Intentional Discharge Archives

RE-2018-1071

Post author:Mili Ahosan
Post published:September 26, 2019
Post category:RE

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JOSE ANGEL LOPEZ, ) Appellant, ) V. ) No. RE-2018-1071 THE STATE OF OKLAHOMA, ) Appellee.** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA SEP 26 2019** **SUMMARY OPINION** *KUEHN, VICE PRESIDING JUDGE:* Appellant, Jose Angel Lopez, pled guilty to Count 1 - Using a Vehicle to Facilitate the Intentional Discharge of a Firearm, a felony, and Count 2 - Possession of a Controlled Dangerous Substance, a misdemeanor, in Oklahoma County District Court Case No. CF-2010-3550. He was sentenced to ten years imprisonment for Count 1 and one year imprisonment for Count 2. The sentences were ordered to run concurrently, with all but the first five years suspended. Following a one-year Judicial Review hearing, Appellant’s sentence for Count 1 was modified to three years to serve and seven years suspended. The State filed an Application to Revoke Suspended Sentence, alleging Appellant violated the terms of his suspended sentence by failing to pay supervision fees, failing to report as directed, and committing the new crime of Possession of CDS, as alleged in Lincoln County Case No. CF-2014-343. The application to revoke was later amended to further allege Appellant committed the new crimes of Assault and Battery with a Deadly Weapon and Felon in Possession of a Firearm, as alleged in Oklahoma County Case No. CF-2017-4230. Following a revocation hearing before the Hon. Glenn M. Jones, District Judge, Appellant's suspended sentence was revoked in full. Appellant appeals the revocation of his suspended sentences, raising a sole proposition of error: the trial court abused its discretion in revoking Appellant's sentence based entirely upon hearsay evidence with no particularized guarantee of reliability. We affirm the order of the District Court revoking Appellant's suspended sentence in full. 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. Tilden v. State, 2013 OK CR 10, 10, 306 P.3d 554, 557. An 'abuse of discretion' is defined by this Court as a 'clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented in support of and against the application.' Walker v. State, 1989 OK CR 65, 5, 780 P.2d 1181, 1183. Alleged violations of conditions of a suspended sentence need be proven only by a preponderance of the evidence. Tilden, 2013 OK CR 10, 5, 306 P.3d at 556. Judge Jones determined that the State showed, by a preponderance of the evidence, that Appellant committed the new crimes alleged in Oklahoma County Case No. CF-2017-4230. This decision was reached after reviewing the preliminary hearing's transcript from Case No. CF-2017-4230, in which the victim testified Appellant entered his yard and shot him while he was sitting on his front porch. This Court has held that neither the relaxed due process standards nor the provisions of Section 991b are violated when a transcript of a previous judicial hearing is admitted into evidence at a revocation hearing so long as the defendant was allowed to confront and cross-examine the witnesses at the previous judicial hearing. Wortham v. State, 2008 OK CR 18, 15, 188 P.3d 201, 206. A review of the preliminary hearing transcript shows that Appellant’s trial counsel, who also represented him at the revocation hearing, cross-examined the State's only witness. The testimony of a witness about his personal knowledge of the events, under oath and subject to cross-examination, is not hearsay. Appellant has not shown an abuse of discretion. **DECISION** The District Court's revocation of Appellant's suspended sentence in Oklahoma County District Court Case No. CF-2010-3550 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 delivery and filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, THE HONORABLE GLENN M. JONES, DISTRICT JUDGE** APPEARANCES AT HEARING: LYDIA FIELDS ANDREA DIGILIO MILLER COUNSEL FOR DEFENDANT TIFFANY NOBLE ASST. DISTRICT ATTORNEY, OKLAHOMA COUNTY COUNSEL FOR THE STATE MIKE HUNTER ATTORNEY GENERAL CAROLINE E.J. HUNT ASST. ATTORNEY GENERAL COUNSEL FOR APPELLEE **OPINION BY:** KUEHN, V.P.J.: LEWIS, P.J.: CONCUR LUMPKIN, J.: CONCUR HUDSON, J.: CONCUR ROWLAND, J.: RECUSE 005 [Download the PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-1071_1734355190.pdf)

F-2005-963

Post author:Mili Ahosan
Post published:May 25, 2007
Post category:F

In OCCA case No. F-2005-963, the appellant appealed his conviction for using a vehicle to facilitate the intentional discharge of a weapon. In an unpublished decision, the court modified the conviction to felony malicious injury to property instead. One judge dissented. The case began when the appellant, Larry Roger Watts, was found guilty by a jury of a crime involving firing a weapon from a vehicle. The jury decided he should serve three years in prison and pay an $8,000 fine. Watts disagreed with the decision and argued several points in his appeal. First, he believed there was not enough evidence to support the charge against him. He claimed that since nobody was near where he fired the weapon, it wasn't a real drive-by shooting, which is meant to endanger people, not property. He also pointed out that the law was changed, and air guns were no longer considered weapons that could be fired from a vehicle under this specific law. Secondly, the appellant argued that the way he was arrested was not legal, meaning the evidence against him should not have been allowed in court. He also mentioned that important recordings from the police that could have helped his case were erased, which he felt was unfair. While looking at all these claims, the court decided that the original conviction for a drive-by shooting could not stand since no one was harmed during the incident. However, the court recognized that damages to property did happen, which led them to change the conviction to felony malicious injury to property. This new conviction came with a lesser punishment: two years in prison and a fine of $1,000 instead of the earlier sentence. The judges concluded that allowing the state to proceed under different theories of the law was appropriate. They determined that Watts was not surprised or prejudiced by this change. In the end, the court ruled in favor of modifying the conviction and sentence, agreeing that it was the right way to handle the case based on the evidence available. They also stated that there was no plain error regarding the prosecutor's comments or about the contention of the erased tapes. Overall, the case showed how legal decisions can evolve based on the circumstances and the interpretations of the law.