Senn, Michael Ray

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1382-18
RITO GREGORY LOPEZ, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
MOORE COUNTY
NO. PD-1265-18
MICHAEL RAY SENN, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
TARRANT COUNTY
NOS. PD-0013-19, PD-0014-19, PD-0015-19
ABEL DIAZ RODRIGUEZ, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIRST COURT OF APPEALS
GALVESTON COUNTY
K EEL, J., delivered the opinion of the Court in which K ELLER, P.J., and
R ICHARDSON, W ALKER, and S LAUGHTER, JJ., joined. K EASLER, J., filed a
concurring opinion in which H ERVEY, J., joined. Y EARY and N EWELL, JJ.,
concurred.
OPINION
We granted these petitions to clarify whether the State must prove commission of
bigamy in order to enhance punishment of sexual assault under Penal Code Section
22.011(f).1
Section 22.011(f) enhances sexual assault to a first-degree felony “if the victim
was a person whom the actor was prohibited from marrying or purporting to marry or
with whom the actor was prohibited from living under the appearance of being married
under Section 25.01.” T EX. P ENAL C ODE § 22.011(f) (West 2005) (amended 2019).
Section 25.01 proscribes bigamy.
1
Unless otherwise specified, references to “Section” are to the Texas Penal Code and
references to Section 22.011(f) are to the version of the statute in effect at the time of the
offenses. The relevant portion of Section 22.011 was recodified as Section 22.011(f)(1) in 2019.
Lopez et al.–Page 3
The appellants in these cases were convicted of sexual assault and enhanced under
Section 22.011(f). Each was married to someone other than his victim at the time of the
sexual assault, but none committed bigamy with his victim. On appeal they challenged
the sufficiency of the evidence to prove the enhancements because the State did not prove
bigamy. We hold that the State does not have to prove commission of bigamy to trigger
the enhancement under Section 22.011(f).
I. Standard of Review
To determine whether evidence is sufficient to prove an enhancement we usually
view the evidence in the light most favorable to the State. Pruett v. State, 510 S.W.3d
925, 927 (Tex. Crim. App. 2017). But when evidentiary sufficiency turns on the meaning
of a statute, we must resort to statutory interpretation, which is a question of law that we
review de novo. Id.; Liverman v. State, 470 S.W.3d 831, 836 (Tex. Crim. App. 2015).
Statutory construction depends on the plain meaning of the statute’s language
unless it is ambiguous or the plain meaning would lead to absurd results that the
legislature could not have possibly intended. Liverman, 470 S.W.3d at 836. To
determine plain meaning, we read the statute in context and give effect to each word,
phrase, clause, and sentence if reasonably possible, and construe them according to any
applicable technical definitions and otherwise according to the rules of grammar and
common usage. Lang v. State, 561 S.W.3d 174, 180 (Tex. Crim. App. 2018); Liverman,
470 S.W.3d at 836. If the plain meaning is not ambiguous or does not lead to absurd
Lopez et al.–Page 4
results, we do not consider extra-textual factors. Boykin v. State, 818 S.W.2d 782,
785–86 (Tex. Crim. App. 1991).
II. Construction of Penal Code Section 22.011(f)
A. Literal Text of the Statute
At the time of the offenses in question, Penal Code Section 22.011(f) said:
An offense under this section is a felony of the second degree, except that
an offense under this section is a felony of the first degree if the victim was
a person whom the actor was prohibited from marrying or purporting to
marry or with whom the actor was prohibited from living under the
appearance of being married under Section 25.01.
T EX. P ENAL C ODE § 22.011(f). Section 25.01 defines bigamy as follows:
(a) An individual commits an offense if (1) he is legally married and he (A)
purports to marry or does marry a person other than his spouse in this state,
or any other state or foreign country, under circumstances that would, but
for the actor’s prior marriage, constitute a marriage; or (B) lives with a
person other than his spouse in this state under the appearance of being
married; or (2) he knows that a married person other than his spouse is
married and he: (A) purports to marry or does marry that person in this
state, or any other state or foreign country, under circumstances that would,
but for the person’s prior marriage, constitute a marriage; or (B) lives with
that person in this state under the appearance of being married.
