Robert Michael Arteaga, Jr. v. State

NUMBERS 13-13-00612-CR and 13-13-00613-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ROBERT MICHAEL ARTEAGA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 424th District Court
of Burnet County, Texas.

OPINION
Before Justices Benavides, Perkes, and Longoria
Opinion by Justice Benavides
Appellant, Robert Michael Arteaga, appeals his convictions in separate cause

numbers for multiple counts of sexual assault of a child and possession of child

pornography, a first and third degree felony respectively. See TEX. PENAL CODE ANN. §§

22.011, 43.26 (West, Westlaw through 2015 R.S.). By two issues, Arteaga argues: (1)
the trial court committed egregious error by charging the jury under the consanguinity

statute rather than requiring proof of bigamy as specified in the sexual assault statute;

and (2) the trial court committed error by preventing his trial counsel from arguing to the

jury that they could consider Arteaga’s and other’s perspectives on whether the images

possessed were lewd. We affirm.

I. BACKGROUND1

In cause number 13-13-00612-CR, a jury convicted Arteaga of twenty-three counts

of sexual assault of a child.2 See TEX. PENAL CODE ANN. § 22.011. The complainant,

HSB Doe (“Doe”), was his biological daughter.3 Sexual assault of a child is a second

degree felony, except it can rise 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.” TEX. PENAL CODE ANN. § 22.011(f). Arteaga was charged with sexual assault

of a child he was “prohibited from marrying”, Doe, in the indictment. This charge made

all the counts charging him under this cause number first degree felonies. Id. Section

25.01 defines the offense of bigamy. See TEX. PENAL CODE ANN. § 25.01 (West,

Westlaw through 2015 R.S.). The jury charge included the definition for consanguinity

from the Texas Family Code, which specifies what would constitute a void marriage.

1 Pursuant to a docket-equalization order issued by the Texas Supreme Court, the two appeals
were transferred to this Court from the Third Court of Appeals in Austin, Texas. See TEX. GOV’T CODE
ANN. § 73.001 (West, Westlaw through 2015 R.S.). Appellate Cause No. 13-13-00612-CR is the appeal
from trial court cause number 40517. Appellate Cause No. 13-13-00613-CR is the appeal from the trial
court cause number 40138.
2 Arteaga’s two indictments were tried during a consolidated trial. See TEX. PENAL CODE ANN. §
3.02 (West, Westlaw through 2015 R.S.). Our analysis allows us to consider them together one opinion.

3 The victim was identified in the indictment and at trial by the pseudonym, “HSB Doe.”

2
See TEX. FAMILY CODE ANN. § 6.201 (West, Westlaw through 2015 R.S.). Additionally, a

special issue was also submitted along with the jury charge asking the jury: “Do you find

from the evidence beyond a reasonable doubt that the Defendant, Robert Michael

Arteaga, was prohibited from marrying [Doe]?” Arteaga did not object to the inclusion of

the definition of consanguinity in the jury charge. The jury convicted Arteaga of all

twenty-three counts of sexual assault of a child, answered yes to the special issue, and

sentenced him to life imprisonment in the Texas Department of Criminal Justice—

Institutional Division (“TDCJ-ID”) on each count.

In cause number 13-13-00613-CR, the jury convicted Arteaga of seventeen counts

of possession of child pornography.4 See TEX. PENAL CODE ANN. § 43.26. The illegal

photographs at issue were found on Arteaga’s personal computer and depicted his

daughter, Doe, engaging in sexual acts. Arteaga maintained that he did not consider

the photographs to be child pornography. The jury found Arteaga guilty on all counts of

the jury charge and sentenced him to ten years imprisonment in the TDCJ-ID and

assessed a $10,000 fine on each count. The trial court sentenced Arteaga accordingly

and ordered that all sentences be served consecutively. See TEX. PENAL CODE ANN. §

3.03 (West, Westlaw through 2015 R.S.).

During trial, the State put on multiple witnesses, including the complainant, Doe.

Doe testified that Arteaga had been molesting her since the age of four. Doe made an

outcry to her high school counselor at the age of fifteen. Doe testified that the

4 The State had originally charged Arteaga with twenty-three counts of possession of child
pornography, but abandoned six of the counts prior to submitting the charge to the jury. See TEX. PENAL
CODE ANN. § 43.26.

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molestation had occurred in three different counties throughout her life: Harris, Blanco,

and Burnet Counties. Doe stated that Arteaga began touching her genital area around

the age of four, and he told Doe it was “something special that they shared” and “not to

tell anyone.” When Doe was around six or seven years old, she testified Arteaga began

having them both perform oral sex on each other. Doe stated that Arteaga began having

vaginal intercourse with her around the third grade. She also testified that Arteaga took

videos of them having vaginal intercourse at least twice and put the videos up on the

internet. While filming the videos, Arteaga made Doe wear masks to hide her face.

Doe identified the masks during trial from photographs taken by police at Arteaga’s home.

Arteaga told Doe she was special and if she became pregnant, they would get

married. Doe testified that Arteaga had a vasectomy to prevent her from getting

pregnant, and she had her own bedroom next to his so he would have easier access to

Doe.5 On her fourteenth birthday, Arteaga took Doe to San Antonio, purportedly to visit

the Alamo. Instead of going to the Alamo, Arteaga got a hotel room where they “drank

liquor and had sex.” Around that time, Doe testified Arteaga began penetrating Doe’s

anus with his penis. She stated that Arteaga had intercourse with her repeatedly, but

that it became more frequent as she got older. By the time she was around fourteen,

Doe and Arteaga would have vaginal intercourse at least once a week “[e]verytime, like,

[appellant’s girlfriend] would go to the store.” Each incident would normally include Doe

performing oral sex on Arteaga as well. Doe testified that Arteaga would create

situations where they would be alone: “Whenever we [needed] groceries he would send

5 Of the five children in the home, only Doe had her own bedroom. The other children shared
bedrooms across the house from Arteaga and Doe.

