Walter Fisk v. State
2016 Tex. App. LEXIS 12243
| Tex. App. | 2016Background
- Appellant Walter Fisk, tried in Bexar County, was convicted by a jury of three counts of indecency with a child by contact; the trial court assessed three consecutive life sentences. The court later reversed the punishment and remanded for resentencing.
- Counts charged touching H.W.’s genitals, touching S.W.’s genitals, and touching S.W.’s breast; Fisk only challenged sufficiency as to the S.W. genitals count on appeal.
- Trial evidence for Count II included S.W.’s trial testimony (she described contact on her “bladder” but equated that term with her vagina in some contexts), out‑of‑court statements to her mother and a SANE nurse describing touching of her crotch/genital area, and corroborating testimony from those witnesses.
- The State introduced testimony from two other women (S.A. and D.B.) about prior alleged sexual abuse by Fisk in New Mexico; the trial court admitted that testimony under Tex. Code Crim. Proc. art. 38.37 and overruled a Rule 403 objection.
- At sentencing the trial court admitted Fisk’s prior U.S. Army court‑martial convictions (Article 134, ¶ 87 indecent acts/liberties with a child) and used them to impose automatic life sentences under Tex. Penal Code § 12.42(c)(2).
- The court of appeals affirmed guilt determinations but held the military convictions were not "substantially similar" to Texas’s indecency‑with‑a‑child statute and reversed/remanded on punishment.
Issues
| Issue | State's Argument | Fisk's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for Count II (S.W. genitals) | Jury could infer sexual contact from S.W.’s trial testimony plus her out‑of‑court statements and SANE/mother testimony describing touching of crotch/genital area | Touching was of S.W.’s bladder (non‑genital); S.W. knew bladder vs vagina and testified no vaginal contact on first incident | Evidence legally sufficient; jury could credit statements that the contact was to genital area and make reasonable inferences in favor of verdict (affirmed guilt) |
| Admissibility of extraneous‑offense evidence (art. 38.37 / Rule 403) | Prior abuse of other young female relatives was admissible under art. 38.37 and probative in a child sexual‑abuse “he‑said‑she‑said” case; prejudice did not substantially outweigh probative value | Testimony was highly prejudicial and likely to inflame jury; should be excluded under Rule 403 | Trial court did not abuse discretion admitting the evidence; probative value and State’s need outweighed unfair prejudice (admission affirmed) |
| Use of prior military court‑martial convictions to enhance punishment under § 12.42(c)(2) | Prior UCMJ convictions qualify as convictions under laws of another jurisdiction; Paragraph 87 indecent acts/liberties protect children and are similar to § 21.11 | Paragraph 87 is broader and vague (indecent acts/liberties can criminalize conduct not covered by Texas law); elements and punishment range differ so not "substantially similar" | Prior court‑martial offenses under Article 134 ¶87 are materially broader and not substantially similar in elements or punishment range to Tex. Penal Code §21.11; using them to impose §12.42 enhancement was error (punishment reversed; remanded for new sentencing) |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (legal sufficiency standard for criminal convictions)
- Hooper v. State, 214 S.W.3d 9 (circumstantial evidence can support conviction)
- Gigliobianco v. State, 210 S.W.3d 637 (Rule 403 balancing; probative value means more than relevance)
- Anderson v. State, 394 S.W.3d 531 (two‑prong test for "substantially similar" out‑of‑state sexual offenses)
- Pawlak v. State, 420 S.W.3d 807 (recognizing inherent inflammatory nature of child sexual‑abuse evidence)