T EX. P ENAL C ODE § 25.01. The question is whether enhancement under Section
22.011(f) required the State to prove that the defendant actually committed bigamy or
simply that the defendant would be guilty of bigamy if he were to marry or purport to
marry the victim or to live with the victim under the appearance of being married.
B. Is the Plain Language Clear and Unambiguous?
A statute is ambiguous if it is reasonably susceptible to more than one
Lopez et al.–Page 5
interpretation. Lang, 561 S.W.3d at 180. Statutory language is unambiguous when it
permits only one reasonable understanding. Yazdchi v. State, 428 S.W.3d 831, 838 (Tex.
Crim. App. 2014).
The plain language of Section 22.011(f) says the enhancement applies when the
victim is a person whom the defendant was “prohibited from marrying or purporting to
marry” or with whom the defendant was “prohibited from living under the appearance of
being married” under Section 25.01. Because the word “prohibited” does not have a
technical meaning and is not defined in the statute itself, we may look to standard
dictionaries to determine the common usage. Baird v. State, 398 S.W.3d 220, 228 (Tex.
Crim. App. 2013).
The word “prohibit” is defined as “1: to forbid by authority or command :
ENJOIN, INTERDICT . . . 2a: to prevent from doing or accomplishing something :
effectively stop . . . b: to make impossible : DEBAR, HINDER, PRECLUDE.”
W EBSTER’S T HIRD N EW INTERNATIONAL D ICTIONARY U NABRIDGED 1813 (2002).
“Prohibited” is defined as “not permitted : forbidden by authority.” M ERRIAM-W EBSTER
D ICTIONARY, https://www.merriam-webster.com/dictionary/prohibited (last visited Feb.
14, 2020).
Applying these definitions to Section 22.011(f), a defendant is subject to
enhancement if the victim was a person whom the defendant was “not permitted” to
marry, purport to marry, or live with under the appearance of being married or whom the
Lopez et al.–Page 6
defendant was “forbidden by authority,” “prevented,” “effectively stopped,” or
“precluded” from marrying or purporting to marry or from living with under the
appearance of being married under Section 25.01. This language does not require a
showing that the defendant actually married or purported to marry the victim or lived with
the victim under the appearance of being married—on the contrary, the definitions of
“prohibit” show that Section 25.01 would “forbid” a marriage or purported marriage
between a defendant and a victim if the defendant was legally married to someone else at
the time of the sexual assault.
Enhancement under Section 22.011(f) requires that, under Section 25.01, a
marriage or purported marriage between the defendant and the victim or cohabitation by
them under the appearance of marriage would be prevented, precluded, effectively
stopped, hindered, enjoined, or forbidden. That would be the case if the defendant was
married to someone else. In other words, Section 22.011(f) requires the State to prove
that the defendant was legally married to someone other than the victim at the time of the
sexual assault and would be guilty of bigamy if he were to marry or purport to marry the
victim or live with the victim under the appearance of being married. It does not require
proof that the defendant actually committed bigamy.
This conclusion is supported by Arteaga v. State, 521 S.W.3d 329 (Tex. Crim.
App. 2017), superseded by statute, Melissa’s Law, 2019, 86th Leg., R.S., ch. 738, § 2,
sec. 22.011(f), 2019 T EX. S ESS. L AW S ERV. 2049, 2050 (to be codified at T EX. P ENAL
Lopez et al.–Page 7
C ODE § 22.011(f)(2)).2 The issue in Arteaga was whether the “prohibited from marrying
or purporting to marry” enhancement of Section 22.011(f) was limited to bigamy or also
included the Family Code’s ban on marrying a close relative. Arteaga, 521 S.W.3d at
332–33; T EX. F AM. C ODE § 6.201. Section 22.011(f) was ambiguous on this point
because “under Section 25.01” could have been read as modifying only the prohibition
that immediately proceeded it—the prohibition against living under the appearance of
being married—or it could have been read as also modifying the prohibitions against
marrying or purporting to marry. Arteaga, 521 S.W.3d at 335–36.
