Michael Ray Senn v. State

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

Before Walker, Meier, and Gabriel, JJ.
Opinion on Remand and on Rehearing by Justice Walker
Dissenting Opinion on Remand and on Rehearing by Justice Gabriel
 OPINION ON REMAND AND ON REHEARING

On May 17, 2018, we issued an opinion on remand applying the holding from

Arteaga v. State, 521 S.W.3d 329, 336 (Tex. Crim. App. 2017)—that “[t]he legislature

intended for the State to prove facts constituting bigamy whenever it alleges that the

defendant committed sexual assault, and the State invokes [s]ection 22.011(f)” of the

Texas Penal Code—as we were instructed to do by the Texas Court of Criminal

Appeals. See Senn v. State (Senn III), No. 02-15-00201-CR, 2018 WL 2248673, at *2

(Tex. App.—Fort Worth May 17, 2018, no pet. h.) (op. on remand); State v. Senn (Senn

II), No. PD-0145-17, 2017 WL 5622955, at *1 (Tex. Crim. App. Nov. 22, 2017) (not

designated for publication) (remanding case to this court because we “did not have

the benefit of [the court of criminal appeals’s] opinion in Arteaga” and stating that it

held in Arteaga that under section 22.011(f), “the [l]egislature ‘intended for the State to

prove facts constituting bigamy’”). Following our opinion on remand, the State filed

a motion for rehearing. The State asserted that we had erred by concluding that

section 22.011(f) required the State to prove facts constituting bigamy when it alleged

that Senn committed sexual assault and the State invoked section 22.011(f) of the

penal code to elevate Senn’s punishment range for sexual assault to a first-degree

felony offense. Relying on a footnote in the court of criminal appeals’s opinion in

Arteaga, as well as Judge Yeary’s concurring opinion, the State argued that it was

required to prove only “that, if he [Senn] 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

2
guilty of bigamy.” We deny the State’s motion for rehearing but withdraw our prior

opinion and judgment dated May 17, 2018, and substitute in their places this opinion

and judgment to clarify our prior holding.

I. INTRODUCTION

As set forth in our opinion on original submission, Senn sexually assaulted and

impregnated his biological daughter Brenda1 while he was married to her step-mother.

A jury convicted Senn of prohibited sexual conduct, for which he was sentenced to

twenty years’ imprisonment,2 and of sexual assault, for which he was sentenced to life

imprisonment after the jury affirmatively answered a special issue statutorily

enhancing his sexual assault conviction from a second-degree felony to a first-degree

felony under section 22.011(f). See Tex. Penal Code Ann. § 22.011(f) (West Supp.

2018), § 25.02(a)(1), (c) (West 2011). After addressing Senn’s four issues—challenging

the sufficiency of the evidence to trigger the enhancement, the constitutionality of

section 22.011(f) as applied to him, and the absence of a bigamy instruction from the

jury charge—we affirmed both of his convictions. See Senn v. State (Senn I), 551

1
To protect the anonymity of the victim, we use a pseudonym. See McClendon v.
State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
2
Senn’s notice of appeal states that he is appealing “from the judgments
heretofore rendered against him,” but he does not raise any issue on appeal related to
his prohibited-sexual-conduct conviction.

3
S.W.3d 172, 183 (Tex. App.—Fort Worth 2017),3 vacated, Senn II, 2017 WL 5622955,

at *1.

