Jose Santiago Hernandez v The State of Oklahoma

RE 2018-1288

Filed: Dec. 19, 2019

Not for publication

Prevailing Party: The State of Oklahoma

Summary

# Jose Santiago Hernandez appealed his conviction for robbery and conspiracy. Conviction and sentence were upheld. Judge Rowland dissented.

Decision

The revocation of Appellant's suspended sentences in Oklahoma County District Court Case Nos. CF-2016-4761 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• was there sufficient competent evidence to prove Appellant committed perjury?
• did the State meet the burden of proof required to revoke Appellant's suspended sentences?
• was the revocation decision an abuse of discretion by the trial court?

Findings

• The court affirmed the revocation of Appellant's suspended sentences.
• The State presented sufficient competent evidence to support the finding of perjury.
• No abuse of discretion was shown by Appellant regarding the revocation of his sentences.

RE 2018-1288

Dec. 19, 2019

Jose Santiago Hernandez

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Jose Santiago Hernandez, Appellant, entered a plea of guilty on January 4, 2017, to the amended charges of Counts 1 and 2, Robbery with a Firearm, and Count 5 – Conspiracy to Commit a Felony in Oklahoma County District Court Case No. CF-2016-4761. He was sentenced to ten years on each count with all except the first five years suspended, with rules and conditions of probation. All counts were ordered to run concurrently with each other and with Oklahoma County Case Nos. CF-2013-6543 and CF-2013-6647.

The State filed an application to revoke Appellant’s suspended sentences on July 25, 2018, alleging Appellant committed the new crime of perjury on March 14, 2018, by lying to prosecutors and the trial court when giving statements and/or testimony about the involvement of his co-defendant, Antonio Taylor, in the robbery occurring on June 1, 2016. Following a revocation hearing on December 19, 2018, before the Honorable Bill Graves, District Judge, Appellant’s suspended sentences were revoked in full. Judge Graves found Appellant did not tell the truth and sustained the State’s application.

Appellant appeals the revocation of his suspended sentence. On appeal Appellant argues the sole proposition of error that the State failed to present sufficient competent evidence to prove Appellant committed perjury in violation of the Due Process Clause of the Federal and State Constitutions. We affirm the order of the District Court revoking Appellant’s suspended sentences. Violations of the conditions of a suspended sentence need only be shown by a preponderance of the evidence. Tilden v. State, 2013 OK CR 10, ¶ 5, 306 P.3d 554, 556. Preponderance of the evidence has been defined to mean “simply the greater weight of evidence” – “that which, to the mind of the trier of fact or the seeker of the truth, seems most convincing and more probably true”. Henderson v. State, 1977 OK CR 238, ¶ 4, 568 P.2d 297, 297-298. A preponderance of the evidence supports Judge Graves’ ruling. Appellant has not shown an abuse of discretion.

DECISION

The revocation of Appellant’s suspended sentences in Oklahoma County District Court Case Nos. CF-2016-4761 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon the filing of this decision.

REVOCATION APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, THE HONORABLE BILL GRAVES, DISTRICT JUDGE

APPEARANCES ON APPEAL

CARLY ORTEL
ASSISTANT PUBLIC DEFENDER
OKLAHOMA COUNTY PUBLIC DEFENDER’S OFFICE
611 COUNTY OFFICE BLDG.
320 ROBERT S. KERR AVE.
OKLA CITY, OK 73102
COUNSEL FOR APPELLANT

ANNE MULDER
ASST DISTRICT ATTORNEY
OKLA COUNTY DISTRICT OFFICE
320 ROBERT S. KERR, SUITE 313
OKLA CITY, OK 73102
COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, J.:
LEWIS, P.J.: Concur
KUEHN, V.P.J.: Concur
HUDSON, J.: Concur
ROWLAND, J.: RECUSED

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Footnotes:

1. Okla. Stat. tit. 22 § 18
2. Tilden v. State, 2013 OK CR 10, ¶ 5, 306 P.3d 554, 556.
3. Henderson v. State, 1977 OK CR 238, ¶ 4, 568 P.2d 297, 297-298.

Oklahoma Statutes citations:

No Oklahoma statutes found.

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:

• Tilden v. State, 2013 OK CR 10, I 5, 306 P.3d 554, 556.
• Henderson v. State, 1977 OK CR 238, I 4, 568 P.2d 297, 297-298.