## In the Court of Appeals Second Appellate District of Texas at Fort Worth

________________ ___________ No. 02

- 15

- 00201

- CR

_______________________ ____

On Appeal from the 213th District C ourt Tarrant County, Te x as Trial Court No. 1308222R

B efore Gabriel, Kerr, and Bassel, JJ. 1 Memorandum Opinion on Remand by Justice Bassel

1 The panel o n the init ial o pinion that was handed down in Ja nuary 2017 consisted of Ju stices Wal ker, M eier, and Gabriel. Justic es Walker and Meier have since ret ire d ; thus, two new pane l members have b een su bsti tute d in their places

. 

### M ICHAE L 

### R AY 

### S ENN 

### , App ellant

V



### . T HE 

### S TAT E OF 

### T EXAS2 MEMORANDUM OPI NION ON REMAND
I. Introduction and Appellate Procedura l History
Th is is the fourt h time that we have dealt with th i s case. 2 As set forth in our January 20 17 initial opinion , Appellant Mi chael Ray Senn sexually assaulted and impregnated his adult biologic al daughter Brenda 3 while he was married to her
step mot her. A jury convicted Senn of prohibited sexual c o n duct, for which he w as sentenced to twenty ye ars ’ imprisonment, 4 and of sexual assault, for which he was sentenced to life imprisonment after the jur y affirmatively answered a special issue statutorily en hancing his sexual

- assault con viction from a secon d

- degree felony to a
f irst

- degree felony under Pena l Code S ection 22.011(f). See Tex. Penal Code Ann. § § 22.011(f) , 25.02(a)(1), (c)

. In the initial appeal, a fter addressing Senn’s four
issues

— challenging the suffici ency of the evi dence to trigg er the enhancement, the

const it utionality of S ection 22.011( f ) as applied to him, and the absence of a bigamy instruction from the jury charge

— we affirmed both of his convictions. See Senn v.

2 We did not request, nor did the parti es fi le, new briefing whe n this case was submitted af ter the recent remand.

3 To prote ct the anonymity of the victim, we use a pseudonym

. See McClen don v. St ate , 64 3 S.W .2d 936, 936 n. 1 (Tex. C ri m. App. [Panel Op.] 1982).

4 Se nn’s notice of appeal states th at he is appealing “from the judgments here tofore ren dere d against him,” b ut he does not raise any issue on appeal related t o his prohi bited

- sexual

- conduct c onv icti on.3 State ( Senn I ), 551 S. W.3d 172, 18 3 (Tex. App.

— Fo rt Worth 2017) , 5 vacated , State v.
Senn ( Se nn II ) , No. PD

- 0145

- 17 , 2 01 7 WL 562 2955 , at * 1 (Tex. Crim. A p p. Nov. 22, 2017) ( no t designated for publication)

. T he Texas Court o f Criminal Appeals vacated
that judgment and remanded t he case to t his court to re evaluate S enn ’ s issues in ligh t of its inte rv ening d ec is i on in Art eaga , in which the court held that under Section 22.011(f), the Texas Legislature “intended for the State to prove facts constituting bigamy.” See Senn I I

, 2017 WL 5 622955 , at * 1 ( quoting Arteaga , 521 S.W.3d at 336 )

. We ren de red a decision on rema nd , s ee Senn v. S t ate ( Se nn III ) , No. 02

- 15

- 00201

- CR , 2018 W L 2 248673 (Tex. App.

— Fort Worth May 17, 2018) ( op. on remand) , but

we withdr ew that opinion on reheari ng and issue d a substitute , Senn v. State ( Senn IV ) , No. 02

- 15

- 00201

- C R , 2018 WL 5291889 , at * 1 (Tex

. App.

— For t Worth Oc t. 25, 2018) (op. on remand and on r e h ’ g) , rev ’ d

, Lopez v. State , 600 S.W.3d 43, 50 (Tex. Crim. App. 2020). On remand and on reh earing , i n consider ing Senn ’ s firs t issue

— which challenge s the sufficiency of t he evidence to trigger the st atutory e nhancemen t under
S e ction 22.011(f)

— a majority of the panel interpreted Arteaga as r equiring the State to

5 In Senn I , we h eld tha t “[ t]he State was therefore not r equired to show that Senn was e nga ge d in a bigamous rela tionship with Bren da under [ S] ecti on 25.01 in ord er to trigg er applicat ion of penal code [S] ection 22.011(f)’s enhancement provision .” Id. at 17 7

. We re ached this ho ldin g after conduct ing a statutory

construction analysis and conc lud in g that the phrase in S ection 22.011(f)

