Before Morriss, C.J., Burgess and Stevens, JJ. Opinion by Justice Burgess O P I N I O N After a jury found Rickey Willis guilty of continuous abuse of a child under fourteen years of age, the trial court sentenced him to life in prison. Willis appeals, maintaining that the trial court improperly used a prior Arkansas conviction to enhance his punishment because the evidence was insufficient to show that the Arkansas conviction was substantially similar to the Texas offense. For the reasons below, we overrule Willis’ sole point of error and affirm the trial court’s judgment. I. Background and Procedural History Section 12.42(c)(2)(B)(v) of the Texas Penal Code provides a mandatory life sentence for a defendant convicted of sexual assault who has previously been convicted of an offense under the laws of another state with elements that are substantially similar to the offenses listed in subsection (B)(i)-(iv). Tex. Penal Code Ann. § 12.42(c)(2)(B)(v). Those offenses are all sex-related crimes, including sexual assault, indecency with a child by contact, and burglary with intent to commit sexual assault. Tex. Penal Code Ann. § 12.42(c)(2)(B)(i)-(iv). On September 21, 2018, the State filed notice of its intention to seek a mandatory life sentence pursuant to Section 12.42 of the Texas Penal Code. In its notice, the State explained that it intended to show that on August 13, 1991, and prior to the commission of the charged offense, Willis had been convicted of the felony offense of first-degree sexual abuse in Miller County, Arkansas, in cause number 91-3.[1] The State argued that Willis’ Arkansas conviction contained elements that were substantially similar to the elements of indecency with a child by sexual contact under Section 21.11(a)(1) of the Texas Penal Code.[2] Following the jury’s return of a guilty verdict against Willis, the State reminded the trial court that it had filed its notice of intention to seek a mandatory life sentence in the event the jury found him guilty. The State also reminded the court that a witness had established that Willis had been convicted of the Arkansas offense of first-degree sexual abuse and that the elements of that offense were substantially similar to the elements of the Texas offense of indecency with a child by sexual contact. The State asked the trial court to admit the judgment against Willis for the Arkansas offense, along with the penitentiary packet which had been generated as a result of that conviction. The State then asked the trial court to determine whether the two offenses were substantially similar. The State explained, “If the Court does so find, then it will be an automatic life sentence for Mr. Willis.” Over no objection from Willis, the trial court admitted the two documents that the State had offered. The record reflects that the trial court paused and then found that the elements of the Arkansas statute, upon which Willis had been convicted of first-degree sexual assault, were substantially similar to the elements of the Texas offense of indecency with a child. The trial court responded, “At this time, the Court finds that, Mr. Willis, you have been convicted by this jury of . . . continuous sexual abuse of a child under 14 years of age . . . .” The court continued, “And you’ve previously been convicted of an offense under the laws of another State containing the elements as set forth . . . in the Texas [Penal C]ode of indecency with a child by contact.” The court concluded, “Therefore, under Penal Code Section 12.42(c)(2) governing penalties for repeat and habitual offenders, at this time I am sentencing you to imprisonment . . . for a period of life.” II. Discussion A. The Evidence Was Sufficient to Establish that the Prior Arkansas Conviction Was Substantially Similar to Texas Law to Allow Enhancement Under Section 12.42(c)(b)(2)(v) of the Texas Penal Code On appeal, Willis maintains, “No evidence was introduced as to the elements of the historical Arkansas Penal Code statute . . . from 1991 which has been repealed.” He continues, “Had the statute been current, a copy would have been easily acquired. Based upon these facts, it would have been virtually impossible for the Court to determine substantial similarity under the resources available.” In other words, Willis contends that the trial court did not have sufficient evidence to allow it to compare the elements contained in the two statutes.[3] In Hardy v. State, we addressed a case involving facts remarkably similar to the present case. Hardy v. State, 187 S.W.3d 232 (Tex. App—Texarkana 2006, pet. ref’d). In that case, the defendant was charged with aggravated sexual assault, and the State alleged that he had previously been convicted of an offense in California which justified enhancement to an automatic life sentence under Section 12.42(c)(2)(B)(v). Id. at 236. The jury found the defendant guilty of the lesser-included offense of sexual assault, and it also found the enhancement allegation to be true. Id. at 233. Based on those findings, the trial court sentenced the defendant to life in prison under Section 12.42(c)(2)(B)(v). On appeal, the defendant argued that the evidence was insufficient to support enhancement under Section 12.42(c)(2)(B)(v). Id. at 235. We noted that the defendant was correct in pointing out that “[t]he Texas statute requires that there be some proof that the elements of the enhancement conviction are substantially similar to some offense listed in [Section 12.42(c)(2)(B) of the Texas Penal Code.]“ Id. However, we found that the proof was sufficient because “[t]he State introduced certified documents from California showing such conviction in cause number CR 38768 in the superior court of Riverside County on March 11, 1991, and specifically referencing Section 261(a)(2) of the California Penal Code” and “Hardy did not object to the introduction of these documents.” Id. at 236. In the present case, as in Hardy, the State offered, and the trial court admitted (1) the Arkansas judgment and commitment order showing that Willis had been convicted of “Sexual Abuse 1st [State's Exhibit 1,]” on August 13, 1991, and (2) a penitentiary packet from the Arkansas Department of Correction, showing that Willis had been convicted of “ Sexual Abuse – 1st Degree [State's Exhibit 2.]” Also like the evidence in Hardy, the State’s exhibits in this case specifically referenced the other state law at issue by citation. And finally, as in Hardy, Willis did not object to the admission of either of these exhibits. Consequently, based on Hardy, there is sufficient evidence in the record to support the trial court’s ruling. We overrule Willis’ first point of error. B. The Record Sufficiently Demonstrates that the Trial Court Took Judicial Notice of Arkansas Code § 5-14-108. Willis next argues that the trial court failed to take judicial notice of the Arkansas statute and, by failing to do so, could not possibly have determined that the Arkansas Statute was substantially similar to Texas law. However, the record supports a finding that the trial court took the requisite judicial notice. In Hardy, the record did not explicitly show that the trial court took judicial notice. Id. Nevertheless, we determined that a California sexual offense was substantially similar for purposes of Section 12.42(c)(2)(B). Id. Specifically, we held, Although not shown by the record, taking judicial notice of the California statute and finding that the California offense is substantially similar to an offense in Section 12.42(c)(2)(B) was implicit in the trial court’s decision to follow this procedure. Such judicial notice and finding must be assumed because the trial court could not charge the jury on the enhancement, or impose a mandatory life sentence, without making such a determination. Id.; see also Banks v. State, 494 S.W.3d 883, 896 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d); Suares v. State, No. 05-07-00862-CR, 2008 WL 2747186, at *2 (Tex. App—Dallas July 16, 2008, pet. ref’d) (mem. op., not designated for publication); Green v. State, No. 14-06- 00535-CR, 2007 WL 2265787, at *9 (Tex. App.—Houston [14th Dist.] Aug. 9, 2007, no pet.) (mem. op., not designated for publication)[4] (applying Hardy where punishment was tried to trial court). Consequently, even though the trial judge did not expressly state that he was taking judicial notice of Arkansas Code § 5-14-108, we may presume that the trial court in this case took the requisite judicial notice.[5] III. Conclusion For all of the foregoing reasons, we affirm the trial court’s judgment.[6] Ralph K. Burgess Justice Date Submitted: July 10, 2019 Date Decided: September 19, 2019 Publish
