Devante Shelby Castle v. State

Affirmed in part, Reversed in part, and Remanded and Opinion filed June 6,
2013.

In the

Fourteenth Court of Appeals

NO. 14-12-00132-CR
NO. 14-12-00133-CR

DEVANTE SHELBY CASTLE, Appellant

V.
THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause Nos. 1282529 & 1282530

OPINION

Appellant Devante Shelby Castle was convicted of two counts of aggravated
sexual assault of a child under age fourteen. Appellant elected to have the trial
court assess punishment. The trial court found the State proved the enhancement
allegation that appellant previously was convicted of felony sexual battery in
Louisiana, and assessed appellant’s sentence at life imprisonment according to
section 12.42(c)(2) of the Texas Penal Code. On appeal, appellant raises the
following issues: (1) the trial court erred in concluding that the Louisiana sexual
battery statute is substantially similar to any enumerated offense in section
12.42(c)(2)(B), and (2) the trial court erred in assessing appellant’s punishment at
life in prison under section 12.42 because the evidence was legally insufficient to
prove that appellant was convicted of sexual battery in Louisiana. We affirm the
trial court’s judgments of conviction, but reverse the court’s judgments as to
punishment and remand the causes for a new punishment hearing.

I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant Devante Shelby Castle aka Shelby Ray Francis was charged with
two counts of aggravated sexual assault of a child under age fourteen. Appellant
pleaded not guilty, the causes were tried together to a jury, and the jury convicted
him on both counts. Both indictments alleged in an enhancement paragraph that
appellant previously was convicted of felony sexual battery in Louisiana.
Appellant elected to have the trial court assess his punishment. Only appellant’s
punishment is at issue in this appeal.

The enhancement paragraph alleged that appellant was finally convicted of
felony sexual battery in Louisiana on March 26, 2002. During the punishment
phase, the State offered and the trial court took judicial notice of the current
version of the Louisiana statute for sexual battery, without objection by appellant.
LA. REV. STAT. ANN. § 14:43.1 (2012). Although the pertinent statute would have
been the 2002 version, without an objection or any proof that the statute was
materially different in 2002, we will consider the current statute.1 The State called

1
While appellant relies on the 2002 version in his brief, he does not complain of any
error in the trial court’s consideration of the current version. Moreover, even if appellant had
advanced such complaint on appeal, it would be waived because he failed to raise any specific
objection below. See TEX. R. APP. P. 33.1; Wagner v. State, No. 14-07-00906-CR, 2009 WL
838187, at *13 (Tex. App.—Houston [14th Dist.] Mar. 31, 2009, pet. ref’d) (mem. op., not
designated for publication) (concluding that appellant did not preserve complaint that Ohio
2
a fingerprint expert who testified appellant’s fingerprint matched that contained in
the conviction of a person who at that time went by the name of Shelby Ray
Francis for felony credit card abuse.2 The State offered the judgment in that cause,
which reflected Francis pleaded true to the enhancement paragraph that he
previously was convicted of felony sexual battery in Louisiana. The State also
offered a certified copy of an extract of court minutes from Louisiana, which stated
that defendant Shelby R. Francis pleaded guilty to the charge of sexual battery and
received five years’ hard labor. Appellant’s defense counsel did not present any
evidence, but instead argued that the Louisiana offense of sexual battery is not
substantially similar to any Texas offense listed in section 12.42 and that the State
had not presented any proof that the sexual battery conviction involved a child or
sexual organ-to-sexual organ contact.

The trial court found the enhancement paragraph contained in appellant’s
indictments to be true. And based on its review of all the documents submitted, the
trial court assessed appellant’s punishment at a life sentence “in accordance with
Section 12.42 of the Texas Penal Code, Subsection C2-A.” In other words, the
trial court assessed an automatic life sentence, rather than a punishment within the
range of 5 to 99 years’ imprisonment or life for each of appellant’s convictions for
first-degree felony aggravated sexual battery of a child under fourteen. See TEX.
PEN. CODE. ANN. §§ 12.32, 22.021(e) (West 2011). On appeal, appellant argues
the trial court erred in determining that the Louisiana sexual battery statute is
substantially similar to any Texas offense enumerated in section 12.42, and erred

statutes State furnished to trial court, and of which trial court took judicial notice and considered
to make its determination that prior Ohio conviction for corruption of a minor was substantially
similar to Texas sexual offense for purposes of section 12.42, “were either outdated or too
recent”).
2
During the guilt/innocence phase of trial, appellant’s former girlfriend—aunt of the
victim—identified appellant as both “Devante Castle” and “Shelby Francis.”

