                    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., Moseley and Burgess, JJ.
         Opinion on Remand by Justice Moseley
                               OPINION ON 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

previously been convicted of a prior felony in Louisiana, the trial court imposed a mandatory

sentence 3 of imprisonment for life. 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 (the Louisiana conviction), 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 (West 2018). 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, No. PD-1411-16, 2018 WL 4905292 (Tex.

Crim. App. Oct. 10, 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 of constitutional 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) (West Supp. 2018).
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, 2018 WL 4905292, at *2. 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 *3, *6–7. Because we find that any error in

admitting evidence of the Louisiana conviction was harmless, we will affirm the trial court’s

judgment of conviction. However, because we find that the trial court erred in using the Louisiana

conviction to impose an automatic life sentence, we will reverse the trial court’s judgment as to

punishment, and we will remand this cause for a new hearing on punishment.

I.       Any Error in Admitting Evidence of the Louisiana Conviction Was Harmless

         In his third issue, Jacobs complains that the trial court erred in admitting evidence of the

Louisiana conviction. 6 Jacobs argues that since Article 38.37 of the Texas Code of Criminal

Procedure does not specifically allow the use of out-of-state convictions, out-of-state convictions

are not admissible during the guilt/innocence phase of the trial.

         In a trial for certain listed sexual offenses involving child victims, Article 38.37,

Section (2)(b), allows the admission of “evidence that the defendant has committed a separate

offense described by Subsection (a)(1) or (2) . . . in the trial . . . for any bearing the evidence has

on relevant matters, including the character of the defendant and acts performed in conformity


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.
6
 At the hearing on his pretrial motion to exclude any evidence concerning his offense of felony carnal knowledge of
a juvenile, Jacobs made it clear to the trial court that he was seeking to exclude not only the Louisiana conviction, but
also any evidence that he had committed an offense, whether or not it resulted in a conviction. On appeal, Jacobs only
complains of the admission of evidence of the Louisiana conviction and only contends that the admission of the
Louisiana conviction was harmful to his case.
                                                           3
with the character of the defendant.”       TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(2)(b).

Subsections (a)(1) and (2) list specific sections of the Texas Penal Code related to offenses for sex

trafficking of a child, continuous sexual abuse of a child or children, indecency with a child, sexual

assault of a child, aggravated sexual assault of a child, online solicitation of a minor, sexual

performance by a child, possession or promotion of child pornography, and an attempt or

conspiracy to commit one of these offenses. TEX. CODE CRIM. PROC. ANN. art. 38.37, § (2)(a)(1),

(2). Jacobs points out that Texas’ other statutes that allow the use of convictions from other states

contain clauses allowing the use of those convictions only if they are substantially similar to the

listed Texas offenses. See, e.g., TEX. PENAL CODE ANN. § 12.42(c)(2)(B)(v) (West Supp. 2018);

TEX. CODE CRIM. PROC. ANN. art. 62.003(a) (West 2018). He argues that since Article 38.37 does

not contain a similar clause, and since the Louisiana statute under which he was convicted is not

specifically listed in Article 38.37, his conviction under that statute was not admissible.

       We need not address whether Article 38.37 allows the admission of out-of-state

convictions. Assuming, arguendo, that the trial court erred in admitting evidence of the Louisiana

conviction, the error was harmless. Admitting evidence in violation of a rule of evidence is

considered nonconstitutional error. See Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App.

2010); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).                   We disregard

nonconstitutional error, unless it affects substantial rights of the defendant. TEX. R. APP. P.

44.2(b); Warr v. State, 418 S.W.3d 617, 621 (Tex. App.—Texarkana 2009, no pet.). A conviction

will not be overturned for nonconstitutional error if, after examining the whole record, we have




                                                  4
“fair assurance that the error did not influence the jury, or had but a slight effect.” Morales v.

State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000) (quoting Johnson, 967 S.W.2d at 417).

       In determining whether the jury’s decision was adversely influenced by the error, we

“consider everything in the record, including any testimony or physical evidence admitted for the

jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged

error and how it might be considered in connection with other evidence in the case.” Baxter v.

State, 66 S.W.3d 494, 499 (Tex. App.––Austin 2001, pets. ref’d); Warr, 418 S.W.3d at 621. We

may also consider the jury instructions, the parties’ theories, and closing arguments, if material to

the appellant’s claim. Baxter, 66 S.W.3d at 499; Warr, 418 S.W.3d at 621. Whether the State

emphasized the erroneous evidence may also be a factor. Motilla v. State, 78 S.W.3d 352, 356

(Tex. Crim. App. 2002).       Improper admission of evidence is not reversible error if other

unchallenged evidence proves the same facts. Murphy v. State, 12-07-00368-CR, 2009 WL

2450990, at *2 (Tex. App.—Tyler Aug. 12, 2009, pet. ref’d) (mem. op., not designated for

publication); Warr, 418 S.W.3d at 621 (citing Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim.