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[appellant’s girlfriend] to the store and have me stay or he would text me and be like tell

[appellant’s girlfriend] you don’t feel good or you just want to stay home, you just don’t

want to go with her to the store.” Doe testified appellant’s girlfriend would go to the store

often because there were seven people living in the household.

Doe also testified that Arteaga used a variety of adult “sex toys” on her. During

trial, Doe identified many of the “toys” found at Arteaga’s home. Doe also identified

several pornographic videos seized from Arteaga’s home because she stated Arteaga

would make her watch them. Several nude photographs of Doe were found on Arteaga’s

computer. Doe testified she took those photographs with her cell phone at Arteaga’s

request, mostly when she was visiting her grandparents for the summer. Doe said her

older sister knew about the molestation and acted as a lookout for Arteaga. At one point,

Doe testified that Arteaga had spoken about a sexual encounter involving Doe, her sister,

and him, but that it never occurred. Doe stated she learned the relationship she had

with Arteaga was wrong as she got older and asked him to stop. Arteaga said he would

stop their relationship but it would “break his heart.” Both Doe and her older sister went

to the school counselor to make the outcry.

After her outcry, Doe and her siblings were removed from Arteaga by Texas Child

Protective Services and placed with Arteaga’s parents in Galveston. Doe testified

Arteaga’s family pressured her to recant the allegations. Arteaga called Doe repeatedly

and devised a story for Doe to tell law enforcement. Doe said that she did recant her

story to police, but would not have done so without the pressure she felt from her family.

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 The State also called Amy Callaway, the forensic interviewer, to testify. Callaway

testified about “grooming” and the effect it can have on children who are abused.

Callaway stated it was common for children to outcry and then recant. In certain cases,

the children will then reaffirm the outcry after time passes. Callaway said it was very

common for children who were victimized to still love and want to be around the

perpetrator, and that this was one of the worst cases of abuse she had ever seen.

Doe was examined by a sexual assault nurse examiner (“SANE nurse”) following

her outcry and interview. The SANE nurse identified a tear to Doe’s hymen typical with

sexual penetration prior to sexual maturity. She stated Doe had a significant amount of

scar tissue in her genital area, which showed her that the abuse had been occurring for

a long time. Doe also had healing tears to her anus. The SANE nurse also found a

genital wart on Doe, but could not conclude with certainty that it was a result of sexual

intercourse.

Arteaga’s girlfriend was called by the State to testify. She stated that Arteaga

was very controlling and his behavior with Doe was very different from the other children

in the household. She stated sometimes she felt like Doe was Arteaga’s girlfriend and

she was the child. The girlfriend testified they did use “sex toys” in their intimate

encounters, but she did not recognize all the “toys” that were found at the home. She

also stated Arteaga and she did not use lubricant, even though it was found with the “toys”

as well. The girlfriend also testified that after Doe was removed from the home, she

overheard Arteaga on the phone with Doe and her sister. He was telling the girls to “stick

to their stories” and would not speak to the girls in her presence. The girlfriend stated

that now “she felt stupid” and all the behavior she had witnessed over their years together

6
“makes sense.”

Arteaga testified in his own defense and stated Doe made the allegations up

because she wanted to live with her biological mother, who was less strict than he was.

He stated that his older daughter had shown him the nude photographs of Doe on Doe’s

cell phone, saying that Doe was sending them to her boyfriend. Arteaga testified that he

had his older daughter send the photos to his cellphone and he placed them on his laptop

computer so it would be easier to confront Doe with them. However, Doe did not recall

being confronted with the photographs during her testimony. After a finding of guilty by

the jury, this appeal followed.

II. JURY CHARGE ERROR

By his first issue, Arteaga argues “it was error to charge the jury under the

consanguinity statute rather than requiring proof of bigamy as specified in the sexual

assault statute.” We disagree.

A. Standard of Review

“In analyzing a jury-charge issue, our first duty is to decide if error exists.”

Rodriguez v. State, 456 S.W.3d 271, 280 (Tex. App.—Houston [1st Dist.] 2014, pet ref’d.)

(citing Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g)).

Only if error is found, do we then consider whether an objection to the charge was made

and analyze for harm. Id. “The degree of harm necessary for reversal depends upon

whether the error was preserved.” Id. (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex.

Crim. App. 1996)). If “an error is preserved with a timely objection. . . . then the jury-

charge error requires reversal if the appellant suffered some harm as a result of the error.”

Sanchez v. State, 376 S.W.3d 767, 774 (Tex. Crim. App. 2012) (citing Almanza, 686

7
S.W.2d at 171).

The Court of Criminal Appeals “has interpreted this to mean that any harm,

regardless of degree, is sufficient to require reversal.” Rodriguez, 456 S.W.3d at 280.

But if the “defendant never presents a proposed jury instruction (or fails to object to the

lack of one), any potential error in the charge is reviewed only for ‘egregious harm’ under

Almanza.” Oursbourn v. State, 259 S.W.3d 159, 174 (Tex. Crim. App. 2008). As in this

case, when an “appellant d[oes] not object to the charge, the error does not result in

reversal ‘unless it was so egregious and created such harm that appellant was denied a

fair trial.’” Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) (citing Almanza,

686 S.W.2d at 171). “Errors that result in egregious harm are those that affect the ‘very

basis of the case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally affect a defensive

theory.’” Warner, 245 S.W.3d at 461–62 (citing Hutch, 922 S.W.2d at 171).

The failure to preserve jury-charge error is not a bar to appellate review but rather

establishes the degree of harm necessary to the reversal. Warner, 245 S.W.3d at 461.