In a per curiam opinion, the court of criminal appeals vacated our judgment

and remanded this case to us because we did not have the benefit of its subsequent

opinion in Arteaga, which construed for the first time the enhancement provision in

section 22.011(f) in the context of jury-charge error. See Senn II, 2017 WL 5622955, at

*1. After applying Arteaga’s holding—that “[t]he legislature intended for the State to

prove facts constituting bigamy whenever it alleges that the defendant committed

sexual assault, and the State invokes [s]ection 22.011(f)”—to the facts here, we hold

that the evidence is insufficient to trigger the statutory enhancement of Senn’s sexual

assault charge. Accordingly, we will affirm Senn’s unchallenged conviction for

prohibited sexual conduct, modify the trial court’s judgment on the sexual assault to

reflect a conviction for a second-degree felony, reverse the judgment on the sexual

In Senn I, we held that “[t]he State was therefore not required to show that
3

Senn was engaged in a bigamous relationship with Brenda under section 25.01 in
order to trigger application of penal code section 22.011(f)’s enhancement provision.”
Id. at 178. We reached this holding after conducting a statutory-construction analysis
and concluding that the phrase in section 22.011(f)—“prohibited from marrying”—is
not tied to section 22.011(f)’s phrase—“under section 25.01.” The court of criminal
appeals rejected this statutory-construction analysis in Arteaga. See 531 S.W.3d at 335–
37.

4
assault as to punishment, and remand the sexual assault case for a new trial on

punishment.4

II. THE EVIDENCE IS INSUFFICIENT TO TRIGGER THE
STATUTORY ENHANCEMENT

A. The Statutory Provisions at Issue

Section 22.011(f) enhances the offense of sexual assault from a second-degree

felony 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 [s]ection 25.01.”

Tex. Penal Code Ann. § 22.011(f). Section 25.01 (the bigamy statute) states,

(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

Because Senn does not challenge the sufficiency of the evidence to support the
4

elements of sexual assault as a second-degree felony, we omit a detailed factual and
procedural background.

5
 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.

Id. § 25.01 (West Supp. 2018).

B. The Parties’ Positions

In his first issue, Senn argues that the evidence is insufficient to the trigger the

statutory enhancement under section 22.011(f) because there is no evidence that he

was engaged in a bigamous relationship with Brenda. On rehearing of our opinion on

remand, the State contends that the evidence necessary to trigger the statutory

enhancement under section 22.011(f) is proof that “if he [Senn] 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.”

C. Under Arteaga, What Evidentiary Burden Does the State Bear to
Trigger the Enhancement Under Section 22.011(f)?

Before we conduct a sufficiency analysis of the evidence to support

enhancement of Senn’s conviction under section 22.011(f), we must first determine

exactly what the State was required to prove to attain enhancement of Senn’s

conviction under section 22.011(f). This was the very question the Texas Court of

Criminal Appeals told us it had answered in Arteaga.

The court of criminal appeals in Arteaga set forth the issue—the same issue

presented to this court by the State’s motion for rehearing—followed by the various

interpretations of section 22.011(f):
6
 [W]hat does the State have to prove when it invokes [s]ection 22.011(f)
of the sexual-assault statute, which incorporates the bigamy statute, to
elevate sexual assault from a second-degree felony to a first-degree
felony?[5]

The State argues that [s]ection 22.011(f) requires proof under the bigamy
statute only when the victim is a person who[m] the defendant is
prohibited from living with under the appearance of being married. The
court of appeals reached a “middle ground,” deciding that the State is
required to prove facts that would constitute bigamy under [s]ection
25.01 when the victim is a person that (1) the defendant was prohibited
from claiming to marry or (2) when the victim was someone who[m] the
defendant was prohibited from living [with] under the appearance of
being married. We, however, conclude that the State is required to
prove facts constituting bigamy [under section 25.01][6] under all three
provisions of 22.011(f), that is, when the defendant was prohibited from
(1) marrying the victim or (2) claiming to marry the victim, and when the
defendant was prohibited from (3) living with the victim under the
appearance of being married.

