Christian Emmanuel Reyes v The State Of Oklahoma

RE-2018-536

Filed: Jun. 20, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Christian Emmanuel Reyes appealed his conviction for violating the terms of his suspended sentences. His conviction and sentence were upheld. Judge Kuehn dissented.

Decision

The revocation of Appellant's suspended sentences in Oklahoma County District Court Case Nos. CF-2013-6460 and CF-2017-3715 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 a violation of 12 O.S.2011, § 2404(B) concerning the State's introduction of evidence related to Appellant's behavior?
• did the State provide sufficient evidence to prove Appellant committed Second Degree Burglary?
• did the trial court abuse its discretion in revoking Appellant's suspended sentences?

Findings

• Appellant waived appellate review of the evidentiary issue due to failure to object at the revocation hearing.
• No plain error existed regarding the evidentiary matter, and the claim was denied.
• The evidence was sufficient to demonstrate Appellant's intent to steal in the Second Degree Burglary charge.
• The standard of proof at the revocation hearing was met by the State by a preponderance of the evidence.
• There was no abuse of discretion by the trial court in revoking Appellant's suspended sentences.
• The revocation of Appellant's suspended sentences is affirmed.

RE-2018-536

Jun. 20, 2019

Christian Emmanuel Reyes

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

HUDSON, JUDGE: Appellant appeals from the revocation of his suspended sentences in Oklahoma County District Court Case Nos. CF-2013-6460 and CF-2017-3715 by the Honorable Glenn Jones, District Judge. On November 13, 2013, Appellant entered a blind plea of guilty to Unauthorized Use of a Vehicle, in violation of 47 O.S.2011, § 4-102 (Count 1), and Attempting to Elude a Police Officer, in violation of 21 O.S.Supp.2015, § 540A (Count 3), in Case No. CF-2013-6460. On July 30, 2014, the trial court sentenced Appellant to five years imprisonment for Count 1, with all but the first two years suspended, and one year imprisonment for Count 3. The sentences were ordered to be served concurrently. On July 6, 2017, Appellant pled guilty to Possession of a Controlled Dangerous Substance in the Presence of a Minor under Twelve (12), in violation of 63 O.S.Supp.2016, § 2-402, in Oklahoma County District Court Case No. CF-2017-3715. Appellant was convicted and sentenced to five years imprisonment with all but the first one hundred days suspended. Pursuant to the plea agreement, the State did not file an application to revoke in Case No. CF-2013-6460. The trial court subsequently modified Appellant’s sentence in Case No. CF-2017-3715 to five years imprisonment with all but the first thirty days suspended.

On April 6, 2018, the State filed a 1st Amended Application to Revoke Suspended Sentence in both cases alleging Appellant failed to pay multiple fees, failed to comply with the modification order, and committed the new crime of Second Degree Burglary as alleged in Oklahoma County District Court Case No. CF-2017-6227. Following a revocation hearing, Judge Jones revoked Appellant’s remaining suspended sentences in full.

In his first proposition, Appellant maintains the testimony elicited by the State concerning Appellant’s behavior violated 12 O.S.2011, § 2404(B) and Burks v. State, 1979 OK CR 10, I 7, 594 P.2d 771, 774-75, overruled in part on other grounds by Jones U. State, 1989 OK CR 7, I 7, 772 P.2d 922, 925. Appellant argues the State failed to give proper notice of its intent to introduce this evidence and as a result he is entitled to relief. Appellant cites no authority that supports this position. Appellant made no objection to the lack of a Burks notice at the revocation hearing. He complains for the first time in this proposition. 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 U. State, 1994 OK CR 40, 99 11, 23, 876 P.2d 690, 694-95, 698; 20 O.S.2011, § 3001.1. If these elements are met, this Court will correct plain error only if the error “seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings” or otherwise represents a “miscarriage of justice.” Simpson, 1994 OK CR 40, at 30, 876 P.2d at 701 (citing United States U. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 1779, 123 L.Ed.2d 508 (1993); 20 O.S.2011, § 3001.1. Hogan v. State, 2006 OK CR 19, IT 38, 139 P.3d 907, 923. Appellant argues that the reasoning found in Bourland v. State, 1993 OK CR 14, 848 P.2d 580, that requires discovery be provided prior to hearings on applications to accelerate, should also require a Burks notice be provided in a revocation. He is claiming 12 O.S.2011, § 2404 should apply to revocation hearings. Section 2404 is part of the Oklahoma Evidence Code. The Oklahoma Legislature clearly states in 12 O.S.2011, § 2103(B)(2) that the Oklahoma Evidence Code does not apply to revocation hearings: A. Except as otherwise provided in subsection B of this section, this Code shall apply in both criminal and civil proceedings, conducted by or under the supervision of a court, in which evidence is produced. B. The rules set forth in this Code, other than those applicable to a valid claim of privilege, do not apply in the following situations: 2. Proceedings for extradition or rendition; sentencing or granting or revoking probation; advancement of deferred judgment; issuance of warrants for arrest, criminal summonses and search warrants; proceedings with respect to release on bail or otherwise; and juvenile emergency show-cause hearings. 12 O.S.2011, § 2103(B)(2). In the present case, Appellant has not met the plain error burden. Appellant has not established any error occurred. Simpson, 1994 OK CR 40, II 11, 23, 876 P.2d at 694-95, 698; 20 O.S.2011, § 3001.1.

