Opinion
Nos. 4-04-00534-CR, 04-04-00535-CR, 04-04-00536-CR, 04-04-00537-CR
Delivered and Filed: January 25, 2006. DO NOT PUBLISH.
Appeal from the 227th Judicial District Court, Bexar County, Texas, Trial Court Nos. 1994-CR-00623, 1994-CR-00624, 1994-CR-00625, and 1994-CR-00626, Honorable Philip A. Kazen, Jr., Judge Presiding. Affirmed.
Sitting: Sarah B. DUNCAN, Justice, KAREN Angelini, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Carlos Lozano appeals the judgments convicting him of indecency with a child, sentencing him to twenty years in prison, and imposing a $1,000 fine. We affirm. In 1995, Lozano pleaded no contest to indecency with a child by contact in four cases involving four different boys in exchange for the State's agreement to remain silent on Lozano's application for deferred adjudication. The court granted Lozano's application for deferred adjudication and placed him on community supervision for a period of ten years. In 1998, the terms and conditions were amended in part to add the following provision:
34. Defendant will not possess, access, or view sexually oriented (explicit) material of children or adults contained on: film, photograph, videotape, negative or slide, disk, diskette, or other physical medium. This includes computers, phone line(s), cable, satellite transmission, or any other method that incorporates in any manner a child or adult engaging in any sexual conduct (behavior) (activity) or in any form of sexual exploitation. You shall permit the Supervision Officer or duly authorized criminal justice official access to all computer records, associated equipment, and materials you possess or have access to.At his probation officer's request, Lozano brought his computer to a meeting in March 2004. Over seventy images of nude males engaged in sexual contact were found on Lozano's computer. The State filed a motion to adjudicate, alleging Lozano violated condition 34. Lozano moved to suppress all oral or written statements he made to the supervision officer and the fruits of the search and seizure of his computer. He also filed a motion seeking to set aside the motion to adjudicate and challenging condition 34 and the motion to adjudicate on various statutory and constitutional grounds. The trial court denied the motions, found Lozano violated condition 34, revoked his community supervision, adjudicated him guilty, and sentenced him to twenty years imprisonment in each case, to run concurrently. Lozano appeals the judgments. 1. In his first point of error, Lozano contends that "[i]t shocks the conscience and violates Due Process of Law to sentence . . . Lozano . . . to twenty years imprisonment for having on his computer 74 pictures of naked adult males engaging in sexual conduct." Lozano argues that because the State cannot criminalize homosexual conduct, it may not "sentence a man to 20 years imprisonment based solely on his possession of pictures of other persons engaging in such acts." However, Lozano was not sentenced for possessing pictures; rather, he was sentenced for committing indecency with a child. See Atchison v. State, 124 S.W.3d 755, 759 (Tex.App.-Austin 2003, pet. ref'd) ("This argument confuses the decision to adjudicate, which was based on the violations of supervision, with the punishment decision."). 2. In his second and third points of error, Lozano argues that a twenty-year sentence "for having on his computer 74 pictures of naked adult males engaging in sexual conduct" violates the Cruel and Unusual Punishment Clause of the Eighth and Fourteenth Amendments to the United States Constitution and article I, section 13 of the Texas Constitution because the sentence "was grossly disproportionate to the conduct that triggered the revocation." However, Lozano was sentenced for committing indecency with a child, not for violating the terms of his community supervision; and he concedes "that a judge could have sentenced . . . [him] to 20 years imprisonment for indecency with a child . . . and . . . there would be no Eighth Amendment complaint." With respect to the state constitutional claim, Lozano argues that article I, section 13 is broader than the Eighth Amendment because it prohibits "cruel or unusual" punishment rather than punishment that is "cruel and unusual." However, we need not decide this question because Lozano does not argue that a twenty-year sentence for indecency with a child by contact is either cruel or unusual. See Atchison, 124 S.W.3d at 760. 4. In points of error five through nine, Lozano lodges various constitutional challenges to condition 34, the State's motion to adjudicate, and the court's order revoking Lozano's community supervision and adjudicating him guilty. In points of error ten through twelve, Lozano argues the trial court abused its discretion in denying his motion to suppress evidence obtained from his computer and the statements Lozano made to his probation officer at the time the evidence was obtained. We "do not have jurisdiction to consider claims relating to the trial court's determination to proceed with an adjudication of guilt on the original charge." Hogans v. State, 176 S.W.3d 829, 832 (Tex.Crim.App. 2005); see Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2005) ("No appeal may be taken from [the] determination" to "proceed with an adjudication of guilt on the original charge."). In an appeal from a judgment adjudicating guilt after community supervision has been revoked, this court only has jurisdiction to consider a claim that "on its face relate[s] to the sentence imposed, not to the decision to adjudicate." Hogans, 176 S.W.3d at 834. Because points of error five through twelve raise claims of error in the adjudication of guilt determination, we dismiss them without reaching the merits. See id. at 832; Olowosuko v. State, 826 S.W.2d 940 (Tex.Crim.App. 1992). 5. In his fourth point of error, Lozano argues that article 42.12, section 5(b) of the Texas Code of Criminal Procedure violates the Equal Protection Clause of the Fourteenth Amendment because the statute denies him the right to appeal the revocation of his community supervision when similarly situated people on "regular" community supervision are entitled to appeal a revocation. We disagree. "Both the State and the defendant receive benefits from deferred adjudication: (1) both sides avoid the burden of a trial; (2) the defendant is given the chance to avoid a conviction; and (3) the State conserves scarce judicial and prosecutorial resources." Rocha v. State, 903 S.W.2d 789, 791 (Tex.App.-Dallas 1995, no pet.). We agree with the Dallas Court of Appeals that "[b]ecause the benefit conferred upon the State is the conservation of judicial and prosecutorial resources, the legislature could rationally choose to condition the probationer's benefit on the relinquishment of his right to appeal the determination to adjudicate." Id. Accordingly, the statute does not violate the Equal Protection Clause. Id.; see also Atchison v. State, 124 S.W.3d at 760-61 (holding that equal protection is not violated because "the legislature is entitled to create two types of community supervision, each with its own advantages and disadvantages from the defendant's standpoint . . . [and] the limitation on the right of appeal is a rational part of the overall deferred adjudication scheme"); Bullard v. State, No. 04-98-00678-CR, 2000 WL 1053881, at *3 (Tex.App.-San Antonio July 26, 2000) (not designated for publication) (holding that "art[icle] 42.12 § 5(b) does not deprive deferred adjudication probationers of equal protection"), supplemented on rehearing, 2000 WL 1727705 (Tex.App.-San Antonio, Nov. 22, 2000, pet. ref'd) (not designated for publication); Faerman v. State, 966 S.W.2d 843, 847 (Tex.App.-Houston [14th Dist.] 1998, no pet.) (holding "the statute is not unconstitutional under the Equal Protection Clause of either the federal or state constitutions" because "there is a rational and legitimate state interest in curtailing appeals from hearings where guilt is adjudicated under Article 42.12, § 5(b)"); Burger v. State, 920 S.W.2d 433, 437-38 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd) (holding that denying a right to appeal the determination to adjudicate does not violate appellant's right to equal protection of the law because "[t]he right to appeal does not create a suspect class or infringe on a fundamental right" and "the denial of the right to an appeal in deferred adjudication cases is rationally related to the accomplishment of a legitimate state interest"). The trial court's judgments are affirmed.