To establish harm, the “appellant must have suffered actual, rather than theoretical,

harm.” Warner, 245 S.W.3d at 461. Neither the State nor the appellant bears the

burden on appeal to prove harm. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim.

App. 2013).

B. Applicable Law

A person commits the offense of sexual assault of a child, a second-degree felony,

if the person intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of a child by any
means;

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 (B) causes the penetration of the mouth of a child by the sexual organ of
the actor;

(C) causes the sexual organ of a child to contact or penetrate the mouth,
anus, or sexual organ of another person, including the actor;

(D) causes the anus of a child to contact the mouth, anus, or sexual
organ of another person, including the actor; or

(E) causes the mouth of a child to contact the anus or sexual organ of
another person, including the actor.

TEX. PENAL CODE ANN. § 22.011(a)(2). “Child” is defined as “a person younger than 17

years of age.” Id. § 22.011(c)(1). The punishment range of § 22.011 is described in

subsection f, which states:

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.

Id. § 22.011(f). Arteaga was charged by the indictment under § 22.011(f) with a first

degree felony on each count of sexual assault because the State alleged in each count

of the indictment that Doe was someone that Arteaga was “prohibited from marrying.”

Id. Section 25.01 (“the bigamy statute”) of the Texas Penal Code contains the following

language:

(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

9
 (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.

See TEX. PENAL CODE ANN. § 25.01.

C. Discussion

1. Error Analysis

Arteaga argues that the trial court committed reversible error by including the

definition of a “void marriage” from the Texas Family Code in the jury charge. See TEX.

FAMILY CODE ANN. § 6.201. The trial court included in the abstract section of the jury

charge the following definition:

You are instructed that a marriage is void if one party to the marriage is
related to the other as:

(1) an ancestor or descendant, by blood or adoption;

(2) a brother or sister, of the whole or half blood or by adoption;

(3) a parent’s brother or sister, of the whole or half blood or by
adoption; or

(4) a son or daughter of a brother or sister, of the whole or half
blood or by adoption.

Id. If error were found from the inclusion of this definition, it would be required to be

“egregious harm” in order to warrant a reversal of the trial court’s verdict because Arteaga

did not object to the inclusion of this definition in the jury charge. See Oursbourn, 259

10
S.W.3d at 174.

“It is the application paragraph of a jury charge which authorized conviction, and

an abstract charge on a theory of law which is not applied to the facts is insufficient to

bring that theory before the jury.” Ramirez v. State, 967 S.W.2d 919, 922 (Tex. App.—

Beaumont 1998, no pet.). The “abstract paragraphs serve as a glossary to help the jury

understand the meaning of concepts and terms used in the application paragraphs of the

charge.” Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012); see also

Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds

by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). Ramirez goes on to state:

An abstract statement of the law that goes beyond the allegations in the
indictment ordinarily will not present reversible error because ordinarily
such expansion on the indictment’s allegations are effectively restricted by
the charge’s application of the law to the facts, which limits the jury’s
deliberations to the allegations in the indictment supported by evidence.

Id.; see also Sandig v. State, 580 S.W.2d 584, 586 (Tex. Crim. App. 1979). The Court

of Criminal Appeals has evaluated cases on this issue and explained:

Superfluous abstractions, those not necessary to an understanding of
concepts or terms contained in the application paragraph, are generally
innocuous. Reversible error only occurs in the giving of an abstract
instruction when the instruction is an incorrect or misleading statement of a
law which the jury must understand in order to implement the commands of
the application paragraph. . . .The inclusion of a merely superfluous
abstraction, therefore, never produces reversible error in the court’s charge
because it has no effect on the jury’s ability fairly and accurately to
implement the commands of the application paragraph or paragraphs.”

Ramirez, 967 S.W.2d at 922 (citing Plata, 926 S.W.2d at 302).

The Court of Criminal Appeals has held that if a jury charge improperly “‘singles

out a specific type of evidence and tells the jury that it may infer an element of the crime’

from that evidence,” then there is error. Kirsch, 357 S.W.3d at 651 (citing Brown v. State,

11
122 S.W.3d 794, 800–01 (Tex. Crim. App. 2003)). However, our sister courts have

found that even when there is error due to improper definitions, the error is frequently

harmless. See Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012) (holding

that the trial court’s inclusion of per se definition of intoxication did not expand the

allegations against the defendant and was not error); Baggett v. State, 367 S.W.3d 525

(Tex. App.—Texarkana 2012, pet. ref’d) (holding that the trial court’s definition of “normal

use” was harmless error); Trevino v. State, 440 S.W.3d 722 (Tex. App.—Amarillo 2013,

no pet.) (holding that even though trial court’s definition of female “genitalia” was a

comment on evidence and invaded province of jury, the error was harmless).

Here, Arteaga was charged with twenty-three counts of sexual assault of a child.

The jury charge in this cause number given by the trial court was sixteen pages long.6

The complained-of definition is found on page one of the charge in the abstract section.

The definition of a “void marriage” was not referenced or necessary in the application

paragraph of the charge. Here, as in Ramirez, the application paragraph limited the

circumstances the jury could convict Arteaga on “to circumstances alleged in the

indictment.” Id. Error was found to be harmless in Ramirez. Id. We also find here

that the inclusion of the definition of “void marriage” in the abstract portion of the jury

charge is not error and did not single out any type of evidence necessary to infer an

element of the crime of sexual assault of a child. We overrule Arteaga’s first issue.

6 Arteaga’s trial consisted of both of his cases simultanetously. There were two separate jury
charges given by the trial court. This issue deals solely with the charge for the sexual assault case.

