Salus Populi Suprema Lex Esto
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Michael Ray Senn v. The State of Texas
Case Number: 02-15-00201-CR
Judge: Sue Walker
Court: COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
Debra A. Windsor
Description: 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
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.
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
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).
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[.]
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
“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
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
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).
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.
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
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
“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.
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).
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
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
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
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.
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.
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