Torres v. State
| Citation | 1998 OK CR 40,962 P.2d 3 |
| Decision Date | 30 June 1998 |
| Docket Number | No. F-96-350,F-96-350 |
| Parties | 1998 OK CR 40 Osbaldo A. TORRES, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Sharon Fore, Bethany, for Appellant at trial.
James A. Drummond, Sandra Mulhair Cinnamon, Capital Direct Appeals Division, Oklahoma Indigent Defense System, Norman, for Appellant on appeal.
Robert Macy, District Attorney, Susan Caswell, Assistant District Attorney, Oklahoma City, for Appellee at trial.
W.A. Drew Edmondson, Attorney General, William L. Humes, Assistant Attorney General, for Appellee on appeal.
¶1 Osbaldo A. Torres was tried jointly with George Ochoa by a jury in Oklahoma County District Court, Case No. CF-93-4302. The jury convicted Torres of two counts of First Degree Murder with Malice Aforethought, in violation of 21 O.S.1991, § 701.7, and one count of First Degree Burglary, in violation of 21 O.S.1991, § 1431. 1 At the conclusion of the capital sentencing phase of the trial, the jury found the existence of two aggravating circumstances: (1) there existed the probability that Torres would commit criminal acts of violence that would constitute a continuing threat to society, 2 and (2) Torres knowingly created a great risk of death to more than one person. 3 The jury recommended Torres be sentenced to death for both murders and to twenty (20) years imprisonment for burglary. 4 The Honorable Charles L. Owens sentenced Torres accordingly. Torres appealed his conviction and sentence to this Court.
¶2 During the early morning hours of July 12, 1993, Francisco Morales and his wife, Maria Yanez, were shot and killed in the bedroom of their Oklahoma City home. The sound of gunfire woke Yanez's daughter Christina, who was 14 years old in the summer of 1993. Christina called 911 and told the operator that she believed her step-father, Morales, may have been firing the gun. After hanging up the telephone, she looked out her bedroom door. A light was on in the living room; Christina saw two men. One man was wearing a white t-shirt and the other man was wearing a black t-shirt. Christina stated the man in the black t-shirt had something in his hand, but she did not know what it was. Christina initially denied knowing the two men, but eventually identified Ochoa as the man in the black t-shirt and Torres as the man in the white t-shirt.
¶3 The shooting also awakened Christina's step-brother, Francisco, who was eleven years old in the summer of 1993. Francisco saw the man in the black t-shirt shoot his father. He could not identify the gunman.
¶4 The police quickly responded to Christina's 911 call. While en route to the Yanez/Morales home, Officer Coats arrested Torres and Ochoa, who were walking together a short distance from the homicide. The men were sweating and nervous, and Coats claimed he observed blood on the clothing of the men. Subsequent tests revealed the presence of blood on Torres' clothes.
¶5 Shortly before the shootings, Torres and Ochoa parked a car at a friend's house. A witness observed one of the men take a gun from the trunk of the car and put it in his pants. The gun was different from the gun used in the murders. The witness stated one of the men was Ochoa. She could not identify the other man, but asserted the other man--and not Ochoa--put the gun in his pants. Another witness also testified that Ochoa and another man parked the car at the friend's house. This witness testified that Ochoa was the driver of the car. The witness also identified Torres as the man with Ochoa, although she was somewhat inconsistent in her identification, and she stated the passenger was wearing a white t-shirt.
¶6 After the jury convicted Ochoa and Torres on all counts, the case proceeded to the capital sentencing phase of trial. The State argued Torres posed a continuing threat to society based on the circumstances of the murders, Torres' membership in the Southside Locos, a local gang, and an unadjudicated burglary committed when Torres was a juvenile. To show Torres created a risk of death to more than one person, the State offered the death of the two victims and the presence of three children in the home at the time of the murders. The defense presented in mitigation Torres' personal history and pleas of mercy from his family. The jury found the existence of both aggravating circumstances. After weighing the aggravating and mitigating evidence, the jury imposed the death penalty.
¶7 This case was originally tried in October 1995 and when the jury was unable to reach a verdict on guilt and innocence, the court declared a mistrial. Torres did not request the mistrial transcript be transcribed before the second trial. At the conclusion of the second trial, Torres' trial counsel filed a Notice of Intent to Appeal and a Designation of Record. The Designation of Record did not mention the mistrial and the court reporter did not transcribe it. Prior to filing his appeal brief, Torres' appellate counsel tried unsuccessfully to have the court reporter transcribe the mistrial. 5 Torres argues that error occurred in the appellate process because he did not receive a transcription of the mistrial. However, the reason Torres did not receive a transcription of the mistrial is because he failed to comply with this Court's rules in seeking the transcription.
