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Friday, November 15, 2019

Appeals court: Convicted Arizona sex offender must register in Texas

State Court

By Charmaine Little | Jul 29, 2019

Justice Tracy Christopher

HOUSTON -- A three-judge panel with the Texas 14th Court of Appeals determined July 11 that a person must register as a sex offender in Texas if they were convicted of sexual abuse via Arizona law.

Justice Tracy Christopher wrote the opinion, and justices Meagan Hassan and Margaret "Meg" Poissant agreed.

In doing so, it reversed a lower court’s order and denied Paul Fowle’s appeal via article 62.003(c) of the Code of Criminal Procedure.

The state of Arizona charged Fowle with two counts of sexual abuse amid accusations that he “intentionally and knowingly engaged in sexual contact” with a minor under 15-years-old in summer 1983, according to the opinion. He pleaded guilty and served his two-year sentence in prison. Fowle then relocated to Texas and questioned if he needed to register as a sex offender in the state. The Department of Public Safety said yes, and Fowle appealed with a trial court via the Sex Offender Registration Act. The lower court not only granted the appeal but determined that Fowle’s Arizona conviction wasn’t a reportable conviction. DPS appealed, and the appeals court sided with DPS.

When comparing the Arizona and Texas laws, Arizona’s law says, “A person commits sexual abuse by intentionally or knowingly engaging in sexual contact … with any person who is under 15 years of age and who is not his or her spouse,” according to the opinion. The appeals court also pointed out that Texas law says one commits indecency “with a child younger than 17 years of age, whether the child is of the same or opposite sex and regardless of whether the person knows the age of the child at the time of the offense, the person engages in sexual contact with a child or causes the child to engage in sexual contact.”

The appeals court ruled that while the definitions are completely different, they do have foundational similarities. Both define sexual misconduct with a minor and although there’s a 2-year difference in age, the appeals court said this doesn’t mean they aren’t similar statues. 

As for Fowle, he said the greatest distinction was the definition of “sexual contact.” Arizona defines it as “fondling or manipulating the genitals, anus or breast,” and Texas says it’s “touching” those same body parts “if committed with the intent to arouse or gratify the sexual desire of any person,” based on the opinion. Fowle says that since they describe two different events, they aren’t similar, but the appeals court disagreed.

“Based on the foregoing, we believe that the elements of the Arizona offense display a high degree of likeness to the elements of the Texas offense, even though the Arizona statute does not contain an express element of sexual intent," the court ruled. "We therefore hold that the offenses contain elements that are substantially similar and that Fowle has a reportable conviction or adjudication for the purposes of the act.”

In considering this, the appeals court reversed the lower court’s ruling.

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