Fisk v. State

538 S.W.3d 763
CourtCourt of Appeals of Texas
DecidedDecember 6, 2017
DocketNo. 04-17-00174-CR
StatusPublished
Cited by4 cases

This text of 538 S.W.3d 763 (Fisk v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fisk v. State, 538 S.W.3d 763 (Tex. Ct. App. 2017).

Opinion

Opinion by: 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 *767TEX. 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 *768trial 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 ,

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Cite This Page — Counsel Stack

Bluebook (online)
538 S.W.3d 763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisk-v-state-texapp-2017.