"When a statute, Sec. 22.01(f), Tex. Penal Code Ann. (2011)(sexual assault), creates an element of the offense by citing specifically to another penal statute, Sec. 25.01, Tex. Penal Code Ann. (2001) (bigamy), is it proper to ignore the cited statute and permit conviction based on wholly unrelated non-penal statute, i.e., Sec. 6.201, Texas Family Code (2014) (consanguinity)?"
Arteaga was convicted of multiple counts of sexual assault of a child. The victim was his daughter. The indictment alleged the statutory enhancement that makes the offense 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[,]" the bigamy statute. The jury charge included the Family Code provision that makes a marriage void if, inter alia, one party is the ancestor or descendant of the other. Arteaga did not object. He was convicted and sentenced to life on each count.
On appeal, Arteaga argued that the plain language of the enhancement provision requires proof of bigamy and that permitting enhancement based on consanguinity caused him egregious harm. The court of appeals disagreed. It held that the language of the enhancement was ambiguous because section 25.01 contains some of the enhancement's operative language but not "prohibited from marrying"; one can be prohibited from marrying the victim even if not already married. The court also determined that the legislative history supported this reading and that a contrary interpretation would be absurd. Finally, it held that any error in supplying a Family Code definition was not egregiously harmful because jurors understand that a parent cannot marry his child.
Arteaga argues that the court of appeals did not address the plain language of the statute. The enhancement is "all one sentence" that "specifically references Section 25.01 prohibiting bigamy," and "directly tracks the language of [that] statute." He says it is not absurd to limit the enhancement to punishing bigamy. Alternatively, if the statute is ambiguous, the Family Code provision used by the trial court does not define prohibited marriages but the bigamy statute does.