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ORIGINAL * 1043787154* IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA APOLLO GABRIEL GONZALEZ, ) ) Appellant, ) Not For Publication ) V. ) M-2018-259 ) FILED IN COURT OF CRIMINAL APPEALS THE STATE OF OKLAHOMA, ) STATE OF OKLAHOMA ) JUN 27 2019 Appellee. ) JOHN D. HADDEN CLERK SUMMARY OPINION KUEHN, VICE PRESIDING JUDGE: On July 12, 2016, Appellant was charged in Oklahoma County District Court with Domestic Abuse – Assault and Battery, in violation of 21 O.S.Supp.2014, § 644(C) in Case No. CM-2016-1848. On September 23, 2016, Appellant was charged in Oklahoma County District Court with Domestic Abuse – Assault and Battery, in violation of 21 O.S.Supp.2014, § 644(C) in Case No. CM-2016-2515. A jury trial was conducted and by agreement of the parties Case Nos. CM-2016-1848 and CM-2016-2515 were consolidated and presented to the jury as Counts 1 and 2, respectively. The jury found Appellant guilty and the Honorable Geary L. Walke, Special Judge, sentenced 1 him according to the jury’s recommendation to a $1,000 fine for Count 1 and a $500 fine for Count 2. Appellant appeals. Appellant raises two propositions of error in support of his appeal: I. APPELLANT WAS DEPRIVED A FULL AND FAIR TRIAL AS HIS TRIAL COUNSEL’S PERFORMANCE WAS DEFICIENT AND APPELLANT WAS PREJUDICED BY TRIAL COUNSEL’S DEFICIENT PERFORMANCE. II. THE APPELLANT WAS PREJUDICED BY THE TRIAL COURT’S CONSOLIDATION OF APPELLANT’S TWO SEPARATE OFFENSES OF DOMESTIC ABUSE AT HIS JURY TRIAL AND THE SAME CONSTITUTED REVERSIBLE ERROR. After thorough consideration of the entire record before us, including the original record, transcripts, exhibits, and briefs, we find that the law and evidence do not require relief. In his first proposition of error, Appellant argues trial counsel was ineffective for failing to introduce certain evidence Appellant alleges would show Robert Chiles, the alleged victim, was the aggressor and Appellant acted in self-defense. According to Appellant’s claims, the evidence consists of video recordings, audio recordings, emails, and written statements. 2 In support of this claim, and pursuant to Rule 3.11(B)(3)(b) of the Rules of this Court, Appellant tendered for filing an application for evidentiary hearing and a request to supplement the record. Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019). Rule 3.11(B)(3)(b) allows an appellant to request an evidentiary hearing when it is alleged on appeal that trial counsel was ineffective for failing to utilize available evidence which could have been made available during the course of trial. Lamar v. State, 2018 OK CR 8, IT 57, 419 P.3d 283, 297 (citing Simpson U. State, 2010 OK CR 6, I 53, 230 P.3d 888, 905-06). In order to rebut the strong presumptions of the regularity of district court proceedings and the competency of his trial counsel, Appellant’s application and affidavits must contain sufficient information to show this Court by clear and convincing evidence that there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence. Rule 3.11(B)(3)(b)(i), Rules, supra; Davis v. State, 2011 OK CR 29, I 188, 268 P.3d 86, 130. “Appellant must do more than present additional information that could have been used by trial counsel.” Dodd v. State, 2004 OK CR 31, “I 114, 100 P.3d 1017, 1050. “In order to meet the ‘clear and 3 convincing’ standard set forth above, Appellant must present this Court with evidence, not speculation, second guesses or innuendo.” Lott U. State, 2004 OK CR 27, I 135, 98 P.3d 318, 351. Appellant did not include any actual evidence with his application. The materials attached to the request to supplement and application for an evidentiary hearing fail to establish by clear and convincing evidence that there is a strong possibility that trial counsel was ineffective. Id. As a result, Appellant’s application to supplement the record is DENIED. Claims of ineffective assistance of trial counsel are decided pursuant to the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Smith V. Robbins, 528 U.S. 259, 289, 120 S.Ct. 746, 766, 145 L.Ed.2d 756 (2000). Under Strickland, an appellant must show both (1) deficient performance, by demonstrating that his counsel’s conduct was objectively unreasonable, and (2) resulting prejudice, by demonstrating a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. Strickland, 466 U.S. at 687-89, 104 S.Ct. at 2064-65. And we recognize that “[a] court considering a claim of ineffective 4 assistance must apply a ‘strong presumption” that counsel’s representation was within the ‘wide range of reasonable professional assistance.” Harrington U. