Joshua Jacobs v. State ( 2019 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-16-00008-CR
JOSHUA JACOBS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 102nd District Court
Bowie County, Texas
Trial Court No. 14F1096-102
Before Morriss, C.J., Burgess and Moseley,* JJ.
Opinion on Second Remand by Justice Moseley
________________
*Bailey C. Moseley, Justice, Retired, Sitting by Assignment
OPINION ON SECOND REMAND
As a result of his unlawful contact with twelve-year-old K.R, 1 a Bowie County jury found
Joshua Jacobs guilty of aggravated sexual assault of a child. 2 After Jacobs pled true to having
been previously convicted of a prior felony in Louisiana (the Louisiana Conviction), the trial court
imposed a mandatory sentence 3 of life imprisonment. Jacobs appealed to this Court and asserted
that the trial court erred (1) in enhancing his punishment to life imprisonment by using his prior
conviction in Louisiana, 4 (2) by unreasonably restricting his voir dire of the jury, and (3) by
admitting evidence of the Louisiana Conviction during the guilt/innocence phase of his trial in
violation of Article 38.37 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.
ANN. art. 38.37. We reversed the judgment of the trial court and remanded the case for a new trial,
finding that the trial court erred by unreasonably restricting Jacobs’ voir dire and that such error
was constitutional error and harmful. Jacobs v. State, 506 S.W.3d 127, 139–40 (Tex. App.—
Texarkana 2016), rev’d & remanded, 560 S.W.3d 205 (Tex. Crim. App. 2018). In that opinion,
we declined to address Jacobs’ other issues.
The Texas Court of Criminal Appeals granted the State’s petition for discretionary review,
which conceded error, but challenged our finding that the error was constitutional in dimension.
1
Persons who were minors at the time of the offenses discussed in this opinion will be referenced by initials, and their
relatives will be referenced by pseudonyms. See TEX. R. APP. P. 9.10.
2
See Act of April 7, 2011, 82d Leg., R.S., ch. 1, § 6.05, 2011 Tex. Gen. Laws 1, 16 (amended 2015, 2017) (current
version at TEX. PENAL CODE § 22.021(a)(1)(B)(i)).
3
See TEX. PENAL CODE ANN. § 12.42(c)(2)(A)(i), (B).
4
The Louisiana Conviction was for felony carnal knowledge of a juvenile. See LA. REV. STAT. ANN. § 14:80 (West,
Westlaw through 2018 3d E. Sess.).
2
Jacobs, 560 S.W.2d at 208. That court interpreted Jacobs’ point of error to be that the trial court
violated his constitutional rights by unreasonably restricting his voir-dire examination, held that
no constitutional violation occurred, 5 reversed our judgment, and remanded the case to this Court
to consider Jacobs’ remaining issues. Id. at 208–09, 214–15.
In our opinion on first remand, we found that any error in admitting evidence of the
Louisiana Conviction was harmless, and we affirmed the trial court’s judgment of conviction.
Jacobs v. State, 565 S.W.3d 87, 94, 99 (Tex. App.—Texarkana 2018), judgm’t vacated in part &
remanded, No. PD-1360-18, 2019 WL 3308563 (Tex. Crim. App. July 24, 2019) (per curiam).
However, because we found that the trial court erred in using the Louisiana Conviction to impose
an automatic life sentence, we reversed the trial court’s judgment as to punishment and remanded
this cause for a new hearing on punishment. Id. at 98–99. In our analysis of this latter issue, we
applied the two-prong test for determining whether an out-of-state statute was substantially similar
to a statute listed in Section 12.42(c)(2)(B) of the Texas Penal Code elucidated in Prudholm v.
State, 333 S.W.3d 590 (Tex. Crim. App. 2011), abrogated in part by Fisk v. State, 574 S.W.3d
917 (Tex. Crim. App. 2019), and Anderson v. State, 394 S.W.3d 531 (Tex. Crim. App. 2013),
abrogated in part by Fisk v. State, 574 S.W.3d 917 (Tex. Crim. App. 2019). Jacobs, 565 S.W.3d
at 94–99.
Subsequent to the issuance of our opinion on first remand, the Texas Court of Criminal
Appeals decided Fisk v. State, 574 S.W.3d 917 (Tex. Crim. App. 2019). In that opinion, the Texas
5
The Texas Court of Criminal Appeals held that since Jacobs only asserted a constitutional violation, it was
unnecessary to address nonconstitutional voir dire error. Jacobs, 2018 WL 4905292, at *7.
3
Court of Criminal Appeals abandoned the second prong of the Prudholm/Anderson test. Id. at
925. Consequently, that court granted the State’s second petition for discretionary review in this
case, vacated our judgment reversing the trial court’s judgment on punishment, and remanded the
case to this Court a second time for reconsideration in light of the Fisk opinion. Jacobs, 2019 WL
3308563, at *1.