3
in assessing an automatic life sentence because the evidence was legally
insufficient to prove appellant was finally convicted of sexual battery in Louisiana.

II. LEGAL SUFFICIENCY OF EVIDENCE ON PRIOR CONVICTION

Appellant attacks the legal sufficiency of the evidence the State presented
and argues it does not prove that appellant is the same individual previously
convicted of sexual battery in Louisiana. Appellant contends that the certified
extract from minutes in a Louisiana court is not “definitive proof of a conviction,”
and that a “true” plea in a later, unrelated case should not serve to connect
appellant to those minutes. We disagree.

To establish that a defendant has been convicted of a prior offense, the State
must prove beyond a reasonable doubt that (1) a prior conviction exists and (2) the
defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921
(Tex. Crim. App. 2007). However, there is no “best evidence” rule requiring that
the fact of a previous conviction be proven with any document, “much less any
specific document.” Id. The Court of Criminal Appeals has explained:

While evidence of a certified copy of a final judgment and sentence
may be a preferred and convenient means, the State may prove both of
these elements in a number of different ways, including (1) the
defendant’s admission or stipulation, (2) testimony by a person who
was present when the person was convicted of the specified crime and
can identify the defendant as that person, or (3) documentary proof
(such as a judgment) that contains sufficient information to establish
both the existence of a prior conviction and the defendant’s identity as
the person convicted. Just as there is more than one way to skin a cat,
there is more than one way to prove a prior conviction.
Id. at 921–22 (footnotes omitted).

The trier of fact considers the totality of the evidence admitted and attempts
to fit the evidentiary pieces of the puzzle together, weighing each piece’s

4
credibility. Id. at 923. “Regardless of the type of evidentiary puzzle pieces the
State offers to establish the existence of a prior conviction and its link to a specific
defendant, the trier of fact determines if these pieces fit together sufficiently to
complete the puzzle.” Id. If whether there was a previous conviction and whether
the defendant was the person convicted “can be found beyond a reasonable doubt,
then the various pieces used to complete the puzzle are necessarily legally
sufficient to prove a prior conviction.” Id.

Here, appellant did not raise any objection to the extract of the Louisiana
court minutes, or attempt to counter the State’s contention that such extract was
equivalent to a judgment and sentence. The “true and correct extract copy” of the
Louisiana court minutes was attested to by the deputy clerk of court in Iberia
Parish. The extract included details regarding the court, parish, case number, date,
the defendant’s name (Shelby R. Francis), the defendant’s birth date, the
defendant’s plea of “guilty” to sexual battery, and the defendant’s sentence to five
years “at hard labor.” Such extract clearly was admissible. See id. at 922–23 (“A
computer-generated compilation of information setting out the specifics of a
criminal conviction that is certified as correct by the county or district clerk of the
court in which the conviction was obtained is admissible under Rule 902.”).
Appellant also raised no objection to the certified copy of the judgment and
sentence against Shelby Ray Francis showing that Francis pleaded “guilty” to the
felony offense of credit card abuse and “true” to both enhancement paragraphs,
including the enhancement paragraph about the sexual battery conviction, and that
the trial court found those enhancements to be “true.” This judgment contained
Francis’s fingerprint. Nor did appellant object to the indictment against Shelby
Ray Francis for credit card abuse. This indictment contained an enhancement
paragraph alleging that Francis previously had been convicted of sexual battery in

5
Louisiana; and the details of the court, parish, cause number, conviction date, and
offense matched those contained in the extract of court minutes. Also, Francis’s
birth date in this credit card fraud indictment matched the defendant’s birth date in
the Louisiana court minutes. The State’s fingerprint expert testified that the
fingerprint taken from appellant was identical to that contained in the prior
judgment and sentence against Shelby Ray Francis for credit card abuse.

Thus, the Louisiana court minutes reflected a guilty plea entered by and
sentence imposed against Shelby R. Francis for sexual battery; the indictment,
judgment, and sentence against Shelby Ray Francis for credit card abuse reflected
that such defendant pleaded true regarding a prior Louisiana conviction for sexual
battery in the same court, same parish, same case number, on the same date, where
the defendants shared the same birth date; and expert testimony connected
appellant’s fingerprint to that contained in the judgment and sentence against
Shelby Ray Francis for credit card abuse.

