Fisk, Walter

• Court: Court of Criminal Appeals of Texas
• Decided: June 5, 2019
• Docket: PD-1360-17
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD–1360–17

WALTER FISK, Appellant

v.

THE STATE OF TEXAS

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

K EEL, J., delivered the opinion of the Court in which K ELLER, P.J., and H ERVEY, R ICHARDSON, Y EARY, N EWELL, and S LAUGHTER, JJ., joined. K EASLER and W ALKER, JJ., concurred.

OPINION

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. T EX. P ENAL C ODE § 12.42(c)(2)(A), (B)(v). Convictions under the Uniform

Code of Military Justice (UCMJ) constitute convictions “under the laws of another state.” Fisk–Page 2

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

1 Throughout the remainder of this opinion, “Article” refers to the UCMJ and “Section” refers to the Texas Penal Code. Fisk–Page 3

elements of an offense listed in Subparagraph (i), (ii), (iii), or (iv).

T EX. P ENAL C ODE § 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 comparison, substantial similarity with respect to the interests protected

by the statutes, and substantially similar seriousness of the offenses.

To apply the test, Prudholm and Anderson turned to the statutes defining the

offenses as the basis for comparison. Prudholm, 333 S.W.3d at 596-98; Anderson, 394

S.W.3d at 537. Anderson noted that the judgment in the record before it did not set out Fisk–Page 4

any elements of the previous conviction, and it cited no other evidence in the record that

proved the elements of the prior conviction. 394 S.W.3d at 534. Prudholm cited no

evidence that touched on the elements of the previous conviction. Thus, Prudholm and

Anderson had no basis for comparison except for the statutes defining the offenses, and

that was the basis for the comparisons they made. Prudholm, 333 S.W.3d at 599;

Anderson, 394 S.W.3d at 539.

This case is distinguishable from Prudholm and Anderson because the State

proved the elements of Appellant’s previous conviction under Article 125.

First Prong: High Degree of Likeness

Prudholm

Prudholm first compared California’s sexual battery statute with Texas’s sexual

assault statute and observed that sexual battery encompassed “a markedly different range

of conduct” than sexual assault. 333 S.W.3d at 599. California’s sexual battery statute

criminalized “touching” – i.e., physical contact with – an “intimate part” – i.e., sexual

organ, anus, groin, or buttocks of any person or the breast of a female – whereas Texas’s

sexual assault statute criminalized the “‘penetration or contact’ of a person’s ‘anus’ or

‘sexual organ[.]’” Id. Moreover, the sexual battery statute explicitly excluded rape and

sexual penetration from its scope. Id. For those reasons, Prudholm held that while the

elements of sexual battery and sexual assault might “be similar in a general sense, they do

not display the high degree of likeness required to be substantially similar.” Id. Fisk–Page 5

Prudholm next compared California’s sexual battery statute with Texas’s

aggravated kidnapping statute and found it “a closer question.” Id. at 599. Sexual battery

did not measure up, however, because its “conduct element” required “the touching of an

intimate part, whereas aggravated kidnapping contain[ed] a specific intent element

requiring the intent to commit a non-consensual sex act.” Id.

Prudholm further observed that sexual battery required an “unlawful restraint” but

aggravated kidnapping required an abduction, i.e., unlawful restraint plus “the specific

intent to prevent the victim’s liberation[.]” Id. The Court held that the restraint elements

did “not display a high degree of likeness” because of the intent component of abduction.

Id.

Anderson

The issue in Anderson was whether North Carolina’s indecent liberties statute was

substantially similar to indecency with a child. 394 S.W.3d at 533. Anderson determined

that the court of appeals failed to “consider the wide variety of conduct covered by the

North Carolina offense that is excluded in the Texas offense.” Id. at 538. The indecent

liberties statute was not substantially similar to the indecency with a child statute because

indecent liberties “encompasses a markedly different range of conduct than” indecency

does and “covers a significant amount of conduct that the Texas offense does not.” Id. at

539. Anderson noted that indecent liberties criminalized “almost any conduct, if

performed to fulfill the actor’s sexual gratification[.]” Id. at 538. Examples were Fisk–Page 6

“kissing a minor’s face, french kissing a minor, and hugging the legs of a minor.” Id. at

538-39 (footnotes omitted). Such acts would not constitute indecency with a child under

the Texas statute “even if performed to ‘arouse or gratify the sexual desire’ of the actor”

because they are not sexual contact or exposure. Id. at 539.

