Michael Ray Senn v. The State of Texas

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 that he was engaged in a bigamous relationship with

Brenda.

A. 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

3The jury also convicted Senn of the offense of prohibited sexual conduct. See Tex. Penal Code Ann. § 25.02(a)(1), (c) (West 2011). 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 prohibitedsexual-conduct conviction. We therefore affirm his unchallenged conviction for prohibited sexual conduct.

4Because Senn does not challenge the sufficiency of the evidence to support the elements of sexual assault as a second-degree felony, we omit a detailed factual and procedural background and instead set forth the pertinent facts under each issue.

3

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).

B. The Law on Construing Statutes

In interpreting statutes, we presume that the legislature intended for the

entire statutory scheme to be effective. See Tex. Gov’t Code Ann. § 311.021(2)

(West 2013); Murray v. State, 302 S.W.3d 874, 879, 881 (Tex. Crim. App. 2009)

(in construing statute, court looked to other provisions within entire “statutory

scheme” rather than merely the single, discrete provision at issue). We give

effect to the plain meaning of the statute’s text unless the text is ambiguous or

the plain meaning leads to absurd results that the legislature could not have

possibly intended. Ex parte Perry, 483 S.W.3d 884, 902 (Tex. Crim. App. 2016);

Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). In determining

plain meaning, we consult dictionary definitions, apply the rules of grammar, and

consider words in context. Perry, 483 S.W.3d at 902. 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 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

4

legislative history.” Boykin, 818 S.W.2d at 785–86; see also Mahaffey v. State,

364 S.W.3d 908, 913 (Tex. Crim. App. 2012).

C. The Statutory Provisions at Issue

Section 22.011(f) of the penal code 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 Section 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 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. 2016).

5

D. Facts Pertinent to the Special Issue

The trial court’s charge instructed the jury on the offense of sexual assault

as alleged in count one of the indictment5 and included the following special

issue, which substantially tracked section 22.011(f):

Do you find 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?



The jury found Senn guilty of the offense of sexual assault as charged in count

one of the indictment and responded affirmatively to the special issue, thus

elevating the offense from a second-degree felony to a first-degree felony. See

Tex. Penal Code Ann. § 22.011(f). As a result, the punishment range was five to

ninety-nine years or life and a fine not to exceed $10,000. See id. § 12.32 (West

2011). The jury assessed punishment on the sexual assault conviction at life

imprisonment, and the trial court sentenced Senn accordingly. 5The trial court’s charge set forth the offense of sexual assault in count one as follows:

Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that on or about the 1st day of May 2011, in Tarrant County, Texas, the defendant, Michael Ray Senn, did intentionally or knowingly cause the penetration of the female sexual organ of [Brenda] by inserting defendant’s penis in [Brenda’s] female sexual organ without the consent of [Brenda], and [Brenda] is a person who[m] the defendant knows that as a result of mental disease or defect [] was at the time of the sexual assault incapable of appraising the nature of the act or of resisting it, then you will find [the] defendant guilty of sexual assault as charged in Count One of the indictment[.]

6

E. Proof of a Bigamous Relationship Is Not Required Here

Under a plain reading of section 22.011(f), a sexual assault may be

enhanced to a first-degree felony when the victim is a person (1) whom the actor

was prohibited from marrying or purporting to marry or (2) with whom the actor

was prohibited from living under the appearance of being married under section

25.01. See id. § 22.011(f). Section 22.011(f)’s phrase “prohibited from marrying”

is not modified by the phrase “under Section 25.01”; there is no comma

preceding “under Section 25.01” to indicate that it was intended to modify the

preceding clauses and not just the last one. See Tex. Gov’t Code Ann.

§ 311.011(a) (West 2013) (requiring courts to construe words and phrases

“according to the rules of grammar and common usage”); Ludwig v. State, 931

S.W.2d 239, 241 (Tex. Crim. App. 1996) (noting that “[g]enerally, the presence of

a comma separating a modifying clause in a statute from the clause immediately

preceding is an indication that the modifying clause was intended to modify all

the preceding clauses and not only the last antecedent one” and presuming that

this convention of punctuation applies equally to phrases as to clauses); William

Strunk, Jr. & E.B. White, The Elements of Style 30 (4th ed. 2000) (“Modifiers

should come, if possible, next to the words they modify.”); Bryan A. Garner,

Garner’s Modern American Usage 431 (1998) (“When a word refers to an

antecedent, the true antecedent should generally be the closest possible one.”).