— “pr ohibit ed from marrying”

— is no t tied to S ection 22.01 1(f)’s phrase

— “under [S] e ction 25.01 .” Th ereafte r , the Te xas C o urt of C riminal A ppea ls reje cted this statutory

- constr uction a nalysis in Arteaga v. St ate , 52 1 S .W

. 3d 329 , 335

– 37 (Tex . Crim. App. 2 017)

.4 prove “ facts cons tituting one of the six bigamy prohi bitions listed in [ S ] ection 25.01. ” 6
Id. at *5

. After st at ing that “ no facts exist that Senn com mitted a big amy offense ” with Brenda, the majority held that the evidenc e was “ insufficient to ‘ prove facts constituting bigamy ’ as required by Ar t eaga ’ s hold ing. ” I d. at * 6. We modifi ed the trial

court ’ s judgment on the sexual

- assault conv ictio n to a se cond

- degree felony and

rema nded the case for a new punishment hearing. Id. at *6

– 7. T he S tate filed a petition for dis cretionary review, which t he Court of Criminal Appeal s granted , along
with a peti tion from a cas e deci ded by the Amarillo Court of Appea ls and a petition
from a ca se decided by the Houston First Court of A p peals

. See Lopez , 60 0 S.W.3d at
44. The Court of Criminal Appeals consolida ted the t hre e petition s to address a split amon g the three courts of a pp eals and held th at “ the State does not have to prove commission of bi gamy to trigger t he enhancemen t under Section 22.011( f).
Th e requirement

. . . is satisfied if the State proves that the defendant w as legally

marr ied to someone other than the vi ctim at the t ime of the sexual assau l t. ” I d. at 47

– 48. The Court of Criminal App eals specifically held that “ [t] he evidence that Senn

was ma rried to another when he sexually assaulted the victim was sufficie nt to enhance p unishment under Section 22.011(f ). ” Id. at 49

– 5 0. The c ourt th eref ore

6 Justi ce Gabriel authored t he dis senti ng opinion on remand and on rehearing
a nd stated , “ I would hold that the Stat e w as r equired t o prof fer suffi cien t evidence th at if Senn had married or held himself out to be ma rried to his daughte r, he would have committed b igamy. ” Senn I V , 201 8 WL 529188 9 , at * 8 (Gabriel, J., dissenting)

.5 rever s ed our decision in Senn IV and remanded the case to us to consider S enn ’ s sufficiency clai m in ligh t of its holding and to consi der his remaining claims. Id. at 50. After applying the hold ing from Lopez t o Senn ’ s first issu e and noting that Senn
does not challenge the s ufficiency of the evidence to support the underlying sexual
assault , we hold that th e evidence i s su fficient to trigger the enhan cement und er S ection 2 2.011(f)

. A fte r applying the charge holding in Art eaga to t he jury cha rge here,
we hold that the trial court erred by not in cluding the “ law applicable to the case ” but
that the error was not ha rmful

. We also review hi s two constitutiona l cha llenges but
find them lacki ng. Accordingly, we affirm the trial co urt ’ s judgment s . II. The Evidence i s Sufficie nt to Trigger the Enhancement In his first issue, Senn argues that the evidence is insu fficient to trigge r the

stat utor y enhance men t under Sec tion 22.011( f). Specific ally, Senn argu es that there is

“ no evid ence what soever ” that he wa s engaged in a bigamous relationship with Brenda and that the special issue should not have been submi tte d to the jury.
As set for th above, t he T e xas Court of Criminal Appeals already d eci ded in Lopez that “ [t] he eviden ce that Senn was married to another when he s exually
assaulted the victim was sufficient to enhance punishment under Sectio n 22. 011( f ). ”
Id. at 49

– 50. Yet t his case was remanded to us “ for consideration of Senn ’ s sufficienc y c laim in light of [ t hat ] holding

. ” Id. at 5 0. Senn ’ s s ufficienc y claim , however, i s limited solely to t he alleged lack of big amy evi dence ; nowhere in his brief6 does he challenge the sufficienc y of the evi dence to sup por t the sexual assa ult. 7
Because the State p ut on ev iden ce at trial, includ ing Senn ’ s marriage licens e , showin g that he was married to someone else when he sexu ally assa ulted Brend a, we hold that
the evi dence is sufficient to trig ge r the stat utory enhanc e me n t under Section 22.011(f).
Accordi ngly, we o ve rrule Senn ’ s first issue.
III. The Charge Erro r d id n ot Caus e Actual Ha rm In his fourth issue, Senn argues that t he t rial court reversibly erred by failing to include any i nstructions on bigamy in th e jury c harge. Speci fically, S enn complains
that t h e charge lacks any reference to Section 25.01 “ even tho ugh the b igamy statute is expressly refer ence d in [ Section ] 22.011(f)

