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Texas Court of Criminal Appeals Announces New Test in Comparing Out-of-State Priors for Sentence Enhancement for Repeat Sex Offenders

by Michael Berk

The Texas Court of Criminal Appeals announced a new test for determining whether a prior out-of-state conviction is “substantially similar” to enumerated Texas offenses for application of enhanced penalties for repeat sex offenses, explicitly overruling two precedential decisions.

The State sought to enhance Walter Fisk’s sentence under § 12.42 (c)(2) of the Texas Penal Code (“TPC”) based on the substantial similarity of his prior conviction for sodomy with a child, UCMJ Art. 125 of the Uniform Code of Military Justice (“UCMJ”), to the enumerated Texas offense of sexual assault, TPC § 22.011. The lower court ruled that the enhancement should apply, but a court of appeals, applying the two-pronged test for substantial similarity established in Prudholm v. Texas, 333 S.W.3d 590 (Tex. Crim. App. 2011), and Anderson v. Texas, 394 S.W.3d 531 (Tex. Crim. App. 2013), found that the two statutes outlawed “distinctively different conduct” and thus reversed the application of the enhancement.

The Court took this opportunity to revisit the two-pronged test for substantial similarity and decide whether it should be amended. After review, the Court modified the restrictive two-part test it had previously established, overruling Prudholm and Anderson “to the extent that they imposed the second prong of their test for substantial similarity.”

The first prong required that “the elements being compared … must display a high degree of likeness, but may be less than identical.” Prudholm. 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. Anderson reaffirmed the test set forth in Prudholm and explained that the second prong actually consists of two parts itself.

In reality, the two-pronged test was composed of “three parts: a high degree of likeness between the elements under comparison, substantial similarity with respect to the interests protected by the statutes, and substantially similar seriousness of the offenses,” the Court explained.

Since § 12.42 (c)(2) only asks whether the elements are substantially similar, additional qualifications articulated in Prudholm and Anderson are “arbitrary” and “unjustified,” the Court ruled. “If an offender has been previously convicted of an offense under laws containing elements that are substantially similar to those of an enumerated Texas offense, then the statute calls for a life sentence; it does not matter whether the foreign offense carries a substantially similar range of punishment,” the Court explained, collapsing the former multi-part test to a single inquiry, viz., “If the elements are substantially similar, the requirements of Section 12.42(c)(2) are satisfied….”

The Court instructed that it is not necessary to evaluate every aspect of the statutes under comparison, only those implicated by the actual offense of conviction. Although one law may be broader than the other overall or allow for additional means of violating the statute, if the record is plain, excess components of the law of either jurisdiction are “irrelevant.” Only where the record lacks such detail is full review of the “statutory scheme” necessary, the Court explained.

Going still further, the Court noted that even if “an element of the foreign offense can be proved by a fact that would be insufficient to prove the total element, the elements may still be substantially similar.”

For example, if proof of a specific intent is necessary to establish the out-of-state crime but no such requirement exists for the Texas corollary, that distinction in and of itself would not preclude a finding that the elements are substantially similar: “it is not necessary that a person guilty of crime under a foreign law would also be guilty under Texas law,” the Court stated.

Turning to the present case, the State entered into the record proof of the elements and nature of Fisk’s prior conviction, noting that the court’s martial order specified that he had been found guilty of “sodomy with … a child under the age of 16.” Thus, the Court concluded that Fisk’s UCMJ conviction was “substantially similar” to an enumerated Texas law.

Accordingly, the Court reversed the judgment of the court of appeals and affirmed the trial court’s imposition of the enhancement. See: Fisk v. State, 574 S.W.3d 917 (Tex. Crim. App. 2019). 

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