Anderson sought to illustrate the meaning of “high degree of likeness” by

reference to a Venn diagram. Anderson, 394 S.W.3d at 535 n.17. “The two circles need

not form a perfect overlap, but they must overlap significantly and share a large

intersection area. ... [I]f one statute punishes any ‘intimate’ touching of a child, while a

second statute punishes only the touching of the anus or genitals, the statutes are not

substantially similar.” Id. This illustration suggests a bi-lateral examination of the

statutes for overlap. That is, according to Anderson, if either statute is broader than the

other, then the requirement for a high degree of likeness is not met.

The Venn diagram approach is not supported by Prudholm, which asked only

whether the out-of-state statute was broader than the Texas statute. 333 S.W.3d at 599.

Nor is it supported by the language of Section 12.42(c)(2) which asks whether the

defendant was previously convicted of an offense under laws containing elements

substantially similar to an offense under a given Texas penal statute. An offense under a

penal statute may not encompass the whole statute; it may be only one offense of many

under the statute. If the defendant was previously convicted of an offense under laws

containing elements that are substantially similar to the elements of an offense under a Fisk–Page 7

given Texas penal statute, then the requirements of Section 12.42(c)(2) are met. We

disavow Anderson’s suggestion that the out-of-state statute and the Texas statute must

substantially overlap in order to meet the requirement of a high degree of likeness.

This Case

Relying on Prudholm and Anderson, the court of appeals in this case held that

sodomy under Article 125 outlawed “distinctively different conduct” than does sexual

assault under Section 22.011. Fisk v. State, 538 S.W.3d 763, 774 (Tex. App. — San

Antonio 2017). The court noted that Article 125 prohibited bestiality and consensual

sodomy between adults, but Section 22.011 does not. Id. It also observed that Section

22.011 outlaws genital-to-genital contact or penetration, acts that were not covered by

Article 125. Id. Even if the court restricted its consideration to “the facts as plead in the

charging instrument” it concluded that the differences between Article 125 and Section

22.011 were still significant. Id. The lower court thus correctly applied Prudholm and

Anderson. But given the record in this case, there is no need to analyze Article 125’s

definitions of offenses for which Appellant was not convicted and on which the State

does not rely for enhancement.

The State proved Appellant’s previous sodomy conviction with a certified copy of

the court martial order specifying that Appellant was guilty of “sodomy with [DG], a

child under the age of 16 years.” The State also offered a copy of Article 125 and the

testimony of an expert on military law. According to the testimony and the documentary Fisk–Page 8

evidence, Article 125’s sodomy with a child consisted of two elements, (1) unnatural

carnal copulation (2) with a child under age 16. “Unnatural carnal copulation” under

Article 125 meant to take into one’s mouth or anus the sexual organ of another person or

an animal or to place one’s sexual organ into the mouth or anus of another person or an

animal “or to have carnal copulation in any opening of the body, except the sexual parts,

with another person; or to have carnal copulation with an animal.” UCMJ Article 125.

“Penetration, however slight,” sufficed for commission of the offense. UCMJ Article

125.

Section 22.011 states that a person commits sexual assault if he causes the

penetration of the anus or mouth of a child under age 17 with his sexual organ or causes

the sexual organ of a child to penetrate the mouth or anus of another. T EX. P ENAL C ODE

§ 22.011. The fact that Article 125 also defined other ways of committing sodomy that

are not found in Section 22.011 and that are not implicated by Appellant’s previous

conviction – i.e., bestiality and sodomy between consenting adults – is irrelevant. It is

also irrelevant that Section 22.011 criminalizes other ways of committing sexual assault

that are not found in Article 125. The only issue is whether a conviction for an offense

under Article 125 is a conviction for an offense under laws “containing elements that are

substantially similar to the elements of an offense” under Section 22.011.

In a case like this where the elements of the previous conviction are proven, it is

unnecessary to analyze the entirety of the other state’s statutory scheme for substantial Fisk–Page 9

similarity. Another jurisdiction’s arrangement and organization of its penal statutes has

no bearing on whether a defendant was previously convicted of an offense under laws

containing elements that are substantially similar to the elements of a designated Texas

offense. That kind of analysis is necessary only if the record fails to prove the nature of

the previous conviction.