. ”
A
. The C h a rge The jur y c harge includ e s the fo llowing special iss u e imme diately after th e sexual

- assault charge : If you find the defendant guilty of sexual assault, you shall answer t he specia l issue. Otherwise , do not answer the special i ssue. For the special iss ue, the Sta t e must p rove be yond a re asonable doubt that at the time th e offen s e of sexual assault, as set out above, was committed, [Brenda] was a person whom the defendant was prohi bited from marrying or purpo rti ng to marry or with whom th e defendant was prohibited f rom livi ng unde r the app earance of being ma r ried.

7 Mo reover, the e vidence dem onstrat e s that Se nn r eferred t o the baby that Bre nda birth ed a s his baby and made the following statement when he was confronted abou t sexually assaulting Brenda : “ If you want it [sex ] and th e girl doesn ’ t say, ‘ No, ’ so you do it anyway, that ’ s not rape is it? ” Se e Te x. Penal Co de Ann. § 22.011(a)( 1), (b )(4).7 Now bea ring in min d the foregoing inst ruction on t h e Special Issue, if you believe from the evidence beyond a reasonabl e doubt that, at th e time of t he offense o f sexual assault , [Brenda] was a person whom the defe ndant was prohi bited from marrying or purporting to marry or with whom the defen dant was prohibited from living under the appearance of being married, t hen you w ill answer “ WE DO ” to the Sp ecial Issue on the verdict for m. Unless you s o find beyon d a reason able doubt, or if you have a reas o nable doubt th ereof, y o u w ill answer “ WE DO N OT ” to the Special Issue

. During the charge conference , Senn objected t o the cha rge ’ s o mission o f “ S e ction
25.01 ” and asked th e trial court to “ include th e definition in 25.01 in the definition

sec t ion of the jur y charge

. ”
B
. Appl icable Law
The Te xas Court of C riminal Appeals set forth in Arteaga how the special issue
under Sect ion 2 2.01 1(f) should be submitted in th e jury charge:
H ere, the spe cial issue subm itted a s part of the sexua l

- assault charge asked th e jury whether it found beyond a reasonable doubt that Arteaga “was prohibited from marrying [Doe].” As we have explai ned, howe ver, the bigamy statute defines wh en a person is p rohibited fr om marrying
ano ther fo r purposes of 22.01 1 (f), not the Fam ily Code

. [ 8 ] Thus, the bigamy statute is “law applicable to th e case” and should have been included in the charge because the jury had to u nderstand what

8 The abstract portion of the charge in Ar t eaga in cluded Texas Family Code Section 6.201 , whi c h def ines when a marri a ge is voi d based on consanguinity

. 521 S.W.3d at 33 2

– 34 ; see also Tex. Fam. Code Ann. § 6.20 1

. That S e ctio n

— like Penal Code Se ctio n 25.01, which does not include mar rying a person in consanguinity as pro hibited bigamous conduct

— doe s not define a criminal offense. The application portio n, however, did not mention the consang ui nity st atute, a nd “ the jury was in structed that it cou ld c on vict Arteaga only under the circumstances allege d in the indictment (i.e. , th at Arte aga was ‘ prohib ite d from marr ying ’ his daughter ). ” Id. at 332.8 “prohibited fro m marrying” mean t before it could determine whethe r Arteaga was guilt y of the allegati ons. T e x . C ode C rim . P roc . [An n.] art. 36.14 (the trial court must set forth the law applicable to the case in the jury charge ); P lata [ v. State ] , 926 S.W.2d [300,] 302 [(Tex. Crim. App. 1996)]

. In contrast, the law of consa nguinity in the Family Code was no t law applicable to the case and sho uld not have been included in t he charge. Plata , 926 S.W.3d at 302

– 03.
521 S.W.3d at 338. The court concluded that the sexua l

- as s a ult jur y charge was
erroneous because it did not prop erly instruc t the jury rega rding t he “ law applicable t o the case. ” I d

. C
. Ch arge - Error Anal ysis
Unl ike the charge in Arteaga , Senn ’ s char ge did not include the cons anguinity

st atute in the abstra ct p ortion of the charge. So the issue her e is not whether the charge erroneously in c luded a reference to a st at ute that was n ot “ law ap plicable to the case ” b ut whether the charge provided the jury with any guidance on how to decide if Senn was “ prohibit ed f rom marrying ” Brenda. See id. at 339 ( citing Tex.
Code Crim. Proc. Ann. art. 36.1 4 , which states that “ the judge sha ll, befo re the

a rgum ent begins, de liver to the jury .