Moreover, a comparison of the text of section 22.011(f) to the text of section

25.01 reveals that section 25.01 defines the offense of bigamy using the phrases

7

“purports to marry” or “lives with . . . under the appearance of being married.”

See Tex. Penal Code Ann. § 25.01(a). Section 25.01 does not include the

phrase “prohibited from marrying.” See id. Thus, under both a plain reading of

the statute—applying the rules of grammar, and a comparison of the language

used in section 25.01—looking to other provisions within the statutory scheme, it

is clear that the phrase “prohibited from marrying” is not tied to the phrase “under

Section 25.01.” The State was therefore not required to show that 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.

Senn argues that Rosseau controls the outcome here. See State v.

Rosseau, 396 S.W.3d 550, 557–58 (Tex. Crim. App. 2013). Relying on the

statement from Rosseau—that “[t]he ‘under Section 25.01’ portion of the statute

suggests that the provision applies when both sexual assault and bigamous

conduct are alleged,” Senn argues that Rosseau “stands for the proposition that

both sexual assault and bigamous conduct must be proven to trigger the

enhancement under § 22.011.” See id. at 558. Rosseau, however, dealt with a

facial challenge to section 22.011(f), and the statement that Senn relies on was

made by the Texas Court of Criminal Appeals in the context of recognizing one

valid application of the statute—the punishment of bigamists who sexually

assault their purported spouses—to defeat Rosseau’s facial challenge. See id.

We do not interpret this holding as requiring proof of bigamous conduct to trigger

8

enhancement under section 22.011(f).6 The State was therefore not required to

prove the existence of a bigamous relationship between Senn and Brenda. See

Arteaga v. State, Nos. 13-13-00612-CR, 13-13-00613-CR, 2015 WL 6445049, at

*12 (Tex. App.—Corpus Christi 2015, pet. granted) (stating that because the

State did not charge appellant with bigamy, the State should not have been

required to prove the existence of a bigamous relationship, an element not

contained in the indictment).

F. Evidence Supporting the Enhancement

Here, the enhancement under section 22.011(f) was triggered if the State

proved that Brenda was a person whom Senn was prohibited (1) from marrying,

(2) from purporting to marry, or (3) from living under the appearance of being

married under section 25.01. See Tex. Penal Code Ann. § 22.011(f). The

evidence at trial focused on whether Brenda was a person whom Senn was

prohibited from marrying.7 The State put on evidence that Senn impregnated

Brenda and that Brenda was Senn’s biological daughter.8 Accordingly, Brenda

6Moreover, the indictment here did not allege bigamous conduct.

7Based on our grammatical analysis, it is precisely because the State did not proceed under the “prohibited from living under the appearance of being married under Section 25.01” portion of section 22.011(f) that no bigamy instruction was required here.

8The State also put on evidence that Brenda was mentally impaired and could not live on her own to show that she could not have consented to the sexual act. The State did not, however, specifically argue that Brenda was a person whom Senn was prohibited from marrying due to her mental impairment. See Tex. Fam. Code Ann. § 6.108 (West 2006) (stating that court may grant an

9

was a person whom Senn was prohibited from marrying. See generally Tex.

Fam. Code Ann. § 6.201(1) (West 2006) (stating that marriage is void if one party

to the marriage is related to the other as a descendant by blood or adoption).

Viewing all of the evidence in the light most favorable to the jury’s answer

to the special issue, a rational trier of fact could have found beyond a reasonable

doubt the essential elements of the special issue—that Brenda was a person

whom Senn was prohibited from marrying. See Jackson, 443 U.S. at 319, 99 S.

Ct. at 2789; Gale, 998 S.W.2d at 224; Stewart, 350 S.W.3d at 755. Accordingly,

we hold that the evidence is sufficient to trigger the statutory enhancement for

sexual assault under section 22.011(f), and we overrule Senn’s first issue.