App. 1986)).

       Jacobs does not point us to any place in the record where evidence of the Louisiana

conviction was admitted into evidence in the guilt/innocent phase of the trial, and our independent

review of the record reveals no such evidence. There were two instances in which witnesses

referenced prior bad acts in Louisiana, but no evidence that he was convicted of those actions. The

first instance came at the conclusion of the testimony of B.H., the victim of Jacobs’ offense in

Louisiana, as follows:

                                                 5
                Q.     (BY MS. CRISP [Attorney for the State]): You did not testify in a
       trial in Louisiana?

                A.     No, ma’am, I did not.

                Q.     Okay. Your understanding was it resulted in a conviction?

                    MR. WILLIAMS [Attorney for the Defendant]: Objection. It
       would come from hearsay and --

                       MS. CRISP: She’s got to know how her case ended.

                       THE COURT: It’s overruled. If she knows the answer.

                ....

                Q.     (BY MS. CRISP) Are you aware if the case ended without a jury
       trial?

                A.     Yes, ma’am.

                Q.     Okay. And the case was resolved through a plea bargain situation?

                A.     Yes, ma’am.

The second instance occurred when the officer who investigated the current offense responded

affirmatively when asked whether she became aware “of the prior of the State of Louisiana.”

       However, in the rest of her testimony (about which Jacobs does not complain on appeal),

B.H. detailed how she met Jacobs through an online message from Jacobs while she was at the

library in Mooringsport, Louisiana. Although she told him she was only thirteen years old, he

arranged to meet her, and they walked to Caddo Lake, where they had sexual intercourse under a

bridge. She affirmed that his actions were with her consent and that Jacobs had not forced her,

obtaining her consent through neither threats nor violence.


                                                6
         In addition, K.R., who was thirteen years old at the time of trial, testified that when she

was twelve years old, she and her mother lived in the same house as Jacobs and his brother, Wayne.

On the night of November 25, 2015, her mother left her alone with Jacobs. She testified that while

she was alone with Jacobs, he put his mouth on her chest and his fingers in her private area. She

also testified that she was really scared and that thoughts were racing through her mind.

         K.R.’s mother, Valerie, provided more detail. Valerie testified that she had known Jacobs

for twenty-one years and that she had previously been engaged in a romantic relationship with

Jacobs’ brother, Wayne. She testified that she left the house that evening to pick up Wayne and

that K.R. stayed with Jacobs for game night. While she was gone, Jacobs texted her and said that

game night had been cancelled. Some time later, K.R. texted her and said she needed her to come

home because Jacobs was being nasty. When she returned home, K.R. was scared, shaking, and

crying and told her that Jacobs had put his hand on her vagina. When the police arrived, K.R.

reported that Jacobs had shoved his fingers in her, K.R. indicating this by pointing at her breasts

and vagina. 7

         Testimony also showed that in a forensic interview at the Children’s Advocacy Center

(CAC), K.R. told the interviewer that Jacobs put his hands inside her private and that it hurt. K.R.

reported the same thing to a Sexual Assault Nurse Examiner (SANE) on the night of the incident

and added that Jacobs had kissed her and licked her breasts. The SANE also reported that her

examination revealed redness and some swelling on K.R.’s right labia majora, consistent with



7
 The policemen apparently then believed that they could testify about this means of revelation, but that they could not
repeat what she had told them verbally.
                                                          7
digital penetration. As a result of K.R.’s statement, the SANE swabbed K.R.’s breasts and vaginal

area. DNA analysis of those swabs showed that Jacobs could not be excluded as a major

contributor of the DNA collected from K.R.’s right nipple. Swabbing from Jacobs’ fingernail

clippings showed at least two contributors to the DNA collected, and neither Jacobs nor K.R. could

be excluded as contributors.