. . a written charge distinctly setting forth the law applicable to the case ” ). Beca use the charge here did not include a s ingle reference to
Section 2 5.01 , the bigam y statute, we conclude that the sexual

- assa ult jury charge in
this case wa s erroneous because it did not properly instruct the jury regardi ng the “ law applicable to the c ase. ” See id.9 D. Harm Analysis Having fo und error, we no w assess har m. When charge error is pre s erved at trial, the reviewing court mu st reverse if the error caused some harm. Rogers v. State , 550 S.W.3d 190, 1 91 (Tex. Cr im. App. 2018); Almanza v. Sta t e , 686 S.W.2d 157, 171 (Tex. Crim. App. 19 85) (op. on reh ’ g). “Some h arm” mean s actu al harm and n o t merely a theoretical compla int. Rog ers , 550 S.W.3d a t 191. There is no burden of proof associated with the harm evaluation

. Id. This evaluation entai l s a review of the whole record, including t he jury charge, contested is sues, wei ght of the probativ e evidence, arguments of couns el, and o ther relevant inf ormati on. Id. at 192. Here, u nlike in Arteaga wh ere the appellant w as not married when he
committed t he sexual assault , the record demonstrates that Senn was m arried to

so meone other tha n Brenda at the time that he committed the sexual as sau lt

. See 52 1
S.W.3d at 339 ( “ Arteaga was not married during the period of abuse

. . . . ” ). Although the jury charge did not defin e “ prohibited from marrying , ” the jury had before it the

un co ntested evidenc e of Sen n ’ s marriage license.
Whether Brenda ha d a mental dise ase or de fect w as a hotly contested issue, but

t he State did no t specific ally argue that Brenda w as a pe rs on whom Senn was prohibited from marrying due to her mental capacity

. See gen erally T ex. Fam . Code Ann. § 6.108 (stating tha t court ma y grant an annulm ent of a marriage to a party to the marriage if the other part y did not have the mental capacit y to co ns ent to marriage or to understand the nature of the marriage ceremony be cause o f a ment al dise ase or10 defect). Instead, in its openin g s tatement t he State menti o ned Brenda ’ s inability to do
certain tasks on her own due to he r diagnosis of “ mild m ental ret ar dation ” and then
tied its closing argument about Brenda ’ s m ental capaci ty to the langu age in the sexual

assault charge by sta ting th at Brenda is “ a pers on with a mental disease or defect ” and
that Senn had known that her wh ole life “ becaus e he ’ s h er dad

. ” 9 The State then moved on to the special i ssue, statin g that [a] s to the Special Issue, we request that you answer, “ W e do, ” that [Senn] was a person who was prohibited from marrying [Brenda]

. Why was he prohibited from ma rrying her? Loo k at State ’ s Ex hibit 2 [Senn ’ s marri age license]

. He was m arried to so mebody else. Y ou heard testimony [about] that , and here ’ s the marr iage lic ense. The defense in its closing argument attempted to rebut the evidence that
Bren da had a m ental dis e a se o r defect. And w ith regard to the specia l issue, defe nse counsel poi nted out in its opening stat ement that the State must pro ve a “ prohibited

mar ital relationship ” and argued in closing ,

9 The jury charge on the sexual

- assault count s t ated,
N ow bearin g i n min d the fore going instructions, i f yo u believe from the evidence beyond a reasonable do ubt, that on or about th e 1st day of May 2011, in Tarrant County, Texas, the defen dant, Michael Ray Senn, did intentionally or knowingly cause the penetr a tion of t he femal e sexual
o rgan of [ Brenda] by i nser t ing defendant ’ s penis in [Brenda ’ s] female sexual org an without the conse nt of [Brenda] , and [Brend a] is a person who [m] t he defend ant knows that as a result of mental disease or defect [ Br enda]
was at t he time o f t he se xual assau lt incapable of appra isin g the nature of the act or of resisting it, then y ou will find [the] defendan t guilty of sexual assa ult as charged in Count One of t he indictment

. [Emphasis added.]11 So in other words, the State ’ s brought yo u testimony a nd evidence that Michael was, i n f act, married

. You have not heard any e vidence, and

. . . [t] here ’ s not hing in th is char ge that tells you it ’ s i llegal for someone who ’ s married then to marry or purport to mar ry or live with someone else unde r the appeara nce of being married.
Th e Stat e a rgued in re buttal, “ If you ’ re married to somebody else, you can ’ t marry [Br enda]. ”
I n co nside ring any other relevant information in the record, we note that t he
record reflects that the jurors sent one note reque sting all submitted evidence , which
would ha v e included S enn ’ s marriage licens e . After pe rforming t he harm analysis pr e scri bed for objected

