Larry Elmo Shoffner v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 20, 2025
• Docket: 07-24-00364-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-24-00364-CR

LARRY ELMO SHOFFNER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 100th District Court Childress County, Texas Trial Court No. 8044, Honorable Dale Rabe Jr., Presiding

August 20, 2025 MEMORANDUM OPINION Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

Appellant, Larry Elmo Shoffner, appeals his conviction for continuous sexual abuse

of a child1 and his resulting life sentence. By two issues, he challenges the competency

of the child victim to testify and the constitutionality of his life sentence. We overrule both

issues and affirm.

1 TEX. PENAL CODE ANN. § 21.02. BACKGROUND

The victim, W.S., first met Appellant when she was five or six years old. Appellant

was married to W.S.’s grandmother, and she called him “Grandpa.” The grandmother

lived in one house and Appellant lived in another house nearby. When the grandmother

was working nights, W.S. stayed at Appellant’s house.

W.S. testified Appellant started raping her with his penis when she was six years

old. She further testified he raped her once a week until she was twelve years old.

According to W.S., Appellant would become very angry if she did not comply with his

requests and he would not let her eat or drink until she had sex with him.

W.S. moved away from Appellant with her grandmother when she was around

twelve or thirteen years old. W.S. finally told her grandmother about Appellant’s abuse

because she felt safe and was not around him all the time.

The forensic interviewer testified she spoke with W.S. on August 29, 2023, and

W.S. told her Appellant put his penis in her vagina and that it happened every week. W.S.

also underwent a sexual assault examination. The SANE nurse testified she observed

two healed tears on W.S.’s hymen which were consistent with chronic trauma.

ANALYSIS

ISSUE ONE—ALLEGED VICTIM’S COMPETENCY

2 Although Appellant initially frames his complaint as a sufficiency challenge,2 the

briefing focuses almost entirely on the child victim’s ability to understand and tell the truth.

In Appellant’s words: “Given that she was the sole witness with alleged actual knowledge

of what had happened and Appellant was convicted almost solely on her uncorroborated

statements, the alleged victim’s knowledge of the importance of telling the truth was

imperative. Appellant asserts that on this record, the alleged victim did not establish that

she knew the importance of telling the truth.” In substance, Appellant is challenging the

child’s competency to testify.

Competency, however, must be preserved in the trial court. Appellant neither

objected to the child’s competency nor requested a competency hearing. The complaint

is therefore waived. See De Los Santos v. State, 219 S.W.3d 71, 80 (Tex. App.—San

Antonio 2006, no pet.) (failure to object to child witness’s competency at trial waived issue

on appeal); Fox v. State, 175 S.W.3d 475, 481 (Tex. App.—Texarkana 2005, pet. ref’d)

(failure to object to trial court’s omission of sua sponte competency hearing waived issue);

see also Matson v. State, 819 S.W.2d 839, 852 (Tex. Crim. App. 1991) (“It is a familiar

rule of law that the failure to object to a witness’s competency to testify operates as a

waiver of the witness’s qualifications and may not be raised for the first time on appeal.”).

Issue one is overruled.

2 Appellant acknowledges a child victim’s testimony alone is sufficient to support a conviction for a

sexual offense. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a), (b)(1). He also recognizes corroboration of the victim’s testimony by medical or physical testimony is not required. Cantu v. State, 366 S.W.3d 771, 775–76 (Tex. App.—Amarillo 2017, pet. ref’d). 3 ISSUE TWO—CRUEL AND USUAL PUNISHMENT

By his second issue, Appellant challenges his life sentence under the Eighth

Amendment of the United States Constitution. See U.S. CONST. amend. VIII. He argues

because of his age (seventy-four) the life sentence means he will die in prison and is

therefore a death sentence.

An allegation of excessive or disproportionate punishment is a legal claim

“embodied in the Constitution’s ban on cruel and unusual punishment” and based on a

“narrow principle that does not require strict proportionality between the crime and the

sentence.” State v. Simpson, 488 S.W.3d 318, 322, 324 (Tex. Crim. App. 2016). A

successful challenge to proportionality is exceedingly rare and requires a finding of “gross

disproportionality.” Id. at 322.

A challenge based on the Eighth Amendment must nonetheless be preserved by

objection, request, or motion. Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013).

Generally, preservation of a punishment issue occurs at the earliest opportunity available,

i.e., at the time sentence is imposed, assuming the defendant had the opportunity to do

so. Mayo v. State, 690 S.W.3d 103, 107 (Tex. App.—Amarillo 2024, pet. ref’d). However,

if there is no opportunity to object at trial, the issue is preserved when raised in a timely

motion for new trial. Id. Appellant did not make a specific objection in the trial court even

though the trial court offered him two opportunities to object; once after polling the jury,

and a second before releasing the jury, the trial court asked if there was any legal reason

why sentence should not be imposed or if counsel had anything else, to which defense

4 counsel answered “[n]o.” Therefore, this issue was not preserved for review. See TEX.

R. APP. P. 33.1(a).

Even assuming, arguendo, that Appellant had preserved his issue, a claim of

disproportionate punishment is a narrow principle that does not require strict

proportionality between the crime and the sentence. Simpson, 488 S.W.3d at 322. Also,

if Appellant had raised his complaint at the earliest opportunity available, a claim of

excessive punishment which otherwise is within the statutory range will not be disturbed

on appeal. Id. at 323 (citing Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App.

2006)). Issue two is overruled.

CONCLUSION

We affirm the judgment of the trial court.

Alex Yarbrough Justice

Do not publish.