521 S.W.3d at 335.

This section of the Arteaga opinion is immediately followed by footnote 9,

which is relied on by the State in its motion for rehearing:

5
The dissent relies partially upon Estes v. State, 546 S.W.3d 691, 699 & n.50
(Tex. Crim. App. 2018). The issue addressed in Estes, however, was an as-applied
constitutional challenge to section 22.011(f), not a challenge to the sufficiency of the
evidence produced to support enhancement of a conviction under section 22.011(f) as
in this appeal.
6
Throughout the Arteaga opinion, the court of criminal appeals makes clear that
the three prohibitions in section 22.011(f) must be interpreted in conjunction with the
bigamy statute—Texas Penal Code section 25.01. 521 S.W.3d at 339 (stating that “it
was the State’s responsibility to prove that Arteaga was ‘prohibited from marrying the
victim . . . under [s]ection 25.01’”) (emphasis added); see also id. at 338 (“As we have
explained, however, the bigamy statute defines when a person is prohibited from
marrying another for purposes of 22.011(f), not the [f]amily [c]ode.”) (emphasis
added). We therefore insert the omitted words to provide additional clarity.

7
 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 under
[s]ection 22.011(f), 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.

Id. at 335 n.9.

The court of criminal appeals in the body of its Arteaga opinion then concluded

that the legislature drafted section 22.011(f) using the modifying phrase “prohibited

from” to incorporate all six bigamy prohibitions from section 25.01: (1) marriage is

prohibited if a person does marry a person other than his spouse; (2) marriage is

prohibited if a person does marry someone whom he knows is already married; (3) a

person is prohibited from claiming to marry a person other than his spouse; (4) a

person is prohibited from claiming to marry a person whom he knows is already

married; (5) a person is prohibited from living under the appearance of being married

with a person other than his spouse; and (6) a person is prohibited from living under

the appearance of being married with a person whom he knows is already married.

See id. at 336 (citing section 25.01(a)(1)(A), (a)(1)(B), (a)(2)(A), (a)(2)(B)). The court of

criminal appeals held that the legislature intended for the State to prove facts constituting

bigamy under one of the six bigamy prohibitions enumerated above whenever it alleges

that the defendant committed sexual assault and it invokes section 22.011(f). See id.

In support of its holding, the court of criminal appeals recognized the polygamy

purposes underlying the enactment of section 22.011(f) and further recognized that, in
8
cases such as this in which the victim has been sexually abused by a family member,

statutory protection already exists as found in Texas Penal Code section 25.02. See id.

at 337 (citing section 25.02, which prohibits sex between family members). And in

remanding this case to us, the court of criminal appeals summarized its Arteaga7

holdings as follows:

We recently handed down our opinion in Arteaga v. State, [citation
omitted] in which we held that under § 22.011(f), the [l]egislature
“intended for the State to prove facts constituting bigamy.” We also
held that the jury charge in that case was erroneous because it neglected
to include the definition of bigamy from § 25.01.

Senn II, 2017 WL 5622955, at *1.

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. The State on rehearing contends that footnote

9’s standard applies; Senn argues that the State was required to prove facts

constituting bigamy. Examining footnote 9, we note that the “would constitute

7
Arteaga involved jury-charge error, but the analysis also governs the sufficiency
challenge here because we are required to compare the elements of the crime as
defined by the hypothetically correct jury charge to the evidence adduced at trial, and
Arteaga set forth what must be included in a hypothetically correct jury charge for the
statutory enhancement at issue here. See Jenkins v. State, 493 S.W.3d 583, 599 (Tex.
Crim. App. 2016). Consequently, although in Senn I we analyzed section 22.011(f)
without regard to section 25.01, we now apply the Arteaga analysis incorporating
section 25.01. See Arteaga, 521 S.W.3d at 336–38; Senn I, 2017 WL 117306, at *1–3.

9
bigamy” language referenced by footnote 9 is not used in the sentence immediately

preceding the footnote, which sets forth the court’s holding, but rather is used in a

prior sentence that summarizes the court of appeals’s holding. See Arteaga, 521

S.W.3d at 335. And although the body of the Arteaga opinion uses the “would

constitute bigamy” language five times in its statutory construction analysis comparing

section 22.011(f) to section 25.01, the court of criminal appeals ultimately concludes

its statutory construction analysis with a holding using the “facts constituting bigamy”

language, as follows:

When the two statutes are considered in light of each other, the
grammatical ambiguity in [s]ection 22.011(f) is clarified: The legislature
intended for the State to prove facts constituting bigamy whenever
it alleges that the defendant committed sexual assault, and the State
invokes [s]ection 22.011(f).