- to charge error , we

c onclude that the erro r in the charge did not cause Senn act ual harm because the
uncontested evidence show ed that he was married and was the refo re prohibited f rom marrying Brend a . See Rog ers , 55 0 S.W.3d a t 191. Accord ingly, w e overrule Senn ’ s fourth issue.
IV. Sec tio n 22.011(f) i s n ot U nconstitutional as App lied t o Senn 10
In his secon d issue, Sen n argues tha t S ection 22.011(f) is unconsti tut ionally

10 In the petition for discreti o nary rev iew for Senn II , S enn did not challenge this
cou rt ’ s constitutional holdings in Senn I . The Court of Criminal Appeals did not discuss those holdings in Senn II and vacated th is court ’ s judgment only, not i ts opinio n. But in his brief to the Court of Criminal Appeals chal lenging Senn IV , Senn argued th at the Senn I constitutional holdings were premised on this court ’ s mistaken view of the Section 22.011(f) enhancement; thus , those cl aims should be remanded also. T he Te xas Court of Criminal Appeals reman ded this cas e to us “ f o r co nsideration of [Senn ’ s] re maining claims

. ” See Lopez , 600 S.W.3d at 50. T herefore , we a ddr ess Senn ’ s second and third issues that ra ise as

- applied challeng es to Section 22.011(f).12 vague a s applie d to him in vi olat ion of his ri ght to du e process under the Fifth and
Fourteenth Amendments to the United S tates Constit ution

. 11 In his third issue, Senn

a rgue s that S ection 2 2.011(f), as applied to him, violates equal pr otection und er the
Fourteen th Amend ment to the Un ited State s Const itution. 12 We discuss eac h of these constitutional challenges below.
A
. St an dard of Revie w An as

- applied challenge t o the co ns titutionality of a statute ass erts that a statute, although ge nerally con s ti tutional, ope rates unco nstitutionally a s to the
clai mant becaus e of his parti cular circumstances. Faust v. State , 491 S.W.3d 73 3, 743 (Tex. Cr im. App . 2015)

. When revie wing t he constitutionality o f a statute, we
presume that the statute is valid and t h at the legislat ure acted reasonably in en acting i t. Id

. at 743

– 44

. A challenger to the constitutionality of a statut e has the burd en to establish its un constitutionality. State v. Rosseau , 396 S.W.3d 550, 557 (T ex. Crim. A pp. 2013)

.

11 Senn also re lies on due

- course

- of

- la w la ngua ge within t h e Texas c onstit ution but does no t argue t hat the Te x as c onstitution provides greater protect ion than the federal constitution. See Te x. Const. art. I, § 19. Thus, we will an alyze his due

- p rocess claim so lely on federal grounds. See Muniz v. State , 851 S .W.2d 238 , 251

– 52 (Tex. Crim. Ap p. 1993) (holding t h at failure to provide a r ationale for in terpreti ng state const itution more broadly than federal constitution and failure to provide separa te substantive analysi s for state ground forfeits stat e ground)

.

12 Senn also relie s on equal

- rights languag e within th e Texas c onstitution but d oes not argue t hat the Texas constitution provides greate r protection than the federal
co nstitu tio n. See Tex. Co nst. art. I, § 3(a). Thus, we will analyze his eq ual

- protection
c laim sole ly on federal grounds. S ee Mun i z

, 851 S.W

. 2d at 251

– 52.13 B. Sectio n 22.011(f) , a s Applied to Senn, i s n ot Unconstitutio nally Vague a nd Therefor e d oes n ot Vio late Due Process
1. The Law on Reviewing a Vaguen es s Challenge
T o withs t and a vagueness cha llenge , a criminal statute m ust give a p erson of
ordi nary intelligence a reasonable oppo rtunity to know what is prohibited. Kolender v.
L

awson , 461 U.S. 352 , 357, 103 S. Ct. 1855, 1858 (1983); Grayned v. Rockford , 4 08 U.S. 104, 108, 92 S. Ct. 2294, 2298

– 9 9 (197 2) ; Long v. State , 931 S.W.2d 285, 287 (Tex.
Cr im. App. 1996). Fu rther, the l aw m ust establi sh determi nate guidelines for law
enfor cement. Lo ng , 931 S.W.2d at 287.
A statute is not rendered unconstitut ional ly vague merely becaus e words or

terms are not s pe cifically defined. Engelking v. State , 750 S .W.2d 213, 215 (Tex . Crim. App. 198 8); Ahearn v. State , 588 S.W.2d 327, 338 (Tex. Cri m. App. [Pa nel Op.] 1979)