Based on the totality of the State’s admitted evidence, we conclude that the
trial court, as a reasonable trier of fact, could have found appellant’s enhancement
paragraph to be “true” beyond a reasonable doubt. See Rios v. State, 230 S.W.3d
252, 256–57 (Tex. App.—Waco 2007, pet. ref’d) (concluding that, even though
judgment for aggravated perjury contained no photographs or fingerprints,
evidence was legally sufficient to prove appellant’s prior aggravated perjury
conviction where separate indictment and judgment, for a different conviction,
showed defendant’s sentence had been “enhanced by the prior aggravated perjury
conviction” and where expert testified fingerprints were the same). Therefore, the
evidence is legally sufficient to support the trial court’s finding, and we overrule
appellant’s second issue. See Flowers, 220 S.W.3d at 925.

6
 III. “SUBSTANTIAL SIMILARITY” UNDER SECTION 12.42

A. Standard of review and applicable law

Section 12.42 of the Texas Penal Code provides enhanced penalties for
repeat sex offenders. Prudholm v. State, 333 S.W.3d 590, 592 (Tex. Crim. App.
2011); Brooks v. State, 357 S.W.3d 777, 785 (Tex. App.—Houston [14th Dist.]
2011, pet. ref’d). Section 12.42(c)(2) effectively creates a “two-strikes policy” for
repeat sex offenders in Texas, embodying the legislature’s intent to treat repeat sex
offenders more harshly than other repeat offenders. Prudholm, 333 S.W.3d at 592;
Brooks, 357 S.W.3d at 785–86. Section 12.42(c)(2) mandates a life sentence for a
defendant convicted of a sexual offense listed in subsection (c)(2)(A) that he
committed after previously having been convicted of any of the enumerated sexual
offenses in subsection (c)(2)(B) or “under the laws of another state containing
elements that are substantially similar to the elements of an [enumerated] offense.”
Prudholm, 333 S.W.3d at 592; Brooks, 357 S.W.3d at 786; see also TEX. PEN.
CODE ANN. § 12.42(c)(2) (West 2011). Before using a prior conviction from
another state for this purpose, the trial court first must take judicial notice of the
relevant out-of-state sexual offense and make a finding that the elements of that
offense are substantially similar to the elements of a Texas sexual offense
enumerated in section 12.42(c)(2)(B). Brooks, 357 S.W.3d at 786.

In Anderson v. State, 394 S.W.3d 531 (Tex. Crim. App. 2013), the Texas
Court of Criminal Appeals recently re-addressed the process—first outlined by the
Court in Prudholm—for determining if an out-of-state sexual offense contains
“substantially similar” elements to a listed Texas sexual offense. Under the first
prong of the Prudholm analysis:

“[T]he elements being compared . . . must display a high degree of
likeness.” But the elements “may be less than identical” and need not

7
 parallel one another precisely. It is not essential that a person who is
guilty of an out-of-state sexual offense would necessarily be guilty of
a Texas sexual offense as there is no requirement of a total overlap,
but the out-of-state offense cannot be markedly broader than or
distinct from the Texas prohibited conduct.
Anderson, 394 S.W.3d at 535–36 (footnotes omitted). In Prudholm, the Texas
Court of Criminal Appeals considered whether the elements of the California
offense of sexual battery were substantially similar to the elements of the Texas
offense of sexual assault. The California offense of sexual battery prohibits
“touching” of an “intimate part,” whereas the Texas offense of sexual assault
proscribes the “penetration or contact” of a person’s “anus” or “sexual organ.”
Prudholm, 333 S.W.3d at 599. The Prudholm Court considered that many more
“intimate parts” were covered under the California statute than the specific subset
of “intimate parts”—the “anus” and “sexual organ”—listed in the Texas statute.
Id. The Court thus held that the two statutes “encompass[ed] a markedly different
range of conduct,” and “[w]hile the elements . . . may be similar in a general sense,
they do not display the high degree of likeness required to be substantially
similar.” Id. The Court also found it relevant that the California offense
“specifically excludes” more serious sexual conduct contained in the California
crimes of rape and sexual penetration that the Texas offense includes. Id.
Similarly, in Anderson, the Court held that the North Carolina offense of indecent
liberties “encompasses a markedly different range of conduct than” the Texas
offense of indecency with a child. 394 S.W.3d at 537–39 (“[A]lmost any conduct,
if performed to fulfill the actor’s sexual gratification, may satisfy the ‘bad act’
element of the offense” for indecent liberties while Texas statute proscribes sexual
contact with or exposure of specific areas of the body).

