Hugo Boone v. The State of Texas--Appeal from 248th District Court of Harris County

Affirmed and Opinion filed  January 16, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-01-01277-CR

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HUGO BOONE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 799609

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M E M O R A N D U M O P I N I O N

Hugo Boone appeals his conviction for engaging in organized crime on the ground that he has been punished twice for the same offense in violation of his constitutional double jeopardy and equal protection rights. We affirm.

Appellant entered a guilty plea, and the trial court deferred adjudication of his guilt and placed him on community supervision for eight years. Two years later, on the State s motion, the trial court adjudicated appellant s guilt and sentenced him to five years confinement.

When a trial court adjudicates a previously deferred adjudication of guilt, an appellant cannot appeal the trial court s decision to adjudicate guilt, but can appeal aspects of the punishment phase. Kirtley v. State, 56 S.W.3d 48, 51 (Tex. Crim. App. 2001). Accordingly, we address appellant s challenges in this case to the extent they pertain to the punishment phase of his conviction.

Appellant first contends that article 42.12, section 5(b), of the Texas Code of Criminal Procedure[1] is unconstitutional because a deferred adjudication community supervision and its accompanying conditions are a pre-conviction punishment, such that a second punishment, after guilt is adjudicated, is prohibited by the Double Jeopardy Clauses of the Texas and United States Constitutions.[2] However, appellant cites no case so holding, and the Texas cases addressing this contention have held to the contrary.[3] Because appellant s double jeopardy challenge thus affords no basis for relief, it is overruled.

Appellant next contends that article 42.12, section 5(b), violates the Equal Protection Clauses of the United States and Texas Constitutions[4] by allowing him to be punished twice for the same crime. However, because appellant failed to raise an equal protection complaint in the trial court, this contention presents nothing for our review.[5] Accordingly, it is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed January 16, 2003.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] See Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2003).

[2] See U.S. Const. amend V; Tex. Const. art. I, 14; Monge v. California, 524 U.S. 721, 727-28 (1998) (recognizing that the Double Jeopardy Clause protects against multiple punishments for the same offense).

[3] See Chambers v. State, 700 S.W.2d 597, 598-99 (Tex. Crim. App. 1985) (rejecting contention that double jeopardy was violated by imposition of sentence after deferred adjudication probation was revoked and guilt was adjudicated); Tackett v. State, 989 S.W.2d 855, 858-59 (Tex. App. Houston [14th Dist.] 1999, pet. ref d) (same).

[4] See U.S. Const. amend. XIV; Tex. Const. art. I, 3, 3a.

[5] See Tex. R. App. P. 33.1(a); Saldano v. State, 70 S.W.3d 873, 889-90 (Tex. Crim. App. 2002) (holding that equal protection complaint was waived by failing to raise it in trial court); Jenkins v. State, 912 S.W.2d 793, 808 (Tex. Crim. App. 1993) (same); 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 that equal protection challenge to imposition of punishment was waived by failing to raise it at the adjudication hearing).