To resolve the ambiguity, we examined Section 22.011(f) in conjunction with the
bigamy statute. Arteaga, 521 S.W.3d at 336. We noted that the bigamy statute prohibits
a person from engaging in six types of conduct. Id.; T EX. P ENAL C ODE §25.01. We
reasoned that Section 22.011(f)’s use of the phrase “prohibited from” incorporated all six
bigamy prohibitions. Arteaga, 521 S.W.3d at 336. Reading Section 22.011(f) together
with Section 25.01, we concluded that the Legislature intended the State to prove facts
constituting bigamy when enhancing punishment under Section 22.011(f). Arteaga, 521
S.W.3d at 336. We added a footnote to say that the State had to “prove that the defendant
committed sexual assault and that, if he were to marry or claim to marry his victim, or to
2
The enhancement under Section 22.011 was amended in 2019 to also increase the
punishment range when sexual conduct between the defendant and the victim is prohibited by
consanguinity under Section 25.02. Our interpretation of Section 22.011(f) at the time of the
offenses in the cases before us is not influenced by this amendment because “in interpreting a
prior law, we generally accord little weight to subsequent legislative enactments.” Volosen v.
State, 227 S.W.3d 77, 80 (Tex. Crim. App. 2007).
Lopez et al.–Page 8
live with the victim under the appearance of being married, then he would be guilty of
bigamy.” Arteaga, 521 S.W.3d at 335 n.9.
C. Would Application of the Plain Language Lead to Absurd Results?
In Estes v. State, we held that there was a rational basis for treating child sexual
assault cases differently based on the marital status of the defendant. 546 S.W.3d 691,
701 (Tex. Crim. App. 2018). We described the “marital perception of trustworthiness”
and concluded that it was rational for the Legislature to punish more severely one who
violates that trust in grooming and sexually abusing a child. Id. Our analysis in Estes
stemmed from a necessarily fact-based as-applied challenge to Section 22.011(f)’s use in
a child sexual assault case, but much of the reasoning would apply equally to an adult
victim of sexual assault. As Estes points out, there is a strong societal connection
between the union of marriage and the ideas of family, home, safety, stability, and
security. Id. A married defendant may abuse these deeply-rooted beliefs even if his
victim is an adult. “And the literal text of Section 22.011(f) is not explicitly directed
towards sexual assaults involving children. Under the literal text, anyone who engages in
sexually assaultive, would-be-bigamous conduct may trigger the enhancement, whether
his acts are inflicted upon a child or not.” Id. at 699. We conclude that imposing a higher
degree of punishment to deter sexual assault by a married defendant does not lead to
absurd results that the Legislature could not have intended.
D. Do We Need to Consider Extra-Textual Sources?
Lopez et al.–Page 9
Because, other than the ambiguity resolved in Arteaga, the plain language of
Section 22.011(f) is clear and unambiguous and giving effect to the plain meaning of the
statute does not lead to absurd consequences, we need not turn to extra-textual sources.
Extending our consideration beyond the plain language of the statute would encroach on
the lawmaking powers of the legislature. Boykin, 818 S.W.2d at 785–86.
E. Holding
We hold that the State does not have to prove commission of bigamy to trigger the
enhancement under Section 22.011(f). The requirement for enhancement under Section
22.011(f) is satisfied if the State proves that the defendant was legally married to
someone other than the victim at the time of the sexual assault.