The second prong of the Prudholm analysis requires that the “elements must
be substantially similar with respect to the individual or public interests protected
8
and the impact of the elements on the seriousness of the offenses.” 333 S.W.3d at
595. Under this two-step analysis, courts first determine if there is a “similar
danger to society” that the statute seeks to prevent. Anderson, 394 S.W.3d at 536.
Then, courts determine whether the class, degree, and punishment range of the two
offenses are substantially similar. See id. at 536, 540–41 (North Carolina offense
of taking indecent liberties is punishable by 10 to 33 months’ imprisonment while
Texas offense of indecency with a child is punishable by either 2 to 10 or 2 to 20
years’ imprisonment); Prudholm, 333 S.W.3d at 596–99 (California sexual battery
generally is misdemeanor punishable by 6 months’ imprisonment while Texas
sexual assault is second-degree felony punishable by 20 years’ imprisonment).
Also, “if another out-of-state offense (rape, for example) more closely mirrors the
Texas offense (sexual assault, for example), but ‘specifically excludes’ the
compared out-of-state offense (sexual battery, for example), this indicates that the
other out-of-state offense (rape), not the compared one (sexual battery), is
substantially similar to the Texas one.” Anderson, 394 S.W.3d at 536–37.

Because no single factor is dispositive, we must weigh all factors before
making our determination. Id. at 537. We must make this determination “with
sensitivity because the defendant is subject to an automatic life sentence.” Id. We
review the trial court’s “substantially similar” finding3 de novo. Brooks, 357
S.W.3d at 786.

B. Louisiana offense of sexual battery

Appellant does not attack the jury’s findings that appellant was guilty of two
counts of aggravated sexual assault of a child under fourteen.4 Instead, he argues

3
The parties do not dispute that the trial court implicitly found Louisiana’s sexual battery
offense to be substantially similar to at least one Texas sexual offense enumerated in section
12.42(c)(2)(B).
4
Each of appellant’s convictions for aggravated sexual assault under section 22.021 of
9
the trial court erred by implicitly determining that the Louisiana offense of sexual
battery qualifies as a substantially similar sexual offense in Texas for purposes of
section 12.42.

The Louisiana statute provides:

A. Sexual battery is the intentional touching of the anus or genitals of
the victim by the offender using any instrumentality or any part of the
body of the offender, or the touching of the anus or genitals of the
offender by the victim using any instrumentality or any part of the
body of the victim, when any of the following occur:
(1) The offender acts without the consent of the victim.
(2) The act is consensual but the other person, who is not the
spouse of the offender, has not yet attained fifteen years of age
and is at least three years younger than the offender.

...
C. (1) Whoever commits the crime of sexual battery shall be punished
by imprisonment, with or without hard labor, without benefit of
parole, probation, or suspension of sentence, for not more than ten
years.
(2) Whoever commits the crime of sexual battery on a victim under
the age of thirteen years when the offender is seventeen years of age
or older shall be punished by imprisonment at hard labor for not less
than twenty-five years nor more than ninety-nine years. At least
twenty-five years of the sentence imposed shall be served without
benefit of parole, probation, or suspension of sentence.

LA. REV. STAT. ANN. § 14:43.1. The State contends that elements of this offense
are substantially similar to those of the Texas sexual offense of either sexual
assault or indecency with a child, both enumerated offenses under section
12.42(c)(2)(B). See TEX. PEN. CODE ANN. § 12.42(c)(2)(B)(ii) (including sections
22.011, sexual assault, and 22.11, indecency with a child).

the Texas Penal Code qualifies as an eligible offense, or second strike, for purposes of section
12.42(c)(2). See TEX. PEN. CODE ANN. § 12.42(c)(2)(A).

10
C. Comparison to Texas offense of sexual assault

After considering all of the Prudholm factors, we conclude that the
Louisiana sexual battery and Texas sexual assault statutes do not contain
substantially similar elements.

1. “High degree of likeness”

The Texas sexual assault statute provides:

(a) A person commits an offense if the person:
(1) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of
another person by any means, without that person's
consent;
(B) causes the penetration of the mouth of another person
by the sexual organ of the actor, without that person's
consent; or
(C) causes the sexual organ of another person, without
that person's consent, to contact or penetrate the mouth,
anus, or sexual organ of another person, including the
actor; or
(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;
(C) causes the sexual organ of a child to contact or
penetrate the mouth, anus, or sexual organ of another
person, including the actor;
(D) causes the anus of a child to contact the mouth, anus,
or sexual organ of another person, including the actor; or
(E) causes the mouth of a child to contact the anus or
sexual organ of another person, including the actor.
...
11
 (f) An offense under this section is a felony of the second degree . . . .

