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1. “The current test for determining whether an out-of-state offense is substantially similar to an enumerated Texas offense is too broad. Accordingly, this Court should disavow that test and replace it with one that only compares the elements of the respective offenses.”
2. “Even if not disavowed, the court of appeals misapplied the current test when it concluded that the military’s former sodomy-with-a-child statute is not substantially similar to Texas’s sexual-assault statute.”
Fisk was convicted of three counts of indecency with a child by contact. At punishment, the State argued for mandatory life sentences under Texas’s “two-strikes policy” for repeat sex offenders (Penal Code § 12.42(c)(2)) based on Fisk’s prior court-martial conviction for sodomy. Under § 12.42(c)(2)(B)(v), an out-of-state conviction can be used for enhancement if it is “substantially similar” to certain sex offenses in Texas, including sexual assault. The trial court found that Fisk’s sodomy conviction qualified and imposed three life sentences.
The court of appeals reversed. It followed the two-prong analysis in Prudholm v. State, 333 S.W.3d 590, 594 (Tex. Crim. App. 2011), and Anderson v. State, 394 S.W.3d 531, 535 (Tex. Crim. App. 2013), for determining if the offenses were “substantially similar.” It recognized that under Prudholm, an out-of-state offense cannot have “markedly” broader elements than Texas’s statute. The military justice statute criminalized bestiality and sodomy (including certain forms of consensual sex between adults) and provided an enhanced penalty if the victim was under 16. The court of appeals held this was “distinctly different conduct” than the elements of sexual assault in Texas. As for the second prong, although the statutes had similar punishment ranges, they did not protect the same individual and public interests. The military justice statute was focused on unnatural nonprocreative sexual activity, whereas Texas’s sexual assault statute was designed to protect against the physical and psychological trauma of rape.
The State argues that the test for “substantial similarity” under Prudholm and Anderson goes beyond the plain language of § 12.42(c)(2)(B)(v), which only requires a comparison of elements. It is problematic to consider whether the two statutes aim to protect the same interests or have similar punishments because these legitimately vary, depending on the jurisdiction, and can change drastically over time. The court of appeals also erred to consider the entire sodomy statute rather than the specific offense Fisk was convicted of: sodomy “with a child under the age of 16 years.” Comparing the narrower offense would have been consistent with Prudholm and demonstrate that the military justice offense is more circumscribed—not broader. The State contends that how another jurisdiction structures its statutes (whether it prohibits sexual assaults against children in two different statutes or one) should not determine whether a conviction is available for the two-strikes enhancement.