Whatever happened to . . .

PV2 Brandon G. Rushing?

The military connection:  Some years ago, he plead guilty to, carnal knowledge and indecent acts with a child, in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 934 [hereinafter UCMJ]. The judge sentenced appellant to a bad-conduct discharge, confinement for eleven months, forfeiture of all pay and allowances, and reduction to Private E1.  United States v. Rushing, ARMY 20010582, 2003 CCA LEXIS 387 (A. Ct. Crim. App. February 12, 2003).

And now:

A jury convicted Rushing of the first degree felony offense of aggravated sexual assault of a child, committed in 2006, in addition to other sex offenses. At the punishment phase, the State sought an automatic-life enhanced sentence … using Rushing’s prior court-martial convictions under the UCMJ for carnal knowledge and indecent acts with a child under sixteen.

Rushing challenged application of the Texas sentencing law on the basis that the military (federal government) is not a “state” within the meaning of the statute. Therefore he alleged a UCMJ conviction (and by application a federal one) can’t be used for sentence enhancement.  In a unanimous decision,

The [Texas] court of appeals held that Rushing’s prior sex-offense convictions under the Uniform Code of Military Justice (UCMJ) qualify as "conviction[s] under the laws of another state," thus requiring an automatic life sentence under Texas Penal Code 12.42(c)(2)(b)(v).  We agree based on our interpretation of the definition of "state" in Texas Government Code Section 311.005(7). We therefore affirm the court of appeals’s judgment.

Rushing v. State  of Texas, No. PD-0773-10 (Tex. Ct. Crim. App. October 5, 2011).

Believe it or not there are some states that do not always consider a court-martial conviction as such for certain purposes: usually issues of impeachment of felony, and occasionally for sentence enhancement.  Obviously Texas isn’t one of those states.  There is an old article, Christopher Vaeth, Annotation: Use of Prior Military Conviction to Establish Repeat Offender Status, 11 A.L.R.5th 218.  I’m sure it needs updating so don’t rely solely on it – especially in Texas, heh, heh, heh.

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