Appellant argues that sodomy with a child under Article 125 is broader than sexual

assault of a child because, besides outlawing carnal copulation with the mouth and anus,

it also outlaws “carnal copulation in any opening of the body, except the sexual parts,”

which Appellant argues is not a crime in Texas. That is incorrect. Section 21.11

prohibits touching a child with the genitals or any touching of a child’s genitals if done

with intent to arouse or gratify sexual desire. T EX. P ENAL C ODE § 21.11. The phrase

“carnal copulation” and its explanation in Article 125 necessarily implicate intent to

arouse or gratify sexual desire. Therefore, Appellant’s sodomy conviction was under

laws containing elements substantially similar to the elements of sexual assault or

indecency with a child, both of which are enumerated offenses under Section

12.42(c)(2)(B)(ii). But even if carnal copulation in any other opening of the body except

the sexual parts was not a crime in Texas, a finding of substantial similarity does not

require identical elements, it requires only elements that “display a high degree of

likeness,” and it is not necessary that a person guilty of crime under a foreign law would

also be guilty under Texas law. Prudholm, 333 S.W.3d at 594-95. Fisk–Page 10

Ex parte White, 211 S.W.3d 316 (Tex. Crim. App. 2007), is an example of non-

identical statutes displaying substantial similarity. Prudholm, 333 S.W.3d at 593. In

White, the defendant had been previously convicted in Delaware of felony unlawful

sexual contact. 211 S.W.3d at 317. White held that unlawful sexual contact was

substantially similar to indecency with a child. Id. at 318. Prudholm pointed out that

there were differences between the two offenses, one being the required intent. 333

S.W.3d at 593. A conviction under the Delaware statute could be founded on an intent

“to embarrass or humiliate the victim,” a state of mind that would not sustain a Texas

conviction for indecency with a child. Id. at 594 n.15. Prudholm nevertheless approved

White’s holding; “the difference in the specific intent shows that, while an element of the

foreign offense can be proved by a fact that would be insufficient to prove the Texas

element, the elements may still be substantially similar.” 333 S.W.3d at 594 (footnote

omitted).

With respect to children, Article 125 contains elements that are substantially

similar to the elements of sexual assault of a child under Section 22.011. They both

prohibit the penetration of a child’s mouth or anus by a person’s sexual organ or the

penetration of a person’s mouth or anus by a child’s sexual organ. The one-year age

difference in the definition of child – 16 vs. 17 – does not defeat the substantial similarity.

See White, 211 S.W.3d at 318. Nor does Article 125’s inclusion of carnal copulation “in

any opening of the body” defeat a finding of substantial similarity because its prohibitions Fisk–Page 11

against sodomy with a child do not encompass a markedly different range of conduct than

the Texas offenses listed in Section 12.42.

Appellant also argues that the affirmative defenses found in Section 22.011 but not

found in Article 125 defeat a finding of substantial similarity. But defenses are not

elements, see Section 1.07(22), and elements are the only basis of comparison referenced

by Section 12.42(c)(2)(B)(v).

We hold that on this record Appellant was previously convicted of an offense

under laws, i.e., Article 125, containing elements with a high degree of likeness to the

elements of sexual assault of a child as defined by Section 22.011. It thus meets the first

prong of the Prudholm test for substantial similarity.

Justification for and Application of Second Prong

The Prudholm test’s second prong looked at the interests protected by the offenses

and their relative seriousness. 333 S.W.3d at 595. Prudholm maintained that the second

prong was necessary because the first prong left a “critical question” unanswered, that is,

“the respect in which the elements must display a high degree of likeness.” Id. at 594.

Given that the phrase “element of offense” is legally defined, the existence of Prudholm’s

“critical question” is dubious. See T EX. P ENAL C ODE § 1.07(22). In spite of

acknowledging that definition, however, Prudholm nevertheless posited that “elements

could be substantially similar with respect to general characteristics such as terminology,

function, and type of element, or with respect to specific characteristics such as the Fisk–Page 12

seriousness of violent or sexual aspects.” 333 S.W.3d at 594 (footnoting definition of

“element of offense”). But Section 12.42(c)(2) does not refer to terminology, function,

type, etc.; it simply requires a defendant to have been previously convicted under the laws

of another state containing elements that are substantially similar to those of an

enumerated Texas offense. The first prong of Prudholm’s test addressed that requirement

by defining “substantially similar.” The further inquiry into how elements might be

substantially similar was unnecessary, but Prudholm answered it anyway by turning to

Section 1.02.