. In stead, undefined terms in a statute are to be g iv en their plai n and o rdinary meaning s , an d word s d efined in dictionari es and with meanings so well

- known as to
be understood by a person of ordinary in telligence are not considere d vague and
indefini te. Watso n v. State , 369 S.W.3d 865, 870 (Tex. Crim. App

. 2012); see Te x. Gov ’ t Code Ann. § 311.0 11(a) (pr oviding that statuto ry “[w]ords and phrases shall be read in

co ntext and co nstr ued accordi ng to the r ules of grammar and common u sage”).
When a court anal yzes a statute pursuant to a vagueness challeng e and w hen, as here, no Fir st Amendment rights are i nvo lved, the reviewing court “need only
scrutin ize the statute to determine wh ethe r it is imp ermissibly vague as applie d to the14 chal lenging part y ’ s spec ific condu ct.” Bynum v. State , 767 S.W.2d 769, 774 (Tex. C rim. App. 198 9). Th e challenging party bears th e burden to establis h that the s tatute is

un constitutional as a pplied to hi m; t hat it migh t be uncons titutional as a pplied to
oth ers is not s ufficien t. S ee Vu ong v. State , 830 S.W.2d 929, 941 (Tex. Crim. A pp
. 1992). We must lo ok at an appellant ’ s cond uct alone and then exam ine whether that
conduct was clearly prohib ited by the stat ute. Cain v. State , 8 55 S.W.2d 714, 718 (Tex.
Cri m. App. 1993 )

. 2. Senn ’ s Vaguene ss Challenges Senn challenges the statute as u nconstitution ally va gue due to (1) lack of no tic e and (2) “standardless” enforce ment. See Jo hnson v. United St ates , 576 U.S . 59 1, 595, 135
S. Ct. 2551, 2556 (2015) (ci t ing Kolen der , 461 U.S. at 35 7

– 58, 1 03 S

. Ct. at 1858)

. Senn contends that the statute is ambiguous as t o it s swath regarding the type of prohibi ted

co n du ct and th e person ( i.e., t he act or or the victim) who is marr ie d. We addre ss each
of his grounds bel ow.

a . Sec tion 22.011(f) Provides Fair Notice of the P rohibited Conduct Senn argues that “the statute fa i ls to provide adequa te notice that being marri ed will subj ect a n offender t o a s ignifica ntly gr eate r punis hmen t for a sexual assault than

a single per son.” Senn contends that “ S ection 22. 011(f) specifically indicates that the
enhancement a ppl ies if the ‘victi m was a person whom the ac to r was proh ibited from marrying .

. . under Section 25.01 ’ ” and t h at “ [r]ev ie wi ng [Section] 22.011(f ) alongside15 [Section] 25.01 would seem to lead an ordinary individual to believe that he must be engaged in a bigamous relat i ons hip to be subject ed to the higher pen alty.”
After o ur initial opinion wa s handed do wn, the Texa s Court of C rim in al Appeal s performed a d etailed statutory

- construction analysi s of Section 22.011(f) in Arteaga and then reiterate d pa rts of that analy sis in Lopez

. See L opez , 60 0 S.W.3d a t
46

– 47; Ar teaga , 521 S.W.3d at 335

– 37. Th e court exp lained that “[t]he k ey t o t he analy sis is the phrase ‘prohibited from ’ and how it is used in the statute

. ” Ar teaga , 521
S.W.3d at 335. In add r ess ing the issue of whether the “prohibi ted fr om marrying or
purpo rting to marry ” enhancement of Sect ion 22.011( f) was limit ed to bi gamy un de r Section 25.01 or also incl uded the Texas F amily C ode ’s ban on marrying a close relative, t he court determined that S ection 22.011(f ) wa s am biguous on thi s poin t
. Lopez , 600 S.W.3d at 46

– 47 (citing Ar teaga , 521 S. W .3d at 33 2

– 3 3, 335

– 36 , and Tex.
F am . C od e Ann. § 6.201) . The c o urt resolved th is grammatical ambigu ity by examining the bigamy statute

— Section 25.01

— in con ju nc tion with Section 22.011(f).
Id. a t 47 ( citin g Ar teaga , 521 S.W.3d at 336)

. The court noted th at the biga my statute
p rohibit s a p ers on fr om engag ing in six ty pe s of conduct and reasoned that Sectio n 22.011(f) ’ s use of the phrase “ prohibited from ” inc or po rated all six biga my
pr ohibitions