TEX. PEN. CODE ANN. § 22.011 (West 2011). With regard to an adult victim, the
Texas offense specifically proscribes “penetration” of the “anus or sexual organ”
of the victim by any means; “penetration” of the “mouth” of the victim by the
actor’s “sexual organ”; and causing the victim’s “sexual organ” to “contact or
penetrate” the “mouth, anus, or sexual organ” of another person, including the
actor. Id. With regard to a child victim under seventeen, the Texas offense
proscribes the same conduct, additionally proscribing causing a child’s “anus” to
“contact” another person’s, including the actor’s, “mouth, anus, or sexual organ”
and causing a child’s “mouth” to “contact” another person’s, including the actor’s,
“anus or sexual organ.” Id.

“While the elements of two offenses need not ‘parallel’ one another to be
‘substantially similar,’ they must criminalize a similar ‘range of conduct.’”
Anderson, 394 S.W.3d at 539 (quoting Prudholm, 333 S.W.3d at 599). We cannot
conclude that Louisiana’s sexual battery statute and Texas’s sexual assault statute
criminalize a similar range of conduct because the Louisiana statute takes a
different and much broader approach. It prohibits merely “touching” a victim’s
“anus or genitals” essentially by any means of the offender and the “touching” of
the offender’s “anus or genitals” essentially by any means of the victim. Unlike
the Texas sexual assault statute, the Louisiana sexual battery statute does not
require either that “penetration” of the victim’s “anus or sexual organ” or of the
victim’s “mouth” by the actor’s “sexual organ” occur, or that—where based on
“contact”—the contact be between a “sexual organ” and the “mouth, anus, or
sexual organ” or (for a child victim) otherwise involve “anus”-to-“mouth, anus, or
sexual organ” contact or “mouth”-to-“anus or sexual organ” contact. Further, the
Louisiana statute contemplates “touching” through a victim’s clothing. See State v.

12
Bouton, 615 So. 2d 23, 25–26 (La. Ct. App. 3 Cir. 1993) (holding that “skin on
skin contact is not necessary for a sexual battery,” which “can be committed by
touching through clothing”). The Texas statute, however, requires much more than
mere external “touching” through clothing, either “penetration”5 or other flesh-to-
flesh contact.6 Although the Louisiana sexual battery statute does not encompass
as wide a range of “touching” behavior as the California sexual battery statute at
issue in Prudholm, see 333 S.W.3d at 599, the Louisiana statute nevertheless
covers a significant amount of non-penetrating and external touching conduct that
the Texas statute does not.7

2. “Individual or public interests protected and the impact of the
elements on the seriousness of the offenses”
The second prong of the Prudholm analysis consists of two distinct
requirements: (1) the “individual or public interests protected” are substantially
similar, and (2) the “impact of the elements on the seriousness of the offense” is
substantially similar. Anderson, 394 S.W.3d at 539.

a. “Interests protected”

5
See Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992) (construing
“penetration” in aggravated to sexual assault statute and concluding that penetration involves “a
significant intrusion beyond mere external contact” and that “mere contact with the outside of an
object does not amount to a penetration of it”).
6
The Texas sexual assault statute proscribes “sexual organ”-to-“mouth, anus, or sexual
organ” contact, “anus”-to-“mouth, anus, or sexual organ” contact, and “mouth”-to-“anus or
sexual organ” contact, depending on whether the victim is an adult or a child. TEX. PEN. CODE
ANN. § 22.011.
7
The State relies on Brown v. State, where the Dallas court of appeals concluded that the
elements of Louisiana sexual battery and Texas sexual assault were “similar enough to indicate a
high degree of likeness” to satisfy Prudholm’s first prong. No. 05-10-00162-CR, 2012 WL
1011444, at *4 (Tex. App.—Dallas Mar. 28, 2012, pet. granted) (mem. op., not designated for
publication), vacated, No. PD-0524-12, 2013 WL 458102 (Tex. Crim. App. Feb. 6, 2013), reh’g
denied (Mar. 20, 2013). Not only was this an unpublished opinion, without precedential value,
since vacated and remanded for reconsideration in light of a recent Court of Criminal Appeals
case, but also we disagree with the Brown court’s analysis.