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2. Harm Analysis

However, even assuming the definition was error by the trial court, did it constitute

egregious harm? In order to qualify as an error that could have risen to the level of

egregious harm, Arteaga must show that the definition from family code section 6.02

“affect[ed] the ‘very basis of [his] case, ‘deprive[d him of] a valuable right,’ or ‘vitally

affect[ed one of his] defensive theor[ies].’” Warner, 245 S.W.3d at 461–62 (citing Hutch,

922 S.W.2d at 171); see TEX. FAMILY CODE ANN. § 6.201. When determining whether a

defendant suffered harm, “the reviewing court must consider: (1) the entire jury charge;

(2) the state of the evidence, including the contested issues and weight of probative

evidence; (3) the argument of counsel; and (4) any other relevant information revealed by

the record of the trial as a whole.” Rodriguez, 456 S.W.3d at 280; see also Wooten v.

State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013).

a. Entire Jury Charge

The first step required to analyze jury charge error is to evaluate the entire jury

charge. See Warner, 245 S.W.3d at 461. The

trial court is required to give the jury a written charge ‘setting forth the law
applicable to the case; not expressing any opinion as to the weight of the
evidence, not summing up the testimony, discussing the facts or using any
argument in his charge calculated to arouse the sympathy or excite the
passions of the jury.’

Kirsch v. State, 357 S.W.3d 645, 651 (Tex. Crim. App. 2012) (quoting TEX. CODE CRIM.

PROC. art. 36.14). “We have generally held that, if a jury-charge instruction ‘is not

derived from the [penal] code, it is not ‘applicable law’’ under art. 36.14.” Id. (quoting

Walters v. State, 247 S.W.3d 204, 214 (Tex. Crim. App. 2007)). “Texas Government

Code § 311.011 provides that statutorily undefined words and phrases shall be ‘construed

13
according to the rules of grammar and common usage.’” Id. at 650 (quoting TEX. GOV’T.

CODE ANN. § 311.011 (West, Westlaw through 2015 R.S.). Normally, in looking at jury

charge error, the instructions must be construed as a whole and not by isolated extracts,

excerpts, or paragraphs. See Smith v. State, 959 S.W.2d 1, 27 (Tex. App.—Waco 1997,

pet. ref’d) (holding that whether a jury charge comments on weight of evidence is

determined by looking at the jury charge as a whole, not isolated statements); see also

Joseph v. State, No. 13-11-00461-CR, 2013 WL 1461841, at *7 (Tex. App—Corpus

Christi 2013, pet. ref’d.) (mem. op., not designated for publication). However, even when

an abstract charge is erroneously given on a theory of law, without specific application to

the facts of the case, the court of criminal appeals have found this is not error. Hughes

v. State, 897 S.W.2d 285, 297 (Tex. Crim. App. 1994); see Lewis v. State, 815 S.W.2d

560, 562 (Tex. Crim. App. 1991) (holding there was no error in giving superfluous abstract

instruction on transferred intent when the issue of transferred intent was not incorporated

into the application paragraph).

In analyzing the jury charge as a whole, the definition of “void marriage” was only

found on the beginning part of a lengthy jury charge. Additionally, the definition was

contained in the abstract section of the charge, which acts as a glossary of sorts for the

jury to refer to. The law that governed the case was found in the application section of

the charge and contained no reference to the “void marriage” definition. Although the

dissent states the proper statutory definition for “prohibited from marrying” is contained in

section 25.01 of the penal code, the language is not found in the section. See TEX.

PENAL CODE ANN. § 25.01. “Prohibited from marrying” is not defined in any section of

the penal code. Since no definition was available within the penal code, “prohibited from

14
marrying” should have been determined according to the “rules of grammar and common

usage.” See Kirsch, 357 S.W.3d at 650. Since there was no penal code definition of

“prohibited from marrying,” and “void marriage” was not an element of the offense Arteaga

was charged with, the inclusion of the definition of “void marriage” was not an “incorrect

or misleading statement of law” and harmless. See Kirsch, 357 S.W.3d at 650–51;

Plata, 926 S.W.2d at 302. Any harm would be minimal.

b. State of the Evidence

Second, we must look at the state of the evidence, including the contested issues

and weight of probative evidence. See Warner, 245 S.W.3d at 461. The State called

multiple witnesses throughout this trial. Although Doe was the State’s main witness, the

evidence presented was overwhelming to prove that Arteaga committed sexual assault.

The forensic interviewer testified to the graphic, specific details given by Doe and

explained why some victims recant allegations of abuse. The SANE nurse testified

regarding to the scar tissue that was present on Doe’s genital area that indicated a history

of abuse. Arteaga’s girlfriend testified to the behavior she witnessed between Arteaga

and Doe and how it all “made sense” now. None of the evidence was ever about Arteaga

contesting the fact that Doe was his biological daughter, that Arteaga was not married, or

how he would not be allowed to marry Doe. Based on the evidence presented, the

inclusion of the definition of “void marriage” would have been minimal in terms of harm.

c. Argument of Counsel

Third, we must look to the argument of counsel. Id. In closing arguments, the

State did allude to the definition given by the trial court, albeit briefly. The prosecutor

stated:

15
 We, of course, know that [Doe] is not the defendant’s spouse and we also
know that you can’t marry your daughter. We don’t even need to – we all
know that. You can’t marry your daughter and the Court sets it out here
that a marriage is void if it’s to an ancestor or descendant by blood or
adoption and then there’s another categories. You can’t marry your sister.
You can’t marry your brother, et cetera.

