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Fisk v. State

Court of Criminal Appeals of Texas

June 5, 2019

WALTER FISK, Appellant
v.
THE STATE OF TEXAS

          ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS BEXAR COUNTY

          Keel, J., delivered the opinion of the Court in which Keller, P.J., and Hervey, Richardson, Yeary, Newell, and Slaughter, JJ., joined. Keasler and Walker, JJ., concurred.

          OPINION

          Keel, J.

         A defendant convicted of a listed sex offense shall be sentenced to life in prison if he has been previously convicted of "an offense . . . under the laws of another state containing elements that are substantially similar to the elements of" an enumerated Texas offense. Tex. Penal Code § 12.42(c)(2)(A), (B)(v). Convictions under the Uniform Code of Military Justice (UCMJ) constitute convictions "under the laws of another state." Rushing v. State, 353 S.W.3d 863, 868 (Tex. Crim. App. 2011). The question here is whether the elements of sodomy with a child as defined by Article 125 of the UCMJ are substantially similar to the elements of sexual assault as defined by the Texas Penal Code.[1] We granted review to determine whether the two-pronged test for substantial similarity should be amended and, if not, whether the lower court correctly applied it. We hold that the first prong of the test should be applied to the elements of the previous conviction, if proven, and that the second prong of the test should be abandoned.

         Section 12.42(c)(2), Prudholm, and Anderson

         Section 12.42(c)(2) mandates a life sentence for defendants who are convicted of a listed sex offense and have been previously convicted of an enumerated sex offense. It reads as follows:

(2) Notwithstanding Subdivision (1), a defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life if:
(A)the defendant is convicted of an offense:
[under Penal Code sections listed in subparagraphs (i) through (iii)]; and
(B)the defendant has been previously convicted of an offense:
[under Penal Code sections listed in subparagraphs (i) through (iv)]; or
(v) under the laws of another state containing elements that are substantially similar to the elements of an offense listed in Subparagraph (i), (ii), (iii), or (iv).

Tex. Penal Code § 12.42(c)(2)(A), (B) (emphasis added).

         Prudholm v. State prescribed a two-pronged test to define the phrase "substantially similar" as used in Section 12.42(c)(2)(B)(v). 333 S.W.3d 590, 594 (Tex. Crim. App. 2011). The first prong required that "the elements being compared . . . must display a high degree of likeness, but may be less than identical." Id. The second prong required "that the elements must be substantially similar with respect to the individual or public interests protected and the impact of the elements on the seriousness of the offenses." Id. at 595.

         Anderson v. State reiterated Prudholm's test and emphasized that the second prong itself consisted of two parts. 394 S.W.3d 531, 536 (Tex. Crim. App. 2013). "Courts must first determine if there is a similar danger to society that the statute is trying to prevent. The court must then determine if the class, degree, and punishment range of the two offenses are substantially similar." Id. (footnotes and internal quotation marks omitted). The two-pronged test thus consisted of three parts: a high degree of likeness between the elements under ...


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