13
 Appellant argues that, like the California sexual battery statute in Prudholm,
the “offensive contact” contained in the Louisiana sexual battery statute, is closer
to the offensive contact encompassed by the Texas assault statute8 rather than the
“severe physical and psychological trauma of rape” encompassed by the Texas
sexual assault statute. See 333 S.W.3d at 599. Although the Louisiana sexual
battery statute appears to be designed to protect from more than merely “offensive
contact”—its “touching” prohibition is directed at body parts considered to be
“sexual” (anus and genitals)—it appears the Louisiana legislature intended more
broadly to guard against “sexual” touching that could involve external contact
rather than the severe trauma of rape addressed by the Texas sexual assault statute.
The Louisiana Supreme Court expressly has noted that Louisiana’s “legislative
scheme . . . envisions sexual battery as encompassing conduct falling short of
actual rape.” State v. Schenck, 513 So. 2d 1159, 1162 (La. 1987). In other words,
the danger society faces due to commission of conduct qualifying as sexual assault
in Texas is significantly greater than that due to conduct qualifying as sexual
battery in Louisiana. See Anderson, 394 S.W.3d at 536.

b. “Impact of the elements on the seriousness of the offense”

The Texas offense of sexual assault generally is a second-degree felony,
punishable by two to twenty years’ imprisonment. TEX. PEN. CODE ANN. § 12.33
(West 2011); id. § 22.011. The Louisiana offense of sexual battery is generally
punishable by imprisonment “with or without hard labor” for up to ten years. 9 LA.
REV. STAT. ANN. § 14:43.1(C)(1). Sexual battery qualifies as a felony offense.
8
“A person commits an offense if the person . . . intentionally or knowingly causes
physical contact with another when the person knows or should reasonably believe that the other
will regard the contact as offensive or provocative.” TEX. PEN. CODE ANN. § 22.01 (West 2011).
9
This range of punishment increases to 25 to 99 years “at hard labor” where the victim of
the sexual battery is a child under thirteen and the actor is over seventeen. LA. REV. STAT. ANN.
§ 14:43.1(C)(2).

14
LA. REV. STAT. ANN. § 14:2 (2012) (defining “felony” as “any crime for which an
offender may be sentenced to death or imprisonment at hard labor”). Both
offenses are felonies, with Louisiana sexual battery generally carrying no
minimum and a maximum of ten years that could include hard labor, and with
Texas sexual assault generally carrying a minimum of two and a maximum of
twenty years.

Unlike the California sexual battery statute in Prudholm that expressly
excluded the more serious sexual offenses of rape and sexual penetration, see 333
S.W.3d at 597, 599, the Louisiana sexual battery statute does not expressly state
that it excludes other sexual offenses. However, we also may consider other
Louisiana statutes “that are relevant to the Prudholm analysis.” See Anderson, 394
S.W.3d at 541 (noting existence of other North Carolina offenses and their closer
comparison to Texas offense of indecency with a child). Significantly, Louisiana
defines “rape” as “the act of anal, oral, or vaginal sexual intercourse with a male or
female person committed without the person’s lawful consent” where “[e]mission
is not necessary, and any sexual penetration, when the rape involves vaginal or
anal intercourse, however slight, is sufficient to complete the crime” and where
“oral sexual intercourse” includes “touching” the victim’s “anus or genitals” by the
actor’s “mouth or tongue” and “touching” the actor’s “anus or genitals” by the
victim’s “mouth or tongue.” LA. REV. STAT. ANN. § 14:41 (2012). This definition
thus contains elements substantially similar to the “penetration” and “mouth”-to-
“anus or sexual organ” contact proscribed by the Texas sexual assault statute.
“Simple rape” in Louisiana is punishable by a maximum of 25 years’
imprisonment, with or without hard labor. Id. § 14:43. “Forcible rape” in
Louisiana carries a minimum of 5 and a maximum of 40 years’ imprisonment “at
hard labor.” Id. § 14:42.1. Louisiana considers “rape” a more serious offense and

15
thus punishes “rape” offenders more harshly than sexual battery offenders. See
State v. Duet, 95-2446 (La. App. 1 Cir. 11/8/96), 684 So. 2d 64, 67–68 (noting
sexual battery can be committed without offense falling within “rape” definition
and penalty for sexual battery “is significantly less than the penalty for simple
rape”). Overall, the elements and the class, degree, and punishment range of these
Louisiana “rape” offenses “more closely mirror” the Texas offense of sexual
assault. See Anderson, 394 S.W.3d at 536–37.

