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Fisk v. State

Court of Appeals of Texas, Fourth District, San Antonio

December 6, 2017

Walter FISK, Appellant
v.
The STATE of Texas, Appellee

         From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2014CR3772 Honorable Kevin M. O'Connell, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice, Karen Angelini, Justice, Patricia O. Alvarez, Justice

          OPINION

          Patricia O. Alvarez, Justice

         A Bexar 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).[1] Fisk was assessed three life sentences in the Institutional Division of the Texas Department of Criminal Justice.

         On 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.

         Procedural Background

         This is 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. § 12.42(c)(2)(B)(v).

         A. Fisk's First Trial and Sentencing Hearing

         A Bexar 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.

         At the 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).[2] 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.[3]

         The 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).

         On 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).

         In our 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. Id.

         B. Second Punishment Hearing

         At the 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 child.

         In his 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.

         We turn 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."

         Prior Conviction

         A. Standard of Review

         When 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.

         B. Arguments of the Parties

         Fisk 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.

         C. Proof Necessary for Prior Conviction

         To 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).

         D. Proof Adduced before the Trial Court

         During 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 affidavit.[4]

         Additionally, 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, pet. ref'd).

         Viewing 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.

         We therefore turn to Fisk's argument regarding substantial similarity.

         Substantial Similarity

         A. Standard of Review

         Whether 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, ...


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