Senn v. State

MICHAEL RAY SENN, Appellant v. THE STATE OF TEXAS

No. 02-15-00201-CR

Court of Appeals Second Appellate District of Texas at Fort Worth

October 15, 2020

On Appeal from the 213th District Court Tarrant County, Texas

Trial Court No. 1308222R

Before Gabriel, Kerr, and Bassel, JJ.¹

Memorandum Opinion on Remand by Justice BasselMEMORANDUM OPINION ON REMAND

I. Introduction and Appellate Procedural History

This is the fourth time that we have dealt with this case.² As set forth in our January 2017 initial opinion, Appellant Michael Ray Senn sexually assaulted and impregnated his adult biological daughter Brenda³ while he was married to her stepmother. A jury convicted Senn of prohibited sexual conduct, for which he was sentenced to twenty years' imprisonment,⁴ 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 Penal Code Section 22.011(f). See Tex. Penal Code Ann. §§ 22.011(f), 25.02(a)(1), (c). In the initial appeal, 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 S.W.3d 172, 183 (Tex. App.—Fort Worth 2017),⁵ vacated, State v. Senn (Senn II), No. PD-0145-17, 2017 WL 5622955, at *1 (Tex. Crim. App. Nov. 22, 2017) (not designated for publication). The Texas Court of Criminal Appeals vacated that judgment and remanded the case to this court to reevaluate Senn's issues in light of its intervening decision in Arteaga, in which the court held that under Section 22.011(f), the Texas Legislature "intended for the State to prove facts constituting bigamy." See Senn II, 2017 WL 5622955, at *1 (quoting Arteaga, 521 S.W.3d at 336).

We rendered a decision on remand, see Senn v. State (Senn III), No. 02-15-00201-CR, 2018 WL 2248673 (Tex. App.—Fort Worth May 17, 2018) (op. on remand), but we withdrew that opinion on rehearing and issued a substitute, Senn v. State (Senn IV), No. 02-15-00201-CR, 2018 WL 5291889, at *1 (Tex. App.—Fort Worth Oct. 25, 2018) (op. on remand and on reh'g), rev'd, Lopez v. State, 600 S.W.3d 43, 50 (Tex. Crim. App. 2020). On remand and on rehearing, in considering Senn's first issue—which challenges the sufficiency of the evidence to trigger the statutory enhancement under Section 22.011(f)—a majority of the panel interpreted Arteaga as requiring the State toprove "facts constituting one of the six bigamy prohibitions listed in [S]ection 25.01."⁶ Id. at *5. After stating that "no facts exist that Senn committed a bigamy offense" with Brenda, the majority held that the evidence was "insufficient to 'prove facts constituting bigamy' as required by Arteaga's holding." Id. at *6. We modified the trial court's judgment on the sexual-assault conviction to a second-degree felony and remanded the case for a new punishment hearing. Id. at *6-7. The State filed a petition for discretionary review, which the Court of Criminal Appeals granted, along with a petition from a case decided by the Amarillo Court of Appeals and a petition from a case decided by the Houston First Court of Appeals. See Lopez, 600 S.W.3d at 44.

The Court of Criminal Appeals consolidated the three petitions to address a split among the three courts of appeals and held that "the State does not have to prove commission of bigamy to trigger the enhancement under Section 22.011(f). The requirement . . . is satisfied if the State proves that the defendant was legally married to someone other than the victim at the time of the sexual assault." Id. at 47-48. The Court of Criminal Appeals specifically held that "[t]he evidence that Senn was married to another when he sexually assaulted the victim was sufficient to enhance punishment under Section 22.011(f)." Id. at 49-50. The court thereforereversed our decision in Senn IV and remanded the case to us to consider Senn's sufficiency claim in light of its holding and to consider his remaining claims. Id. at 50.

After applying the holding from Lopez to Senn's first issue and noting that Senn does not challenge the sufficiency of the evidence to support the underlying sexual assault, we hold that the evidence is sufficient to trigger the enhancement under Section 22.011(f). After applying the charge holding in Arteaga to the jury charge here, we hold that the trial court erred by not including the "law applicable to the case" but that the error was not harmful. We also review his two constitutional challenges but find them lacking. Accordingly, we affirm the trial court's judgments.