Id. at 335–36 (bolded emphasis added). Throughout the Arteaga opinion, each time

the holding is referenced, the court of criminal appeals does not use the “would

constitute bigamy” language but instead utilizes the “facts constituting bigamy”

language. See id. at 335 (“We, however, conclude that the State is required to prove

facts constituting bigamy under all three provisions of 22.011(f), that is, when the

defendant was prohibited from (1) marrying the victim or (2) claiming to marry the

victim, and when the defendant was prohibited from (3) living with the victim under

the appearance of being married.”) (emphasis added), 336 (“The legislature intended

for the State to prove facts constituting bigamy whenever it alleges that the defendant

committed sexual assault, and the State invokes [s]ection 22.011(f).”) (emphasis

10
added). Nor is the “would constitute bigamy” language contained in the court of

criminal appeals’s opinion remanding this case to us; that opinion also utilizes the

“facts constituting bigamy” language. See Senn II, 2017 WL 5622955, at *1 (“We

recently handed down our opinion in Arteaga v. State, [citation omitted] in which we

held that under § 22.011(f), the [l]egislature ‘intended for the State to prove facts

constituting bigamy.’”) (emphasis added).

The court of criminal appeals has previously instructed that footnotes and

concurring opinions are not precedential. See Gonzales v. State, 435 S.W.3d 801, 813

n.11 (Tex. Crim. App. 2014) (“We agree that we have intimated that we are not bound

by holdings expressed in the footnotes of our own opinions.”); Young v. State, 826

S.W.2d 141, 144 n.5 (Tex. Crim. App. 1991) (stating that footnotes should receive

minimal precedential value); see also Unkart v. State, 400 S.W.3d 94, 101 (Tex. Crim.

App. 2013) (stating that concurring opinions have only persuasive value); Schultz v.

State, 923 S.W.2d 1, 3 n.2 (Tex. Crim. App. 1996) (“As a concurring opinion, Lugo-

Lugo is not binding precedent.”). For this reason, and also because we are constrained

to follow the instructions given to us on remand by the court of criminal appeals, we

decline the State’s request on rehearing urging us to apply the “would constitute

bigamy” language in our sufficiency analysis.8 See Senn II, 2017 WL 5622955, at *1

The dissent asserts that we are bound by Arteaga’s footnote 9. This may be so.
8

But we are undisputedly bound by the court of criminal appeals’s stated holding in the
Arteaga opinion. And we are undisputedly bound by the court of criminal appeals’s
opinion remanding this case to us in light of Arteaga and stating that in Arteaga it had
held “the [l]egislature ‘intended for the State to prove facts constituting bigamy.’” See
11
(remanding case to this court because we “did not have the benefit of [the court of

criminal appeals’s] opinion in Arteaga” and stating that it had held in Arteaga that

under section 22.011(f), “the [l]egislature ‘intended for the State to prove facts

constituting bigamy’”); see also Senn II mandate, Texas Court of Criminal Appeals,

http://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=c78d3ae4-9601-aa1-

af87-8ba4242f7e25&coa=coscca&DT=MANDATE%20ISSD&MediaID=cd646b38-

e360-436c-bcb6-611407c7aa66 (commanding us to “observe the order of our said

Court of Criminal Appeals in this behalf and in all things to have it duly recognized,

obeyed[,] and executed”) (omitted use of bolded all caps). We apply the same

sufficiency standard that we applied in our original opinion on remand. See Senn III,

2018 WL 2248673, at *2.

D. Standard of Review

In our due-process review of the sufficiency of the evidence, we view all of the

evidence in the light most favorable to the jury’s answer to the special issue to

determine whether any rational trier of fact could have found the essential elements of

the special issue beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99

S. Ct. 2781, 2789 (1979); Gale v. State, 998 S.W.2d 221, 224 (Tex. Crim. App. 1999);

Stewart v. State, 350 S.W.3d 750, 755 (Tex. App.—Amarillo 2011, pet. ref’d).

