By Britt Houston Lindsey
Chief Appellate Prosecutor in the Criminal District Attorney’s Office in Taylor County
My favorite “Saturday Night Live” character, Stefon, likes to regale the Weekend Update hosts with a review of the hottest new club in New York City, telling them “this place has everything,” including screaming babies in Mozart wigs and puppets in disguise practicing karate.
Similarly, this installment of “As the Judges Saw It” features a threefer opinion from the Court of Criminal Appeals that also has something for everyone: a complex history in the lower courts for procedure mavens, some judicial philosophy of statutory and caselaw interpretation for jurisprudence wonks, and an easy-to-understand and useful holding for trial prosecutors who just want the nitty-gritty.
On April 29, the Court of Criminal Appeals ended a split among the circuits regarding an interpretation of Subsection (f) of the sexual assault statute (now renumbered (f)(1); more on this below) with three identical opinions in the cases of Lopez v. State, Senn v. State, and Rodriguez v. State. At heart, the issue was this: To enhance sexual assault from second to first degree, is the State required to prove that the defendant committed bigamy, or only that the defendant was legally married to someone other than the victim at the time of the offense?
Background on three cases
The three underlying cases involved sexual assaults committed in three different counties:
• in Moore County, Rito Gregory Lopez was accused of multiple counts of sexually assaulting his 14-year-old stepdaughter;
• in Tarrant County, Michael Ray Senn was also accused of sexually assaulting his stepdaughter; and
• in Galveston County, Abel Diaz Rodriguez was accused of three counts of sexual assault of his 14-year-old daughter.
In each case, the defendant was married to the victim’s mother at the time of the assault. All three defendants were further charged with sexual assault under Penal Code 22.011(f), which enhances the offense from a second-degree felony to a 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 §25.01,” which is the bigamy statute.
All three defendants were found guilty of both sexual assault and the enhancement: Lopez was convicted of 11 counts and sentenced to 25 years on each, Senn received a life sentence, and Rodriguez received three life sentences. All three appealed, respectively, to the Seventh, Second, and First Courts. There was no allegation made or proof presented at any of the three trials that any of the defendants actually committed bigamy with their victims, but the State’s position was that there didn’t need to be, as a plain reading of the statute showed that the State was required to show only that the victim was a person that the defendant “was prohibited from marrying” under the bigamy statute.
Things got confusing pretty quickly. After the Second Court of Appeals affirmed Senn’s conviction (Senn I), the Court of Criminal Appeals vacated that opinion (Senn II) with instructions to reconsider in light of its recent opinion in Arteaga v. State. Further clouding the issue was the fact that the body of the opinion in Arteaga seemed to support the defendant’s position, saying that “we conclude … that the State is required to prove facts constituting bigamy under all three provisions of 22.011(f),” while Footnote 9 of the opinion seemed to support the State’s position, saying “What we mean is that, to elevate second-degree felony sexual assault to first-degree felony sexual assault under §22.011(f), the State must prove … 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.” Are you confused? That’s OK, because every court of appeals in Texas was confused at this point too.
On remand, the Second Court tried to reconcile these two passages in Senn III, holding:
1) the Court of Criminal Appeals’ remand quoted the body of the opinion, not the footnote,
2) caselaw says footnotes carry less precedential value than the body of the opinion anyway, and
3) “more importantly,” as the court put it, the legislative intent was that Subsection (f) required proof of bigamy.
The Second Court then reversed its previous opinion in a 2-1 decision with written dissent and remanded to the trial court for a new punishment hearing. The Seventh Court of Appeals followed the same logic in Lopez, expressly citing to the reasoning in Senn III. However, the First Court of Appeals went the opposite direction in Rodriguez, saying that it could not simply disregard the Arteaga Court’s holding in Footnote 9.
The result was both a split between three courts of appeals and a dissenting opinion in one of those courts, each of which are stated reasons in the Texas Rules of Appellate Procedure for the Court of Criminal Appeals to grant review. Clearly this was a mess ripe for a high court cleaning.
As the Court of Criminal Appeals saw it
And clean it up it did. The defendant petitioned the First Court’s ruling in Rodriguez, the State petitioned the Seventh Court’s and Second Court’s rulings in Lopez and Senn III, and the Court granted review in all three.
The appellants collectively and individually argued that the legislative history showed that the intent was to criminalize sexual assault during the commission of actual bigamy, and that a plain reading of the statute that did not do so led to an absurd result the Legislature did not intend. The State responded in each case that the Court’s reasoning in Footnote 9 of Arteaga should control not only as precedent, but also as a correct, plain-language reading of the statute. Briefs on the merits were filed by the State by Helena Faulkner of the Tarrant County Criminal District Attorney’s Office in Senn, Rebecca Klaren for the Galveston County Criminal District Attorney’s Office in Rodriguez, and by Emily Johnson-Liu of the State Prosecuting Attorney’s (SPA’s) Office in Lopez, each arguing that a plain reading of the statute showed that the State need not prove the actual commission of bigamy.
Each of the State’s briefs are examples of how solid appellate work in the Court of Criminal Appeals isn’t just good mechanics and drafting, but also good jurisprudence, as the cases hinged on competing philosophies of statutory interpretation. The Seventh and Second Courts had ruled in Senn III and Lopez that the main text and Footnote 9 in Arteaga were irreconcilable, and these courts turned to the legislative intent in enacting Subsection (f) to determine what the Court meant in ruling.