III. Conflict Among the Lower Courts
Lower courts have issued conflicting decisions on the application of Section
22.011(f) because Arteaga used the phrases “facts constituting bigamy” and “facts that
would constitute bigamy” interchangeably. See, e.g., Arteaga, 521 S.W.3d at 344 (Yeary,
J., concurring) (“some of the language in the text of the Court’s opinion remains
ambiguous”); Lopez v. State, 567 S.W.3d 408, 410–13 (Tex. App.—Amarillo 2018)
(attempting to reconcile language in the body of the Arteaga opinion with language in the
explanatory footnote); Senn v. State (Senn IV), No. 02-15-00201-CR, 2018 Tex. App.
LEXIS 8722, at *9-11 (Tex. App.— Fort Worth October 25, 2018) (op. on remand & on
reh’g) (same). Consequently, two courts held that the State was required to prove the
Lopez et al.–Page 10
defendant committed bigamy, and one court held the State was required to prove that the
defendant was legally married to someone else at the time of the sexual assault. Compare
Senn IV, 2018 Tex. App. LEXIS 8722, at *14 (requiring the State to prove “facts
constituting one of the six bigamy prohibitions listed in Section 25.01”), and Lopez, 567
S.W.3d at 413 (same), with Rodriguez v. State, 571 S.W.3d 292, 298–99 (Tex. App.—
Houston [1st Dist.] 2018) (State not required to show actual bigamy; evidence that
defendant was married to another was sufficient). We turn now to these cases.
IV. Application of Our Holding to the Cases Before Us
A. Lopez v. State
1. Background
Lopez was married to the victim’s mother at the time of the offenses; the victim
was his 14-year-old stepdaughter. Lopez filed a motion to quash the enhancement
paragraphs that alleged that the victim was “a person whom the defendant was prohibited
from marrying or purporting to marry or with whom the defendant was prohibited from
living under the appearance of being married under Section 25.01, Penal Code.” The trial
judge denied the motion. After a bench trial, Lopez was convicted of eleven counts of
first-degree felony sexual assault and sentenced to 25 years in prison for each count.
2. Court of Appeals
On appeal Lopez challenged the sufficiency of the evidence to show enhancement.
The court of appeals said that merely proving that the accused was married when the
Lopez et al.–Page 11
assault occurred was not enough; the State was required to prove facts constituting one of
the six bigamy prohibitions. Lopez, 567 S.W.3d at 413. The court of appeals said there
was no evidence that Lopez married or purported to marry the victim or lived with the
victim under the appearance of being married, so the offenses should not have been
enhanced to first-degree felonies. Id. The case was remanded for a new punishment
hearing. Id. at 416.
3. Application of Section 22.011(f)
The court of appeals erred in holding that Section 22.011(f) requires the State to
prove the commission of bigamy. For the reasons given above, the evidence that Lopez
was legally married to the victim’s mother at the time of the sexual assault was sufficient
for enhancement.
4. Conclusion
We reverse the judgment of the court of appeals in Lopez v. State, 567 S.W.3d at
416.
B. Senn v. State
1. Background
The State presented evidence that Senn was married to the victim’s stepmother at
the time of the offense; the victim was his daughter. The jury charge included a special
issue asking whether the victim “was a person whom the defendant was prohibited from
marrying or purporting to marry or with whom the defendant was prohibited from living
Lopez et al.–Page 12
under the appearance of being married” but did not reference Section 25.01 or include a
definition of bigamy. The jury found Senn guilty of sexual assault enhanced to a first-
degree felony under the special issue and imposed a life sentence.
2. Court of Appeals
Senn raised four issues on appeal: (1) the evidence was insufficient for
enhancement, (2) the statute was vague, (3) the statute violated equal protection, and (4)
the trial court’s charge erred in failing to include a bigamy instruction. Senn IV, 2018
Tex. App. LEXIS 8722 at *3. Considering Senn’s first issue, the court of appeals
interpreted Arteaga as requiring the State to prove “facts constituting one of the six
bigamy prohibitions listed in section 25.01.” Senn IV, 2018 Tex. App. LEXIS 8722 at
*14. The court of appeals declined to apply the “facts that would constitute bigamy”
language from footnote 9 of Arteaga. Senn IV, 2018 Tex. App. LEXIS 8722 at *9–12.
