Trevino v. State
739 P.2d 1019
Okla. Crim. App.
1987
Check Treatment

*1 sufficiently ap- when the defendant was

prised grounds upon of the his

suspended sentence was revoked. In the us, the

case before written notation suspended sentence consecutively with CRF-79- revoked with his taken statement from the based his decision

‘upon stipulation upon ... ...

facts,’ ap- apprise was sufficient to

pellant grounds upon

suspended sentence was Fur- revoked.

ther, probation- a revocation

er panoply is not entitled to the full rights,

constitutional Woods v. (Okl.Cr.1974);

P.2d 944 and the decision

to revoke lies within sound discretion the trial court. Fain v.

P.2d 254 admitted that he

pleaded guilty a subsequent crime in

Tulsa and the trial court acceler- appellant’s

ated deferred sentence based

upon Clearly, this evidence.

was aware of the court’s reason for accel-

erating Consequently, his sentence.

contention is without merit. judgment and sentence is AF-

BRETT, P.J., PARKS, J.,

concur. and Daniel TREVINO

Vizcaino, Appellants,

Rehearing Aug. Denied

that he was not involved in it. When asked company she come into their how had replied girl Dan's that she Bunce was they picked up at her The her residence. previously moved to sever appellants had had and had that Bunce the trial exculpatory an statement made The against admitted them. should given he Bunce had after statement which not entered custody taken into was was appellants into characterize evidence. Bunce the as a “confession” of saying “they did it I did not.” Consid- but ering Ferguson’s Captain the context of testimony, Bunce's statements would any of better characterized not as denial participation any in a or involvement Smith, Counsel, Sp. Appellate Thomas G. victim, the an that but admission Norman, Defender, appellants. Public residence, picked up at a fact her appellants. was not contested Turpén, Atty. Tomilou Michael C. Having transcript, are examined we Gentry Liddell, Deputy to find unable inconsistencies between Chief, Div., City, appel- Crim. of appellants the defense of lee. Accordingly, their codefendant. we find no of discretion the trial court. abuse BUSSEY, Judge: As their next urge appellants the trial court that Dan- appellants, Trevino grant its abused discretion Vizcaino, in the District iel were convicted preliminary hearing or a continuance new of Case No. CRF-83- Court Texas on the fact that trial counsel for the based Degree Rape, of and each sen- First appointed appellants one month before imprisonment. years’ tenced to trial. The claim that their They acquitted charge of kid- were given opportunity trial counsel wás not napping. They appeal their convictions to interview the State’s witnesses nor was raising assignments of error. seven given adequate preparation time. As of this are forth case set State, White P.2d Bunce (Okl.Cr.1980), “Insufficiency prepa parameters appellants complain in their ration falls within the time judicial Essentially, that sound discretion.” error court refused to their trial from contention of the sever codefendant, prepared of their counsel have a better de Fred Bunce. Grant could ing denying fense he had been allowed to conduct the motion severance its discretionary preliminary with the trial court and rather than the attor ruling un ney represented will not be who disturbed time, showing less clear trial counsel lost there is a abuse that therefore Master v. resulting discovery. Appellants prejudice. discretion do ap deprived claim that trial counsel was pellants prejudiced by opportunity claim were to examine Moreover, preliminary hearing. Captain Ferguson who the Joe presented stated that when a defense effective he asked Bunce enough acquitted Bunce brought had been to the sta that the Therefore, we replied kidnapping charge. tion about the of J.M. Bunce its The appellants argued find that the trial court did abuse consent as their de- fense. The denying prelimi- injuries victim, discretion in both a new along with the nary hearing strongly and a continuance. as- forensic evidence sup- ports signment of error the State’s is without merit. contention that force was used to overcome the resistance the vic- their third *3 tim. The trial court stated after consider- appellants argue that Vizcaino’s to ing the evidence that the State’s case either by remain silent was violated comments of appellants guilty showed the in the by a and officer’s degree, first guilty. agree. or not We testimony during trial. We addressed assignment error meritless. Bunce, these same in comments and assert as their therein, sixth assignment the reasons stated assignment of error that the evidence was of error is merit. without support insufficient to the verdict. The assignment As a fourth appellants argue that J.M.’s appellants allege prosecutorial misconduct. glaring “several inconsistencies and contra However, none the comments of which dictions,” and that the facts and circum appellants complain pre stances were not corroborative of her sto result, objection. served a As ry. sufficiency The test for of evidence is errors, if any, are deemed Lang waived. Virginia, in Jackson stated 443 U.S. dell v. 657 P.2d 162 61 L.Ed.2d 560 Our review the cited comments requires It reviewing a court to determine warranting reveals no error ei “whether, reviewing the evidence in ther reversal modification of the sen light most favorable to the prosecution, assignment tence. We find no merit rational trier fact could have found of error. the essential elements of the crime charged beyond Contrary a reasonable doubt.” appellants’ fifth appellant, the assertions of the the evi error contends that court commit overwhelming. dence this case is ted error by reversible to instruct concede that had sexual degree rape. on second An examination of intercourse J.M. As we stated in the record reveals that the did Bunce, only controverted issue was the request not submit the to instruct in writ consent of the victim. ing, though they even present did other concerning inju the State’s witnesses requested written instructions. ries, photographs and the entered into evi repeatedly We have a defend- overwhelmingly support dence a lack of ant feels that additional instructions consent. given, duty should be it is his to reduce writing instructions to them submit their As seventh of er request ror, appellants urge their sen given. request, absence such a tences were excessive. This Court consist conviction will reversed unless ently punish holds that excessiveness of opinion this court is of the that failure to by study ment is to be determined of all give an has deprived instruction defend- surrounding the facts and circumstances right. ant a substantial each individual dowe Ramsey State, (Okl. power modify have the sentence under Cr.1977). Appellants' counsel made all the facts and circumstances unless the request an oral for such an instruction. sentence is so as excessive to shock the Trial their codefendant Dilworth v. conscience of Court. that the State must either meet their bur Under proof degree den of first or the degree rape jury must find the defendants innocent. punishable by imprisonment “death1 or Supreme 1. The disproportionate punish- Court of United States death sentence ais plurality opinion expressed has the view that (5) less than penitentiary, jury....” in the discretion within the limits As is well law, find this

prescribed by merit. to be without sentences are AF- judgments P.J.,

BRETT, concurs. concurring.

PARKS, J., specially

PARKS, Judge, concurring: specially *4 point out that it is separately

I write improper to com-

clearly for right to remain silent an accused’s

ment on any stage jury trial. See Robison v. 1080, 1084 677 P.2d however,

In the instant error was preserved appellate review timely specific objection and so the

by a reviewed for fundamental error

record was State,, 877,

only. McLeod v. See (Okl.Cr.1986). Having found no funda- error, I mental concur the affirmance Clark, Clark, Inc., Mordy James A. & judgment and sentence. Ardmore, appellant. Henry, Atty. Terry

Robert H. J. Jenks, City, for appellee.

BRETT, Presiding Judge: Jr., Appellant, Ralph Eugene Bynum, BYNUM, Jr., Eugene Appellant, Ralph jury counts of of two convicted Feloniously Carrying a in Marshall Firearm County No. CRF-79-43. Case 1283. concur- He was sentenced to two rent sentences of seven two months Court days and two each a recommendation suspend- of his sentence be ed.

Appellant since his has been out on bail April conviction was with- previously found case in out in his failure fault manner, granted a late timely and was appeal. not recite does Since offenses, in these involved two dispute. the facts are not will assume rape. Georgia, L.Ed.2d ment Coker v. U.S.