I. No Error in Using the Louisiana Conviction to Enhance Jacob’s Punishment
In his first issue, Jacobs complains that the trial court erred in using the Louisiana
Conviction to enhance his punishment to life imprisonment under Section 12.42(c)(2) of the Texas
Penal Code. See TEX. PENAL CODE ANN. § 12.42(c)(2).
A. Standard of Review
Under Section 12.42(c)(2) of the Texas Penal Code, a person convicted of certain sexual
offenses 6 who has previously been convicted for one of the sexual offenses listed in Section
12.42(c)(2)(B) of the Texas Penal Code must receive an automatic life sentence. TEX. PENAL
CODE ANN. § 12.42(c)(2)(B); Fisk, 574 S.W.3d at 919. The automatic life sentence enhancement
also applies when “the defendant 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.” Fisk, 574 S.W.3d at 919 (quoting TEX. PENAL CODE ANN.
§ 12.42(c)(2)(B)). In this case, the State argued (and the trial court agreed) that the Louisiana
statute under which Jacobs was convicted—felony carnal knowledge of a juvenile 7—is
6
Jacobs was convicted of aggravated sexual assault, which is included among the designated sexual offenses. See
TEX. PENAL CODE ANN. § 12.42(c)(2)(A)(i).
7
See LA. REV. STAT. ANN. § 14:80 (West, Westlaw through 2018 3d E. Sess.).
4
substantially similar to Section 22.011 of the Texas Penal Code regarding sexual assault of a child
(the Texas Sexual Assault/Child Victim statute). 8 Since the trial court’s “substantially similar”
finding is a question of law, it is subject to our de novo review. Hardy v. State, 187 S.W.3d 232,
236 (Tex. App.—Texarkana 2006, pet. ref’d).
B. “Substantially Similar” Under Fisk
In our prior opinion, we applied the two-prong test to determine whether the elements of
the Louisiana statute under which Jacobs had previously been convicted had elements that were
“substantially similar” to a listed sexual offense, as set forth by the Court of Criminal Appeals in
Prudholm v. State and Anderson v. State. See Prudholm, 333 S.W.3d at 594; Anderson, 394
S.W.3d at 536. The first prong of the Prudholm/Anderson test “required ‘that the elements being
compared . . . must display a high degree of likeness, but may be less than identical.’” Fisk, 574
S.W.3d at 920 (quoting Prudholm, 333 S.W.3d at 594). “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. (quoting Prudholm, 333
S.W.3d at 595).
In Fisk, the Texas Court of Criminal Appeals abrogated the second prong of this test and
overruled Prudholm and Anderson to the extent that they imposed the second prong for
determining substantial similarity under Section 12.42(c)(2). Id. at 925. The court also disavowed
the suggestion in Anderson “that the out-of-state statute and the Texas statute must substantially
8
See Act of May 28, 2003, 78th Leg., R.S., ch. 528, § 1, 2003 Tex. Gen. Laws 1805, 1806 (amended 2005, 2009,
2017) (current version at TEX. PENAL CODE § 22.011(a)(2)).
5
overlap in order to meet the requirement of a high degree of likeness.” Id. at 921. Rather, Section
12.42(c)(2)’s substantially similar requirement is met “[i]f the defendant was previously convicted
of an offense under laws containing elements that are substantially similar to the elements of an
offense under a given Texas penal statute.” Id.
Further, Fisk noted that it is irrelevant that the out-of-state statute contains other ways of
committing the offense that are not contained in the Texas statute and that are not implicated by
the defendant’s prior conviction. Id. at 922. It is also irrelevant that the Texas statute may contain
multiple ways of committing an offense, such as sexual assault, that are not found in the out-of-
state statute. Id. Rather, “[t]he only issue is whether a conviction for an offense under [the out-
of-state statute] is a conviction for an offense under laws ‘containing elements that are substantially
similar to the elements of an offense’ under [the Texas penal statute].” Id. (quoting TEX. PENAL
CODE ANN. § 12.42(c)(2)(B)(v)). Substantial similarity does not require identical elements, but
“only elements that ‘display a high degree of likeness.’” Id. (quoting Prudholm, 333 S.W.3d at
594). Finally, “it is not necessary that a person guilty of crime under a foreign law would also be
guilty under Texas law.” Id. at 922–23 (citing Prudholm, 333 S.W.3d at 595).
C. Analysis
In this case, Jacobs pled true to the State’s enhancement allegation that before the
commission of the current offense, Jacobs had been convicted under the laws of Louisiana of
felony carnal knowledge of a juvenile in Cause Number 280028 in the First District Court of Caddo
Parish, Louisiana (the Louisiana Conviction). Jacobs also stipulated to the evidence in the
penitentiary packet related to the Louisiana Conviction. That evidence showed that Jacobs had
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been charged with, pled guilty to, and convicted of felony carnal knowledge of a juvenile under
Section 14:80 of the Revised Louisiana Statutes. Specifically, the evidence showed that Jacobs
had been convicted of having consensual sexual intercourse with B.H., a fourteen-year old girl
who was not his spouse, when he was over the age of seventeen and there was more than four
years age difference between them. B.H.’s testimony showed that the sexual intercourse was
vaginal.
