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Jacobs v. State

Court of Appeals of Texas, Sixth District, Texarkana

August 27, 2019

JOSHUA JACOBS, Appellant
v.
THE STATE OF TEXAS, Appellee

          Date Submitted: August 21, 2019

          On Appeal from the 102nd District Court Bowie County, Texas Trial Court No. 14F1096-102.

          Before Morriss, C.J., Burgess and Moseley, [*] JJ.

          OPINION ON SECOND REMAND

          Bailey C. Moseley Justice.

         As a result of his unlawful contact with twelve-year-old K.R, [1] a Bowie County jury found Joshua Jacobs guilty of aggravated sexual assault of a child.[2] After Jacobs pled true to having been previously convicted of a prior felony in Louisiana (the Louisiana Conviction), the trial court imposed a mandatory sentence[3] of life imprisonment. Jacobs appealed to this Court and asserted that the trial court erred (1) in enhancing his punishment to life imprisonment by using his prior conviction in Louisiana, [4] (2) by unreasonably restricting his voir dire of the jury, and (3) by admitting evidence of the Louisiana Conviction during the guilt/innocence phase of his trial in violation of Article 38.37 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.37. We reversed the judgment of the trial court and remanded the case for a new trial, finding that the trial court erred by unreasonably restricting Jacobs' voir dire and that such error was constitutional error and harmful. Jacobs v. State, 506 S.W.3d 127, 139-40 (Tex. App.- Texarkana 2016), rev'd & remanded, 560 S.W.3d 205 (Tex. Crim. App. 2018). In that opinion, we declined to address Jacobs' other issues.

         The Texas Court of Criminal Appeals granted the State's petition for discretionary review, which conceded error, but challenged our finding that the error was constitutional in dimension. Jacobs, 560 S.W.2d at 208. That court interpreted Jacobs' point of error to be that the trial court violated his constitutional rights by unreasonably restricting his voir-dire examination, held that no constitutional violation occurred, [5] reversed our judgment, and remanded the case to this Court to consider Jacobs' remaining issues. Id. at 208-09, 214-15.

         In our opinion on first remand, we found that any error in admitting evidence of the Louisiana Conviction was harmless, and we affirmed the trial court's judgment of conviction. Jacobs v. State, 565 S.W.3d 87, 94, 99 (Tex. App.-Texarkana 2018), judgm't vacated in part & remanded, No. PD-1360-18, 2019 WL 3308563 (Tex. Crim. App. July 24, 2019) (per curiam). However, because we found that the trial court erred in using the Louisiana Conviction to impose an automatic life sentence, we reversed the trial court's judgment as to punishment and remanded this cause for a new hearing on punishment. Id. at 98-99. In our analysis of this latter issue, we applied the two-prong test for determining whether an out-of-state statute was substantially similar to a statute listed in Section 12.42(c)(2)(B) of the Texas Penal Code elucidated in Prudholm v. State, 333 S.W.3d 590 (Tex. Crim. App. 2011), abrogated in part by Fisk v. State, 574 S.W.3d 917 (Tex. Crim. App. 2019), and Anderson v. State, 394 S.W.3d 531 (Tex. Crim. App. 2013), abrogated in part by Fisk v. State, 574 S.W.3d 917 (Tex. Crim. App. 2019). Jacobs, 565 S.W.3d at 94-99.

         Subsequent to the issuance of our opinion on first remand, the Texas Court of Criminal Appeals decided Fisk v. State, 574 S.W.3d 917 (Tex. Crim. App. 2019). In that opinion, the Texas Court of Criminal Appeals abandoned the second prong of the Prudholm/Anderson test. Id. at 925. Consequently, that court granted the State's second petition for discretionary review in this case, vacated our judgment reversing the trial court's judgment on punishment, and remanded the case to this Court a second time for reconsideration in light of the Fisk opinion. Jacobs, 2019 WL 3308563, at *1.

         I. No Error in Using the Louisiana Conviction to Enhance Jacob's Punishment

         In his first issue, Jacobs complains that the trial court erred in using the Louisiana Conviction to enhance his punishment to life imprisonment under Section 12.42(c)(2) of the Texas Penal Code. See Tex. Penal Code Ann. § 12.42(c)(2).

         A. Standard of Review

         Under Section 12.42(c)(2) of the Texas Penal Code, a person convicted of certain sexual offenses[6] who has previously been convicted for one of the sexual offenses listed in Section 12.42(c)(2)(B) of the Texas Penal Code must receive an automatic life sentence. Tex. Penal Code Ann. § 12.42(c)(2)(B); Fisk, 574 S.W.3d at 919. The automatic life sentence enhancement also applies when "the defendant 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." Fisk, 574 S.W.3d at 919 (quoting Tex. Penal Code Ann. § 12.42(c)(2)(B)). In this case, the State argued (and the trial court agreed) that the Louisiana statute under which Jacobs was convicted-felony carnal knowledge of a juvenile[7]-is substantially similar to Section 22.011 of the Texas Penal Code regarding sexual assault of a child (the Texas Sexual Assault/Child Victim statute).[8] Since the trial court's "substantially similar" finding is a question of law, it is subject to our de novo review. Hardy v. State, 187 S.W.3d 232, 236 (Tex. App.-Texarkana 2006, pet. ref'd).

         B. "Substantially Similar" Under Fisk

         In our prior opinion, we applied the two-prong test to determine whether the elements of the Louisiana statute under which Jacobs had previously been convicted had elements that were "substantially similar" to a listed sexual offense, as set forth by the Court of Criminal Appeals in Prudholm v. State and Anderson v. State. See Prudholm, 333 S.W.3d at 594; Anderson, 394 S.W.3d at 536. The first prong of the Prudholm/Anderson test "required 'that the elements being compared . . . must display a high degree of likeness, but may be less than identical.'" Fisk, 574 S.W.3d at 920 (quoting Prudholm, 333 S.W.3d at 594). "The second prong required 'that the elements must be substantially similar with respect to ...


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