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). Trial counsel is presumed to be competent. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Pursuant to Strickland, if it is easier to dispose of an ineffectiveness claim by finding a lack of sufficient prejudice then that course should be followed. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. It is Appellant’s burden to show that counsel’s performance was deficient, and that the deficiency resulted in prejudice. Even if we were to assume trial counsel was deficient, Appellant never proves it is reasonably probable that the outcome of this trial would have been different but for this alleged error. Appellant ignores his own testimony regarding the contents of this evidence. He repeatedly testified he possessed evidence of Chiles threatening to have Appellant incarcerated, harm Appellant’s family, and expose Appellant’s HIV status. To prevail in this proposition Appellant must prove this evidence would have added something beyond his testimony that would have changed the outcome of his 5 trial. Strickland, 466 U.S. at 687-89, 104 S.Ct. at 2064-66. Appellant provided no such proof. After examining Petitioner’s Proposition I claims, pursuant to the Strickland standard stated above, we find Petitioner’s ineffective assistance of trial counsel claim is without merit and is denied. At Proposition II, Appellant argues his convictions should be reversed based on Kramer v. State, 1953 OK CR 69, 97 Okl. Cr. 36, 257 P.2d 521. Citing Kramer, he argues the verdict form including both cases’ verdicts on the same form requires relief. Appellant made no objection to joinder of the offenses or the jury instructions below. Appellant has therefore waived appellate review of the issue for all but plain error. To be entitled to relief under the plain error doctrine, Appellant must prove: 1) the existence of an actual error (i.e., deviation from a legal rule); 2) that the error is plain or obvious; and 3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding. See Simpson v. State, 1994 OK CR 40, 10-11, 23, 876 P.2d 690, 694-95, 698; 20 O.S.2011, § 3001.1. In Kramer, this Court granted relief where four cases were consolidated and the verdict form only allowed for one verdict 6 collectively on all four cases. Kramer, supra, at 38. The jury in Kramer was required to choose between guilty on all four cases or not guilty on all four cases as a whole. Id. Kramer is not persuasive authority as the jury in this case was able to decide each case individually. Appellant has not established any error occurred, and even if we were to assume error was present, he has not established any error affected the outcome of the proceeding. Simpson, supra. Proposition II is denied. DECISION The Judgment and Sentence of the trial court is AFFIRMED. Appellant’s Application to Supplement the Record Pursuant to 22 O.S., Art. Section III, $3.11[sic], tendered for filing with the Clerk of this Court on July 25, 2018, is ordered to be FILED and is DENIED. Pursuant to Rule 3.15, Rules, supra, the MANDATE is ORDERED issued upon the filing of this decision. 7 AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, THE HONORABLE GEARY L. WALKE, SPECIAL JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL LARRY STURGILL CYNTHIA ROWE D’ANTONIO 2031 N. CHURCH AVE. 400 N. WALKER AVE., STE. 100 HARRAH, OK 73045 OKLAHOMA CITY, OK 73102 COUNSEL FOR DEFENDANT COUNSEL FOR APPELLANT ASPEN LAYMAN MIKE HUNTER ROB McCLATCHIE OKLA. ATTORNEY GENERAL ASST. DISTRICT ATTORNEY AMBER MASTERS 505 COUNTY OFFICE BLDG. ASST. ATTORNEY GENERAL 320 ROBERT S. KERR AVE. 313 N.W. 21st STREET OKLAHOMA CITY, OK 73102 OKLAHOMA CITY, OK 73105 COUNSEL FOR STATE COUNSEL FOR APPELLEE OPINION BY: KUEHN, V.P.J. LEWIS, P.J.: CONCUR LUMPKIN, J.: CONCUR HUDSON, J.: CONCUR ROWLAND, J.: CONCUR RA/F 8

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