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Click here for the full text of this decision FACTS:A jury convicted James Timothy White of one count of indecency with a child by contact and two counts of aggravated sexual assault of a child under 14 years of age. The indictment included two enhancement paragraphs, one of which alleged that applicant had previously been convicted in Delaware of felony unlawful sexual contact. The jury found the sex-offender allegation true, a finding that mandated a life sentence on each of the charged offenses. In an appeal of the conviction for indecency with a child, the 2nd Court of Appeals noted that the trial court took judicial notice of a Delaware statute and found it substantially similar to Texas Penal Code �21.11, which sets out the offense of indecency with a child. The Court of Criminal Appeals (CCA) refused White’s petition for discretionary review on June 4, 2003. In his application for writ of habeas corpus, White alleged that his sentences in these two cases were improperly enhanced. He asserted that his Delaware conviction for a sexual offense was not final and that the state was thus barred from using it to enhance the punishment range for the charged Texas offenses. The CCA remanded the cause to the trial court for determination of three issues. On remand, the trial court found that: applicant’s Delaware probation was never revoked; the elements of the offense charged in Delaware were substantially similar to the Texas offense of indecency with a child; since 1972, Delaware has considered the conviction of which applicant was convicted final for the purpose of enhancement, even if the sentence is suspended; and White’s attorney had investigated the Delaware conviction and believed that the conviction was admissible pursuant to Texas Penal Code �12.42. The trial concluded that, although applicant’s probated sentence in Delaware had never been revoked, it was available for enhancement pursuant to Texas Penal Code �42.12(c)(d)(B), there was no violation of the ex post facto clause and White’s attorney was not ineffective. HOLDING:Affirmed. The CCA held that the elements of White’s Delaware offense were substantially similar to the elements of Texas Penal Code �12.42(c)(2)(B), specifically indecency with a child. Because of his prior conviction in Delaware, the CCA found that Delaware authorities convicted White of an offense containing elements substantially similar to �12.42(c)(2)(B)(ii). Thus, the CCA held that the Delaware prior conviction may be available to enhance the punishment of the Texas offenses at issue. The CCA also held that a prior foreign conviction for an offense containing elements that are substantially similar to �12.42(c)(2)(B) may be used to enhance punishment in Texas under �12.42(c)(2), even if the sentence for that conviction was probated and the probation was not revoked. In addition, the CCA did not accept White’s argument that the application of �12.42 to his case violated ex post facto protections. And finally, because it determined that White’s Delaware prior conviction was properly used to enhance punishment, the CCA concluded that White’s attorney’s performance in regard to the prior conviction was not deficient. OPINION:Johnson, J. wrote the unanimous opinion for the court.

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