Defendant commits offense in 2002 under 21.11 (indecency by contact). Defendant was convicted of offense under art. 535d, sec. 1 of 1925 Penal Code in 1971. For those with a short memory that statute provided: 'It shall be unlawful for any person with lascivious intent to intentionally
place or attempt to place his or her hand or hands, or any portion of his or her hand or hands upon or against a sexual part of a male or female under the age of fourteen (14) years, or to in any way or manner fondle or attempt to fondle a sexual part of a male or female under the age of fourteen (14) years, or to intentionally place or attempt to place his or her hands or any part of his hand or hands upon the breast of a female under the age of fourteen (14) years, or to in any way or manner fondle or attempt to fondle the breast of a female under the age of fourteen (14) years.'
Defendant received a probated sentence in the 1971 case.

Question: Can the District Court place the Defendant on community supervision for his 2002 offense? In other words, has the Defendant "previously been placed on community supervision for 'an offense under Section 21.11'" See art. 42.12 sec. 5 (d)(2)(B), CCP.

I think a similar question was previously discussed but I could not find it. I believe the court could validly enter a deferred adjudication order.

OK. If no one has any ideas about 42.12 sec. 5 (d)(2)(B), maybe someone has briefed a similar issue with respect to 42.12 sec.3g (a)(1)(G)(ii) or sec. 4(d)(4), CCP or sec. 22.01(b)(2) or 38.04(b)(2)(A), Penal Code. In my brief I argue if the Legislature wanted to go farther back than 1974 for prior sex offenses it could have used language like that found in sec. 31.03(e)(4)(D) which refers to prior "theft" convictions (under any law) or 49.09(c)(1)(C)(D) which specifically refers to prior versions of the DWI laws. Help of any sort will be appreciated.