Tomas DeLeon, III v The State Of Oklahoma

F 2003-959

Filed: Nov. 24, 2004

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Tomas DeLeon, III appealed his conviction for five counts of Lewd Molestation. Conviction and sentence were affirmed, but one part of the sentence was changed. Judge Johnson and Judge Lumpkin agreed with the decision, while Judge Chapel only agreed with the result.

Decision

The trial court is ordered to enter an order Nunc Pro Tunc to delete the language "SPECIAL CONDITION No good time" from the Judgment and Sentence. As modified, the Judgment and Sentence of the trial court is AFFIRMED.

Issues

• Was there insufficient evidence presented at the Preliminary Hearing to warrant bindover on count 4?
• Did trial counsel render ineffective assistance in failing to move to quash count 4 after the Preliminary Hearing?
• Did trial counsel fail to demur to the Amended Information on the basis that more than one offense was charged therein?
• Did trial counsel fail to fully develop Mr. DeLeon's defense at trial?
• Did trial counsel fail to introduce certain available evidence to support his defense?
• Did trial counsel fail to object to inadmissible hearsay and other crimes evidence?
• Was there prosecutorial misconduct during closing argument that deprived Mr. DeLeon of a fundamentally fair trial?
• Was other crimes evidence improperly admitted at trial?
• Did the trial court give confusing instructions regarding the relevance of the other crimes evidence?
• Did the trial court fail to ensure a complete record for appeal, constituting a violation of Mr. DeLeon's constitutional right to due process?
• Did the trial court exceed its authority by inserting the notation "no good time" on Mr. DeLeon's Judgment and Sentence?
• Was there insufficient evidence presented to support the convictions on counts 4 and 5, as the State failed to prove the alleged touching was committed in a lewd and lascivious manner?
• Was there insufficient evidence presented to support the convictions on counts 3 and 4 because testimony showed the allegations were physically and logistically impossible?
• Does the cumulative effect of the errors discussed require the reversal of Mr. DeLeon's convictions or modification of punishments?

Findings

• the court erred in finding insufficient evidence to warrant bindover on count 4
• the court did not find trial counsel rendered ineffective assistance
• the court found prosecutorial misconduct did not deprive the appellant of a fundamentally fair trial
• the court found other crimes evidence was properly admitted
• the failure to ensure a complete record did not violate due process rights
• the trial court exceeded its authority by including "no good time" notation in the Judgment and Sentence
• the court found sufficient evidence to support convictions on counts 3, 4, and 5
• the cumulative effect of the errors did not require reversal or modification of punishments

F 2003-959

Nov. 24, 2004

Tomas DeLeon, III

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LILE, VICE PRESIDING JUDGE: Appellant, Tomas DeLeon, III, was tried by a jury and convicted of five counts of Lewd Molestation in violation of 21 O.S.Supp.2002, § 1123 in the District Court of Stephens County, Case No. CF-2003-149, before the Honorable George W. Lindley, District Judge. In accordance with the jury’s recommendation, Judge Lindley sentenced Appellant to ten (10) years imprisonment on the first count, one (1) year imprisonment on counts two, four and five, and three (3) years imprisonment on count three. The trial court ordered that the sentences be served consecutively. From these judgments and sentences, Appellant has perfected this appeal.

Appellant raises the following propositions on appeal:

1. Insufficient evidence was presented at the Preliminary Hearing to warrant bindover on count 4.
2. Trial counsel rendered ineffective assistance in failing to move to quash count 4 after Preliminary Hearing, in failing to demur to the Amended Information on the basis that more than one offense was charged therein, in failing to fully develop Mr. DeLeon’s defense at trial, in failing to introduce certain available evidence to support his defense and in failing to object to inadmissible hearsay and other crimes evidence.
3. Prosecutorial misconduct during closing argument deprived Mr. DeLeon of a fundamentally fair trial.
4. Other crimes evidence was improperly admitted at trial and the confusing instructions given by the trial court regarding the relevance of the other crimes evidence requires reversal of Mr. DeLeon’s convictions.
5. The failure of the trial court to ensure a complete record for appeal constitutes a violation of Mr. DeLeon’s constitutional right to due process.
6. The trial court exceeded its authority by inserting the notation no good time on Mr. DeLeon’s Judgment and Sentence.
7. Insufficient evidence was presented to support the convictions on counts 4 and 5 because the State failed to prove beyond a reasonable doubt that the alleged touching, if any, was committed in a lewd and lascivious manner. Insufficient evidence was presented to support the convictions on counts 3 and 4 because copious testimony was presented showing the allegations therein were physically and logistically impossible.
8. The cumulative effect of the errors discussed above requires the reversal of Mr. DeLeon’s convictions or in the alternative a modification of punishments.