The State’s briefs argued that the courts of appeals should have attempted to harmonize the two passages rather than declaring them irreconcilable, and that this should have been accomplished by a plain reading of Arteaga and Subsection (f) rather than resorting to legislative intent. To this end the SPA’s brief quoted Antonin Scalia and Bryan Garner’s seminal work on textualism, Reading Law: The Interpretation of Legal Texts, coincidentally also the only legal treatise authored by a U.S. Supreme Court Justice to tackle the issue of whether a burrito is a sandwich (spoiler alert: It is not).
Judge Keel authored the opinion for the majority, joined by Presiding Judge Keller and Judges Richardson, Walker, and Slaughter. The opinion acknowledged the ambiguity of the two passages in Arteaga, but, in a move that surely made Scalia smile from the afterlife, resolved the ambiguity by focusing on the plain language of the sexual assault and bigamy statutes rather than an examination of legislative intent or consideration of extra-textual sources. Judge Keel found that a plain reading of the two statutes in conjunction showed that Subsection (f) did not require the State to show that the defendant had actually committed bigamy, only that bigamy would have occurred had the defendant and victim been married.
Judge Keel further observed that the plain reading ends the analysis absent “absurd results that the legislature could not possibly have intended” and rejected the defendants’ assertion that such absurdity resulted here, noting that the Court had recently held in Estes v. State that there was a rational basis for treating child sexual assault cases differently based on the defendant’s marital status. Judge Keel noted that Estes pointed out the “strong societal connection between the union of marriage and the ideas of family, home, safety, stability, and security,” and found that the higher degree of punishment based on marital status here was not so absurd that it could not have been intended.
Judge Keasler authored a concurrence joined by Judge Hervey agreeing with the result but disagreeing with the majority’s analysis of Estes (Judges Yeary and Newell concurred with the majority without writing). In Judge Keasler’s view, the point of Estes wasn’t that it was rational to harshly punish a married child rapist because he abuses the ideas of family, home, and safety per se, but rather that a greater punishment is merited because a married person is in a position to more easily gain access to children and abuse their trust. Judge Keasler would frame the absurd results analysis in terms of the Legislature’s rational conclusion that the offender has actually victimized two people, the person assaulted and the spouse who has been psychologically injured.
What does this mean for me, the hard-working, front-line prosecutor? I’m so glad you asked. The basic holding of Lopez, Senn, and Rodriguez is simple: Subsection (f) allows enhancement to a first-degree felony if the defendant was married to a person other than the victim at the time of the offense. This has far-reaching implications for sexual assault prosecutions across Texas.
One question that went unanswered, however, is whether the plain language of Subsection (f) also allows the enhancement based on the victim’s marital status? The opinion did not reach this question, instead limiting the holding to the particular facts of the three cases. But because a defendant would be prohibited from marrying an already married person as well, it’s difficult to see how Subsection (f) wouldn’t apply. Expect a case on that issue to come down the pike soon.
One final note: After the Court of Criminal Appeals’s opinion in Arteaga, HB 667 (dubbed “Melissa’s Law”) added new Subsection (f)(2) in the sexual assault statute, re-designating the original Subsection (f) as Subsection (f)(1). Subsection (f)(2) enhances sexual assault to a first-degree felony if the victim is a person with whom the actor was prohibited from engaging in sexual intercourse or deviate sexual intercourse under Texas Penal Code §25.02, Prohibited Sexual Conduct. This means sexual assault is now a first-degree felony if the victim is a person the defendant knows to be, without regards to legitimacy:
1) the actor’s ancestor or descendant by blood or adoption;
2) the actor’s current or former stepchild or stepparent;
3) the actor’s parent’s brother or sister of the whole or half blood;
4) the actor’s brother or sister of the whole or half blood or by adoption;
5) the children of the actor’s brother or sister of the whole or half blood or by adoption; or
6) the son or daughter of the actor’s aunt or uncle of the whole or half blood or by adoption.
HB 667 also amended the “Romeo and Juliet” affirmative defense in (e)(2)(B)(ii)(b) to exclude incest, so the higher penalty range in (f)(2) applies in intrafamily sexual assault regardless of age.
As you can see, between the favorable rulings from the Court of Criminal Appeals in Senn, Lopez, and Rodriguez and the Melissa’s Law addition from the legislature, Subsection (f) has evolved from what might have been overlooked as a curiosity to a formidable tool in the sex crimes prosecutor’s toolbelt.
 Nos. PD-1382-18, PD-1265-18, PD-0013-19, PD-0014-19, PD-0015-19, —- S.W.3d —-, 2020 Tex. Crim. App. LEXIS 362 (Tex. Crim. App. Apr. 29, 2020).
 521 S.W.3d 329 (Tex. Crim. App. 2017).
 —- S.W.3d —-, 2018 WL 5291889 2018 Tex. App. LEXIS 8722 (Tex. App.—Fort Worth Oct. 25, 2018).
 567 S.W.3d 408 (Tex. App.—Amarillo 2018).
 571 S.W.3d 292 (Tex. App.—Houston [1st Dist.] 2018).
 See Tex. R. App. P. 66.3 (a), (e).
 546 S.W.3d 691 (Tex. Crim. App. 2018).
 A separate Subsection (f)(2) dealing with nonconsensual assisted reproduction or “fertility fraud” was also added in the same session by SB 1259. Look for a renumbering in the next session.