Devenport v. State
| Decision Date | 18 May 2021 |
| Docket Number | NO. 14-20-00293-CR,NO. 14-20-00295-CR,NO. 14-20-00292-CR,NO. 14-20-00294-CR,14-20-00292-CR,14-20-00293-CR,14-20-00294-CR,14-20-00295-CR |
| Parties | BILLY RYAN DEVENPORT, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 415th District Court Parker County, Texas
Trial Court Cause Nos. CR19-0158, CR19-0159, CR19-0160, CR19-0458
Appellant Billy Ryan Devenport pleaded guilty without an agreed recommendation on punishment to one count of continuous sexual abuse of a child under fourteen, seventeen counts of possession of child pornography, and ten counts of promotion of child pornography. After a hearing, the trial court sentenced him to (1) life imprisonment for the single count of continuous sexual abuse of a child under fourteen, (2) ten years' confinement for each of the seventeen counts of possession of child pornography, and (3) twenty years' confinement for each of the ten counts of promotion of child pornography. The court ordered that the sentences run consecutively, resulting in a life sentence plus 370 years.
Appellant challenges his punishment in three issues. Presenting his first two issues together, appellant contends that the sentencing scheme of the continuous sexual abuse of a child statute, Penal Code section 21.02, violates both state and federal constitutional prohibitions against cruel and unusual punishment. However, the Second Court of Appeals, from which this case was transferred, has directly addressed and rejected identical arguments. Applying that court's binding precedent,1 we overrule appellant's first two issues.
In his third issue, appellant asserts that the trial court deprived him of his right to be free from cruel and unusual punishment by ordering his sentences to run consecutively. We overrule this issue because appellant has not shown an abuse of discretion.
We affirm the judgment.
A grand jury indicted appellant for one count of continuous sexual abuse of a child under fourteen, seventeen counts of possession of child pornography, and ten counts of promotion of child pornography. The single count of continuous sexual abuse of a child under fourteen was based on four predicate or component alleged offenses against appellant's daughter: (1) two offenses under Penal Code section 21.11 (); (2) one offense under section 22.021 (); and (3) one offense under section 43.25 (). To each of these counts, appellant pleaded guilty. There was no agreed recommendation on punishment, and the trial court conducted a punishment hearing, during which the State presented among other evidence the following.
Appellant sexually abused his nine-year-old daughter for several months and recorded multiple videos and images of the abuse. He taught her that sexual contact between a father and daughter was normal and that she should act happy when it occurred. As the victim later explained to her therapist, appellant told her to "fake like she was happy" and "smile for the pictures that he shared with friends."2 Appellant prepared the images in such a way as to indicate that he expected them to be viewed by others. He also gave his daughter alcohol regularly, as well as marijuana and "something crystal to smoke." Appellant's daughter has suffered long-term harm and may require life-long therapy.
Additionally, appellant downloaded to his phone and other devices thousands of images and videos of child pornography, which depicted all ranges of sexual activity among infants and young children, including activity between young girls and adult men and women, girls with other girls, boys with other boys, and bestiality. Some images showed sexual bondage and torture of children. The investigating officer said appellant's offenses were "among the worst" he had seen.
At the hearing's conclusion, the trial court sentenced appellant to confinement for life for the count of continuous sexual abuse of a child under fourteen; ten years' confinement for each of the seventeen counts of possession of child pornography;and twenty years' confinement for each of the ten counts of promotion of child pornography. The trial court ordered the sentences to run consecutively. After the court pronounced punishment, appellant's counsel objected that the "sentence is disproportionate constituting cruel and unusual punishment under the Texas and U.S. Constitutions" and that Penal Code section 21.02 () is unconstitutional both facially and as applied to appellant. The trial court stated no ruling on appellant's objections but signed judgments consistent with its oral pronouncements.
Appellant timely appealed.
