ARMANDO MUNGIA v. THE STATE OF TEXAS--Appeal from 24th District Court of De Witt County

NUMBERS 13-01-615-CR, 13-01-616-CR, and 13-01-617-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  BEDINBURG

ARMANDO MUNGIA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

  On appeal from the 24th District Court of DeWitt County, Texas.

  O P I N I O N

Before Justices Ya ez, Castillo, and Baird[1]

  Opinion by Justice Baird

Appellant was charged in three separate indictments with the offenses of robbery, burglary of a habitation, and indecency with a child. Appellant was subsequently convicted of the first two offenses, and placed on community supervision for the latter. All three offenses are the subject of this opinion. For the reasons stated below, we either dismiss the appeals for want of jurisdiction, or affirm the judgments of the trial court.

I. Robbery.

On August 7, 1997, appellant pled guilty to the offense of robbery. Although sufficient evidence was admitted to establish appellant=s guilt, the trial court deferred an adjudication of guilt and placed appellant on community supervision for a period of ten years. Subsequently, the State filed a motion to adjudicate guilt. On August 16, 2001, appellant pled true to the allegations in the State=s motion. The trial judge accepted appellant=s plea, revoked appellant=s community supervision, adjudicated appellant=s guilt, and assessed punishment at twelve years confinement in the Texas Department of Criminal Justice--Institutional Division and a fine of $1,500.00.

Our law is well established that no appeal may be taken from a subsequent determination to proceed with an adjudication of guilt. Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2002); Williams v. State, 592 S.W.2d 931 (Tex. Crim. App. 1979). Accordingly, the appeal in cause number 13-01-615-CR (trial court cause number 97-3-89143) is dismissed for want of jurisdiction.

II. Burglary of a Habitation.

On August 7, 1997, appellant pled guilty to the offense of burglary of a habitation. The trial court found appellant guilty, and assessed punishment at ten years confinement, probated, and a fine of $1,500.00. The State subsequently moved to revoke appellant=s community supervision. On August 16, 2001, appellant pled true to the allegations in that motion. The trial judge revoked appellant=s community supervision and assessed punishment at ten years confinement, and a fine of $1,500.00.

Appellant has filed a brief which we have carefully reviewed. His sole point of error relates to the issue discussed in part III of this opinion. Accordingly, he does not challenge the judgment of the trial court in cause number 97-3-8914 (our cause number 13-01-616-CR). Therefore, that judgment is affirmed.

III. Indecency with a Child.

Appellant pled guilty to the offense of indecency with a child. Although sufficient evidence was admitted to establish appellant=s guilt, the trial court deferred an adjudication of guilt and placed appellant on community supervision for a period of ten years. The trial judge imposed as a term and condition of that community supervision that appellant comply with the sex offender registration program of Chapter 62 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. arts. 62.01 62.13 (Vernon Supp.2002).

Appellant contends the sex offender registration requirements violate the Equal Protection Clause of the Fourteenth Amendment to the United State Constitution. The State, relying on article 44.02 of the Code of Criminal Procedure, argues that we are without jurisdiction to entertain this appeal because appellant did not bring this issue to the trial court=s attention prior to his plea of guilty. Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon 1979). However, the Court of Criminal Appeals has specifically held that Aa defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding . . . when deferred adjudication community supervision is first imposed.@ Manuel v. State, 994 S.W.2d 658, 661 62 (Tex. Crim. App. 1999). Therefore, we will reach the merits of this point of error.

Under the Equal Protection Clause of the Fourteenth Amendment, when a classification does not place a burden on a Asuspect@ class of persons, such as classifications based upon race, national origin, gender, or illegitimacy, or implicate a "fundamental" right, such as the right to privacy, the right to vote, and those rights guaranteed by the First Amendment, the proper standard of appellate review is to determine whether there is a rational basis for the different treatment, which is to say, whether the classification bears a rational relationship to a legitimate state interest. Stewart v. State, 13 S.W.3d 127, 132-33 (Tex. App.BHouston [14th Dist.] 2000, pet. ref'd) (citations and footnotes omitted). Neither the Supreme Court nor the Court of Criminal Appeals has recognized criminal defendants in general as constituting a suspect class. Dinkins v. State, 894 S.W.2d 330, 342 (Tex. Crim. App. 1995); see also Cutshall v. Sundquist, 193 F.3d 466, 482 (6th Cir.1999) (sex offenders are not a suspect class for equal protection purposes). Clearly, the sex offender registration program of Chapter 62 of the Code of Criminal Procedure does not implicate a fundamental right. Therefore, we must resolve appellant=s argument under the rational basis standard of appellate review.

This standard of review is highly deferential towards the states when economic or social legislation is at issue. Dallas v. Stanglin, 490 U.S. 19, 26 27 (1989); City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 440 (1985). Courts also defer to penal legislation. McGowan v. Maryland, 366 U.S. 420, 422 428 (1961). Under this level of deference, the reviewing court should not strike down a statute unless it is Abased solely on reasons totally unrelated to the pursuit of the State's goals and only if no grounds can be conceived to justify them.@ Clements v. Fashing, 457 U.S. 957, 963 (1982); John v. State, 577 S.W.2d 483, 485 (Tex. Crim. App.1979) (AA legislative body has a right to make a classification . . . for the purpose of serving legitimate aims if the limits of the class are not unreasonable or arbitrary.@); Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure, ' 18.3, p. 27 (2nd ed. 1992). Therefore, in enacting Chapter 62 of the Code of Criminal Procedure, the legislature need only have had a rational reason for distinguishing sex offenders from those convicted of other crimes. Lanni v. Engler, 994 F. Supp. 849, 855 (E.D. Mich. 1998). Because the notification provisions are reasonably related to enhancing public awareness that a sex offender may be living in the community, so that appropriate precautions may be taken, we cannot say the notification requirements are irrational. In re M.A.H., 20 S.W.3d 860, 866 (Tex. App.BFort Worth 2000, no pet.). Accordingly, appellant=s sole point of error is overruled. The judgment of the trial court in cause number 01-5-9457 (our cause number 13-01-617-CR) is affirmed.

CHARLES F. BAIRD

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this the

20th day of June, 2002.

[1]Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. '74.003 (Vernon 1998).