D arrested for agg sex wf child -- anal-penile contact. I want to charge him with that but also alternatively with lesser included indecency for causing butt cheeks of child to contact penis of D (there was no mention of the anus in the original report.) In either event I want to enchance with a prior Nevada similar offense conviction.

QUESTIONS: 1) Nevada conviction was after my offense but before my outcry. It would still work to enchance, no? 2) Anybody have an indictment I can use as a guide for the enchancemet language? 3) Don't I have to get something from the DPS finding the two offenses similar, and if so, whom do I contact?

Hope everyone has had a nice Christmas day and is not reading this on Christmas night.

The subsequent Nevada conviction cannot be used to enhance the penalty range for what occurred in Texas. The penalty range must be determinable as of the date of offense, not by anything taking place later.

This language from Brooks, No. 14-10-0990-CR (11/29/11) probably answers the similarity issue:

Before using a prior conviction from another state for this purpose, the trial court first must take judicial notice of the relevant state statute and make a finding that the elements of that offense are substantially similar to the elements of an offense enumerated in section 12.42(c)(2)(B). See TEX. PENAL CODE ANN. sec. 12.42(c)(2)(B) (listing offenses that may be used to enhance sentence to automatic life imprisonment under (c)(2)); Wagner v. State, Nos. 14-07-00906-CR & 14-07-00907-CR, 2009 WL 838187, at *13 n.12 (Tex. App.-Houston [14th Dist] Mar. 31, 2009, pet. ref'd) (mem. op., not designated for publication) (as matter of statutory interpretation, trial court must take judicial notice of statute from other state to make finding of substantial similarity under section 12.42(c)(2) (citing TEX. R. EVID. 202 and Randolph v. State, No. 06-08-00058-CR, 2008 WL 5058597, at *1 (Tex. App.-Texarkana Dec. 2, 2008, no pet.) (mem. op., not designated for publication))).

[This message was edited by Martin Peterson on 12-26-11 at .]