Court of Appeals of Texas, Fourth District, San Antonio
the 227th Judicial District Court, Bexar County, Texas Trial
Court No. 2014CR3772 Honorable Kevin M. O'Connell, Judge
Sitting: Sandee Bryan Marion, Chief Justice, Karen Angelini,
Justice, Patricia O. Alvarez, Justice
Patricia O. Alvarez, Justice
County jury convicted Appellant Walter Fisk on three counts
of indecency with a child. See Act of May 18, 2009,
81st Leg., R.S., ch. 260, § 1, 2009 Tex. Gen. Laws 710,
711 (amended 2017) (current version at Tex. Penal Code §
21.11). The trial court found Fisk's prior conviction
true, thereby elevating the punishment range from
second-degree felony to habitual offender. See Tex.
Penal Code Ann. § 12.42(c)(2) (West Supp.
2016). Fisk was assessed three life sentences in
the Institutional Division of the Texas Department of
appeal, Fisk contends (1) the evidence is legally
insufficient to prove he is the same person convicted of
sodomy pursuant to a former version of Article 125 of the
Uniform Code of Military Justice (UCMJ), see 10
U.S.C. § 925 (2000) (current version), and (2) the UCMJ
sodomy offense contains elements that are not
"substantially similar" to the elements of sexual
assault under section 22.011 of the Texas Penal Code,
see Tex. Penal Code Ann. § 22.011.
Because we conclude the elements of UCMJ Article 125 sodomy
and Texas Penal Code section 22.011 sexual assault are not
substantially similar, we reverse the trial court's
imposition of three life sentences and remand this matter for
a new sentencing hearing.
Fisk's second appeal from the trial court's
imposition of life sentences imposed pursuant to section
12.42(c)(2) of the Texas Penal Code. See id. §
12.42(c)(2). Section 12.42(c)(2) mandates a life sentence if
the defendant (1) is convicted of certain sex offenses
enumerated in Subsection (A); and (2) has a prior conviction
for a sex offense in violation of one of the Texas Penal Code
provisions enumerated in subsection (B). Id.
Subsection (B) further provides the prior conviction
"under the laws of another state" may satisfy the
second requirement of section 12.42(c)(2) if the offense
"contain[s] elements that are substantially similar to
the elements" of one of the Texas Penal Code provisions
enumerated in subsection (B). See id. §
Fisk's First Trial and Sentencing Hearing
County jury returned a guilty verdict against Fisk for
multiple counts of indecency with a child by contact. See
id. § 21.11. Pursuant to Fisk's pretrial
election, the case proceeded to punishment before the trial
court. Section 22.011 is one of the statutory provisions
enumerated under subsection (A) of Penal Code 12.42. See
id. § 12.42(c)(2)(A). Several months before trial,
the State filed a notice of intent to use prior court-martial
convictions for punishment enhancement purposes.
punishment hearing, the trial court admitted into evidence
Fisk's 1990 court-martial convictions, charged under
earlier versions of two Articles of the UCMJ. The first was
Article 125 of the former UCMJ. See U.S.C. §
925(a) (1982). The relevant provisions of Article 125
generally prohibited sodomy, which included bestiality and
certain consensual sex acts between adults, but also
contained enhancements for forcible sodomy and sodomy with a
child under the age of sixteen years. The second Article,
under which Fisk had several prior convictions, was Article
134 of the former UCMJ. See id. § 934 (1982).
The relevant provisions of Article 134 prohibited
"[i]ndecent acts or liberties with a child" under
the age of sixteen years.
trial court found the elements of Article 134's
prohibition of indecent acts and liberties with a child were
substantially similar to the elements of one of the Texas
offenses enumerated in Subsection (B) of Texas Penal Code
section 12.42(c)(2), specifically indecency with a child
under Texas Penal Code section 21.11. See id.
§§ 12.42(c)(2)(A)(i), 21.11(a)(1). Concluding the
State's evidence relating to Fisk's prior Article 134
court-martial conviction satisfied subsections (A) and (B),
the trial court imposed three statutorily mandated life
sentences. See id. § 12.42(c)(2)(1).