However, the substantial remainder of the prosecutor’s closing argument went to the facts

of the case. Although the State did allude to the definition, it was not repeatedly brought

up. The definition was addressed at the beginning and briefly. Since the State did

address the definition, that could weigh slightly towards harm.

d. Other Relevant Information

Fourth, we can look to any other relevant information revealed by the record of the

trial as a whole. Id. Throughout the trial, Arteaga’s defense was that Doe was making

up these allegations. Nothing was ever raised by either side about bigamy, void

marriage, or even anyone wanting to get married. The State was not required to prove

bigamy as bigamous conduct was not alleged in the indictment. The trial court used

caution to make sure the enhancement element was found by sending Special Issue #1

to the jury to find true or not true. The jury did not send out any jury notes relating to the

definition of “void’ marriage, the special issue, or ask for clarification regarding these

matters. It is clear the jury understood what “prohibited from marrying” meant due to

their affirmative response to Special Issue #1. It was also clear from the testimony that

Doe was Arteaga’s biological daughter. Since there is no definition in the penal code

regarding “prohibited from marrying,” it should be defined by each juror from common

usage. The jury understood that a parent cannot marry their child and such a

relationship would be “prohibited” based on their own personal knowledge.

16
 Although some of the elements might show slight harm, none of the four factors

show the inclusion of the family law definition rise to the level of egregious harm. See

See Warner, 245 S.W.3d at 461. Arteaga must show “actual, not theoretical harm” in

order to rise to the level of egregious harm. Actual harm was not shown here, and as

such, the proper ruling is the error, if any, was harmless and not egregious. As such,

we affirm the conviction of sexual assault of a child as a first-degree felony on all twenty-

three counts.

III. PENAL CODE § 22.011(F)

Arteaga also argues that he was convicted on a basis not authorized by statute

because the State did not prove the element of bigamy. The dissent is persuaded by

Arteaga’s argument that the “plain language” of § 22.011(f) can only be read as a first-

degree felony if Arteaga was a person prohibited from marrying Doe and Arteaga was

involved in a bigamous marriage.7 See TEX. PENAL CODE ANN. § 22.011(f) (emphasis

added). We disagree with this argument and believe section 22.011(f)’s language is

ambiguous and Arteaga’s argument would lead to absurd results that could not have been

intended by the Legislature. See Chase v. State, 448 S.W.3d 6, 11 (Tex. Crim. App.

2014); see also Price v. State, 434 S.W.3d 601, 605 (Tex. Crim. App. 2014). As such,

this ambiguity should be addressed by this Court.

7 Although the dissent states that § 22.011(f) would require Arteaga to be prohibited from marrying
Doe because either Doe or Arteaga are married, this is irrelevant. Doe was a fourteen year-old child at
the time of her outcry and would be legally unable to marry based on her age. See TEX. FAMILY CODE ANN.
§§ 2.101, 2.102. Therefore, it is not a point that needs to be further considered.

17
 a. Statutory Interpretation

In construing a statute, we normally give deference to the plain meaning of the

words. See Chase, 448 S.W.3d at 11. “Thus, if the meaning of the statutory text, when

read using the established canons of construction relating to such text, should have been

plain to the legislators who voted on it, we ordinarily give effect to that plain meaning.”

Ex Parte Hernandez, 275 S.W.3d 895, 899 (Tex. Crim. App. 2009); see also Smith v.

State, 789 S.W.2d 590, 592 (Tex. Crim. App. 1990). “Where the statute is clear and

unambiguous, the Legislature must be understood to mean what it has expressed, and it

is not for the courts to add or subtract from such a statute.” Hernandez, 275 S.W.3d at

899 (citing Coit v. State, 808 S.W.2d 473, 475 (Tex. Crim. App. 1991) (en banc)).

But “appellate courts must construe a statute in accordance with the plain meaning

of its text unless the language of the statute is ambiguous or the plain meaning would

lead to absurd results that the legislature could not have possibly intended.” Chase, 448

S.W.3d at 11 (emphasis added); see also Price, 434 S.W.3d at 605. “When used in the

proper manner, this narrow exception to the plain meaning rule does not intrude on the

lawmaking powers of the legislative branch, but rather demonstrates respect for that

branch, which we assume would not act in an absurd way.”8 Hernandez at 900; see also

Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (en banc). If the

plain language of a statute would lead to absurd results, or if the language
is not plain but rather ambiguous, then and only then, out of absolute

8 In Price, the Texas Court of Criminal Appeals made modifications to the continuous sexual

assault of a child statute. See Price, 434 S.W.3d 601 (Tex. Crim. App. 2014); see also Tex. Penal Code
Ann. § 21.02 (West, Westlaw though 2015 R.S.). The court determined that the Legislature could not have
intended that attempt offenses were not included in the list of sexual crimes that could fit under the
continuous sexual assault statute. See id. It was an event that had not been anticipated, and the court
made the proper modifications through case law. We believe the same situation exists here as the
Legislature could not have intended the outcome Arteaga is suggesting.

18
 necessity, is it constitutionally permissible for a court to consider, in arriving
at a sensible interpretation, such extratextual factors as executive or
administrative interpretations of the statute or legislative history.

Id. at 785–786 (emphasis in original). A “statute is ambiguous when the statutory

language may be understood by reasonably well-informed people in two or more different

senses; conversely, a statute is unambiguous when it permits only one reasonable

understanding.” Price, 434 S.W.3d at 605; Bays v. State, 396 S.W.3d 580, 584–85 (Tex.

Crim. App. 2013) (ambiguity exists when reasonably well-informed persons may

understand a statute to have two or more different meanings). Some

extratextual factors include but are not limited to: (1) the object sought to
be obtained, (2) the circumstances under which the statute was enacted,
(3) the legislative history, (4) common law or former statutory provisions,
including laws on the same or similar subjects, (5) the consequences of a
particular construction, (6) administrative construction of the statute, and (7)
the title (caption), preamble, and emergency provision.

