A sex crimes charge in Texas takes on special weight if the defendant has a prior criminal record, even from another state. Under Section 12.42 of the Texas Penal Code, a defendant faces a life sentence if he is convicted of certain sex crimes and has a previous conviction “under the laws of another state containing elements that are substantially similar to” a sex offense recognized by Texas law.
In 2011, the Texas Court of Criminal Appeals announced a two-pronged test to define what qualifies as a “substantially similar” offense under Section 12.42. The first prong states the elements of the Texas and non-Texas crimes “must display a high degree of likeness, but may be less than identical.” The second prong went a step further and said the compared 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 offense.”
Court of Criminal Appeals Abandons “Public Interests” Test in Assessing Similarity of Sex Crimes Statutes
In a June 5, 2019, decision, Fisk v. State, the Court of Criminal Appeals decided to revisit–and ultimately abandon–the second part of its test.
The case itself involved a defendant convicted of sexual assault of a child under Section 22.011 of the Penal Code. The defendant also had a 1990 conviction in a military court-martial for committing “sodomy with a child under the age of 16 years,” which was prohibited by the Uniform Code of Military Justice (UCMJ). The trial judge determined the defendant’s present conviction was for a crime “substantially similar” to that involved in the court-martial and on that basis sentenced the defendant to life in prison.
An intermediate appeals court reversed the trial court after applying the Court of Criminal Appeals’ two-prong test. But the Court of Criminal Appeals said the trial judge’s analysis was correct. Although the Texas Penal Code and the UCMJ define sexual assault somewhat differently, the Court of Criminal Appeals said what mattered here was whether the defendant’s prior conviction actually contained “elements that are substantially similar” to those defined by the Penal Code.
Here, the Court noted both the UCMJ and the Texas sexual assault statute “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.” Although the laws define “child” slightly differently–it is 17 under the Texas statute and 16 under the UCMJ–this is not enough to “defeat the substantial similarity” of the two laws.
As for whether both laws protected the same “public interests” under the second prong of the 2011 test, the Court of Criminal Appeals said this was longer a relevant legal standard. The Court decided its prior test was “so arbitrary as to be unworkable because a statute may serve many interests.” It therefore overruled its prior precedent.
Speak with a Houston Sex Crimes Defense Lawyer Today
Even if you do not have a prior conviction for a similar offense, a sex crimes conviction can have devastating consequences on your life. That is why you need to work with an experienced Houston sex crimes defense attorney. Contact the Law Offices of Tad Nelson & Associates in Galveston or League City today if you need immediate assistance. Call (281) 280-0100 .