Importantly, the State did not ask for a finding, and the
trial court did not consider, whether the elements of sodomy
under Article 125 were substantially similar to one of the
offenses enumerated in section 12.42(c)(2)(B). See
id. § 12.42(c)(2)(B).
appeal, Fisk argued the elements of indecent acts and
liberties with a child under Article 134 were not
substantially similar to the elements of indecency with a
child under Texas Penal Code section 21.11. Compare
Manual for Courts-Martial, United States pt. IV, ¶ 87
(1982) (hereinafter MCM) ("Indecent acts or liberties
with a child") with Tex. Penal Code Ann. §
22.11(a) ("Indecency With a Child"). In determining
whether the offenses were substantially similar, we applied
the tests set forth in Anderson v. State, 394 S.W.3d
531 (Tex. Crim. App. 2013), and Prudholm v. State,
333 S.W.3d 590 (Tex. Crim. App. 2011).
analysis, we concluded the statutes were designed to protect
against similar dangers-the safety and well-being of
children. See Fisk v. State (Fisk I), 510 S.W.3d
165, 180- 81 (Tex. App.-San Antonio 2016, no pet.); see
also Anderson, 394 S.W.3d at 536, 539-40. Additionally,
although the punishment ranges reflect some similarities,
they are not substantially similar. See Fisk I, 510
S.W.3d at 181; see also Anderson, 394 S.W.3d at 537.
Most importantly, however, this court concluded the offenses
did not "display a high degree of likeness."
See Fisk I, 510 S.W.3d at 180. The Article 134
offenses, specifically those delineated in paragraph 87,
encompassed "much broader" conduct and
"potentially criminaliz[ed] a significant amount of
conduct that is lawful in Texas." Id.
"Although both laws [sought] to criminalize sexual acts
against children, the penalties for each offense [were] not
substantially similar. After considering each of the factors,
we conclude[d] the trial court erred in finding that
Fisk's prior court-martial convictions were
substantially similar to the Texas indecency-with-a-child
offense." Id. at 181. Fisk's convictions
were affirmed, the sentences were reversed, and the matter
was remanded to the trial court for a new sentencing hearing.
Second Punishment Hearing
resentencing hearing, the State argued Fisk's sodomy
conviction under Article 125, irrespective of Article 134,
required mandatory life sentences under section 12.42(c)(2).
See Tex. Penal Code Ann. § 12.42(c)(2). The
trial court agreed with the State and made findings of fact
and conclusions of law. The trial court concluded the
elements of sodomy under the former version of UCMJ Article
125 were substantially similar to sexual assault under
section 22.011 of the Texas Penal Code. See Tex.
Penal Code Ann. § 22.011. Under Texas Penal Code section
12.42(c)(2), the trial court again imposed a life sentence
for each of Fisk's convictions for indecency with a
second appeal, Fisk argues (1) the evidence is insufficient
to prove that he is the same individual convicted under the
name "Walter Loyal Fisk" in the 1990 court-martial
proceedings, and (2) the trial court erred in finding the
elements of his sodomy conviction under the former version of
Article 125 are substantially similar to sexual assault
pursuant to Texas Penal Code section 22.011.
first to Fisk's argument that the State failed to prove
he was the same individual previously court-martialed under
the name "Walter Loyal Fisk."
Standard of Review
reviewing the sufficiency of the evidence after a bench
trial, we apply the same Jackson v. Virginia
standard that is applied in an appeal from a jury trial.
See Robinson v. State, 466 S.W.3d 166, 173 (Tex.
Crim. App. 2015) (citing Jackson v. Virginia, 443
U.S. 307, 309, 319 (1979)). "We view all of the evidence
in the light most favorable to the verdict to determine
whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt." Adames v. State, 353 S.W.3d 854, 860
(Tex. Crim. App. 2011); accord Gear v. State, 340
S.W.3d 743, 746 (Tex. Crim. App. 2011). "This standard
recognizes the trier of fact's role as the sole judge of
the weight and credibility of the evidence . . . ."
Adames, 353 S.W.3d at 860; accord Gear, 340
S.W.3d at 746. The reviewing court must also give deference
to the factfinder's ability "'to draw reasonable
inferences from basic facts to ultimate facts.'"
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007) (quoting Jackson, 443 U.S. at 319). "Each
fact need not point directly and independently to the guilt
of the appellant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the
conviction." Id. (citing Johnson v.
State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)).
"[D]irect evidence and circumstantial evidence are
equally probative." Tate v. State, 500 S.W.3d
410, 413 (Tex. Crim. App. 2016); accord Hooper, 214
S.W.3d at 13.
