Shannon Lee Abeyta v. State ( 2018 )

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
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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
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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).
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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.
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