Senn II, 2017 WL 5622955, at *1. Therefore, here, we are compelled to apply that
undisputedly binding precedent and not footnote 9.

12
 To determine whether the State has met its burden under Jackson to prove a

defendant’s guilt beyond a reasonable doubt, we compare the elements of the special

issue as defined by the hypothetically correct jury charge to the evidence adduced at

trial. Cf. Jenkins, 493 S.W.3d at 599; Crabtree v. State, 389 S.W.3d 820, 824 (Tex. Crim.

App. 2012) (“The essential elements of the crime are determined by state law.”). A

hypothetically correct jury charge is one that accurately sets out the law, is authorized

by the indictment, does not unnecessarily increase the State’s burden of proof or

restrict the State’s theories of liability, and adequately describes the particular offense

for which the defendant was tried. Jenkins, 493 S.W.3d at 599. The law as authorized

by the indictment means the statutory elements of the special issue as modified by the

factual details and legal theories contained in the charging instrument. Cf. id.

E. Applying Arteaga to These Facts

Pursuant to the court of criminal appeals’s holding in Arteaga, the State was

required to prove facts constituting bigamy to enhance Senn’s second-degree felony

sexual assault to first-degree felony sexual assault. See 521 S.W.3d at 336 (stating

“[t]he legislature intended for the State to prove facts constituting bigamy

whenever . . . the State invokes [s]ection 22.011(f)”), id. at 339 (“[I]t was the State’s

responsibility to prove that Arteaga was ‘prohibited from marrying the victim . . .

under [s]ection 25.01.’”); see also Estes, 546 S.W.3d at 699 (quoting Arteaga’s holding).

This does not mean that the State was required to indict Senn for bigamy, nor does it

require the State to obtain a predicate finding of bigamy in order to trigger the

13
enhancement under section 22.011(f). Instead, a hypothetically correct jury charge

requires the State to prove that Senn was “prohibited from marrying the victim . . .

under [s]ection 25.01.” See Arteaga, 521 S.W.3d at 339 (emphasis added). Thus, to

trigger the enhancement under section 22.011(f), the State was required to prove facts

constituting a sexual assault and facts constituting one of the six bigamy prohibitions

listed in section 25.01.

But here, the State put on evidence only of Senn’s sexual assault of Brenda and

his marriage license reflecting his marriage to Brenda’s step-mother. There was no

evidence that Senn took, attempted, or intended to take any action involving marrying

or claiming to marry Brenda or living with Brenda under the appearance of being

married. Evidence of the sexual assault and of Senn’s marriage license to Brenda’s

step-mother, standing alone, do not amount to facts constituting one of the six

bigamy prohibitions under section 25.01. Moreover, the State conceded in its original

briefing9 to this court “that it offered no evidence that [Senn] committed a bigamy

offense with [Brenda].”10 Thus, regardless of the correctness or incorrectness of the

section 22.011(f) special issue submitted in this case,11 because no facts exist that Senn

We did not request, nor did the parties file, new briefing when this case was
9

submitted after remand.

Because the State did not have the benefit of Arteaga’s construction of section
10

22.011(f) when it tried this case, the State mistakenly believed that no proof of bigamy
was required under section 22.011(f).