¶8 On appeal, Torres argues that the language of the Designation of Record included the mistrial transcript and that the court reporter and the District Court should have assured that the mistrial was part of the record on appeal. A review of the record makes clear that trial counsel did not request the transcription of the mistrial for purposes of appeal. On page 3 of the Notice of Intent to Appeal, counsel indicated that the court reporter should be reimbursed for transcription of the jury trial held February 26, 1996 and the sentencing hearing held March 21, 1996. There is no mention anywhere of the mistrial. Attached to the Notice of Intent to Appeal is the Designation of Record. The Designation makes no mention of the mistrial transcript. When read in conjunction with the Notice of Intent to Appeal it is clear that the Designation of Record refers only to the trial that was conducted on March 21, 1996 and does not include the mistrial.
¶9 The Notice of Intent to Appeal also appoints the Oklahoma Indigent Defense System (OIDS) to represent Torres on appeal. This appointment was effective March 29, 1996, the date on which the trial court signed the Notice of Intent to Appeal and appointment of counsel. Under 22 O.S.1991, § 1362, Torres' OIDS appellate attorney was authorized "to supplement the designation of record as filed by the trial counsel by filing a written supplemental designation of record." 6 This Court's Rules provide that "[a]ny supplemental designation of record pursuant to Section 1362 of Title 22 must be filed within thirty (30) days of date of appointment." 7 Appellate counsel did not file a written supplemental designation of record within thirty days of appointment. When appellate counsel fails to file a supplemental designation of record within thirty days, Rule 2.1(B)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (1996) provides that the "request to supplement the record shall be pursuant to Rule 3.11" of this Court's Rules.
¶10 Rule 3.11 of this Court's Rules allows a party to supplement the record on appeal only under specific, limited circumstances. First, a party may supplement the appellate record by motion "when it appears from the record that an item timely designated to be included in the record has been excluded." 8 This provision does not apply to Torres as trial counsel did not include the mistrial in her designation of record and appellate counsel did not file a written request for a supplementation of the record within thirty days of appointment.
¶11 Second, Rule 3.11(B)(2) provides in pertinent part:
when a party files a motion to either amend the designation of record or counter designate a part of the record to include a transcript of any proceeding conducted by the trial court during the course of the trial court proceedings in this case or any item admitted as evidence by the trial court but not included in the original designation of record, the court may allow the amendment and direct the supplementation of the record with the item designated.
Under this subsection of Rule 3.11, Torres should have filed an amended Designation of Record with this Court. He did not. Instead, after the District Court advised Torres that the original Designation did not include transcription of the mistrial and that he would not order transcription of that proceeding absent some specific showing of need, Torres filed a writ of mandamus with this Court. A writ of mandamus was not the appropriate vehicle. Torres notes that he filed the writ of mandamus pursuant to Rule 2.4(B). However, Rule 2.4(B) concerns the responsibility of appellate counsel to assure timely and complete filing of the record on appeal. It is not the procedure to use to amend the Designation of Record. Rule 3.11(B)(2) requires Torres to file an amended Designation with this Court in order to acquire a transcript of the mistrial of proceedings. Since Torres did not file a motion to amend the Designation of Record with this Court, he has failed to comply with the requirements of Rule 3.11(B)(2).
¶12 Rule 3.11(B)(3) provides that supplementation of the record may be allowed in two other circumstances. First, Rule 3.11(B)(3)(a) provides that supplementation may be allowed so as "to supplement the record on appeal with matters not presented to and included as a part of the District Court record ... [where] [m]atters [are] timely and properly admitted as a part of a motion for a new trial as set out in Sections 952 and 953 of Title 22 and Rule 2.1 of the Rules of the Court of...
To continue reading
Request your trial
-
Torres v. Mullin, No. 00-6334.
...the two murder convictions. The Oklahoma Court of Criminal Appeals ("OCCA") affirmed his convictions and sentences. See Torres v. State, 962 P.2d 3 (Okla. Crim.App. 1998). After exhausting his state post-conviction remedies, Mr. Torres filed a petition for habeas corpus pursuant to 28 U.S.C......
-
Williams v. Workman
...basis for finding the continuing threat aggravator, Wilson v. Sirmons, 536 F.3d 1064, 1110 (10th Cir. 2008) (citing Torres v. State, 962 P.2d 3, 23 (Okla. Crim. App. 1998)), a jury is free to consider "the defendant's nonviolent offenses in conjunction with other factors when determining wh......
-
Young v. State
...Ochoa v. State, 1998 OK CR 41, ¶¶ 46-48, 963 P.2d 583, 599, cert. denied, 526 U.S. 1023, 119 S.Ct. 1263, 143 L.Ed.2d 358 (1999); Torres v. State, 1998 OK CR 40, ¶ 41, 962 P.2d 3, 16, cert. denied, 525 U.S. 1082, 119 S.Ct. 826, 142 L.Ed.2d 683 ¶ 66 Appellant also argues the trial court erred......
-
State v. Engesser
...v. Cooper, 53 Cal.3d 771, 809 P.2d 865, 281 Cal.Rptr. 90 (1991) (in banc); State v. Langlet, 283 N.W.2d 330 (Iowa 1979); Torres v. State, 962 P.2d 3 (Okla.Crim.App.1998). The same rule applies in criminal and civil cases. See, e.g., Spesco v. General Elec. Co., 719 F.2d 233 (7th Cir.1983). ......