capricious. Abdygapparova then asserted that the trial court erred in admitting State’s Exhibit #181 and testimony surrounding the same. Exhibit #181 is a letter written to Abdygapparova, while she was in custody, allegedly by Jack Fetter. The letter is Fetter’s very graphic fantasy of Abdygapparova and Fetter engaged in sexual activities with a second female. Because Abdygapparova was on trial for the sexual assault of Rosado, the state offered the letter as evidence that Abdygapparova liked having sex with other females and that she had “lived the fantasy” expressed in the letter through the crime at issue. But the court found the letter inadmissible. The statement offered by the state is an unauthenticated letter, written by a third party and sent to Abdygapparova at the county jail. Thus, because the statement was not her own, the trial court erred in admitting the evidence under Texas Rule of Evidence 613. Accordingly, Fetter’s letter was not relevant to anything at issue, was not proper impeachment and the trial court erred in admitting the letter under Rules 401 and 613. The court held that the trial court also erred in allowing the state to proceed with questions relating to Abdygapparova’s alleged statements made during plea negotiations. Abdygapparova next asserted the trial court improperly engaged in ex parte communications with the prosecutor in violation of her due process rights. Specifically, Abdygapparova complained that the prosecutor and the trial court exchanged numerous notes during the voir dire process that discussed: Abdygapparova’s ability to communicate with her counsel; defense counsel’s voir dire of at least two of the venire members; the hairstyle of one of the venire members; the state’s presentation of the law to the venire; the prosecutor’s line of questioning of one of the venire members; time limits on voir dire, and an update on unrelated proceedings in the courthouse. The court agreed with Abdygapparova. “This is an unfortunate case,” the court stated, “in which the trial judge failed to exercise appropriate caution and failed to maintain an attitude of impartiality throughout the trial.” The trial judge, the court stated, knew or should have known that engaging in written communications with the state regarding potential jurors, defense counsel’s voir dire questions and presentation of argument, all in the presence of the potential jurors, was improper. Moreover, the court found that the absence of an impartial trial judge in this case infected the entire trial process, robbing Abdygapparova of her basic protections and undermining the ability of the criminal trial to reliably serve its function as a vehicle for the determination of guilt or innocence. Because the right violated in the case was the right to an impartial judge, which is structural error, the court did not conduct a harm analysis. OPINION:Simmons, J.; Lopez, C.J., and Speedlin and Simmons, JJ.

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