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
2

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 

sentence3 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.). 
3

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. 
4

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 
5

“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: 
6

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.
7

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. 
8

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 
9

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 

offenses8 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). 
10

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

convicted—felony carnal knowledge of a juvenile9

—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.).

10See 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)).
11

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 outof-state offense (sexual battery, for example), this indicates that the other out-ofstate 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 lifeimprisonment 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; . . . 
12

. . . .

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;

 11Oral 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. 
13

(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 
14

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 outof-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. 
15

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 
16

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 
17

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 
18

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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