In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-15-00201-CR
___________________________
MICHAEL RAY SENN, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 213th District Court
Tarrant County, Texas
Trial Court No. 1308222R
Dissenting Opinion on Remand and on Rehearing by Justice Gabriel
DISSENTING OPINION ON REMAND AND ON REHEARING
The majority holds that because the State failed to prove that appellant Michael
Ray Senn actually committed bigamy at the time he sexually assaulted his biological
daughter, the evidence was insufficient to prove the alleged first-degree enhancement,
entitling Senn to a new trial on punishment. Because I believe the court of criminal
appeals 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, I would initially conclude that the State met its burden of proof regarding the
enhancement allegation and would request a response to the State’s motion for
rehearing.
The majority points out an inconsistency in one of the cases controlling this
court’s analysis: Arteaga v. State, 521 S.W.3d 329 (Tex. Crim. App. 2017). In one
portion of its opinion, the court of criminal appeals declares that in a prosecution for
sexual assault including the enhancement allegation, the State “is required to prove
facts constituting bigamy.” Id. at 335. The court then immediately followed this
statement with a clarifying, and now pivotal, footnote:
When we discuss “facts that would constitute bigamy,” we do not mean
that the State has to prove that the defendant committed the offenses of
sexual assault and bigamy. What we mean is that, to elevate second-
degree felony sexual assault to first-degree felony sexual assault . . . , the
State must prove that the defendant committed sexual assault and that, if
he were to marry or claim to marry his victim, or to live with the victim
under the appearance of being married, then he would be guilty of
bigamy.
2
Id. at 335 n.9.
I agree with the majority that these two holdings conflict and give this court
inconsistent guidance on the State’s burden of proof on the sexual-assault
enhancement. And if the court of criminal appeals had stopped there, I possibly
would have deferred to the majority’s choice of the appropriate holding to follow.
But I disagree with the majority to the extent its choice is based on the location of the
“would have constituted” holding in the court of criminal appeals’ opinion. The court
of criminal appeals has held that it is not constrained to follow its own footnotes, but
it has recognized that it is bound by footnotes authored by the United States Supreme
Court. See Gonzales v. State, 435 S.W.3d 801, 813 n.11 (Tex. Crim. App. 2014) (stating
in a footnote that although it is not “bound” by its footnote holdings, it is bound by
Supreme Court holdings contained in footnotes). As the court of criminal appeals is
bound by the court tasked with the discretionary review of its opinions, we also
should be bound by the court of criminal appeals’ similar directives to us. Further,
the court of criminal appeals frequently relies on its own footnotes, weakening its
prior pronouncements that footnotes have minimal precedential value. See, e.g., Estes
v. State, 546 S.W.3d 691, 699 & n.50 (Tex. Crim. App. 2018) (quoting Arteaga,
521 S.W.3d at 335 n.9 for that opinion’s holding); McClintock v. State, 444 S.W.3d 15,
20 & n.20 (Tex. Crim. App. 2014) (citing State v. Gobert, 275 S.W.3d 888, 891–92 n.12
(Tex. Crim. App. 2009) as support for what the court previously “held”); Sanchez v.
State, 995 S.W.2d 677, 683 (Tex. Crim. App. 1999) (citing Boykin v. State, 818 S.W.2d
3
782, 785–86 & 786 n.4 (Tex. Crim. App. 1991) to support legal holding). See generally
Gonzales, 435 S.W.3d at 813 n.11 (“Finally, it is not clear how much precedential value
a pronouncement delivered by this Court in a footnote should carry, considering that
we have stated [in a footnote] that footnotes ‘should receive minimal precedential
value.’” (quoting Young v. State, 826 S.W.2d 141, 144 n.5 (Tex. Crim. App. 1991)).
Disregarding the placement of a court of criminal appeals’ holding—in the text or in a
footnote—seems appropriate especially because the court of criminal appeals recently
and routinely began placing all of its supporting citations in footnotes. See, e.g., Beham
v. State, No. PD-0638-17, 2018 WL 4344389, at *1–7 (Tex. Crim. App. Sept. 12, 2018);
White v. State, 549 S.W.3d 146, 147–58 (Tex. Crim. App. 2018).
In any event, the court of criminal appeals did not stop at its “facts constituting
bigamy” holding in the text. In Arteaga, Judge Kevin Yeary filed a concurring opinion
that addressed the inconsistency between the text and footnote 9 and posited that the
correct holding was that “the State need not ‘prove facts constituting bigamy’ in the
sense that it must prove the actor actually committed bigamy.” 521 S.W.3d at 341
(Yeary, J., concurring). Indeed, he concluded that because footnote 9 clarified the
court’s holding that the facts need only show bigamy would have been committed if
the perpetrator were to marry the victim, he was “satisfie[d] . . . that the Court’s
understanding [was] the same as [his] own.” Id. at 344. The Arteaga majority did not
respond to Judge Yeary’s stated understanding of its holding.
4
Almost a year after Arteaga, the court of criminal appeals again addressed the
sexual-assault enhancement in Estes. 546 S.W.3d at 699–702. The Estes court relied
on Arteaga and began its analysis of section 22.011(f)—the sexual-assault
enhancement—by summarizing the Arteaga holding to be that as stated in footnote 9:
“We have interpreted Section 22.011(f) as essentially requiring proof ‘that the
defendant committed sexual assault and that, if he were to marry or claim to marry his
victim, or to live with the victim under the appearance of being married, then he
would be guilty of bigamy.’” Id. at 699 & n.50 (quoting Arteaga, 521 S.W.3d at 335
n.9). Therefore, the court of criminal appeals recognized that its holding in Arteaga
required the State to establish that the alleged offense would constitute bigamy if the
victim and the perpetrator were married or held themselves out to be married, not
that bigamy was actually committed.
Accordingly, I would hold that the State was required to proffer sufficient
evidence that if Senn had married or held himself out to be married to his daughter,
he would have committed bigamy.1 Because the State did so by proffering undisputed
evidence that Senn was married to someone else at the time he sexually assaulted his
daughter, I would preliminarily conclude that the sexual-assault enhancement was
1
The fact that Senn was barred from marrying his daughter by consanguinity
does not affect an analysis of the statutory sexual-assault enhancement, which refers
solely to bigamy. See Arteaga, 521 S.W.3d at 338; see also Cope v. State, No. 05-17-
00515-CR, 2018 WL 2926752, at *3 (Tex. App.—Dallas June 7, 2018, no pet.) (mem.
op., not designated for publication).
5
supported by the evidence and would request a response to the State’s motion for
rehearing.2 See Tex. R. App. P. 49.2. Because the majority does not, I respectfully
dissent.
/s/ Lee Gabriel
Lee Gabriel
Justice
Publish
Delivered: October 25, 2018
The court of criminal appeals, by vacating our prior judgment, also remanded
2
Senn’s fourth issue in which Senn argued that the jury charge erroneously lacked a
bigamy definition. State v. Senn, No. PD-0145-17, 2017 WL 5622955, at *1 (Tex.
Crim. App. Nov. 22, 2017) (not designated for publication). Because the majority
does not address Senn’s fourth issue after sustaining his first issue, I express no
opinion on the merits of issue four. In his petition for discretionary review, Senn did
not challenge this court’s prior determination of his second and third issues.
6