Gardner, Mark Robert v. State

In The Court of Appeals For The First District of Texas ____________ NO. 01-01-01226-CR NO. 01-01-01227-CR ____________ MARK GARDNER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause Nos. 861497 & 861498 O P I N I O N Pursuant to an agreed punishment recommendation, appellant, Mark Gardner, pled no contest to two indictments alleging aggravated assault by a police officer using a deadly weapon. See Tex. Penal Code Ann. § 22.02(a)(2), (b)(1) (Vernon 1994). Pursuant to the plea agreement, the offense was reduced in both indictments to the second-degree felony of aggravated assault (1) and the trial court deferred a finding of guilt, placed appellant on four years' community supervision, and assessed a $500 fine. Appellant did not appeal that ruling. The State later moved to adjudicate appellant's guilt in both causes. On appellant's plea of true to the motion's allegations, the trial court adjudicated appellant guilty of both offenses and assessed punishment at four years in prison in each cause, pursuant to the parties' agreement on the plea of true. We determine (1) whether Code of Criminal Procedure article 42.12, section 5(b) violates the Double Jeopardy provisions of the State and Federal Constitutions and (2) whether appellant preserved his Equal Protection challenge. We affirm. Double Jeopardy In the first part of his issue, appellant claims that Code of Criminal Procedure article 42.12, section 5(b) is unconstitutional because (1) deferred-adjudication community supervision and accompanying fines are pre-conviction punishments and thus (2) assessing punishment after guilt is adjudicated violates the Double Jeopardy clause of the State and Federal Constitutions. See U.S. Const. amend. V; Tex. Const. art. I, § 14; Tex. Code. Crim. P. art. 42.12, § 5(b) (Vernon 1994). We construe this challenge as concerning punishment assessed after adjudication of guilt, a challenge over which we have jurisdiction. See Tackett v. State, 989 S.W.2d 855, 858 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd) (treating merits of double jeopardy challenge in appeal from adjudication of guilt); see also Tex. Code. Crim. P. art. 42.12, § 5(b) ("After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal continue as if the adjudication of guilt had not been deferred."); Kirtley v. State, 56 S.W.3d 48, 51 (Tex. Crim. App. 2001) (recognizing that defendant may appeal aspects of the punishment phase after guilt is adjudicated). Neither the assessment of deferred-adjudication community supervision nor its accompanying fine is "punishment" for purposes of double jeopardy: A defendant who has been placed on regular probation or community supervision is not, while on probation, serving a sentence imposed as a punishment for the crime of which he has been convicted. We see no indication that it was the legislature's intention to provide that a defendant who has been placed on deferred adjudication, and is on probation in connection with the plea, is serving a sentence imposed as a punishment for a crime of which he or she has not been convicted. Tackett, 989 S.W.2d at 858-59 (citations omitted). Thus, the assessment of punishment after adjudication of guilt does not violate the Double Jeopardy clause. Id. (holding assessment of punishment after adjudication of guilt did not violate Double Jeopardy clause because neither deferred-adjudication community supervision nor accompanying fine was punishment for purposes of double jeopardy) (following Chambers v. State, 700 S.W.2d 597, 599 (Tex. Crim. App. 1985)). We overrule this portion of appellant's issue. Equal Protection In the second part of his issue, appellant claims Code of Criminal Procedure article 42.12, section 5(b) violates both constitutions' Equal Protection clauses by allowing the trial court to consider evidence of the violations for which deferred-adjudication community supervision was revoked when assessing punishment after adjudication of guilt. U.S. Const. amend. XIV; Tex. Const. art. I, § 3, 3a; Tex. Code. Crim. P. art. 42.12, § 5(b). We have jurisdiction over this complaint because it concerns punishment after adjudication of guilt. See Tex. Code. Crim. P. art. 42.12, § 5(b). However, this challenge is waived for not being raised below. See Tex. R. App. P. 33.1; Steadman v. State, 31 S.W.3d 738, 742 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd) (in appeal after adjudication of guilt, holding equal protection challenge related to punishment waived for not being raised at adjudication hearing). Conclusion We affirm the judgments of the trial court. Tim Taft Justice Panel consists of Justices Taft, Alcala, and Price. (2) Do not publish. Tex. R. App. P. 47.4. 1. See Tex. Penal Code Ann. § 22.02(a)(1), (2) (Vernon 1994). 2. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.