III. SECTION 22.011(f) IS NOT UNCONSTITUTIONAL AS APPLIED TO SENN

In his second issue, Senn argues that section 22.011(f) is

unconstitutionally vague as applied to him in violation of his right to due process

under the Fifth and Fourteenth Amendments to the United States Constitution.9

annulment of a marriage to a party to the marriage if the other party did not have the mental capacity to consent to marriage or to understand the nature of the marriage ceremony because of a mental disease or defect).

9Senn also relies on due-course-of-law language within the Texas constitution but does not argue that the Texas constitution provides greater protection than the federal constitution. See Tex. Const. art. I, § 19. Thus, we will analyze his due process claim solely on federal grounds. See Estes v. State, 487 S.W.3d 737, 750 (Tex. App.—Fort Worth 2016, pets. granted); see also Muniz v. State, 851 S.W.2d 238, 251–52 (Tex. Crim. App. 1993) (holding that failure to provide a rationale for interpreting state constitution more broadly than federal constitution and failure to provide separate substantive analysis for state ground forfeits state ground), cert. denied, 510 U.S. 837 (1993).

10

In his third issue, Senn argues that section 22.011(f), as applied to him, violates

equal protection under the Fourteenth Amendment to the United States

Constitution.10 We discuss each of these constitutional challenges below.

A. Standard of Review

An as-applied challenge to the constitutionality of a statute asserts that a

statute, although generally constitutional, operates unconstitutionally as to the

claimant because of his particular circumstances. Faust v. State, 491 S.W.3d

733, 743 (Tex. Crim. App. 2015), cert. denied, 2017 WL 69191 (Jan. 9, 2017).

When reviewing the constitutionality of a statute, we presume that the statute is

valid and that the legislature acted reasonably in enacting it. Id. at 743–44. A

challenger to the constitutionality of a statute has the burden to establish its

unconstitutionality. Rosseau, 396 S.W.3d at 557.

B. Section 22.011(f), As Applied to Senn, Is Not Unconstitutionally Vague and Therefore Does Not Violate Due Process



1. The Law on Reviewing a Vagueness Challenge

To withstand a vagueness challenge, a criminal statute must give a person

of ordinary intelligence a reasonable opportunity to know what is prohibited.

Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858 (1983); Grayned

v. Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2298–99 (1972); Long v. State, 10Senn also relies on equal rights language within the Texas constitution but does not argue that the Texas constitution provides greater protection than the federal constitution. See Tex. Const. art. I, § 3(a). Thus, we will analyze his equal protection claim solely on federal grounds. See Estes, 487 S.W.3d at 750; see also Muniz, 851 S.W.2d at 251–52.

11

931 S.W.2d 285, 287 (Tex. Crim. App. 1996). Further, the law must establish

determinate guidelines for law enforcement. Long, 931 S.W.2d at 287.

A statute is not rendered unconstitutionally vague merely because words

or terms are not specifically defined. Engelking v. State, 750 S.W.2d 213, 215

(Tex. Crim. App. 1988); Ahearn v. State, 588 S.W.2d 327, 338 (Tex. Crim. App.

[Panel Op.] 1979). Instead, undefined terms in a statute are to be given their

plain and ordinary meaning, and words defined in dictionaries and with meanings

so well known as to be understood by a person of ordinary intelligence are not

considered vague and indefinite. Watson v. State, 369 S.W.3d 865, 870 (Tex.

Crim. App. 2012); see Tex. Gov’t Code Ann. § 311.011(a) (providing that

statutory “[w]ords and phrases shall be read in context and construed according

to the rules of grammar and common usage”).

When a court analyzes a statute pursuant to a vagueness challenge and

when, as here, no First Amendment rights are involved, the reviewing court

“need only scrutinize the statute to determine whether it is impermissibly vague

as applied to the challenging party’s specific conduct.” Bynum v. State, 767

S.W.2d 769, 774 (Tex. Crim. App. 1989). The challenging party bears the

burden to establish that the statute is unconstitutional as applied to him; that it

might be unconstitutional as applied to others is not sufficient. See Vuong v.

State, 830 S.W.2d 929, 941 (Tex. Crim. App.), cert. denied, 506 U.S. 997 (1992).