In his first two issues, appellant contends that Penal Code section 21.02 is categorically unconstitutional under the Eighth and Fourteenth Amendments to the United States Constitution and Article I, section 13, of the Texas Constitution. There are essentially three prongs to his argument. Noting the difference in punishment ranges between a conviction under section 21.02 on the one hand, and convictions under all four predicate offenses on the other, appellant claims that the more severe punishment range for a section 21.02 conviction turns on the distinction that the predicate acts occurred over an arbitrary period of thirty or more days. The thirty-day duration stated in section 21.02, appellant asserts, renders his punishment disproportionate when compared to the predicate offenses' punishment ranges. According to appellant, the identical conduct, if committed in twenty-nine days or less, would have dramatically and more favorably altered his potential punishment. Further, appellant argues that community supervision and parole are available for the predicate offenses individually, whereas neither is available for a conviction under section 21.02. For these reasons, appellant asserts that the "punishment scheme" under section 21.02 is cruel and unusual and thus constitutionally infirm.
In his third issue, appellant argues that the court violated both federal and state constitutional prohibitions against cruel and unusual punishment by ordering that all sentences run consecutively.
Both the United States and Texas constitutions prohibit cruel and unusual punishment. See U.S. Const. amend. VIII (); Tex. Const. art. I, § 13 (). Appellant acknowledges that we analyze his federal and state constitutional complaints similarly. See Cantu v. State, 939 S.W.3d 627, 645 (Tex. Crim. App. 1997). The cruel and unusual punishment prohibition protects individuals from excessive sanctions. Miller v. Alabama, 567 U.S. 460, 469 (2012); Roper v. Simmons, 543 U.S. 551, 560 (2005). The right to be free from excessive punishment stems from the basic principle that criminal punishment should be graduated and proportioned to fit both the offender and the offense. See Roper, 543 U.S. at 560; Atkins v. Virginia, 536 U.S. 304, 311 (2002); Welch v. State, 335 S.W.3d 376, 379-80 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd).
We turn to appellant's first and second issues, in which he contends that Penal Code section 21.02's punishment scheme violates federal and state constitutional prohibitions on cruel and unusual punishment.
At the outset, we consider the State's contention that appellant failed to preserve these issues for our review because his trial court objection was untimely, and because he failed to secure a ruling. See Tex. R. App. P. 33.1(a). Appellant objected immediately after the trial court pronounced his sentence. The State saysappellant should have objected sooner because he was aware that the court would sentence him under section 21.02 even before the sentence was pronounced. Because the question is not determinative, however, we presume without deciding that appellant properly and timely preserved his first two issues by asserting them immediately after sentencing, when the court implicitly overruled the objection by signing a judgment consistent with the court's oral pronouncement. See Tex. R. App. P. 33.1(a)(2)(A).
Appellant observes that the predicate or component offenses supporting the charged offense under section 21.02 were (1) two acts of indecency with a child, (2) aggravated sexual assault of a child, and (3) sexual performance by a child. Indecency with a child is a second-degree felony; aggravated sexual assault of a child is a first-degree felony; and sexual performance by a child is a first-degree felony. See Tex. Penal Code §§ 21.11 (indecency); 22.021 (aggravated sexual assault); 43.25(c), (d) (sexual performance). The punishment range for second-degree felonies is imprisonment for "not more than 20 years or less than 2 years." Id. § 12.33(a). The punishment range for first-degree felonies is imprisonment "for life or for any term of not more than 99 years or less than 5 years." Id. § 12.32(a). In contrast, the punishment range for continuous sexual abuse of a child is imprisonment "for life, or for any term of not more than 99 years or less than 25 years." Id. § 21.02(h). Additionally, appellant states that had he pleaded guilty to each component offense, he would have been eligible for deferred-adjudication community supervision. See Tex. Code Crim. Proc. arts. 42A.101(a)-.102(a). For continuous sexual abuse of a child, however, he was not. See id. art. 42A.102(b)(3)(A). And for the component offenses, appellant would have been eligible for release on parole, but for continuous sexual abuse of a child, parole is not available. Compare Tex. Gov't Code § 508.145(d)(1)(A), (2) (), with id. § 508.145(a) (...
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