Therefore, after considering all of the Prudholm factors, we conclude that
the elements of the two offenses—Louisiana sexual battery and Texas sexual
assault—are not substantially similar.

D. Comparison to Texas offense of indecency with a child

After considering all of the Prudholm factors, we conclude that the
Louisiana sexual battery and Texas indecency with a child statutes do contain
substantially similar elements where the Louisiana victim is a child.

1. “High degree of likeness”

The Texas indecency with a child statute provides:

(a) A person commits an offense if, with a child younger than 17 years
of age, whether the child is of the same or opposite sex, the person:
(1) engages in sexual contact with the child or causes the child
to engage in sexual contact; or
(2) with intent to arouse or gratify the sexual desire of any
person:
(A) exposes the person’s anus or any part of the person’s
genitals, knowing the child is present; or
(B) causes the child to expose the child’s anus or any part
of the child’s genitals.
...

16
 (b-1) It is an affirmative defense to prosecution under this section that
the actor was the spouse of the child at the time of the offense.
(c) In this section, “sexual contact” means the following acts, if
committed with the intent to arouse or gratify the sexual desire of any
person:
(1) any touching by a person, including touching through
clothing, of the anus, breast, or any part of the genitals of a
child; or
(2) any touching of any part of the body of a child, including
touching through clothing, with the anus, breast, or any part of
the genitals of a person.
(d) An offense under Subsection (a)(1) is a felony of the second
degree and an offense under Subsection (a)(2) is a felony of the third
degree.
TEX. PEN. CODE ANN. § 21.11 (West 2011). For purposes of the Prudholm
analysis, we limit our comparison to the “child” elements of the Louisiana sexual
battery statute—meaning where the victim is under fifteen and at least three years
younger than the offender.10 LA. REV. STAT. ANN. § 14:43.1(A)(2). The Texas
offense specifically proscribes “sexual contact” with a child under seventeen. TEX.
PEN. CODE ANN. § 21.11(a)(1). “Sexual contact,” if committed with the intent to
arouse or gratify “sexual desire” specifically includes “touching through clothing”
and includes touching “the anus, breast, or any part of the genitals.” Id. §
21.11(c).11 There is no consent-related element. Id. § 21.11.

Both Texas indecency with a child and the “child” portion of Louisiana
sexual battery prohibit the conduct of “touching”—including externally through
10
The record reflects that at the time of his guilty plea for Louisiana sexual battery,
appellant was 32 years old.
11
The Texas offense also proscribes “exposure” of the actor’s or the child’s “anus” or
“genitals” with the intent to arouse or gratify “sexual desire.” TEX. PEN. CODE ANN.
§ 21.11(a)(2). The Louisiana sexual battery statute, however, is not directed at such “exposure”
conduct. Thus, this type of offensive conduct and its punishment are not relevant to our inquiry.
See Brooks, 357 S.W.3d at 787 n.8.

17
clothing—that involves specific “sexual” areas of the body. However, the “child”
portion of Louisiana sexual battery is slightly more restrictive in that it limits the
body parts at issue to the “anus or genitals” and does not proscribe “touching”
involving the “breast.” Both statutes allow for prosecution where the victim is a
“child,” regardless of consent. In other words, lack of consent is not a required
element under either statute. The Louisiana statute limits prosecution to a “child”
victim “who is not the spouse of the offender”; the Texas statute provides an
affirmative defense for the spouse of the victim. Both statutes require intentional
“touching” conduct, although the Texas statute further refines such intent as
involving “sexual desire.” The Texas statute is less restrictive in terms of age of
the victim; the “child” portion of Louisiana sexual battery punishes such conduct
involving a child under fifteen and requires that the offender be at least three years
older than the victim, versus the Texas indecency with a child statute applies as
long as the victim is under seventeen.12

We conclude that the differences in the elements (namely, body parts
involved and age of victim) between the “child” portion of the Louisiana sexual
battery statute and the Texas indecency with a child statute “are minor rather than
major variations on the same punishable conduct: the sexually-motivated touching
of children,” and conclude that the first prong of Prudholm is met. See Brooks,
357 S.W.3d at 789 (concluding elements of Kansas aggravated sexual battery and
Texas indecency with a child met first prong of Prudholm analysis).

12
The Texas statute provides an affirmative defense where the actor is not more than
three years older than the victim; of the opposite sex of the victim; did not use force or threats;
and at the time of the offense was not registered, or was not required to register, as a sex
offender. TEX. PEN. CODE ANN. § 21.11(b).