As set forth above, Arteaga held that a jury charge involving a special issue on
11

section 22.011(f) must include the definition of bigamy from section 25.01. 521
14
committed a bigamy offense with Brenda, the evidence is insufficient to “prove facts

constituting bigamy” as required by Arteaga’s holding. See id. at 336 (stating that “[t]he

legislature intended for the State to prove facts constituting bigamy whenever . . . the

State invokes [s]ection 22.011(f)”). Based on the evidence presented, no reasonable

factfinder could have found beyond a reasonable doubt that Senn and Brenda’s

relationship constituted bigamy when he sexually assaulted her. See Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; cf. Torres v. State, No. 03-14-00712-CR, 2017 WL 3124238, at

*5 (Tex. App.—Austin July 21, 2017, no pet.) (mem. op., not designated for

publication) (holding, in light of Arteaga, evidence insufficient to prove that appellant

“committed the first-degree-felony offense of sexual assault of a person whom he was

prohibited from marrying under the bigamy statute”). Accordingly, we hold the

evidence insufficient to trigger the statutory enhancement for sexual assault under

section 22.011(f), and we sustain Senn’s first issue.12

S.W.3d at 338–39. Although the jury charge here did not comply with Arteaga’s
holding, we need not address it further because Senn’s jury charge issue would not
afford him greater relief than his sufficiency challenge. See Curry v. State, 30 S.W.3d
394, 404 (Tex. Crim. App. 2000).
12
Because we hold the evidence insufficient to trigger the statutory
enhancement under section 22.011(f), we need not address Senn’s fourth issue
challenging the correctness of the jury charge or his second and third issues
challenging the constitutionality of section 22.011(f). See Tex. R. App. P. 47.1
(requiring appellate court to address only issues necessary to disposition of appeal).

15
 F. Effect on Conviction and Punishment

Senn prays that we vacate the sentence on his sexual assault conviction and

enter a judgment of acquittal. Because Senn does not challenge the sufficiency of the

evidence to support the elements of sexual assault as a second-degree felony, it would

be an “‘unjust’ windfall” for us to order an acquittal on the sexual assault charge based

on insufficient evidence relating solely to the statutory enhancement that raised the

offense to the level of a first-degree felony. See Thornton v. State, 425 S.W.3d 289, 298

(Tex. Crim. App. 2014). Moreover, in the course of convicting Senn of sexual assault

as a first-degree felony, the jury must have found every element necessary to convict

him of the charged sexual assault as a second-degree felony; therefore, there is

sufficient evidence to support a second-degree felony conviction for sexual assault.

See id. at 300. Thus, we modify Senn’s sexual assault judgment to reflect that he was

convicted of a second-degree felony, but we must remand that charge to the trial

court for a new trial on punishment so that a factfinder may consider the proper

punishment range. See id.; Torres, 2017 WL 3124238, at *6 (modifying judgment to

reflect a conviction for the second-degree-felony offense of sexual assault, affirming

the judgment as modified as to the finding of guilt, reversing the part of the judgment

imposing sentence, and remanding to the district court for a new punishment hearing

for that offense); Smith v. State, Nos. 02-08-00394-CR, 02-08-00395-CR, 2010 WL

3377797, at *15–16 (Tex. App.—Fort Worth Aug. 27, 2010, no pet.) (not designated

for publication) (holding that when the first-degree felony range of punishment under

16
section 22.011(f) had been improperly applied to a defendant but the defendant had

not challenged the sufficiency of the evidence to support second-degree felony

convictions, the appropriate remedy was to “remand for a new trial on punishment

alone”).

III. CONCLUSION

Having sustained Senn’s first issue, which is dispositive of the appeal on

remand, we affirm the trial court’s judgment of conviction on Senn’s unchallenged

conviction for prohibited sexual conduct, modify the trial court’s judgment on Senn’s

charge for sexual assault to reflect a second-degree felony, reverse the trial court’s

judgment on Senn’s charge for sexual assault as to punishment, and remand the sexual

assault case to the trial court for a new trial on punishment only.

/s/ Sue Walker
Sue Walker
Justice

Publish

Delivered: October 25, 2018

17