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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA TOMAS DeLEON, III, ) ) Appellant, ) NOT FOR PUBLICATION ) VS. ) Case No. F 2003-959 ) THE STATE OF OKLAHOMA, ) FILED ) Appellee, IN COURT OF CRIMINAL APPEALS ) STATE OF OKLAHOMA NOV 2 4 2004 SUMMARY OPINION MICHAEL S. RICHIE CLERK 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 trail, 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 insure 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 U. State, 1975 OK CR 86, IT 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.1 In proposition three, we find that the errors complained of were not met with objections and did not rise to 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, IT 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, IT 93, 998 P.2d 611, 629-30. We find, in proposition six, that the trial courts notation “SPECIAL CONDITION No good time” under the special rules 1 Appellant’s tendered motion to supplement the record pursuant to Rule 3.11, Rules of the Court of Criminal Appeals, Okla. Stat. Tit. 22, Ch. 18, App. (2004) is ordered to be filed by the Clerk of this Court; however, the motion is denied pursuant to this finding. 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, I 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, T7, 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 APPEARANCES ON APPEAL LISA PATEL ALECIA FELTON GEORGE 803 SOUTHWEST E AVENUE GEORGE LAW OFFICE LAWTON, OK 73501 P.O. BOX 580 ATTORNEY FOR DEFENDANT 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 W. A. DREW EDMONDSON ASSISTANT DISTRICT ATTORNEY OKLAHOMA ATTORNEY GENERAL STEPHENS COUNTY JUDITH S. KING DUNCAN, OK 73533 ASSISTANT ATTORNEY GENERAL ATTORNEY FOR THE STATE 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 RA

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