Chase, 448 S.W.3d at 11.

b. Analysis

We find that § 22.011(f) is not clear and unambiguous. See TEX. PENAL CODE

ANN. § 22.011(f). The dissent would hold that to interpret § 22.011(f) to require proof

under § 25.01 appears consistent with interpretations by other Texas appellate courts.

See TEX. PENAL CODE ANN. §§ 22.011(f), 25.01. However, the cases relied upon by the

dissent are distinguishable from the case at hand. The dissent cites to State v. Rosseau,

State v. Hernandez, and Holt v. State to hold that bigamy is required in order to prove the

enhancement element of 22.011(f). See State v. Rosseau, 398 S.W.3d 769, 777 (Tex.

App.—San Antonio 2011), aff’d, 396 S.W.3d 550 (Tex. Crim. App. 2013); State v.

Hernandez, 395 S.W.3d 258, 260–61 (Tex. App.—San Antonio 2012, no pet.); Holt v.

19
State, No. 03-08-00631-CR, 2010 WL 2218543, at *1 n.1 (Tex. App.—Austin June 2,

2010, pet. ref’d); see also TEX. PENAL CODE ANN. § 22.011(f). However, none of those

cases address the issue we are confronted with here, and instead the present case

appears to present an issue of first impression.

Rosseau was indicted for sexual assault of a child with each count of his indictment

containing the whole of section 22.011(f). See TEX. PENAL CODE ANN. § 22.011(f); see

also Rosseau, 398 S.W.3d at 772. Additionally, Rosseau was married at the time the

abuse occurred. Id. On appeal, the State challenged the granting of a pre-trial motion

to quash the indictment. Rosseau, 396 S.W.3d at 552. Rosseau raised an issue

regarding the constitutionality of the statute as a whole, claiming it was facially

unconstitutional because it punished “a class of individuals” more severely for being

married. Id. at 556. However, the Court of Criminal Appeals did not agree that the

statute was facially unconstitutional. Id. at 558. Since the entire section of 22.011(f)

was used in the indictment and jury charge error was not an issue complained of,

Rosseau does not clarify any ambiguity in the statute regarding the reference to § 25.01,

especially in regards to jury charge language. See id.; TEX. PENAL CODE ANN. §§

22.011(f), 25.01.

Hernandez is likewise distinguishable from the present case as it also refers to a

pre-trial motion to quash the indictment. See Hernandez, 395 S.W.3d at 258.

Hernandez argued that the language in the indictment that the victim was “a person whom

Hernandez was prohibited from marrying under Section 25.01” did not give her sufficient

notice of how the victim was a person who Hernandez was prohibited from marrying. Id.

at 260; see also TEX. PENAL CODE ANN. § 25.01. The trial court found that tracking the

20
indictment was sufficient notice. Id. at 262. Again, Hernandez is factually

distinguishable because it deals with a pre-trial motion to quash and Hernandez was a

married individual. See id. at n. 1. No challenge was made to the language used or

jury charge definitions. See id.

Holt is a case out of the Third Court of Appeals, where this case is transferred

from. Holt, 2010 WL 2218543. Holt is also factually distinguishable from this case

because it deals with a double jeopardy claim. Id. at *2. However, a footnote in Holt

that states:

Sexual assault is a first degree felony if the victim was a person whom the
defendant was prohibited from marrying under penal code section 25.01.
TEX. PENAL CODE ANN. § 22.011(f) (West Supp. 2009). Section 25.01
prohibits bigamy. Id. § 25.01. The evidence shows that appellant was
legally married to another person at the time he sexually assaulted the
complainant, and thus he was prohibited from marrying the complainant
under section 25.01(a)(1).

Id. at *4, n 1. The Austin Court of Appeals puts “prohibited from marrying” and ties it to

the bigamy statute of § 25.01 because Holt was married at the time the assault with the

complainant occurred. See TEX. PENAL CODE ANN. § 25.01. Our current case is

distinguishable from all the cases because Arteaga was not married at any relative time

during the assaults of Doe, and therefore, could not have committed the offense of

bigamy.

Even though the dissent believes that all the cases cited require both proof of §

22.011(f) and § 25.01 in order to prove the enhanced punishment range, this cannot be

what the legislature intended. See TEX. PENAL CODE ANN. §§ 22.011(f), 25.01. First,

25.01 does not have any reference to the language used in the indictment in this case of

“prohibited from marrying.” See id. The language of 22.011(f) does incorporate the

21
language of “purports to marry” and “living under the appearance of being married” which

is found in section 25.01. See id. Since we should be mindful that “every word in a

statute is presumed to have been used for a purpose; and a cardinal rule of statutory

construction is that each sentence, clause, and word is to be given effect if reasonable

and possible,” then it would be a reasonable interpretation that the phrase “prohibited

from marrying” was deliberately not included in section 25.01. Perkins v. State, 367

S.W.2d 140, 146 (Tex. 1963); see TEX. PENAL CODE ANN. §§ 22.011(f), 25.01. Therefore,

since the language “prohibited from marrying” used in section 22.011(f) was not used in

section 25.01, proving bigamy under section 25.01 would not be a requirement in order

for the State to charge using “prohibited from marrying” in section 22.011(f). See TEX.

PENAL CODE ANN. §§ 22.011(f), 25.01.

c. Legislative Interpretation

After reviewing the relevant bills related to section 22.011(f), it would be absurd to

think the Legislature only wanted to raise the punishment level of sexual assault of a child

offenses solely in bigamous situations. The purpose of Senate Bill 6 (SB 6), under which

the modifications to the Texas Penal Code were made, was to protect children and elderly

individuals. SENATE COMM. ON HEALTH AND HUMAN SERVICES, Bill Analysis, Tex. S.B. 6,

79th Leg., R.S. (2005). Included in that bill were changes to child protective and adult

protective services and how to improve their effectiveness. See id. “SB 6 seeks to

strengthen the state’s ability to protect society’s most vulnerable citizens: abused

children, the elderly and the frail” according to the statement of intent in the bill analysis.