. Id. (citing A r teaga , 521 S.W.3d at 3 36 , and Tex. Penal Code Ann. § 25.01). A fter reading S e ct i on 22.011( f) together w ith Section 25.01, t he court
concluded that the l egislature intended for the State , when enhancing puni shmen t under S ection 22.011 ( f) , to prove only fa ct s that would constitut e Section 25. 0116 big amy if th e act or were to marry or p u rp o rt to marry the victim or were to live with
the victim under t he appearance of being married. Senn ’ s cons titutional argument reasons that a person of ord inary intellig ence would not understand Section 22.011(f)
to have s uch a meaning.
We co nclude that th e phrase “prohibited fro m marrying . . . under Section
25.01 ” i s com pos ed of comm on words, s uch that a person of ordinary intelligence would be put on fair notic e of what conduct violate s the statute. The la nguage “ was
p r ohibited fr om marr ying” as u sed in Section 2 2.011( f) is not ambiguous when read
with Sectio n 25.01 , whi ch lists the six types of conduct that a person is prohibited from engaging in. This language focuses on the victim ’ s or perpetrator ’ s s tatus , not whet h er a bigamy offense actual ly oc curr ed. Here, lookin g at Senn’s conduct alone, as

we are re quir ed to d o in an as

- applied challenge , we note that he committed sexual
assault wh ile he w as mar ried to someone other than the victim. See Cain , 855 S.W.2d
at 71 8 . As discu ssed in the ana ly sis of Senn’s first issu e, the State put on evidence of the pre cedi ng facts to p rove up the enhancement

— that Senn w as legally married to

someone ot her than Brend a at the time of the sexual assault and thus was prohibited
from m a rrying Bren da. See Tex. P en al Code Ann. § 22.011(f) ; Lopez , 600 S.W.3d at
46. Section 22. 011( f) is th erefore not vague as applied to Senn bec ause, as a person of ordinary intelligen ce, he had fair notice that the offense of sexual assault might be17 eleva t ed to a fir st

- degree felon y sho uld he commit that of fense against a person he was prohibite d fr om marrying for the reasons enunciated in Secti o n 25.01

. 13
b. Section 22.011(f) d oes n o t Enco urage Arbitrary or “Standardless” Enforcement
Se nn further argues th at he was subj ected to “ st andar dles s” enforcement in this
case becaus e his “ s ta tus as [ Bren da ’ s ] biological fathe r also rendered him subject to the e nhancement. ” 14 E sse nti ally, Senn argues that S ection 22.011(f) is vague because
it does not list eve ry ty pe of mari ta l prohib ition that wi ll t rigger e nhan cement
. The vagu eness doctri ne , however, “is not a principle designed to conve rt into a
constitutional dilemma t he pra cti cal difficulties in drawing criminal statutes both
genera l enough to take into account a va riety o f h uman c onduct and s uffi cien tly speci fic to pro vide fair warning that c ertain kinds of cond uct are prohibited.” Colten v. Kentucky , 407 U.S. 104, 110, 9 2 S. C t. 195 3, 1957 (1972). Instead, a statute is not
vague if it contains ob jective crit er ia for det erm ining what conduct is proh ibited. See
Watson , 369 S.W. 3d at 871.

13 Senn also argues that the statut e is ambiguous because “ [ i ]t is unclear w hether the statute provides fo r harsh er penalty only where the defend ant is married,

. . . only wher e th e victim is married, or bot h

. ” But in analy zin g Sen n ’ s as

- a ppl ied chall enge, we focus our analy sis on his conduct, not on whether the statu te is unc onstitutionally
va gue under other scenarios. See Cain , 85 5 S.W.3d at 718; Bynum , 767 S.W. 2d at 774.

14 S enn al so argue s within th is sec tion of h is brief th at “ t he jury ins tructions failed to prov ide any dire ction as to the type of marital proh ibition [that] triggers li abil it y under the statute. ” W e addressed this argument above within the c harge

- error ana ly sis

.18 H er e, S ection 22.011(f) specifically mentions Secti on 25.01, which contains objective crite ria al erting an actor to the type of situation in which a sexual assault may be enha nc ed to a fi rs t

- degree felony. S ee i d. The Texas Court of Criminal
A ppeal s in Ar te aga , and as reiter at ed recen tly in Lopez , has he ld that the v ersion of Section 22.011(f) th at was in effect when Senn committed the sex ual assa ult was limited t o bigamy and d id not enc omp ass sexual conduct tha t is prohibited by

con sanguinity

. The fact t ha t Senn was als o proh ibited from marrying Brenda because
she was his daughter does not ma ke Sec tion 22.011(f) vague as applied to him

. Cf.
Earl s v. State , 707 S .W.2d 82, 86

– 8 7 (Tex. Cr im. App. 1986) (stati ng t hat the fact that a
pe rson ’ s cond uct violates t wo parts of a statut e or even two different stat utes does not make the statute vague as lon g a s the proscribed conduct is described so as to gi ve a person fair notice that it v iolates the statute); State v . Em pey , 502 S.W.3d 186, 1 93

– 94 (Tex. App.

