Court of Appeals of Texas, Sixth District, Texarkana
Submitted: August 21, 2019
Appeal from the 102nd District Court Bowie County, Texas
Trial Court No. 14F1096-102.
Morriss, C.J., Burgess and Moseley, [*] JJ.
OPINION ON SECOND REMAND
C. Moseley Justice.
result of his unlawful contact with twelve-year-old K.R,
Bowie County jury found Joshua Jacobs guilty of aggravated
sexual assault of a child. 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 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,  (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.
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,  reversed our judgment, and
remanded the case to this Court to consider Jacobs'
remaining issues. Id. at 208-09, 214-15.
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.
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.
No Error in Using the Louisiana Conviction to Enhance
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. §
Standard of Review
Section 12.42(c)(2) of the Texas Penal Code, a person
convicted of certain sexual offenses 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-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). 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,
"Substantially Similar" Under
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