       In its opening statement, the State mentioned briefly that Jacobs had been convicted in

Louisiana of a similar offense, but then concentrated on what happened with B.H. and that at the

time of the incident, B.H. was thirteen years old and Jacobs was twenty-six years old. In his

opening statement, Jacobs argued that he was not guilty of aggravated sexual assault, which

required penetration of some kind, but that if K.R.’s story was entirely true, he was guilty only of

indecency with a child by sexual contact, but not the charged offense. In its closing argument, the

State referred one time to Jacobs as a repeat offender. However, the great majority of its argument

regarded the facts of the current offense. Even its discussion of B.H.’s testimony was relatively

brief. Jacobs argued that the DNA evidence showed that Jacobs did not commit any offense and

that the State failed to prove that he had committed either the charged offense or a lesser-included

offense.

       Under this record, we have a fair assurance that the brief testimonial references to the

Louisiana conviction had no influence, or but a slight effect, on the jury. The testimony showed

that K.R. made an immediate outcry that Jacobs had digitally penetrated her vagina and that it hurt.

In her subsequent statements to the CAC interviewer and the SANE, she was consistent in

complaining of the digital penetration and that it was painful. Further, the examination by the

                                                 8
SANE found physical evidence that was consistent with K.R.’s complaint. In addition, B.H.’s

testimony showed that Jacobs had previously committed similar acts on a different girl who was

about the same age as K.R. Considering the testimony as a whole, and the State’s lack of emphasis

on the Louisiana conviction, we are fairly assured that any error in admitting this evidence had

either no influence, or only a slight effect, on the jury. Consequently, we overrule Jacobs’ third

issue.

II.      The Trial Court Erred in Using the Louisiana Conviction to Impose a Life Sentence

         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) (West Supp. 2018). We agree.

         A.      Standard of Review

         Under Section 12.42(c)(2) of the Texas Penal Code, a person convicted of certain sexual

offenses 8 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); Anderson v. State, 394 S.W.3d 531, 535 (Tex. Crim. App. 2013).

The automatic life sentence enhancement also applies when the “defendant has previously been

convicted of an offense . . . under the laws of another state containing elements that are

substantially similar to the elements of an [enumerated Texas] offense.” Anderson, 394 S.W.3d at

535 (quoting TEX. PENAL CODE ANN. § 12.42(c)(2)(B)(v)). In this case, the State argued (and the


8
 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) (West Supp. 2018).

                                                      9
trial court concurred with this argument) that the Louisiana statute under which Jacobs was

convicted—felony carnal knowledge of a juvenile 9—is substantially similar to Section 22.011 of

the Texas Penal Code regarding a child victim (the Texas sexual assault/child victim statute). 10

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.       The Prudholm Process

           The Texas Court of Criminal Appeals first set forth a two-prong analysis for determining

if an out-of-state sexual offense contains elements that are substantially similar to a listed Texas

sexual offense in Prudholm v. State. Prudholm v. State, 333 S.W.3d 590, 594–95 (Tex. Crim.

App. 2011); Anderson, 394 S.W.3d at 535–36. First, we compare the elements of the out-of-state

statute and the listed Texas statute, which “must display a high degree of likeness.” Prudholm,

333 S.W.3d at 594; Anderson, 394 S.W.3d at 535. The elements do not have to be identical “and

need not parallel one another precisely.” Anderson, 394 S.W.3d at 535. Further, it is not required

that “a person who is guilty of an out-of-state sexual offense would necessarily be guilty of a Texas

sexual offense.” Id. at 536. However, “the out-of-state offense cannot be markedly broader than

or distinct from the Texas prohibited conduct.” Id.

           Under the second prong, “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 this two-step analysis, we “first


9
    See LA. REV. STAT. ANN. § 14:80 (West, Westlaw through 2018 3d E. Sess.).
10
 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)).
                                                         10
determine if there is a ‘similar danger to society’ that the two statute[s are] trying to prevent.” Id.

(quoting Prudholm, 333 S.W.3d at 595 n.21). We “then determine if the class, degree, and

punishment range of the two offenses are substantially similar.” Id. Significantly,

       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.
Id. at 536–37 (citing Prudholm, 333 S.W.3d at 599).

       Since no single factor is dispositive, we “must weigh all factors before making a

determination.” Id. at 537. Further, the Texas Court of Criminal Appeals has cautioned that the

“determination must be made with sensitivity because the defendant is subject to an automatic life

sentence.” Id. Since the automatic enhancement to life imprisonment “applies only to specifically

listed serious sex offenses, . . . courts must be careful to ensure that the out-of-state offense truly

is ‘substantially similar’ to those serious Texas sex offenses that call for an automatic life-

imprisonment enhancement.” Id.

       C.      Analysis

       Jacobs was convicted in Louisiana of “Felony Carnal Knowledge of a Juvenile.” 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; . . .


