PD-0013-19, PD-0014-19, & PD-0015-19 04/10/2019
“Did the court of appeals err in concluding that the enhanced penalty provision for sexual assault under Section 22.011(f) does not require proof of bigamous conduct and can be triggered solely by evidence that Petitioner was married at the time the offense was committed?”
Rodriguez was convicted of multiple sexual assaults against his biological daughter. The offenses were enhanced to first-degree felonies under Tex. Penal Code § 22.011(f), which applies “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 State argued Rodriguez was prohibited from marrying his victim because of his common law marriage to someone else. There was no evidence of actual bigamy (i.e., that Rodriguez married, claimed to marry, or lived as married with the victim).
Rodriguez appealed and argued that § 22.011(f) should be limited to instances of actual bigamy. The court of appeals held, in reliance on Estes v. State, 546 S.W.3d 691 (Tex. Crim. App. 2018), and a footnote in Arteaga v. State, 521 S.W.3d 329 (Tex. Crim. App. 2017), that the State was only required to prove facts showing that the bigamy statute would prohibit him from marrying his victim. The State made this showing by proving he was already married. The court of appeals affirmed the convictions.
Rodriguez argues the court of appeals’ decision conflicts with Arteaga’s stated holding that in order to invoke the enhancement, “[t]he legislature intended for the State to prove facts constituting bigamy.” He notes that other courts of appeals have found this holding to be irreconcilable with footnote 9 and have not followed the footnote. He contends another court of appeals properly found Estes inapposite because Estes was an as-applied challenge to § 22.011(f), not a challenge to the sufficiency of the evidence to support the enhancement. He argues that the statute’s ambiguity justifies consideration of extra-textual factors. In particular, he argues the court of appeals’ interpretation is at odds with the legislative history indicating the statute was directed at “those already identified as bigamists or polygamists, not those who merely had the opportunity to become that, theoretically.