After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we have determined that Appellant’s convictions should be AFFIRMED (with the amendment to the Judgment and Sentence noted in our discussion of proposition six). In reaching our decision, we find, in proposition one that Appellant failed to properly preserve this issue for appeal by entering a plea at arraignment without first filing a motion to quash, based on the claimed irregularities occurring during preliminary hearing. Hambrick v. State, 1975 OK CR 86, 11, 535 P.2d 703, 705. In reviewing the preliminary hearing transcript, we find that this error does not rise to the level of plain error and counsel was not ineffective for failing to file the motion to quash. In proposition two, we find that the Appellant has not shown that counsel’s conduct was deficient. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). Appellant has not provided sufficient information to show by clear and convincing evidence that there is a strong possibility trial counsel was ineffective.

In proposition three, we find that the errors complained of were not met with objections and did not rise to the level of plain error; therefore, do not require relief. Frederick v. State, 2001 OK CR 34, II 162, 37 P.3d 908, 948-49; Stemple v. State, 2000 OK CR 4, 45, 994 P.2d 61, 71. Counsel was not ineffective for failing to object to these comments. We find, in proposition four, that the other crimes evidence was properly admitted. Myers v. State, 2000 OK CR 25 II 24, 17 P.3d 1021, 1030. In proposition five, we find that this error was cured during the evidentiary hearing and no prejudice resulted. Fairchild v. State, 1999 OK CR 49, 93, 998 P.2d 611, 629-30. We find, in proposition six, that the trial court’s notation SPECIAL CONDITION No good time under the special rules and conditions of probation section of the Judgment and Sentence should be stricken, as the trial court exceeded its authority. Washington v. Department of Corrections, 2002 OK CR 25, 4, 49 P.3d 754, 755. In proposition seven, we find that, in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Spuehler v. State, 1985 OK CR 132, 7, 709 P.2d 202, 203-04.

DECISION

The trial court is ordered to enter an order Nunc Pro Tunc to delete the language SPECIAL CONDITION No good time from the Judgment and Sentence. As modified, the Judgment and Sentence of the trial court is AFFIRMED.

APPEARANCES AT TRIAL

LISA PATEL
803 SOUTHWEST E AVENUE
LAWTON, OK 73501
ATTORNEY FOR DEFENDANT

ALECIA FELTON GEORGE
LAW OFFICE
P.O. BOX 580
MUSTANG, OK 73064

ROBERT L. WYATT, IV
228 ROBERT S. KERR, SUITE 750
P.O. BOX 1947
OKLAHOMA CITY, OK 73101
ATTORNEYS FOR DEFENDANT

JERRY WAYNE HERBERGER
ASSISTANT DISTRICT ATTORNEY
STEPHENS COUNTY
DUNCAN, OK 73533

W. A. DREW EDMONDSON
OKLAHOMA ATTORNEY GENERAL

JUDITH S. KING
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL
2300 N. LINCOLN BLVD.
OKLAHOMA CITY, OK 73104
ATTORNEYS FOR APPELLEE

OPINION BY: LILE, V.P.J.
JOHNSON, P.J.: CONCURS
LUMPKIN, J.: CONCURS
CHAPEL, J.: CONCURS IN RESULTS

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Footnotes:

1. Okla. Stat. tit. 21 § 1123
2. Hambrick v. State, 1975 OK CR 86, ¶ 11, 535 P.2d 703, 705
3. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984)
4. Frederick v. State, 2001 OK CR 34, ¶ 162, 37 P.3d 908, 948-49
5. Stemple v. State, 2000 OK CR 4, ¶ 45, 994 P.2d 61, 71
6. Myers v. State, 2000 OK CR 25, ¶ 24, 17 P.3d 1021, 1030
7. Fairchild v. State, 1999 OK CR 49, ¶ 93, 998 P.2d 611, 629-30
8. Washington v. Department of Corrections, 2002 OK CR 25, ¶ 4, 49 P.3d 754, 755
9. Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04
10. Okla. Stat. Tit. 22, Ch. 18, App. (2004)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123 (Supp. 2002) - Lewd Molestation
• Okla. Stat. tit. 22 § 3.11 (2004) - Supplementing the Record
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing for Crimes
• Okla. Stat. tit. 22 § 1103 (2001) - Conditions of Probation
• Okla. Stat. tit. 57 § 332 (2001) - Special Condition No Good Time

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Hambrick v. State, 1975 OK CR 86, I 11, 535 P.2d 703, 705
• Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984)
• Frederick v. State, 2001 OK CR 34, II 162, 37 P.3d 908, 948-49
• Stemple v. State, 2000 OK CR 4, I 45, 994 P.2d 61, 71
• Myers v. State, 2000 OK CR 25 II 24, 17 P.3d 1021, 1030
• Fairchild v. State, 1999 OK CR 49, I 93, 998 P.2d 611, 629-30
• Washington v. Department of Corrections, 2002 OK CR 25, I 4, 49 P.3d 754, 755
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04