                                                  11
                   ....
         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 intercourse all

require some penetration, but are otherwise not defined in the statute. 11 Felony carnal knowledge

of a juvenile is punishable by a fine of up to $5,000.00, or imprisonment for not more than ten

years, or both. LA. REV. STAT. ANN. § 14:80(D)(1).

         The State has contended (both at trial and on appeal) that the elements of this offense are

substantially similar to those of the Texas offense of “Sexual Assault/Child Victim.” At the time,

that statute provided:

                   (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;
                                   (C)     causes the sexual organ of a child to contact or
                            penetrate the mouth, anus, or sexual organ of another person,
                            including the actor;


11
   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) (West, Westlaw
current through 2018 3d E. Sess). 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.
                                                            12
                              (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.

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) (West Supp. 2018). 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) (West Supp. 2018).

               1.      Is There a High Degree of Likeness?

       The acts proscribed by both of these statutes are somewhat similar. Both statutes proscribe

the penetration, however slight, of the child’s anus, sexual organ, or mouth by the sexual organ of

the actor, and vice versa. The two statutes are not identical. For instance, the Texas statute

contains additional proscribed acts (such as digital or other means of penetration of the child’s

anus or sexual organ and the touching of the anus or genitals of the child with the mouth of the

actor, and vice versa). Further, the Louisiana statute applies only when the victim is between

thirteen and sixteen years of age and when the perpetrator is at least seventeen years of age and

four or more years older than the victim. Taking into account the available affirmative defenses,

the Texas statute applies differently depending on the age of the victim and the perpetrator. When

the victim is thirteen years of age or younger, the statute applies regardless of the age of the

perpetrator. But when the victim is at least fourteen years of age, but less than seventeen years of


                                                  13
age, the statute only applies if the perpetrator is more than three years older than the victim. This

latter age category is substantially similar to the applicable ages under the Louisiana statute. See

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). Finally, the Louisiana

statute only applies in instances of consensual sexual intercourse, whereas the Texas statute applies

irrespective of the victim’s consent. Thus, the Texas statute applies to a broader range of acts and

ages. However, the Texas Court of Criminal Appeals has indicated that it is only when the out-

of-state statute is significantly broader in scope that this prong is negatively impacted. Anderson,

394 S.W.3d at 535. Nevertheless, these differences may impact our analysis under the second

prong.

         Even though there are differences in the two statutes, where the statutes parallel, they both

proscribe similar acts and they apply to victims and perpetrators of substantially similar ages. We

find that this prong weighs slightly in favor of a finding that the elements are substantially similar.

                2.      What Are the Individual or Public Interests Protected and What is the
                        Impact of the Elements on the Seriousness of the Offense?

         The second prong of the Prudholm analysis requires that “(1) the ‘individual or public

interest 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.      The Interests Protected

         As noted earlier, the Louisiana statute only applies to consensual sexual intercourse.

Louisiana distinguishes this conduct from nonconsensual sexual intercourse, which is proscribed

in its rape statutes. See LA. REV. STAT. ANN. §§ 14:42–:43 (West, Westlaw through 2018 3d E.
                                                  14
Sess.). The felony carnal knowledge of a juvenile statute is contained in Part V, Subpart A, of the

Louisiana Criminal Code.       Part V is entitled “Offenses Affecting the Public Morals,” and

Subpart A is entitled “Offenses Affecting Sexual Immorality.” See LA. REV. STAT. ANN. § 14:80.

In addition, the Supreme Court of Louisiana has noted,

       The policy underlying [the felony carnal knowledge of a juvenile] statute is a
       presumption that, because of their innocence and immaturity, juveniles are
       prevented from appreciating the full magnitude and consequences of their actions.
       At the heart of these types of statutes is the concern that juveniles should not be
       exploited for sexual purposes regardless of their “consent.”

State v. Granier, 765 So.2d 998, 1001 (La. 2000). Thus, the Louisiana statute recognizes that as

children in their early and middle teenage years begin to mature sexually, their emotional and

societal maturity may be lacking, making them vulnerable to corrupting influences. It appears that

the purpose of this statute is to protect children from sexual exploitation that may result from their

immature choices and to help preserve their morals and those of the public. In contrast, the Texas

sexual assault/child victim statute, like the Louisiana rape statutes, seeks to provide “protection

from the severe physical and psychological trauma of rape.” Prudholm, 333 S.W.3d at 599.