— Fort W or th 2016, no pet.) (h oldi ng that Penal Code S ection
31.03 (e)(4)(F) d oes not violate due p rocess and d oes not encou rage arbitrary and discriminatory enforcemen t m erely becaus e the prosec uto r c an choose betwe en
p ursu ing alternative but clearly

- defined penal t ies th a t may apply to the same act of
the ft). Be cause S ection 22.011 (f) is general enoug h to t ake into account a variety of human conduct and sufficiently spec i fic to provi de fair warn ing that the act or wi ll b e
pe nalized more harshly if he is prohibited f rom mar rying the vict im

— as Senn is
here

— i t i s no t vague as applied to Senn and therefore does n ot permit arbitr ary enforcement. See Colten , 407 U.S. at 110, 9 2 S. Ct. at 19 57 ; Watson , 369 S.W.3d at 8 71.19 3. Sec tion 22.011(f) i s n ot Unconstitutionally Vagu e a s Ap pl ied to Senn
Because Senn has no t s atis fied his burden to sh ow that S ection 22.0 11(f) is
unconstitutio nally vague specifically as applied to his condu ct , w e hold th at S ection
22.0 11(f) is not uncons titu tio nally vague as applied to him and theref or e doe s not violate d u e process. See ge n erally Estes v. State ( Estes III ) , 566 S.W.3d 342 , 34 7

– 4 8 (Tex. App.

— Fort Worth 20 18, no pet.) (op. on remand) (holding t ha t Section 22. 011(f) did

n ot violate substant ive due pro cess as a pplied to Estes because “ the enhanced

pun ishme nt scheme triggered by Estes ’ s marital status at th e time of the offen se s did not directly limit or subst antially interfere with his right to ma rr y ” ). 15 We ove rrul e S e nn ’ s second issue.
C. S ecti on 22.011(f), a s Applied to Senn, d oes n ot Vi olate Equal Protec ti on When we addresse d Senn ’ s as

- applied equal

- pr otection challenge to Secti on 22.011(f) in Se nn I , the Texas Court of Criminal Appeals had ru le d only on wh e ther
S e ction 22.011(f) was faci ally co ns titutional. Se e Ro s s eau , 396 S.W.3d at 558

. Since
the n, th e Texas Court of Cri minal Appeals has addressed an as

- applied equal

p rotect ion challenge to Section 22.011(f) and has concluded that the stat ut e is
ratio na l ly r elated t o the compelling in tere st th at the State has in protecting children
from s exual abu se. See Estes II , 5 46 S. W .3d at 694, 700, 706

. In E ste s II , the ap pellan t

15 The init i al opinio n from this court, Estes v. S t at

e ( E stes I ) , 487 S. W.3d 737 (Tex. App.

— F ort W o rth 201 6 ), was revers ed b y the Court of Criminal Appe als

. See Estes v. State ( Estes II ), 546 S.W.3d 691 (Tex. Crim. App. 201 8)

.20 had engaged in a sexual relationship with a fourteen

- year

- old girl whi le he was ma rri ed

t o someon e else

. Id. at 694 . T he Court of Criminal Appe al s held that Sectio n 22.011(f), as applied to Estes

— a ma rried m an who was convicted of sexu al assault

—

wa s ra tional ly related to the State ’ s interest in protect ing children from sex ual

ex ploita tio n. I d. at 7 00, 706. Because t he b as i c facts before us are the same as those
in Estes

— a marr ie d man was convicted of sexual assault

— we follow suit and hold that
Sect ion 22. 01 1(f) as applied to Senn is rationally related to the State ’ s inte r est in
prote cti ng c hildren from sexual exploit atio n. See i d. Accordingly, we o verrule Senn ’ s third issue.
V. Conclus ion Having address ed and overruled each of the four issues t hat Senn raised in his
initial brief , w e affirm the trial court ’ s judgments

. /s/ Da bney Bassel Dabney B assel Jus tice
Do Not Publis h Tex. R . Ap p . P. 47.2(b)
Delivered : October 15, 2020