We have a defendant charged with sexual assault that has a history which includes a USN court martial conviction for sodomy of a 12-16 YOA child, an offense for which he was sent to prison. I would like to enhance him under PC §12.42(c)(2), but I am concerned that a military conviction is not covered under §12.42(c)(2)(B)(v), which only allows that enhancement for offenses "under the laws of another state" with substantially similar elements to Texas sex offenses. Obviously, the United States and its military is not "another state".

I am hoping that someone can point out something that I'm missing here with the "another state" language that would allow for us to enhance to mandatory life with convictions for sex offenses under the laws of the United States. As I'm reading it, we can enhance under the standard language of 12.42(b), because it is for a felony, but not under 12.42(c) because the United States (and its military branches) is not "another state". Any advice?

Wieghat v. State, 76 S.W.3d 49, 52–53 (Tex.App.-San Antonio 2002, no pet.).

Pursuant to section 12.42(c)(2)(B)(v) of the Texas Penal Code, a life sentence is mandatory if 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 offense listed in Subparagraph (i), (ii), (iii), or (iv).” Tex. Pen.Code Ann. § 12.42(c)(2)(B)(v) (Vernon Supp.2000). “By enacting section 12.42(c)(2), the legislature mandated a life sentence for anyone who is convicted of the sexual assault of a child a second time.” Williams v. State, 10 S.W.3d 370, 372 (Tex.App.-Tyler 1999, pet. ref'd). Under Texas law, court martial proceedings are deemed final convictions and admissible in courts of record. See Johnson v. *53 State, 432 S.W.2d 98, 100 (Tex.Crim.App.1968).
In the military proceeding, Wieghat was charged with “commit[ting] an indecent act upon ... a female three (3) years of age ... by fondling her, by placing his hands upon her private parts, by exposing his penis to her, by compelling her to touch his penis, and by penetrating her vagina with his finger, with the intent to gratify the lust and sexual desires of the said PFC Mark Anthony Wieghat.” Wieghat pleaded guilty to this charge, “except the words ‘hands' and ‘by exposing his penis to her, by compelling her to touch his penis', substituting the word ‘hand.’ ” The charges to which Wieghat pleaded guilty are thus very similar to offenses under sections 21.11 and 22.011 of the Texas Penal Code. See Tex. Pen.Code Ann. §§ 21.11 (indecency with a child), 22.011 (sexual assault) (Vernon Supp.2000). Accordingly, we hold the trial court did not err in admitting the conviction in the military proceeding for purposes of the mandatory life sentence statute.

Thanks!

Your citation also led me to Rushing v. State, 2010 WL 2171628, from the Beaumont court, which, though unpublished, has a more extensive analysis of the issue and also concludes that we can use the military prior to enhance to a mandatory life sentence.