We must look at appellant’s conduct alone and then examine whether that

12

conduct was clearly prohibited by the statute. Cain v. State, 855 S.W.2d 714,

718 (Tex. Crim. App. 1993).

2. Senn’s Vagueness Challenges

Senn challenges the statute as unconstitutionally vague on both grounds:

(1) lack of notice and (2) “standardless” enforcement. See Johnson v. United

States, 135 S. Ct. 2551, 2556 (2015) (citing Kolender, 461 U.S. at 357–58, 103

S. Ct. at 1858). We address each of his grounds below.

a. Section 22.011(f) Provides Fair Notice of the Prohibited Conduct

Senn argues that “the statute fails to provide adequate notice that being

married will subject an offender to a significantly greater punishment for a sexual

assault than a single person.” Senn contends that section 22.011(f) “specifically

indicates that the enhancement applies if the ‘victim was a person whom the

actor was prohibited from marrying . . . under Section 25.01’” and that

“[r]eviewing section 22.011(f) alongside § 25.01 would seem to lead an ordinary

individual to believe that he must be engaged in a bigamous relationship to be

subjected to the higher penalty.”

Here, looking at Senn’s conduct alone, as we are required to do in an as

applied challenge, he sexually assaulted his eighteen-year-old mentally-disabled

biological daughter. See Cain, 855 S.W.2d at 718. As discussed in the analysis

of Senn’s first issue, the State put on evidence of the preceding facts to prove up

the enhancement—that Brenda was a person whom Senn was prohibited from

marrying. See Tex. Penal Code Ann. § 22.011(f). Although the phrase

13

“prohibited from marrying” is not defined in any section of the penal code, see

Arteaga, 2015 WL 6445049, at *7, jurors may “freely read [undefined] statutory

language to have any meaning which is acceptable in common parlance.” See

Tex. Gov’t Code Ann. § 311.011; Kirsch v. State, 357 S.W.3d 645, 650 (Tex.

Crim. App. 2012). “Prohibit” means “to forbid by authority or command: enjoin.”

Prohibit, Webster’s Third New Int’l Dictionary (2002). “Marry” means “to take as

husband or wife: wed.” Marry, Webster’s Third New Int’l Dictionary. We

conclude that the phrase “prohibited from marrying” is composed of common

words, such that a person of ordinary intelligence would be put on fair notice of

what conduct violates the statute. The language “prohibited from marrying” is not

vague as applied to Senn because, as a person of ordinary intelligence, he knew

that he was forbidden or enjoined from marrying his biological daughter.11

b. Section 22.011(f) Does Not Encourage Arbitrary or “Standardless” Enforcement



Senn also argues that he was subjected to “standardless” enforcement in

this case because the jury instructions failed to provide any direction as to the

type of marital prohibition that triggered the enhancement under section

11Senn also argues that the statute is vague because “[i]t is unclear whether the statute provides for harsher penalty only where the defendant is married, [] only where the victim is married, or both.” But in analyzing Senn’s asapplied challenge, we focus our analysis on his conduct, not whether the statute is unconstitutionally vague under other scenarios. See Cain, 855 S.W.2d at 718; Bynum, 767 S.W.2d at 774.

14

22.011(f). Essentially, Senn argues that section 22.011(f) is vague because it

does not list every type of marital prohibition that will trigger enhancement.

The vagueness doctrine, however, “is not a principle designed to convert

into a constitutional dilemma the practical difficulties in drawing criminal statutes

general enough to take into account a variety of human conduct and sufficiently

specific to provide fair warning that certain kinds of conduct are prohibited.”

Colten v. Kentucky, 407 U.S. 104, 110, 92 S. Ct. 1953, 1957 (1972). Instead, a

statute is not vague if it contains objective criteria for determining what conduct is

prohibited. See Watson, 369 S.W.3d at 871.

Here, section 22.011(f) contains objective criteria—“prohibited from

marrying” the victim—alerting an actor to the type of situation in which a sexual

assault may be enhanced to a first-degree felony. See id. The fact that Senn

could have violated this prohibition in more than one way does not make the

statute vague as applied to Senn. Cf. Earls v. State, 707 S.W.2d 82, 86–87 (Tex.

