Perhaps the legislature took out the confusing 10-year rule but left Section 49.09(b), which calls for different treatment of offenses that occurred prior to September 1, 1994, in order to give less effect to offenses from the distant past. While the issue in this case appears to be similar to the situation in Griffith v. State, 116 S.W.3d 782 (Tex.Crim.App. 2003), the cases can be distinguished. In Griffith, the State sought to use prior offenses of rape and aggravated rape to enhance the appellant's punishment for his current sexual-assault charge.

Garland v. State, 170 S.W.3d 107, 107-08 n. 1 (Tex.Crim.App. 2005). See also Griffith v. State, 81 S.W.3d 510, 514 (Tex.App.-Houston [1st Dist.] 2002), aff'd, 116 S.W.3d 782 (Tex.Crim.App. 2003) (explaining that former offense of rape is precursor to present offense of sexual assault). Appellant complains that the California statute permits prosecution for unlawfully restraining a person and touching the person's buttocks for purpose of sexual arousal, something that is not substantially similar to an offense listed in 2003 Penal Code section 12.42(c)(2).

The statutory construction issue before us is analogous to those raised in two recent court of criminal appeals opinions. In Griffith v. State, 116 S.W.3d 782 (Tex.Crim.App. 2003), the court construed penal code section 12.42(c)(2), which creates an enhanced punishment for certain repeat sex offenders. See Tex. Pen. Code Ann. § 12.42(c)(2) (West Supp. 2005).

When interpreting a statute, we attempt to effect the intent of the legislature. Griffith v. State, 116 S.W.3d 782, 785 (Tex.Crim.App. 2003) (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991)). This requires interpreting an unambiguous statute literally, unless doing so would lead to an absurd result.

Section 12.42(c)(2) mandates a life sentence for a defendant convicted of a sexual offense listed in Section 12.42(c)(2)(A) that he committed after having been previously convicted of any of the enumerated sexual offenses in Section 12.42(c)(2)(B), or "under the laws of another state containing elements that are substantially similar to the elements of an [enumerated] offense." 116 S.W.3d 782, 786 (Tex.Cr.App. 2003). TEX. PEN. CODE § 12.42(c)(2)(B)(v) (emphasis added).

In the same act that repealed Section 21.09, the legislature enacted new Penal Code Sections 22.011 (sexual assault) and 22.021 (aggravated sexual assault) and defined those offenses to include the conduct formerly prohibited by Section 21.09 and the other provisions that were repealed.See Griffith v. State, 116 S.W.3d 782, 787-88 (Tex.Crim.App. 2003). Act of May 29, 1983, 68th Leg., R.S., ch. 977, § 3, 1983 TEX. GEN. LAWS 5312, 5315; Griffith v. State, 116 S.W.3d 782, 787 (Tex.Crim.App. 2003).

Our objective in interpreting a statute is to adhere to the collective intent or purpose of the legislators who enacted it. Griffith v. State, 116 S.W.3d 782, 785 (Tex.Crim.App. 2003). When a statute is clear and unambiguous, courts should not strain the plain meaning of the wording in order to give the statute a different reading.

The Legislature also enacted new Penal Code Sections 22.011 (sexual assault) and 22.021 (aggravated sexual assault), which include the conduct set forth in the repealed provisions. Griffith v. State, 116 S.W.3d 782, 787 (Tex.Crim.App. 2003). The Texas Court of Criminal Appeals has since held that the former offenses of rape and aggravated rape are the statutory precursors to sexual assault and aggravated sexual assault.

Tex. Penal Code § 12.35(a).Prudholm, 333 S.W.3d at 592 (quoting Griffith v. State, 116 S.W.3d 782, 786 (Tex.Crim.App.2003)); see also Duran v. State, 363 S.W.3d 719, 724 (Tex.App.–Houston [1st Dist.] 2011, pet. ref'd) (“The Legislature has determined that a severe penalty is warranted ... when the evidence shows the defendant has committed indecency with a child or sexually assaulted a child after previously being convicted of indecency with a child.”); Williams v. State, 10 S.W.3d 370, 372–73 (Tex.App.–Tyler 1999, pet. ref'd) (“The legislature has an interest in removing habitual sexual predators of children from society and in protecting the children of this State.”)..Tex.

Concluding that "[t]he plain wording of 2003 Penal Code section 12.42(c)(2)(B)(v), however, requires that the California statute contain elements that are substantially similar to the elements of an offense listed in subparagraph (i), (ii), (iii), or (iv)," the majority holds that the trial court erred in submitting the enhancement paragraph because the California sexual battery statute contains "elements that are substantially similar to the elements of multiple offense listed in subparagraph [12.42(c)(2)(B)] (i), (ii), (iii), or (iv)." The majority cites generally to Griffith v. State, 116 S.W.3d 782, 785 (Tex.Crim.App. 2003) and Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991) for support, noting parenthetically that Texas law requires that "we review an unambiguous statute literally, unless doing so would lead to [an] absurd result that [the] legislature could not possibly have intended." Prudholm, No. 01-06-00749-CR 01-06-00750-CR, slip. op. at 9.