Arguments of the Parties
argues there is legally insufficient evidence showing he was
the individual convicted in the 1990 sodomy court-martial
conviction that the State presented and the trial court
admitted. The State maintains the evidence is sufficient.
Proof Necessary for Prior Conviction
prove a defendant has a prior conviction, "the State
must prove beyond a reasonable doubt that (1) a prior
conviction exists, and (2) the defendant is linked to that
conviction." Flowers v. State, 220 S.W.3d 919,
921 (Tex. Crim. App. 2007); accord Prihoda v. State,
352 S.W.3d 796, 807 (Tex. App.-San Antonio 2011, pet.
ref'd). "No specific document or mode of proof is
required to prove these two elements." Flowers,
220 S.W.3d at 921. "Any type of evidence, documentary or
testimonial, might suffice, " as long as the document
"contains sufficient information to establish both the
existence of a prior conviction and the defendant's
identity as the person convicted." Id.; see
also Garner v. State, 864 S.W.2d 92, 97 (Tex.
App.-Houston [1st Dist.] 1993, pet. ref'd) ("The
State may prove a prior conviction by any of several methods,
one of which is by the introduction of certified or otherwise
properly authenticated copies of the judgment and sentence
and records of the Institutional Division of the Texas
Department of Criminal Justice or a county jail that includes
fingerprints of the accused, supported by expert testimony
identifying the fingerprints of the accused with known prints
of the defendant." (footnote omitted)); Ortiz v.
State, No. 02-07-00397-CR, 2008 WL 4602243, at *2 (Tex.
App.- Fort Worth Oct. 16, 2008, pet. ref'd) (mem. op.,
not designated for publication) (holding that State
sufficiently linked defendant to prior conviction when his
fingerprints matched those on jail card, which contained same
CID number as that on indictment although judgment did not
contain CID number).
Proof Adduced before the Trial Court
the resentencing hearing, the trial court admitted into
evidence, without objection, a copy of a "General
Court-Martial Order, " dated June 25, 1990, which
contains a conviction for sodomy with a child under the age
of sixteen. The General Court-Martial Order shows
"Walter Loyal Fisk" was the defendant in that
proceeding. Attached to the General Court-Martial Order is a
business records affidavit containing the social security
number and birthdate of "Walter Loyal Fisk." The
trial court also admitted Fisk's arrest record for the
offenses in this case which includes Fisk's social
security number and birthdate. Although the arrest record
does not contain a middle name, the first name, last name,
birthdate, and social security number of Fisk's arrest
records in this case are identical to the first name, last
name, birthdate, and social security number on both the
General Court-Martial Order and the business records
the Bexar County Sheriff's Office fingerprint examiner
testified the fingerprints on the sodomy arrest record
matched those of the individual in the courtroom identified
as "Walter Fisk." The use of fingerprint analysis
is an approved method of proving prior convictions. See
Beck v. State, 719 S.W.2d 205, 209-10 (Tex. Crim. App.
1986); see also Paschall v. State, 285 S.W.3d 166,
174-75 (Tex. App.-Fort Worth 2009, pet. ref'd); Rios
v. State, 230 S.W.3d 252, 256 (Tex. App.-Waco 2007, pet.
ref'd) (affirming identification evidence sufficient
based on expert's testimony comparing pen packet's
fingerprints with known fingerprints of defendant and
concluding the two sets were the same); Zimmer v.
State, 989 S.W.2d 48, 51 (Tex. App.-San Antonio 1998,
the evidence in the light most favorable to the verdict, we
conclude a rational trier of fact could have found the
essential elements to decide that the Walter Loyal Fisk
identified in the 1990 sodomy Court Martial was the same
Walter Fisk convicted of the current indecency with a child
convictions. See Adames, 353 S.W.3d at 860;
Prihoda, 352 S.W.3d at 807. Accordingly, the
evidence was legally sufficient to show Fisk was the same
person previously convicted under Article 125 for sodomy.
therefore turn to Fisk's argument regarding substantial
Standard of Review
an offense under the laws of another state contains
substantially similar elements as one of the Texas Penal Code
offenses enumerated in subsection (B) of section 12.42(c)(2)
is a question of law. See Anderson, 394 S.W.3d at
534; Hardy v. State, 187 S.W.3d 232, 236 (Tex.
App.-Texarkana 2006, pet. ref'd). We therefore review a
trial court's "substantially similar"
conclusion de novo. Fisk I, 510 S.W.3d at 178
(citing Brooks v. State, ...