Id. The language, which adds this penal code enhancement element in SB 6, was an

amendment added late in the legislative session, which contained the language found in

22
House Bill 3006 (HB 3006). H.B 3006, 79th Leg., R.S. (2005). Although there was

extensive committee analysis of SB 6, none of the analysis or hearing testimony involved

reference to the amendment added from HB 3006.

HB 3006 was created with a focus on bigamy, but in the bill analysis, the author

clearly distinguishes between the first provision on 22.011(f) and the second and third

provisions of 22.011(f). See TEX. PENAL CODE ANN. §§ 22.011(f). Section 1.02 of the

bill analysis states:

Amends Section 22.011(e) and (f) of the Penal Code by providing that it is
an affirmative defense to prosecution under Subsection (a)(2) that the actor
was not more than three years older than the victim and at the time of the
offense was not a person who under Chapter 62 of the Code of Criminal
Procedure, had a reportable or adjudication for an offense and the victim
was a child of 14 years of age or older; and was not a person whom the
actor was prohibited from living under the appearance of being married
under Section 25.01. An offense under this section is a second degree
felony except it is a first degree felony if the victim was a person whom the
actor was prohibited from marrying. (emphasis added).

HOUSE COMM. ON JUVENILE JUSTICE & FAMILY ISSUES, Bill Analysis, Tex. H.B. 3006, 79th

Leg., R.S. (2005). Based on the bill analysis, it is clear that the author of HB 3006 did

not intend “prohibited from marrying” to include a requirement that the element of bigamy

be proven in order to enhance the offense to a first-degree felony. The analysis

specifically does not include reference to “prohibited from marrying” nor § 25.01 as part

of the same sentence.9 See TEX. PENAL CODE ANN. §§ 22.011(f), 25.01. Although a

good portion of HB 3006 was written to “regulate those activities associated with bigamy

and polygamy,” proving bigamy was not an absolute requirement to making sexual

9 There is little other analysis or legislative history regarding this particular section of HB 3006 or
its later addition to SB 6.

23
assault of a child a first degree felony when enhancing with the language “prohibited from

marrying.” Since the amendment was adopted into SB 6, whose main purpose was to

“protect abused children,” it would be absurd to believe that Legislators intended this

provision to only protect sexual assault victims where the defendant was involved in a

bigamous relationship, focusing on religious groups, instead of child victims that need

protection.

A child molested by a family member is most likely whom the Legislature was

seeking to protect by this law. If a victim of a sexual assault of a child case was fourteen

years or older and molested by a close family member (based on consanguinity), prior to

2005, the highest level offense the State could seek to prosecute the defendant on was

a second degree felony, which carries a maximum of twenty-years imprisonment. It is

clear the Legislature wanted to protect those child victims. In the same SB 6, an

enhancement element was also added to Section 25.02 of the penal code which made

the offense of prohibited sexual conduct rise from a third degree felony to a second

degree felony when the victim was an ancestor or descendant by blood or adoption of the

person charged.10 See TEX. PENAL CODE ANN. § 25.02(c) (West, Westlaw through 2015

R.S.). There is no reference to bigamy in the prohibited sexual conduct section. See

id. The enhancement element is due solely to the biological relationship between the

victim and perpetrator. The difference between the offenses of sexual assault of a child

and prohibited sexual conduct is the age and ability to consent of the complainant. See

TEX. PENAL CODE ANN. §§ 22.011, 25.02. However, under the law, it does show that the

10
Section 25.02 also uses a definition to describe consanguinity without any reference to the Texas
Family Code. See TEXAS PENAL CODE ANN. § 25.02.

24
legislature had a problem with sexual relationships between direct family members, with

or without consent, and sought to enhance the penalties associated with those crimes.

d. Burden of Proof

Finally, if we would follow what Arteaga argues, then we would be holding the State

to a higher burden of proof than found in the indictment. Arteaga was charged with

twenty-three almost identical counts in the indictment that stated:

Robert Michael Arteaga, hereinafter referred to as the Defendant, on or
about the 25th day of February, 2011, and before the presentment of this
indictment, in the County of Burnet, and the State of Texas, did then and
there intentionally or knowingly cause the penetration of the sexual organ
of HSB Doe, a child who was then and there younger than 17 years of age,
and a person whom the defendant was prohibited from marrying, by the
defendant’s sexual organ. . . .

It is important to clarify that section 22.011(f) is not a punishment enhancement,

but an actual element required to be proven at the guilt-innocence phase for

enhancement. However, based on Special Issue #1, the jury did not convict Arteaga

without finding every necessary element of the offense. Based on the jury charge

submitted, the State proved every element of sexual assault of a child as well as the

enhancement element. The dissent briefly addresses the special issue that was

submitted to the jury along with the charge, but finds the jury must have been confused.

The jury was not confused and affirmatively believed that Arteaga was prohibited from

marrying Doe, his daughter. It was not an oversight by the trial court. That

enhancement element was specifically submitted as a special issue to make sure the jury

affirmatively believed it to be true. Special issues are submitted in a variety of criminal

cases along with the jury charge at the guilt-innocence phase to make sure enhancement

elements were proven, such as sexual assault or aggravated assault cases. See TEX.

25
PENAL CODE ANN. §§ 22.011, 22.021, 22.02. It was properly done here, and by doing so,

the trial court had assurance the jury believed the State had proved each and every

element required from the indictment. The State did not charge Arteaga with bigamy

and should not have been required to prove the existence of a bigamous relationship, an

element not contained in the indictment, in order to get the enhancement range of

punishment.