Section 1.02 states that the general purposes of the Texas Penal Code are “to

establish a system of prohibitions, penalties, and correctional measures to deal with

conduct that unjustifiably and inexcusably causes or threatens harm to those individual or

public interests for which state protection is appropriate.” T EX. P ENAL C ODE § 1.02

(emphasis added). To serve those purposes, Section 1.02 provides that the code shall be

construed to achieve certain objectives, one of which, relied upon by Prudholm, is “to

prescribe penalties that are proportionate to the seriousness of offenses and that permit

recognition of differences in rehabilitation possibilities among individual offenders.”

T EX. P ENAL C ODE § 1.02(3) (emphasis added). Prudholm thus built the second prong of

its test with language from Section 1.02’s general purposes (“individual or public

interests”) and its third objective (“seriousness of offenses”). 333 S.W.3d at 595.

Prudholm erred in using language from Section 1.02’s definition of general Fisk–Page 13

purposes as a basis for statutory construction because those purposes are not included

among the objectives by which the code is to be construed. The objectives by which the

code is to be construed are numbered and listed; “individual or public interests” are not

found among them. See T EX. P ENAL C ODE § 1.02.

Furthermore, the application of the protected interests part of Prudholm’s test is so

arbitrary as to be unworkable because a statute may serve many interests. In this case, for

example, Article 125 served such diverse interests as securing the nation’s defense and

discouraging non-procreative sexual activity, bestiality, sexual abuse of children, and

forcible sodomy of adults. The lower court focused on the prevention of non-procreative

sexual activity and downplayed Article 125’s role in also discouraging the sexual

exploitation of children, demonstrating the arbitrariness of identifying the protected

interests of a given penal provision. See Fisk, 538 S.W.3d at 775. Prudholm and

Anderson also demonstrated the arbitrariness of identifying such interests.

For example, Prudholm maintained that the interests protected by the unlawful

restraint element of California’s sexual battery offense differ from the interests protected

by aggravated kidnapping’s abduction element because the unlawful restraint element

protects liberty interests but the abduction element protects “against the considerable risk

of death or serious bodily injury involved in an abduction.” 333 S.W.3d at 599. But both

offenses protect liberty interests; aggravated kidnapping’s additional protected interests of

life and freedom from serious bodily injury do not annul its interest in protecting liberty; Fisk–Page 14

and outlawing unlawful restraint also serves to discourage abduction by nipping it in the

bud. Considered in that light, sexual battery and aggravated kidnapping protect the same

interests.

Anderson claimed that Texas’s purpose in outlawing indecency with a child was to

protect children from “very specific sexual bad acts,” but North Carolina’s indecent

liberties offense was “more concerned with punishing the defendant’s immoral, improper,

indecent, or lewd state of mind.” 394 S.W.3d at 540 (internal quotation marks omitted).

One could argue just as well, however, that the statutes protect identical interests because

they both protect children from sexual exploitation.

As for the second part of the second prong – the seriousness of the offense – that

aspect of Prudholm’s test finds no support in the language of Section 12.42(c)(2), and it is

unnecessary to re-construe the meaning of Section 12.42(c)(2) in accordance with Section

1.02(3) every time a sex offender is enhanced with a previous out-of-state conviction.

The Legislature has decided that a life sentence is proportionate for sex offenders who

have certain types of previous convictions. 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. If the

Legislature had intended such a requirement, it would have written it into Section

12.42(c)(2). It did not. If the elements are substantially similar, the requirements of Fisk–Page 15

Section 12.42(c)(2) are satisfied; inquiry into the seriousness of the offenses is

unjustified.

Conclusion

The first prong of Prudholm’s test was met because the State proved that

Appellant was previously convicted of an offense under the laws of another state

containing elements that displayed a high degree of likeness to those of an offense

enumerated by Section 12.42(c)(2). The second prong of Prudholm’s test, however, was

based on faulty reasoning and was unworkable and unnecessary. We therefore overrule

Prudholm and Anderson to the extent that they imposed the second prong of their test for

substantial similarity. The interests of stare decisis are undisturbed. See Febus v. State,

542 S.W.3d 568, 575-76 (Tex. Crim. App. 2018) (following poorly reasoned or

unworkable precedent does not serve the goals of stare decisis).

We reverse the judgment of the court of appeals and affirm the trial court’s

judgments.

Delivered: June 5, 2019

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