Further, it appears that under the Louisiana legislative scheme, felony carnal knowledge of a

juvenile, like the conduct proscribed in the Louisiana sexual battery statute, encompasses conduct

that falls short of actual rape. See State v. Schenck, 513 So.2d 1159, 1162 (La. 1987).

                       b.      The Impact of the Elements on the Seriousness of the Offense

       Sexual assault in Texas is generally characterized as a second-degree felony that is

punishable by no less than two nor more than twenty years’ imprisonment and a fine not to exceed

$10,000.00. TEX. PENAL CODE ANN. § 12.33 (West 2011), § 22.011(f) (West Supp. 2018). In

                                                 15
Louisiana, felony carnal knowledge of a juvenile is punishable by a fine up to $5,000.00, or

imprisonment “with or without hard labor” for up to ten years, or both. LA. REV. STAT. ANN.

§ 14:80(D)(1).   Although both states’ offenses are felonies, Texas’ punishment range for

essentially the same crime is much more severe. A sexual assault conviction in Texas can result

in a minimum prison sentence of two years and a maximum of twenty years and may also result

in a fine of up to $10,000.00. In contrast, a conviction for felony carnal knowledge of a juvenile

in Louisiana may only result in a fine up to $5,000.00, or it may result in imprisonment with no

minimum and up to a maximum of ten years.

       In our Prudholm analysis, we also consider other relevant Louisiana statutes that may more

closely mirror the Texas sexual assault/child victim statute. See Anderson, 394 S.W.3d at 536–37

(citing Prudholm, 333 S.W.3d at 599). The Louisiana rape statute 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.” LA. REV. STAT. ANN. § 14:41(A) (West, Westlaw current through 2018

3d E. Sess). Under the Louisiana rape statutes “oral sexual intercourse” means “(1) [t]he touching

of the anus or genitals of the victim by the offender using the mouth or tongue of the offender [or]

(2) [t]he touching of the anus or genitals of the offender by the victim using the mouth or tongue

of the victim.” LA. REV. STAT. ANN. § 14:41(C)(1), (2). Thus, the Louisiana rape statutes contain

elements substantially similar to the mouth to anus or sexual organ contact proscribed by the Texas

sexual assault/child victim statute. These elements are not present in the felony carnal knowledge

of a juvenile statute. Further, in Louisiana, third-degree rape is punishable by imprisonment at

hard labor for not more than twenty-five years. LA. REV. STAT. ANN. § 14:43(B). Thus, Louisiana

                                                16
punishes rape more severely than felony carnal knowledge of a juvenile, and its punishment for

rape is more in line with that imposed under the Texas sexual assault/child victim statute. In

addition, the Louisiana first-degree rape statute applies when anal, oral, or sexual intercourse is

deemed to be without the lawful consent of the victim, including when the victim is under thirteen

years of age. LA. REV. STAT. ANN. § 14:42(A)(4). This comports with the broader scope of the

Texas sexual assault/child victim statute that applies to victims under fourteen years of age or

younger, without regard to either consent or the age of the perpetrator. As a whole, the elements,

degrees, and punishment ranges of the Louisiana rape statutes “more closely mirror” the Texas

sexual assault/child victim statute. See Anderson, 394 S.W.3d at 536–37; see also Castle v. State,

402 S.W.3d 895, 906 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (finding that the Louisiana

rape statutes more closely mirror the Texas sexual assault statute than the Louisiana sexual battery

statute).

        Since the interests sought to be protected by the two compared statutes, and the impact of

the elements, are markedly different, and since the Louisiana rape statutes more closely mirror the

Texas sexual assault/child victim statute, we find that this prong weighs heavily against a finding

that the elements are substantially similar.

        After considering each of the Prudholm factors, we conclude that the elements of the

Louisiana offense of felony carnal knowledge of a juvenile and the Texas offense of sexual

assault/child victim are not substantially similar. Therefore, we find that the trial court erred in

finding that Jacobs’ prior Louisiana conviction for felony carnal knowledge of a juvenile is



                                                17
substantially similar to the Texas offense of sexual assault/child victim and in sentencing Jacobs

to an automatic sentence of life imprisonment. We sustain Jacobs’ first issue.

       Since the trial court imposed an automatic life sentence rather than considering the full

range of punishment for Jacobs’ conviction for aggravated sexual assault of a child under fourteen

years of age, we remand to the trial court for a new sentencing hearing.

       For the reasons stated, we affirm the trial court’s judgment of conviction, but we reverse

the trial court’s judgment as to punishment and remand this cause to the trial court for a new

punishment hearing.




                                                     Bailey C. Moseley
                                                     Justice

Date Submitted:       November 6, 2018
Date Decided:         November 30, 2018

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