Proposition I is denied.

Proposition II claims the State provided insufficient evidence to prove Appellant committed Second Degree Burglary. Appellant argues the State did not prove he entered the victim’s home with the “intent to steal.” To the contrary, the only evidence before the trial court, regarding Appellant’s intent when entering the victim’s house, indicated an intent to steal. This argument is without merit. In a revocation hearing, the State is only required to prove violations by a preponderance of the evidence. Tilden v. State, 2013 OK CR 10, I 5, 306 P.3d 554, 556. A “preponderance of the evidence” means the evidence “more likely than not” established the alleged probation violations occurred. Hammon v. State, 2000 OK CR 7, I 46, 999 P.2d 1082, 1094. Here, the witnesses’ testimony was sufficient to prove the new crime by a preponderance. Proposition II is denied.

A suspended sentence is a matter of grace. Hagar v. State, 1999 OK CR 35, 8-10, 990 P.2d 894, 897-98; Demry v. State, 1999 OK CR 31, I 12, 986 P.2d 1145, 1147. The decision to revoke a suspended sentence in whole or in part is within the sound discretion of the trial court and such decision will not be disturbed absent an abuse thereof. Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565. In this case, the State filed a petition setting forth the grounds for the revocation, and competent evidence justifying the revocation was presented to the trial court establishing the requirements necessary to revoke Appellant’s suspended sentences in full. 22 O.S. § 991b(A). Appellant has not shown an abuse of discretion. Jones, supra.

DECISION

The revocation of Appellant’s suspended sentences in Oklahoma County District Court Case Nos. CF-2013-6460 and CF-2017-3715 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.

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Footnotes:

1. 47 O.S.2011, § 4-102
2. 21 O.S.Supp.2015, § 540A
3. 63 O.S.Supp.2016, § 2-402
4. 12 O.S.2011, § 2404
5. Burks v. State, 1979 OK CR 10, 594 P.2d 771
6. Jones v. State, 1989 OK CR 7, 772 P.2d 922
7. Simpson v. State, 1994 OK CR 40, 876 P.2d 690
8. Hogan v. State, 2006 OK CR 19, 139 P.3d 907
9. Bourland v. State, 1993 OK CR 14, 848 P.2d 580
10. 12 O.S.2011, § 2103(B)(2)
11. Tilden v. State, 2013 OK CR 10, 306 P.3d 554
12. Hammon v. State, 2000 OK CR 7, 999 P.2d 1082
13. Hagar v. State, 1999 OK CR 35, 990 P.2d 894
14. Demry v. State, 1999 OK CR 31, 986 P.2d 1145
15. 22 O.S. § 991b(A)

Oklahoma Statutes citations:

• Okla. Stat. tit. 47 § 4-102 (2011) - Unauthorized Use of a Vehicle
• Okla. Stat. tit. 21 § 540A (2015) - Attempting to Elude a Police Officer
• Okla. Stat. tit. 63 § 2-402 (2016) - Possession of a Controlled Dangerous Substance in the Presence of a Minor
• Okla. Stat. tit. 12 § 2404 (2011) - General Rule Regarding Character Evidence
• Okla. Stat. tit. 12 § 2103 (2011) - Applicability of Oklahoma Evidence Code
• Okla. Stat. tit. 20 § 3001.1 (2011) - Plain Error Doctrine
• Okla. Stat. tit. 22 § 991b(A) - Revocation of Suspended Sentences

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:

• Bramlett v. State, 2018 OK CR 19, 1 36, 422 P.3d 788, 799-800
• Burks v. State, 1979 OK CR 10, 1 7, 594 P.2d 771, 774-75
• Jones v. State, 1989 OK CR 7, 1 7, 772 P.2d 922, 925
• Simpson v. State, 1994 OK CR 40, 99 11, 23, 876 P.2d 690, 694-95, 698
• Hogan v. State, 2006 OK CR 19, 1T 38, 139 P.3d 907, 923
• Bourland v. State, 1993 OK CR 14, 848 P.2d 580
• Tilden v. State, 2013 OK CR 10, 1 5, 306 P.3d 554, 556
• Hammon v. State, 2000 OK CR 7, 1 46, 999 P.2d 1082, 1094
• Hagar v. State, 1999 OK CR 35, 8-10, 990 P.2d 894, 897-98
• Demry v. State, 1999 OK CR 31, 1 12, 986 P.2d 1145, 1147