          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                             September 18, 2009
                               No. 08-20698
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

KRISTOFER THOMAS KASTNER

                                           Plaintiff-Appellant

v.

STATE OF TEXAS; HARRIS COUNTY TEXAS; TOMMY THOMAS;
SAULO AGUILAR, Individually and as Harris County Detention Officer;
MICHAEL LECOMPTE, Individually and Harris County Deputy;
M REYNAUD, Individually and as Harris County Deputy badge number 3003

                                           Defendants-Appellees


                 Appeals from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:08-CV-2855


Before JONES, Chief Judge, and GARZA and PRADO, Circuit Judges.
PER CURIAM:*
      Kristofer Thomas Kastner appeals the district court’s dismissal of his
42 U.S.C. § 1983 complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)
based on the district court’s determination that his claims were barred by Heck
v. Humphrey, 512 U.S. 477, 486-87 (1994). Kastner argues that the district court



      *
      Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
                                  No. 08-20698

abused its discretion by dismissing his complaint as frivolous because his case
is distinguishable from DeLeon v. City of Corpus Christi, 488 F.3d 649, 656 (5th
Cir. 2007). He also argues that, because DeLeon is not applicable to this case,
his complaint is not wholly frivolous and that the district court should have
analyzed the case in accordance with Fed. R. Civ. P. 12(b)(6). Finally, he argues
that his claims should not be barred by Heck because he pleaded causes of action
that are “conceptually distinct” from the assault that resulted in the underlying
order of deferred adjudication.
      Heck’s favorable termination rule requires a district court to consider
“whether a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence
has already been invalidated.” 512 U.S. at 487. In DeLeon, this court concluded
that a deferred adjudication order is a conviction for the purposes of Heck’s
favorable termination rule. 488 F.3d at 656.
      Kastner argues that his case is distinguishable from DeLeon because he
pleaded nolo contendere, which did not require him to accept responsibility for
the actions alleged in the indictment. The nature of the plea underlying the
deferred adjudication order is not relevant in this context. See DeLeon, 488 F.3d
at 654-56. Thus, Kastner’s suit was properly subject to dismissal under Heck.
Id. at 656. Kastner’s argument that the district court should have analyzed his
case in accordance with Rule 12(b)(6) is likewise without merit. See Jackson v.
City of Beaumont Police Dept., 958 F.2d 616, 619 (5th Cir. 1992).
      Moreover, despite Kastner’s arguments to the contrary, his complaint does
not allege claims that are “conceptually distinct” from the underlying assault.
If Kastner prevails, he would establish that his deferred adjudication lacks any
basis. Accordingly, he may not bring his claims until he satisfies the conditions
of Heck. See DeLeon, 488 F.3d at 656.



                                        2
                              No. 08-20698

     The district court did not abuse its discretion by denying Kastner’s
complaint as frivolous. Accordingly, the judgment is AFFIRMED.




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