¶1concurring.
¶2I concur only in the result reached by the majority. Appellant, Tan Rang Nguyen, appeals his judgment of conviction for the offense of murder. The jury found him guilty and the trial court assessed his punishment at confinement for life in the Texas Department of Corrections.
¶3I disagree with the majority opinion as to their reasoning in overruling appellant’s second point of error.
¶4In his second point of error, appellant alleges the trial judge erred by not appointing an interpreter to serve as a member of the defense team. Article 38.30 of the Texas Code of Criminal Procedure states in pertinent part:
When a motion for appointment of an interpreter is filed by any party or on motion of the court, in any criminal proceeding, 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. (emphasis added).
¶5The majority disposed of the point of error by stating:
Plainly, the first sentence of article 38.30 does not provide for appointment of an interpreter to act as an intermediary between a defendant and his counsel and an examination of the remainder of article 38.30 shows that nothing else therein requires or even authorizes an appointment of an interpreter for that function. The only basis for the trial court providing an interpreter to an accused is the constitutional and statutory guarahtees *351of confrontation under the State and Federal Constitutions. Diaz v. State, 491 S.W.2d 166 (Tex.Crim.App.1973); Cantu v. State, 716 S.W.2d 688 (Tex. App.—Corpus Christi 1986, no pet.). In this case, where all testimony was interpreted, we hold appellant’s right to confrontation was satisfied and the trial judge did not abuse his discretion in refusing to appoint a second interpreter. We overrule appellant’s second point of error.
¶6I disagree with the majority’s conclusory statement that appellant’s Sixth amendment right to confrontation was “satisfied.” The first sentence of article 38.30 does not say that the trial court will not appoint an interpreter to act as an intermediary between a defendant and his counsel. What it does say is that when “it is determined that a person charged [the defendant] or a witness does not understand and speak the English language, an interpreter must be sworn to interpret for him.”
¶7The issue before us is whether an interpreter is required to be appointed to assist defense counsel in his representation so that communications between counsel and his client may remain privileged, if there is a language barrier between them. My interpretation of article 38.30 mandates such an appointment by the trial court, but only if the defendant is indigent. By law, the trial court is mandated to appoint counsel for an indigent defendant where the crime is punishable by imprisonment. Tex.Code Crim.Proc.Ann. art. 26.04 (Vernon 1989). Likewise, the court is required to appoint an interpreter to assist defense counsel in his representation so that communication between counsel and his client are, and remain, privileged, if there is a language barrier between them.
¶8In Baltierra v. State, 586 S.W.2d 553, 556, 557 (Tex.Crim.App.1979), Justice Clinton stated the following principles:
It is basic that the right of confrontation includes, as “an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal,” the right to cross-examine those witnesses. Also, within the scope of the right of confrontation is the absolute requirement that a criminal defendant who is threatened with loss of liberty be physically present at all phases of proceedings against him, Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), absent a waiver of that right through defendant’s own conduct as in, e.g., Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). In a real sense, as well as the right to be physically present, one must also be mentally present to confront and be confronted by and cross-examine witnesses, for a defendant is not to be tried unless possessed of ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ and ‘a rational as well as factual understanding of the proceedings against him.’ Article 46.02, Section 1(a)(1) and (2), V.A.C.C.P.; Jackson v. State, 548 S.W.2d 685, 691 (Tex.Cr.App.1977); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).
Physical presence and competency, essential requisites of confrontation, are personal to the accused and without affirmative action or assent by the accused those imperatives may not be disregarded or ignored by the courts. But even presence and competency do not suffice to provide confrontation where the accused does not understand the language of the forum.
¶9I would carry these principles a step further and hold that a defendant’s rights, under the Fifth and Sixth Amendments to the U.S. Constitution and Article I Sections 10 and 19 to the Texas Constitution, to due process and effective assistance of counsel mandate the trial court to appoint an interpreter to an indigent defendant to assist his defense counsel in effective representation where a language barrier exists between them and to further ensure that communications between them are, and remain, privileged.
¶10In our case there is no showing appellant was indigent notwithstanding retained defense counsel’s sworn testimony asserting the appellant was indigent. There was no *352pauper s oath filed by the appellant nor did appellant testify to such. There was also conflicting testimony in the record as to whether appellant understood English, notwithstanding his contention that he only spoke Vietnamese. Because the trial record is incomplete to allow an accurate analysis, I must agree only in the result reached by the majority.
¶11However, appellant may be able to fully develop the facts needed to obtain a new trial in a post conviction Writ of Habeas Corpus proceeding. Tex. Const. Art. 1, § 12. Tex.Code Crim.Proc.Ann. art. 11.07 (Vernon 1989).