18
 2. “Individual or public interests protected and the impact of the
elements on the seriousness of the offense”
a. “Interests protected”

As in Brooks, the individual and public interests protected by the “child”
portion of the Louisiana sexual battery statute and the Texas indecency with a child
statute “are clear: to safeguard children from improper sexual conduct through
sexually-motivated contact.” See 357 S.W.3d at 790. The “child” portion of the
Louisiana statute furthers this goal by criminalizing “touching” involving a child
and either the child’s or the offender’s “anus or genitals.” The Louisiana
legislature thus seeks to protect against “sexually intrusive,” intentional conduct
directed toward children. See Schenck, 513 So.2d at 1162. The Texas statute
furthers this goal by criminalizing “sexual contact” with a child, defined as
involving either the child’s or the actor’s “anus, breast, or any part of the genitals,”
with the intent to arouse or gratify “sexual desire.” Brooks, 357 S.W.3d at 790.
Thus, both the “child” portion of Louisiana sexual battery and Texas indecency
with a child seek to prevent substantially similar “dangers to society.” See
Anderson, 394 S.W.3d at 536.

b. “Impact of the elements on the seriousness of the offense”

The Texas offense of indecency with a child (involving “sexual contact”) is
a second-degree felony, punishable by two to twenty years’ imprisonment. TEX.
PEN. CODE ANN. §§ 12.33, 21.11. The Louisiana offense of sexual battery for both
adult and “child” victims under fifteen is considered a felony and is punishable by
imprisonment “with or without hard labor” for up to ten years. LA. REV. STAT.
ANN. §§ 14:2, 14:43.1(C)(1). In addition, if the sexual battery “child” victim is
under thirteen and the offender is at least seventeen, the punishment range
increases to 25 to 99 years’ imprisonment “with hard labor.” Id. § 14:43.1(C)(2).

19
Thus, in Texas, a violator faces two to twenty years, while a violator in Louisiana
faces either up to ten years possibly at hard labor, and if the “child” is under
thirteen and he is at least seventeen, the violator faces 25 to 99 years at hard labor.
Although the degree, class, and relative punishment ranges of the offenses are not
identical, we conclude that they reflect “substantial similarity.” See Anderson, 394
S.W.3d at 536.

Therefore, after considering all of the Prudholm factors, we conclude that
the elements of the “child” portion of Louisiana sexual battery and Texas
indecency with a child are substantially similar for purposes of section 12.42(c)(2).

3. No evidence that appellant’s prior conviction was for sexual
battery of a child
If appellant’s prior conviction in Louisiana were for sexual battery of an
adult, then the conviction would not be for a substantially similar offense.
However, if appellant’s prior conviction were for sexual battery of a child, then it
would be for a substantially similar offense. There is no evidence in the record of
the precise age of the victim, although the punishment range indicates that it was
not a child under thirteen. While generally we do not focus on the specific conduct
alleged, but rather on the elements of the offense, “sometimes, the specific
conduct, as well as the elements, must be considered.” Id. at 536 & n.21
(describing comparison of Oregon and Texas statutory rape statutes where age of
alleged victim resulted in statutes not being substantially similar).

Here, during the punishment phase, appellant argued that “without some
proof that you know he was convicted of an offense that involved . . . a child . . . ,
then you don’t necessarily have proof that he’s committed . . . the corresponding
Texas offense[]” of indecency with a child.

Based on the record here, there is no evidence that the allegations

20
underlying appellant’s conviction for sexual battery in Louisiana involved a child
under fifteen, and thus we cannot conclude that his conviction contains elements
substantially similar to Texas indecency with a child. We therefore conclude that
the trial court erred in implicitly finding that appellant’s prior conviction for
Louisiana sexual battery is substantially similar to a Texas sexual offense
enumerated in section 12.42(c)(2)(B). Thus, we sustain appellant’s first issue.

Because the trial court imposed an automatic life sentence rather than
considering the full range of punishment of 5 to 99 years’ imprisonment or life for
each of appellant’s first-degree felony convictions for aggravated sexual assault of
a child under fourteen, we remand to the court for a new sentencing hearing.

IV. CONCLUSION

Accordingly, we affirm the trial court’s judgments of conviction, but we
reverse the court’s judgments as to punishment and remand the causes for a new
punishment hearing. See TEX. CODE CRIM. PROC. ANN. art. 44.29(b) (West 2011).

/s/ Tracy Christopher
Justice

Panel consists of Justices Christopher, Jamison, and McCally.
Publish — TEX. R. APP. P. 47.2(b).

21