II. The Evidence is Sufficient to Trigger the Enhancement

In his first issue, Senn argues that the evidence is insufficient to trigger the statutory enhancement under Section 22.011(f). Specifically, Senn argues that there is "no evidence whatsoever" that he was engaged in a bigamous relationship with Brenda and that the special issue should not have been submitted to the jury.

As set forth above, the Texas Court of Criminal Appeals already decided in Lopez that "[t]he evidence that Senn was married to another when he sexually assaulted the victim was sufficient to enhance punishment under Section 22.011(f)." Id. at 49-50. Yet this case was remanded to us "for consideration of Senn's sufficiency claim in light of [that] holding." Id. at 50. Senn's sufficiency claim, however, is limited solely to the alleged lack of bigamy evidence; nowhere in his briefdoes he challenge the sufficiency of the evidence to support the sexual assault.⁷ Because the State put on evidence at trial, including Senn's marriage license, showing that he was married to someone else when he sexually assaulted Brenda, we hold that the evidence is sufficient to trigger the statutory enhancement under Section 22.011(f). Accordingly, we overrule Senn's first issue.

III. The Charge Error did not Cause Actual Harm

In his fourth issue, Senn argues that the trial court reversibly erred by failing to include any instructions on bigamy in the jury charge. Specifically, Senn complains that the charge lacks any reference to Section 25.01 "even though the bigamy statute is expressly referenced in [Section] 22.011(f)."

A. The Charge

The jury charge includes the following special issue immediately after the sexual-assault charge:

If you find the defendant guilty of sexual assault, you shall answer the special issue. Otherwise, do not answer the special issue.

For the special issue, the State must prove beyond a reasonable doubt that at the time the offense of sexual assault, as set out above, was committed, [Brenda] was a person whom the defendant was prohibited from marrying or purporting to marry or with whom the defendant was prohibited from living under the appearance of being married.

Now bearing in mind the foregoing instruction on the Special Issue, if you believe from the evidence beyond a reasonable doubt that, at the time of the offense of sexual assault, [Brenda] was a person whom the defendant was prohibited from marrying or purporting to marry or with whom the defendant was prohibited from living under the appearance of being married, then you will answer "WE DO" to the Special Issue on the verdict form.

Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will answer "WE DO NOT" to the Special Issue.

During the charge conference, Senn objected to the charge's omission of "Section 25.01" and asked the trial court to "include the definition in 25.01 in the definition section of the jury charge."

B. Applicable Law

The Texas Court of Criminal Appeals set forth in Arteaga how the special issue under Section 22.011(f) should be submitted in the jury charge:

Here, the special issue submitted as part of the sexual-assault charge asked the jury whether it found beyond a reasonable doubt that Arteaga "was prohibited from marrying [Doe]." 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 Family Code.⁸ Thus, the bigamy statute is "law applicable to the case" and should have been included in the charge because the jury had to understand what"prohibited from marrying" meant before it could determine whether Arteaga was guilty of the allegations. Tex. Code Crim. Proc. [Ann.] art. 36.14 (the trial court must set forth the law applicable to the case in the jury charge); Plata [v. State], 926 S.W.2d [300,] 302 [(Tex. Crim. App. 1996)]. In contrast, the law of consanguinity in the Family Code was not law applicable to the case and should not have been included in the charge. Plata, 926 S.W.3d at 302-03.

521 S.W.3d at 338. The court concluded that the sexual-assault jury charge was erroneous because it did not properly instruct the jury regarding the "law applicable to the case." Id.

C. Charge-Error Analysis

Unlike the charge in Arteaga, Senn's charge did not include the consanguinity statute in the abstract portion of the charge. So the issue here is not whether the charge erroneously included a reference to a statute that was not "law applicable to the case" but whether the charge provided the jury with any guidance on how to decide if Senn was "prohibited from marrying" Brenda. See id. at 339 (citing Tex. Code Crim. Proc. Ann. art. 36.14, which states that "the judge shall, before the argument begins, deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case"). Because the charge here did not include a single reference to Section 25.01, the bigamy statute, we conclude that the sexual-assault jury charge in this case was erroneous because it did not properly instruct the jury regarding the "law applicable to the case." See id.

D. Harm Analysis

Having found error, we now assess harm. When...