After arduous study, we are unable to reconcile footnote 9’s articulation of
the evidence the State is required to produce to trigger enhancement under
section 22.011(f)—facts that would constitute bigamy—with the Arteaga
opinion’s articulation of the evidence the State is required to produce to
trigger enhancement under section 22.011(f)—facts constituting bigamy.
Senn IV, 2018 Tex. App. LEXIS 8722 at *9. The court of appeals said that evidence of
the sexual assault and of Senn’s marriage to the victim’s step-mother did not amount to
facts constituting one of the six bigamy prohibitions under Section 25.01. Senn IV, 2018
Tex. App. LEXIS 8722 at *14–15. The court said that “no facts exist that Senn
committed a bigamy offense” with the victim, and the evidence was “insufficient to
Lopez et al.–Page 13
‘prove facts constituting bigamy’ as required by Arteaga’s holding.” Senn IV, 2018 Tex.
App. LEXIS 8722 at *15–16.
The dissent said that this Court “has twice stated that the State need only introduce
evidence showing that the defendant would have been guilty of bigamy if he were to
marry or claim to marry his victim.” Id. at *18 (Gabriel, J., dissenting).
The court of appeals modified the trial court’s judgment on sexual assault to a
second-degree felony and remanded the case for a new punishment hearing. The court of
appeals did not consider Senn’s other three claims. Id. at *17–18.
3. Application of Section 22.011(f)
The court of appeals misconstrued Arteaga and erred in holding that Section
22.011(f) requires the State to prove the commission of an actual bigamy offense. The
evidence that Senn was married to another when he sexually assaulted the victim was
sufficient to enhance punishment under Section 22.011(f).
4. Conclusion
We reverse the judgment of the court of appeals in Senn v. State, 2018 LEXIS
8722 at *17–18 and remand the case for consideration of Senn’s sufficiency claim in light
of our holding here and for consideration of his remaining claims.
C. Rodriguez v. State
1. Background
The State proved that Rodriguez was married to the victim’s mother at the time of
Lopez et al.–Page 14
the offenses. The victim was his 14-year-old daughter. The jury charge included the
definition of bigamy and required the jury to find that “the victim was a person whom the
actor was prohibited from marrying or purporting to marry or with whom the actor was
prohibited from living under the appearance of being married under Section 25.01 of the
Texas Penal Code.” The jury found Rodriguez guilty of three counts of first-degree
felony sexual assault and assessed a life sentence for each charge.
2. Court of Appeals
Rodriguez challenged the sufficiency of the evidence to elevate the offenses to
first-degree felonies because the State failed to prove that he actually engaged in a
bigamous relationship with his daughter. Rodriguez, 571 S.W.3d at 294–95. The court of
appeals said the State merely had to prove that, if the defendant were to marry or purport
to marry his victim or live with his victim under the appearance of being married, then he
would commit bigamy. Id. at 298. The State met this burden by proving that Appellant
was married to someone other than the victim at the time of the offenses. Id. at 299.
3. Application of Section 22.011(f)
Under the plain language of Section 22.011(f), the State was required to prove that
Rodriguez was legally married to someone other than the victim at the time of the
offenses; it was not required to show that Rodriguez married, attempted to marry, or lived
with the victim under circumstances that would suggest they were married. The court of
appeals applied Section 22.011(f) correctly in holding that the State’s evidence showing
Lopez et al.–Page 15
Rodriguez was married to the victim’s mother at the time of the offenses was sufficient
for enhancement.
4. Conclusion
We affirm the judgments of the court of appeals in Rodriguez v. State, 571 S.W.3d
at 299.
Delivered: April 29, 2020
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