Shannon Lee Abeyta v. State

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-18-00014-CR

SHANNON LEE ABEYTA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 100th District Court Hall County, Texas Trial Court No. 3822, Honorable Stuart Messer, Presiding

December 19, 2018

MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Shannon Lee Abeyta (appellant) appeals his conviction for failing to register as a

sex offender and its accompanying twenty-year prison sentence. The trial court originally

ordered that the adjudication of his guilt for the crime be deferred and that he be placed

on community supervision for five years, after appellant pled guilty to the offense. The

trial court’s decision was memorialized in a written order signed on May 8, 2017. The

State moved to adjudicate appellant’s guilt five months later. By that time, appellant had

violated various conditions of his community supervision, violations to which he later admitted. Furthermore, those violations included consuming marijuana, ingesting

methamphetamine, failing to obtain approval to leave the county, failing to pay the

monthly community supervision fee, failing to pay other court ordered fees, failing to

complete seventy-five hours of community service by October 1, 2017, failing to maintain

gainful employment, missing several classes of substance abuse treatment, and failing

to forgo contact with minors. Before us, appellant contends that the twenty-year sentence

assessed by the trial court was cruel, unusual, and excessive. We overrule the issue.

The sentence was purportedly excessive because it exceeded the sentence

assessed for the offenses that resulted in him having to register as a sex offender. Those

offenses consisted of aggravated sexual assault of a minor and indecency with a minor,

and appellant received a sentence for them of fourteen year’s imprisonment. Other

factors allegedly rendering his current punishment excessive concerned his purported

attempts to comply with the conditions of his community supervision and obtain treatment

for his drug use.

A claim that punishment is cruel and unusual must be preserved. See Sharp v.

State, No. 07-17-00128-CR, 2017 Tex. App. LEXIS 11295, at *2 (Tex. App.—Amarillo

Dec. 5, 2017, no pet.) (per curiam) (mem. op., not designated for publication) (stating that

because appellant did not assert that his punishment was cruel and unusual before the

trial court when sentence was pronounced or through a motion for new trial, it was not

preserved for review). Here, appellant raised the complaint via a timely motion for new

trial. Thus, it was preserved for review.

Next, a sentence falling within the statutory range of punishment is generally

neither excessive nor cruel and unusual. See Stacks v. State, No. 07-15-00336-CR, 2017

2 Tex. App. LEXIS 7690, at *15 (Tex. App.—Amarillo Aug. 14, 2017, pet. ref’d) (mem. op.,

not designated for publication) (noting that “Texas courts have traditionally held that, so

long as the punishment imposed lies within the range prescribed by the Legislature in a

valid statute, that punishment is not excessive, cruel, or unusual”). Appellant does not

question that his failure to register was a second-degree felony, TEX. CODE CRIM. PROC.

ANN. art. 62.102(b)(3) (West 2018) (stating that the offense is punishable as a “felony of

the second degree if the actor is a person whose duty to register expires under Article

62.101(a) and who is required to verify registration once each 90-day period under Article

62.058”). Nor does he question that the applicable range of punishment carried a

potential of two to twenty year’s imprisonment. TEX. PENAL CODE ANN. § 12.33(a) (West

2011) (stating that a felony of the second degree is punishable by imprisonment in the

Texas Department of Criminal Justice for “any term of not more than 20 years or less than

2 years” and a fine not exceeding $10,000).

Yet, being within the statutory range of punishment may not always insulate a

sentence from attack as being grossly disproportionate. Stacks, 2017 Tex. App. LEXIS

7690, at *15-16. Furthermore, when determining if a sentence is so disproportionate, “we

make an initial threshold comparison of the gravity of the offense with the severity of the

sentence.” Id. at *16. If our initial comparison supports an inference of gross

disproportionality, we then assess whether 1) sentences for similar crimes in the same

jurisdiction and 2) sentences for the same crime in other jurisdictions render the sentence

unconstitutional. Id.

Here, it must be remembered that appellant did not simply fail to register as a sex

offender. He had to so register because he previously committed rather egregious crimes

3 involving indecencies with and assaults upon a minor. And, having been told to forgo

contact with minors as a condition of probation, he violated the prohibition on at least four

occasions. So too did he continue abusing controlled substances within a month of being

placed on probation. These matters are relevant evidence when deciding punishment.

See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2018) (stating that

evidence may be offered as to any matter the court deems relevant to sentencing,

including but not limited to the prior criminal record of the defendant and any other

evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by

evidence to have been committed by the defendant or for which he could be held

criminally responsible, regardless of whether he has previously been charged with or

finally convicted of the crime or act).

Nor can it be ignored that he was afforded opportunity to participate in a substance

abuse program but failed to attend it as ordered by the court. Thus, his representation

about having “begged the court for help” in addressing his addiction can be said to ring a

bit hollow.

As for the offense of failing to register, it is not a trivial matter. The legislature

enacted the requirement upon considering the unique threat posed by sex offenders to

public safety, their high rate of recidivism, their low instance of rehabilitation, and the need

to track and inform the public about such offenders. See In re M.A.H., 20 S.W.3d 860,

863 (Tex. App.—Fort Worth 2000, no pet.); accord Reynolds v. State, 385 S.W.3d 93,

100 (Tex. app.—Waco 2012) (noting that the registration statute was enacted to promote

public safety), aff’d, 423 S.W.3d 377 (Tex. Crim. App. 2014).

4 The indicia mentioned above prevent us from concluding that the twenty-year term

of imprisonment was disproportionately excessive. This is especially so given that the

body assigned the task of weighing public policy and protecting Texans, i.e., the

legislature, thought a term of imprisonment up to twenty years could be appropriate when

punishing the offense in question. Consequently, we affirm the trial court’s judgment.

Brian Quinn Chief Justice

Do not publish.