In relevant part, the Louisiana statute provides:
A. Felony carnal knowledge of a juvenile is committed when:
(1) A person who is seventeen years of age or older has sexual intercourse, with
consent, with a person who is thirteen years of age or older but less than seventeen
years of age, when the victim is not the spouse of the offender and when the
difference between the age of the victim and the age of the offender is four years or
greater; . . .
....
B. As used in this Section, “sexual intercourse” means anal, oral, or vaginal
sexual intercourse.
C. Lack of knowledge of the juvenile’s age shall not be a defense. Emission
is not necessary, and penetration, however slight, is sufficient to complete the
crime.
LA. REV. STAT. ANN. § 14:80(A)(1), (B), (C). It appears that oral, anal, and vaginal sexual
intercourse all require some penetration, but are otherwise not defined in the statute. 9
9
Oral sexual intercourse is defined in the Louisiana rape statute, but that definition is limited to Part II, Subpart C, of
the Criminal Code, entitled “Rape and Sexual Battery.” See LA. REV. STAT. ANN. § 14:41(C)(1)–(2). Felony carnal
knowledge of a juvenile is contained in Part V, Subpart A, of the Criminal Code, entitled “Offenses Affecting Sexual
Immorality.” See LA. REV. STAT. ANN. § 14:80.
7
The State contends that this statute is substantially similar to the Texas offense of “Sexual
Assault/Child Victim.” At the time of this offense, that statute provided in relevant:
(a) A person commits an offense if the person:
....
(2) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of a child
by any means;
(B) causes the penetration of the mouth of a child by the sexual
organ of the actor[.]
Act of May 28, 2003, 78th Leg., R.S., ch. 528, § 1, 2003 Tex. Gen. Laws 1805, 1806 (amended
2005, 2009, 2017). A person younger than seventeen years of age is defined as a child. TEX.
PENAL CODE ANN. § 22.011(c)(1). Further, it is an affirmative defense if it is shown that at the
time of the offense, the actor is the spouse of the victim, or the actor, inter alia, was no more than
three years older than the victim and the victim, inter alia, was fourteen years of age or older. TEX.
PENAL CODE ANN. § 22.011(e)(1)–(2).
Jacobs points out that the Louisiana statute contains multiple ways to commit felony carnal
knowledge of a juvenile, other than the particular way that Jacobs committed the offense.
However, since the elements of Jacobs’ prior conviction were shown, this fact is irrelevant to our
analysis. See Fisk, 574 S.W.3d at 922. He also argues that the Texas Sexual Assault/Child Victim
statute is broader in scope because it addresses offenses against children under age thirteen,
addresses other types of penetration (such as digital), and addresses non-consensual sexual contact.
8
However, “[i]t is also irrelevant that Section 22.011 criminalizes other ways of committing sexual
assault that are not found in” the Louisiana statute. Id.
As noted above, it was shown at trial that Jacobs was convicted in Louisiana for having
consensual vaginal sexual intercourse with a fourteen-year-old girl who was not his spouse, when
he was over the age of seventeen and there was more than four years age difference between them.
When the victim is at least fourteen years of age, but less than seventeen years of age, the Louisiana
statute criminalizes this behavior when the perpetrator is at least seventeen years of age and more
than four years older than the victim. Under the Texas statute, when the victim is at least fourteen
years of age, but less than seventeen years of age, the statute criminalizes the behavior if the
perpetrator is more than three years older than the victim. This one-year age difference (four years
older vs. three years older) will not defeat substantial similarity. See id. at 923 (a one-year age
difference in the definition of a child does not defeat substantial similarity); Prudholm, 333 S.W.3d
at 593–94 (citing a one-year age difference in the requisite age of the victim as an “example of
elements that are substantially similar, but not identical”).
Another difference between the Louisiana statute and the Texas Sexual Assault/Child
Victim statute is that the Louisiana statute only penalizes consensual sexual intercourse, while the
Texas Sexual Assault/Child Victim statute penalizes intentional and knowing conduct, irrespective
of whether the act was consensual. Nevertheless, even when there is a difference in the specific
intent required under the two statutes, “the elements may still be substantially similar.” Fisk, 574
S.W.3d at 923 (quoting Prudholm, 333 S.W.3d at 594).
9
Even though there are some differences, both the Louisiana statute and the Texas Sexual
Assault/Child Victim statute proscribe the penetration of a child’s anus, sexual organ, or mouth by
a person’s sexual organ. Consequently, on this record, we find that Jacobs was convicted of an
offense under a Louisiana statute that contains elements that are substantially similar to the
elements of the Texas Sexual Assault/Child Victim statute. See id. We overrule Jacobs’ first issue.
For the reasons stated, we affirm the trial court’s judgment.
Bailey C. Moseley
Justice
Date Submitted: August 21, 2019
Date Decided: August 27, 2019
Publish
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