Crim. App. 1986) (stating that the fact that a person’s conduct violates two parts

of a statute or even two different statutes does not make the statute vague as

long as the proscribed conduct is described so as to give a person fair notice that

it violates the statute); State v. Empey, No. 02-14-00407-CR, 2016 WL 4141116,

at *6 (Tex. App.—Fort Worth Aug. 4, 2016, no pet.) (holding that section 31.03

did not violate due process and did not encourage arbitrary and discriminatory

enforcement merely because prosecutor could choose between pursuing

alternative but clearly-defined penalties that may apply to the same act of theft).

15

Because section 22.011(f) is general enough to take into account a variety of

human conduct and sufficiently specific to provide fair warning that the actor will

be penalized more harshly if he is prohibited from marrying the victim—as Senn

is here, it is not vague as applied to Senn and therefore does not permit arbitrary

enforcement. See Colten, 407 U.S. at 110, 92 S. Ct. at 1957; Watson, 369

S.W.3d at 871.

3. Section 22.011(f) Is Not Unconstitutionally Vague As Applied to Senn

Because Senn has not satisfied his burden to show that section 22.011(f)

is unconstitutionally vague specifically as applied to his conduct, we hold that

section 22.011(f) is not unconstitutionally vague as applied to Senn and therefore

does not violate due process. We overrule Senn’s second issue.

C. Section 22.011(f), As Applied to Senn, Does Not Violate Equal Protection

1. Equal Protection Law

The Equal Protection Clause of the Fourteenth Amendment requires that

all persons similarly situated shall be treated alike under the law. See U.S.

Const. amend. XIV; Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 602, 128

S. Ct. 2146, 2153 (2008) (explaining that when “those who appear similarly

situated are nevertheless treated differently, the Equal Protection Clause

requires at least a rational reason for the difference”); Rosseau, 396 S.W.3d at

557; Walker v. State, 222 S.W.3d 707, 710 (Tex. App.—Houston [14th Dist.]

2007, pet. ref’d). Generally, to prevail on an equal protection claim, the party

complaining must establish two elements: (1) the party was treated differently

16

than other similarly-situated parties, and (2) the differential treatment does not

have a rational governmental basis. Estes, 487 S.W.3d at 747; see Rosseau,

396 S.W.3d at 557 n.7 (explaining that when no suspect classification or violation

of a fundamental right is involved, a difference in treatment need be only

rationally related to a valid public purpose to withstand equal protection scrutiny);

Wood v. State, 18 S.W.3d 642, 650 (Tex. Crim. App. 2000).

Under the first element, it is axiomatic that the Equal Protection Clause

does not require things different in fact to be treated in law as though they were

the same. Downs v. State, 244 S.W.3d 511, 518 (Tex. App.—Fort Worth 2007,

pet. ref’d). Differences based on various factual traits, circumstantial nuances,

and peculiarities, which by virtue of their differences make them amenable to

disparate treatment, are not a basis for an equal protection claim. Id.

Under the second element, a criminal defendant who attacks the rationality

of a legislative classification has the burden to negate every conceivable basis

that might support it. Walker, 222 S.W.3d at 711. The deferential rational-basis

standard that typically applies to equal protection claims is “respectful of

legislative determinations and essentially means a court will not invalidate a

statute unless the statute draws distinctions that simply make no sense. Further,

we will uphold a statute as long as it implements any rational purpose, even if the

legislature never considered the purpose when enacting the statute.” Id. (citation

omitted).



17

2. Senn Failed to Show Disparate Treatment



Senn argues that he was subject to the statutory enhancement under

section 22.011(f) “solely because [he] was married at the time he committed

sexual assault.” But here the application of section 22.011(f) is governed by the

factual traits and circumstances of the victim, not the actor who participated in

the prohibited conduct. See Tex. Penal Code Ann. § 22.011(f). That is, a sexual

assault may be enhanced to a first-degree felony when the actor has sexually

assaulted a specified category of victim. See id.