The trial court submitted a proper jury charge. While the inclusion definition of a

“void” marriage could have been error, it was slight and harmless. Evidence did not

show that the inclusion of this definition cause Arteaga egregious harm. To hold

otherwise cannot be what the legislature intended when enacting section 22.011(f) of the

penal code and would lead to absurd results. See TEX. PENAL CODE ANN. § 22.011(f).

We overrule issue one.

III. CLOSING ARGUMENT

By his second point, Arteaga argues the trial court erred by “prevent[ing] appellant

from arguing that the jury could consider his and others’ perspectives on whether [nude

photographs of Doe] constituted child pornography.” Specifically, Arteaga maintains

that the offense of possession of child pornography includes an implied element of

scienter, and he should have been allowed to argue that “some people might not consider

the photos obscene.” We disagree with appellant’s characterization of the trial court’s

ruling and conclude that its actions were not an abuse of discretion.

26
A. Pertinent Facts

During Arteaga’s closing argument, the following exchange occurred:

Trial Counsel: And let me point out that, yes, to a stranger those
photos are lewd, but nurses and doctors—and you
are going to see these photos, and I've seen these
photos, and as a father and as a lawyer in this case,
I don't view them as lewd. I know that you have to
make a decision whether or not when my client
looked at them he was viewing them as lewd.

Prosecutor: Judge, I would object. That's a misstatement of the
requirements of the law, whether the defendant
viewed them as lewd.

Trial Court: That is a misstatement. It's just—the jury
determines if they're lewd.

Prosecutor: I would ask that the jury be instructed to disregard
that last statement.

Trial Court: You are instructed to disregard. The instructions
are what they are and they tell you that you
determine if they're lewd photographs.

B. Standard of Review

The trial court’s ruling on the State’s objection to a defendant’s jury argument is

reviewed for abuse of discretion. Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App.

2010). “Although the trial court has broad discretion in controlling the scope of closing

argument, it may not prevent defense counsel from making a point essential to the

defense.” Lemos v. State, 130 S.W.3d 888, 892 (Tex. App.—El Paso 2004, no pet.).

The defense has the legal right to argue any theory supported by the evidence. Brown

v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997); Lemos, 130 S.W.3d at 892.

Prohibiting counsel from making a particular jury argument is a denial of the defendant’s

right to counsel when that argument is one the defendant is entitled to make. McGee v.

27
State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989), cert. denied, 494 U.S. 1060, 110

S.Ct. 1535, 108 L.Ed.2d 774 (1990); Lemos, 130 S.W.3d at 892. Only when the trial

court restricts the defense counsel from doing something it had the legal right to do,

however, is it considered a deprivation of counsel. Jackson v. State, 992 S.W.2d 469,

476 (Tex. Crim. App. 1999); Lemos, 130 S.W.3d at 892.

C. Analysis

A person commits the offense of possession of child pornography if “(1) the person

knowingly or intentionally possesses visual material that visually depicts a child younger

than 18 years of age at the time the image of the child was made who is engaging in

sexual conduct, . . .; and (2) the person knows that the material depicts the child as

described by Subdivision (1).” TEX. PENAL CODE ANN. § 43.26(a). The Penal Code

defines “sexual conduct” as “sexual contact, actual or simulated sexual intercourse,

deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or

lewd exhibition of the genitals, the anus, or any portion of the female breast below the top

of the areola.” Id. § 43.25(a)(2).

The jury was instructed under each count that it must find appellant did

“intentionally or knowingly possess visual material that visually depicted, and which the

[appellant] knew visually depicted a child . . . engaging in sexual conduct . . . which depicts

lewd exhibition of the genitals or female breast below the top of the areola[.]” Therefore,

the jury was required, under each count, to make a determination regarding the lewdness

of the photographs. The term “lewd” has a common meaning that jurors can be fairly

presumed to know and apply. Tovar v. State, 165 S.W.3d 785, 790 (Tex. App.—San

28
Antonio 2005, no pet.). Because the term “lewd” is not defined by statute, it need not be

defined in the jury charge. See id.

Contrary to his assertion on appeal, Arteaga was not prohibited from arguing to

the jury that others might not consider the photographs of Doe to be lewd. Arteaga’s

counsel argued, without objection, that “yes, to a stranger those photos are lewd, but

nurses and doctors—and you are going to see these photos, and I've seen these photos,

and as a father and as a lawyer in this case, I don't view them as lewd.” The State

objected specifically to Arteaga’s counsel’s argument that the jury “[had] to make a

decision whether or not when my client looked at [the photographs] he was viewing them

as lewd.” The trial court’s instruction was not improper.

Arteaga was allowed to argue and present evidence that others, including

appellant, might not view the photographs as lewd. Specifically, Arteaga testified,

without objection, that he did not consider the photographs to be child pornography. The

argument the jury was instructed to disregard went a step further—informing the jury that

the jury’s consideration of lewdness was limited to whether appellant viewed the

photographs as lewd. The trial court correctly instructed that it was within the jury’s

province to decide whether the photographs were lewd. See id. at 792 (holding an

appeal from conviction for possession and promotion of child pornography that the

defendant was not entitled to instruction that “whether the content of a photograph

constitutes a lewd or lascivious exhibition of a child’s genitals depends on the intent of

the photographer”). We also note the jury charge tracked the language of the pertinent

statutes and properly placed the burden on the State to prove appellant’s mens rea as

required by those statutes. See id.

29
 The trial court’s ruling and instruction were not an abuse of discretion. Arteaga’s

second issue is overruled.

III. CONCLUSION

We affirm the trial court’s judgments.

GINA M. BENAVIDES,
Justice

Dissenting Opinion by Justice Gregory T. Perkes.

Publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
22nd day of October, 2015.

30