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.

 

O P I N I O N

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) 
2

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.” 
3

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.
4

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.
5

[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.
6

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 
7

“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 jurycharge 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 
8

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;
9

(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
10

(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 
11

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, 
12

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. 
13

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 
14

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 
15

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:
16

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. 
17

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 twentythree 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 firstdegree 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.
18

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. 
19

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. 
20

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 
21

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 
22

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 
23

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. 
24

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.
25

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.
26

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.
27

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. 
28

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 
29

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.
30

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.