Here, Senn was not treated any more harshly than an unmarried man who

sexually assaults his biological child and has his offense enhanced to a first

degree felony under section 22.011(f). See Arteaga, 2015 WL 6445049, at *7–

12 (upholding enhancement of sexual assault under section 22.011(f) because

appellant, who was not married, sexually assaulted his biological daughter).

Because the conduct of sexually assaulting one’s own child may subject the

actor to prosecution for a first-degree felony under section 22.011(f)’s

enhancement provision whether the actor is married or single, there is no

disparate-treatment equal protection concern as section 22.011(f) is applied to

Senn. See, e.g., Smith v. State, 898 S.W.2d 838, 848 (Tex. Crim. App.) (holding

that no equal protection violation occurred because appellant failed to establish

that classification discriminated against similarly-situated individuals), cert.

denied, 516 U.S. 843 (1995); Ricketts v. State, No. 02-13-00204-CR, 2014 WL

4364052, at *5 (Tex. App.—Fort Worth Sept. 4, 2014, pet. ref’d) (mem. op., not

18

designated for publication) (holding that appellant’s equal protection claim could

not succeed absent evidence that, by virtue of his North Carolina convictions, he

was similarly situated to someone who had committed only a state jail felony in

Texas).12 Because Senn has failed to establish the disparate-treatment element

of his equal protection claim, we need not conduct a rational-basis analysis. See

Smith, 898 S.W.2d at 848; Ricketts, 2014 WL 4364052, at *5. Accordingly, we

overrule Senn’s third issue.

IV. NO JURY INSTRUCTION ON BIGAMY IS REQUIRED HERE

In his fourth issue, Senn argues that the trial court reversibly erred by

failing to include in the jury charge any instructions on bigamy or a reference to

section 25.01. Senn argues that even if we hold under his first issue that section

22.011(f) does not require proof of bigamous conduct, the jury instructions still

contain reversible error because the jury instructions authorized the jury to find in

12In Estes, a panel of this court held that Estes—a married man who sexually assaulted a fifteen-year-old girl who was not his wife or his descendant—satisfied the first criteria of an as-applied equal protection challenge because he demonstrated that he received different treatment than similarly-situated offenders only because he was married. 487 S.W.3d at 744, 748. But putting the focus in Estes’s as-applied challenge on the status of the victim, as contemplated by the “prohibited from marrying” language of section 22.011(f), the victim was a person whom Estes was prohibited from marrying because she was a minor. See Tex. Fam. Code Ann. § 6.205 (West 2006) (stating that marriage is void if either party is younger than sixteen years of age and has not obtained a court order for permission to marry under family code section 2.103). Had Estes been single, the victim still would have been a person whom he was prohibited from marrying. See id. Because using our statutory construction analysis and our as-applied equal protection analysis we would reach a different result than the panel did in Estes, we decline to follow the holding in Estes.

19

the affirmative on the special issue if it found that Senn could not marry Brenda

on any basis, not just his existing marital status. Specifically, Senn argues that

the jury could have concluded that Senn could not marry Brenda because he was

her father instead of because he was currently married to another and that this

possibility negates the finding of bigamous conduct that Senn contends is

required to trigger enhancement under section 22.011(f).

Senn’s arguments under his fourth issue attempt to rephrase arguments

that we have addressed above under his first and second issues. Because we

have held that proof of bigamy was not required in this case and because we

have held that the section 22.011(f) is not vague as applied to Senn, the trial

court was not required to include an instruction on bigamy or section 25.01, nor

was it required to instruct the jury that it could find in the affirmative on the

special issue only if it found that Senn was currently married to another. See,

e.g., Feagins v. State, 142 S.W.3d 532, 541 (Tex. App.—Austin 2004, pet. ref’d)

(“Because the State was not required to prove the elements of evading arrest

[when appellant was charged with assault on a police officer], there was no need

for a jury instruction regarding the reasonableness of [the officer’s] detention of

[appellant].”), cert. denied, 546 U.S. 965 (2005). Because the trial court was not

required to include instructions on bigamy or section 25.01 or to limit the special

issue to Senn’s marital status, we hold that the trial court did not err. See Kirsch,

357 S.W.3d at 649 (stating that in reviewing a jury charge, if we find that error did

not occur, our analysis ends). Accordingly, we overrule Senn’s fourth issue.